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An Overview On The Prevention Of Corruption (Amendment) Act 16 of 2018 [Part-II]

to cause to forbear such public duty by such public servant or by another public servant, commits an offence under this section.

The punishment is imprisonment for not less than 3 years but upto 7 years AND fine. Here, while fixing the fine, the matters under new Section 16 need not be taken into consideration since Section 7 A is absent in Section 16. This may be an accidental omission in new Section 16.

An Overview On The Prevention Of Corruption (Amendment) Act 16 of 2018 [Part-1] Section 7

Section 9(4) declares that an offence under Section 7A shall be cognizable. Even otherwise, going by Part II of Schedule 1 Cr.P.C this offence would be cognizable and non-bailable.

Essence of new Section 7-A

It would appear as though Section 7A has been introduced to combine old Sections 8 and 9.

But old Section 8 was for punishing a person who takes or agrees to take gratification as a motive or reward for influencing a public servant by corrupt or illegal means in doing or not doing any official act or in the exercise of his official act or in the exercise of his official functions. Similarly, old Section 9 was for punishing a person for taking or agreeing to take gratification for exercising his personal influence with the public servant in doing his official act or in the exercise of his official function. “Corrupt or illegal means” which was present in old Section 8 was absent in old Section 9. Similarly, unlike newly introduced Section 7A, old Sections 8 and 9 did not speak of performance of a “public duty” by the public servant. If the State, the public or the community at large has no interest in the discharge of official function, the new section 7A may not be attracted whereas old Sections 8 and 9 would still be attracted. Hence, it could be said that new Section 7A repeals old Sections 8 and 9 within the meaning of Section 6A of General Clauses Act, 1897 and pending prosecutions under old Sections 8 and 9 would be unaffected by the Amending Act 16 of 2018. There is no indication also in Amending Act 16 of 2018 to the effect that it would govern pending prosecution under old Sections 8 and 9.

commits an offence under this section.

The punishment is imprisonment upto 7 years and /or fine. While fixing the fine, the matters under new Section 16 are to be taken into consideration. What is pertinent to note here is that while for all other offences including the offence of attempt under new Section 15, imprisonment is mandatory, it is not so in the case of a bribe-giver who is the person who actually corrupted the public servant by means of abetment of the offence of taking bribe by the public servant.

Section 9(4) declares that an offences under Section 8 shall be cognizable. Even otherwise, going by Part II of Schedule 1 Cr.P.C this offence would be cognizable and non-bailable.

If the giving or promising to give the undue advantage is by a commercial organisation (as defined under Section 9(3) (a), then such organisation shall be punishable with fine (3rd proviso). This 3rd proviso is redundant in view of new Sections 9 and 10. The recipient of the undue advantage or promise of undue advantage need not be or by the performer of the public duty. (First part of the Explanation).

2)    The giver and promisor of undue advantage are exempted from the penal provision under Section 8 (1) of the Act if the act of giving or promising to give the undue advantage is after informing the law enforcement authority or investigating agency.   In other words, Section 8(2) protects an unwilling decoy from prosecution under Section 8(1).

Essence of new Section 8

New Section 8(1) is primarily intended to make “bribe givers” liable for the offence of bribing public servants. The giver or recipient of the bribe (“undue advantage”) may be a non – public servant or a public servant. The provision is evidently to bust the nefarious racket of touts who corrupt public servants.  The illustrations to Section 7 and Section 8 would clarify that while under Section 7 a public servant takes bribe for doing a right thing (proper thing) in the right way (proper way) in the exercise of public duty, under Section 8(1), a public servant is bribed for making a dishonest preference by means of an improper performance of public duty.  Sub-Section 2 of Section 8 indicates that the offence under Section 8 (1) will not be attracted if the giver or proposed giver (decoy) of undue advantage is an unwilling bribe giver. Old Section 10 which was meant for punishing a public servant for abetting an offence under Sections 8 and 9, has been deleted by Amending Act 16/2018. Old Section 12 which was meant for punishing a person for the abetment of offences by public servants under Sections 7 and 11, has been substituted by Amending Act 16/2018 to make it a general provision meant for the abetment of all offences under the P.C. Act, 1988 as amended.

Prior to the insertion of new Section 8 by Amending Act 16/2018, a statement by a bribe-giver in any prosecution against a public servant for offences under old Sections 7 to 11, 13 or 15 to the effect that he offered or agreed to offer gratification or any valuable thing to the public servant, could be made use of for roping in such bribe-giver under old Section 12. The bribe-giver in such a contingency could enjoy the immunity from prosecution only with regard to a statement of confession made by him in any proceeding against the public servant in view of old Section 24.  But now, after the insertion of new Section 8, old Section 24 has been deleted by the Amending Act 16/2018.  The bribe-giver may not hereafter enjoy such immunity with regard to a statement of confession made in the course of any proceeding against the public servant or made otherwise than in the course of any proceeding against the public servant.

New Section 9 – substituted by Amending Act 16 /2018

This Section introduces corporate criminal liability for bribing a public servant.

As per new Section 9(1), if any offence under the  P.C. Act, 1988 as amended by Amending Act 16/2018 has been committed by a “commercial organisation”, such organisation will be punishable, provided any person associated with such organisation gives or promises to give any undue advantage to a public servant intending to obtain or retain any business or to obtain or retain an advantage in the conduct of the business for such undertaking as provided under clauses (a) or (b) of Section 9(1). The punishment which can be imposed on the organisation is only fine. While fixing the fine the matters in new Section 16 will have to be taken into consideration.

Section 9 (3) (c) defines the “person associated with the commercial organisation” and Explanation 1 to 3 thereof further enlarges the scope of the expression “person associated with such organisation”. While under Section 9(1) the “commercial organisation” is liable to fine only, the “person in charge of such organisation” is under Section 10, made liable to imprisonment for not less than 3 years but which may extend to 7 years AND fine.

The expression “commercial organisation” for the purpose of new Sections 8 and 9 has been defined under Section 9 (3) not only to include a company or partnership firm incorporated or formed in India and carrying on business in India or abroad but also a company or a partnership firm or association of persons incorporated or formed outside India but carrying on business in India. Section 10 enacts that if an offence under Section 9 as amended by Amending Act 16/2018, has been committed by a commercial organisation with the consent or connivance of any director, manager, secretary or other officers of such organisation, such office bearer will be guilty of the offence and liable to be punished with imprisonment and fine. Explanation to Section 10 includes a partner of a firm within the expression “director”.

Another aspect to be noted is that if a director or such other person of a company or a partner of a firm is alleged to have committed an offence under new Section 8 as against a public servant, then new Section 9(2) contains an explanation to the effect that such person can be said to have given or promised to give an undue advantage to the public servant.

Under clause (a) in sub-section (2) of the newly inserted Section      29-A, the Central Government is given the power to make rules by issuing notification in the official gazette laying down the guidelines which can be put in place by commercial organisations under  Section 9.

New Section 10 – Person in charge of commercial organisation to be guilty of offence.

This section makes the director, manager, secretary or other officer of a “commercial organisation” including the partner of a partnership firm, liable for the offence under Section 9 if the following conditions are satisfied:-

İ)   An offence under new Section 9 has been committed by a “commercial organisation” which includes a partnership firm.

AND

İİ)  It is proved in the court that the offence has been committed by the commercial organisation including the partnership firm with the consent or connivance of such director, manager, partner etc.

The punishment under Section 9(1) for the commercial organisation is fine only. The consenting or conniving director etc is punishable with imprisonment for not less than 3 years but upto 7 years AND fine. Even though new Section 9 (4) does not specify that the offence is cognizable, going by Part II of Schedule 1 of Cr.P.C the offence is cognizable and non-bailable.

New Section 11 –  Public servant obtaining undue advantage without consideration from person concerned in proceeding or business transacted by such public servant

Old Section 11 has been retained as such except for certain minor modifications. The expression “valuable thing” in old Section 11 has been replaced by “undue advantage”. Similarly, the expression “public duty” also has been added before the words “official functions” in old Section 11. The words agrees to accept” in old Section 11 have been deleted.

There is a rebuttable presumption under Section 20 that if in a trial for an offence under Section 11 it is proved that the public servant accepted or obtained or attempted to obtain for himself or any other person any undue advantage, such undue advantage was without consideration or for a consideration which he knew to be inadequate under Section 11.

The punishment both for old Section 11 and new Section 11 is the same namely, imprisonment for not less than 6 months but upto 5 years AND fine. While fixing the fine the matters in new Section 16 have to be taken into consideration. Eventhough new Section 9 (4) does not specify that the offence is cognizable, going by Part II of Schedule  1 of Cr.P.C the offence is cognizable and non-bailable.

New Section 12 – Punishment for abetment of offences

This Section prescribes the punishment for abetment of all offences under the Act, as amended even if the main offence which was abetted has been committed or not. The Punishment prescribe is imprisonment for not less than 3 years but upto 7 years AND fine. Since new Section 12 does not find a place in new Section 16, the matters specified under new Section 16 need not be considered while fixing the fine. As in the case of Section 7-A, it may be an omission on the part of the law maker in not including new Section 12 under Section 16. Here also, eventhough new Section 9 (4) does not declare that an offence under Section 12 shall be cognizable, going by Part II of Schedule 1 of Cr.P.C the offence under this Section shall be cognizable and non-bailable.

The Essence of Section 12

Old Section 12 provided for punishing abatement of offences under old Sections 7 and 11 only and the punishment provided was the same as the one prescribed for new Section 12. Old Section 10 was for punishing an abettor public servant of offences punishable under Sections 8 or 9 and the punishment was imprisonment for mot less than 6 months but upto 5 years AND fine. Before the coming into force of Amending Act 16 of 2018, Section 107 IPC had to be invoked for punishing abetment of offences under old Sections 13 (1) (c) and 13 (1) (d). Likewise, Section 109 IPC had to be invoked for punishing abetment of old Section 13 (1) (e). Now, the new Section 12 is a welcome provision which seeks to punish abettors of all offences under P.C Act, 1988 as amended.

New Section 13 – Criminal misconduct by a public servant

A public servant is said to commit the offence of criminal misconduct –

  • if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(Amended Section 23 says that notwithstanding anything contained in the Cr.P.C, when a n accused is charged with an offence under Section 13 (1) (a), it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 Cr.P.C).   

  • if he intentionally enriches himself illicitly during the period of his office.

 Explanation 1 –  A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

 Explanation 2 –   The expression “known sources of income” means income received from any lawful sources.               

  • The punishment for the public servant committing criminal misconduct is imprisonment for a term not less than 4 years but upto 10 years AND For fixing the fine the matters in new Section 16 are to be taken into consideration. Here also, eventhough new Section 9 (4) does not declare that an offence under Section 13 (2) is cognizable, going by Part II of Schedule 1 of Cr.P.C, this offence would be both cognizable and non-bailable.

Notes on new Section 13

Old Section 13 (1) (a) (which was for punishing a public servant who habitually commits an offence under old Section 7) has been deleted and instead, a second offender after a previous conviction is treated as a habitual offender and attempted to be dealt with under new   Section 14.

Old Section 13 (1) (b) (which was for punishing a public servant habitually committing an offence under old Section 11 where a public servant accepts or obtains etc. any valuable thing without consideration from a service-seeker) has been deleted and instead, a second offender after a previous conviction is treated as a habitual offender and attempted to be dealt with under new Section 14.

Old Section 13 (1) (c) is re-enacted as new Section 13 (1) (a).

Old Section 13 (1) (d) has been deleted possibly on the footing that it is included in new Section 7. It has already been seen in the notes under Section 7 that there is a difference between old Section 13 (1) (d) and new Section 7 and that new Section 7 does not have the effect of repealing old Section 13 (1) (d).

Old Section 13 (1) (e) is re-introduced as new Section 13 (1) (b) with certain changes. Instead of the words “a public servant who cannot satisfactorily account for his possession of pecuniary resources or property disproportionate to his known sources of income” which was the gravamen of the offence under old Section 13 (1) (e), the new Section 13 (1) (b) uses the words “the public servant enriches himself illicitly” which words are attempted to be elucidated through Explanation 1. The words “known sources of income” occurring in the said Explanation 1  in new Section 13 (1) (b) are, in turn, sought to be explained through Explanation 2 as per which income received from any lawful source can be treated as “known sources of income” within the meaning of Explanation 1 to new Section 13 (1) (b). The old provision in the Explanation to old Section 13 (1) (e) that the receipt of the income should have been intimated   under the laws or rules governing the public servant, has been discontinued in Explanation 2 to new Section 13 (1) (b). Since Explanation 2 to new Section 13 (1) (b) has the effect of mollifying the rigour of the Explanation to old Section 13 (1) (e), there is the likelihood of Courts applying Explanation 2 to new Section 13 (1) (b) in prosecutions under old Section 13 (1) (e) pending on the date of coming into force of Amending Act 16 of 2018 and thereafter. This is because, the prohibition of Article 20 (1) of the Constitution of India to enact ex post facto laws (retrospective penal laws) has no application to a law which only mollifies the rigour of an existing penal law. (vide Rattan Lal  v.  State of Punjab – AIR 1965 SC 444; State v. Gian Singh – AIR 1999 SC 3450).

The expression “intentionally enriches himself illicitly” in new Section 13 (1) (b) is capable of creating some confusion. There are unintentional enrichment like temporary misappropriation etc. which are also punishable under the general law. Hence, the words “illicitly enriches himself” might have been more appropriate.

New Section 14 – Punishment for habitual offender

As already stated, a second offender after a previous conviction is treated as a “habitual offender” under this Section. The punishment prescribed under Section 14 is imprisonment for not less than 5 years but upto 10 years and fine. While this may be enhanced punishment for a second offender who has been convicted earlier for offences under new Sections 7, 7-A, 8, 10, 11 and 12, this cannot be enhanced punishment for a second offender who was earlier convicted under new Section 13 (2) except for the mandatory minimum sentence.

New Section 15 – Punishment for attempt

This Section seeks to punish an attempt to commit an offence under Section 13 (1) (a) only which is dishonest or fraudulent misappropriation or conversion by a public servant. The punishment is imprisonment for not less than 2 years but upto 5 years. There is no fine prescribed for the offence and, therefore, imprisonment is mandatory. The attempt by a public servant to obtain undue advantage could have been taken out of new Section 7 and included under Section 15. There is no logic or reason why attempt to commit other offences under the Act are not expressly made punishable under Section 14.  

As mentioned earlier, the non-inclusion of new Section 7-A and new Section 12 in amended Section 16, may be an accidental omission.

New Section 17-A – inserted by Amending Act 16/2018

17-A –   Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties

  • of the Union Government in the case of a person who is or was employed in connection with the affairs of the Union, at the time when the offence was alleged to have been committed.
  • of the State Government in the case of a person who is or was employed in connection with the affairs of the State, at the time when the offence was alleged to have been committed.
  • the Authority competent to remove the person at the time when the offence was alleged to have been committed, in the case of any other person.

First proviso – No such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person. (Such cases may be mainly trap cases).

Second proviso The Authority competent to grant approval shall convey its decision within 3 months which may be extended by one more month for reasons to be recorded in writing.

Notes on new Section 17-A

This Section has become the source of confusion and multifaceted interpretations with regard to its applicability to pending actions in respect of offences committed prior to the incorporation of new offences under Amending Act 16 of 2018. My humble endeavour is to steer clear of any lingering doubt in this area. Some of the propositions of law are too well known that they continue to be immutable.

  • The law as it existed at the time of commission of the offence would govern the rights and obligations of the parties. Section 42 (2) of NDAS Act, 1985 which directed that the information in writing should be given to the official superior forthwith was amended with effect from 02-10-2001 to say within 72 hours. Where the trial was on 04-07-1998, the S.C held that the un-amended Section 42(2) insisting on the giving of application forthwith, would apply.

 (Vide Suckdev Singh v. State of Haryana (2013) 2 SCC 212 at pages      219 to 222)

(2)   It is a cardinal principle of construction that every statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.

(vide Keshavan Madhava Menon v. State of Bombay – AIR 1951 SC 128 at page 130; Janardhan Reddy and Others v. State – AIR 1951 SC 124 at page 127; Mahadeolal Kanodia v. Administrator General of West Bengal – AIR 1960 SC 936 at page 939; State of Bombay v. Vishnu Ram Chandra – AIR 1961 SC 307 at page 309; Arjan Singh and Another v. State of Punjab and Others -AIR 1970 SC 703 at page 705; New Theaters (Carnatic Talkies) Ltd, Coimbatore v. N. Vajrapani Naidu – AIR 1984 SC 1; Mithilesh Kumari v. Prem Bihari – AIR 1989 SC 1247 at page 1253; State of M.P. and Others v. Rameshwar Rathod – AIR 1990 SC 1849; Zile Singh v. State of Haryana and Others – AIR 2004 SC 5100 at page 5103; C. Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd. – (2007) 7 SCC 171; Yadav J.S v. State of U.P and Another – (2011) 6 SCC 570 para 24; Monnet Ispat and Energy Ltd. v. Union of India and Others – (2012) 11 SCC 1 at page 90.

(3)     The above proposition of law is based on the Latin maxim –

nova constitutio futuris  formam imponere debet non praeteritis  –  (a new law ought to regulate what is to follow,  not the past ; a new law ought to be prospective and not retrospective).

(vide Purbanchal Cables and Conductors Pvt. Ltd. (M/S) and Others v. Assam State Electricity Board and Another-(2012) 7 SCC 462; Monnet Ispat and Energy Ltd. v. Union of India and Others – (2012) 11 SCC 1).

 (4)     The rule that an Act of Parliament is not to be given retrospective effect apples only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure of the admissibility of evidence or the effect which the courts give to the evidence (vide Blyth  v.  Blyth – (1966) 1 All ER 524 at page 535).       

(5)     In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure, are presumed to be retrospective unless such a construction is textually impermissible. (vide Delhi Cloth & General Mills Co. Ltd   v.  CIT, Delhi – AIR 1927 PC 242 ; Jose De Costa v. Bascora Sadashiva Sinai Narcorium – AIR 1975 SC 1843; Gurbachan Singh v. Satpal Singh – AIR 1990 SC 209; Hitendra Vishnu Thakur v. State of Maharashtra – AIR 1994 SC 2623 – para 25 (i). If the new Act affects matters of procedure only, then prima facie, it applies to all actions pending and future (vide A. G  v.  Vernazza – (1960) 3 All ER 97 at page 100; K. Eapen Chako v. Provident Investment Company (P) Ltd – AIR 1976 SC 2610 at page 2617).

 (6)     A statute which not only changes the procedure but also creates new rights and obligations shall be construed to be prospective unless otherwise provided either expressly or by necessary implication (vide Hitendra Vishnu Thakur v. State of Maharashtra – AIR 1994 SC 2623 at page 2641; Maharaja Chintamani Saran Nath  Shahdeo  v.  State of Bihar – AIR 1999 SC 3609 at page 3614; Shyam Sunder v. Ram Kumar – AIR 2001 SC 2472 at page 2482).

 (7)      Benefit of mollification of the rigour of the sentence under an    existing penal statute can be retrospectively applied. (vide Ratton Lal  v.  State of Punjab AIR 1965 SC 444; State  v. Gian Singh AIR 1999 SC 3450)

(8)     Applicability to pending proceedings

Courts have leaned very strongly against applying a new law to     pending proceedings unless the language is sufficiently clear.(vide United Provinces v. Atiga Begum AIR 1941 FC 16; K.S. Paripoornan v. State of Kerala AIR 1995 SC 1012; State of Punjab v. Bhajan Kaur AIR 2008 SC 2276 – para 18)

The mandate of Section 6 of General Clauses Act, 1897, is simply to leave unaffected the pending proceedings commenced under the repealed provisions unless a contrary intention is expressed. (vide Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co. – (2001) 8     SCC 397).

My view regarding new Section 17 – A

In the light of the judicial pronouncements referred to above, what is, therefore, to be examined is the Amending Act as a whole and not any particular Section thereof. If the purport of the amending statue as a whole is to create new liabilities, then just because a provision thereof provides for a condition precedent before commencing inquiry or investigation by the police, it cannot be argued that the statute as a whole deals with procedure only so as to conclude that it has retrospective operation and applies to pending matters as well. First of all, no procedure regarding enquiry, inquiry or investigation is dealt with by Amending Act 16 of 2018. All that the new Section 17A provides for is a pre-condition for the commencement of enquiry, inquiry or investigation and a time limit for complying with the said pre-condition. Moreover, the Section applies only to an enquiry, inquiry or investigation into an offence under the Act (as amended). Almost all the offences such as new Sections 7, 7A, 8, 9, 10 12, 13, 14 and 15 under Amending Act 16 of 2018, are new offences different from the existing offences. So, the Amending Act dealing with substantive rights cannot, by any standard, be taken as procedural in nature so as to be applied to pending matters involving the existing offences. Even on the face of new Section 17-A what it prohibits is an enquiry, inquiry or investigation by a police officer. If a Criminal Court were to order investigation or further investigation under Section 156 (3) Cr.P.C or under Section 173 (8) Cr.P.C at the pre-cognizance stage or to order further investigation under Section 173 (8) Cr.P.C at the post-cognizance stage, I do not think that the interdict on the police officer under new Section 17-A can operate. (In this context, I have my own reservations on the judicial pronouncements which say that a Criminal Court cannot suo motu order further investigation under Section 173 (8) Cr.P.C after taking cognizance of the offences. To my knowledge, the verdict of the Supreme Court of India in Hemant Dhasmana v. CBI – (2001) 7 SCC 536 = AIR 2001 SC 2721 to the effect that when a Criminal Court orders further investigation under Section 173 (8) Cr.P.C, the Court is really triggering into motion the powers of the police under Section 173 (8) Cr.P.C, has not been dissented from or overruled so far. Hence, if the police can initiate further investigation under Section 173 (8) Cr.P.C either at the pre-cognizance stage or at the post-cognizance stage, there is no reason why the Court cannot suo motu trigger into motion the power of the police under Section 173 (8) Cr.P.C even at the post-cognizance stage). Similarly, if the Court were to order the officer-in-charge of a police station (“SHO” for short) to conduct a preliminary inquiry and based on such inquiry to register or not to register a crime, it may be puerile to argue that the interdict under Section 17-A is attracted.

The new Section 17-A appears to be too vulnerable to withstand judicial scrutiny. After the decision of the Apex Court in Vineet Narain v. Union of India – (1998) 1 SCC 226 = AIR 1998 SC 889, it is not open to the Government or to anybody else to interfere with the freedom of the SHO in the matter of mandatory registration of a cognizable offence, commencement of investigation and finally arriving at the decision as to whether the accused should or should not be placed for trial. New Section 17-A does interfere with the above freedom of the SHO. If the said provision is sought to be justified as a measure of safety for the public servant, it is pertinent to note that there are sufficient safeguards such as preliminary inquiry (vide T. Sirajuddin v. State of Madras – AIR 1971 SC 520 – the scope of which has been misinterpreted in Lalita Kumari’s case) at the pre-registration stage and then the protective insulation in the form of prosecution sanction under Section 19 of the P.C Act, 1988. New Section 17-A runs counter to the provisions of Cr.P.C which, in the absence of any special provision in the P.C Act, governs the procedure to be followed by the police. This Section has been introduced by way of colourable exercise of power with a view to circumvent the binding verdict of the Constitution Bench of the Supreme Court of India in Subaramanyan Swamy (Dr) v. Director, CBI and Another – (2014) 8 SCC 682 = AIR 2014 SC 2014 – 5 Judges) wherein Section .6 (A) (1) of the Delhi Special Police Establishment Act, 1946 was struck down as violative of Article 14 of the Constitution of India. This new Section 17-A also inhibits the mandate of speedy trial guaranteed under Article 21 of the Constitution of India since the right to speedy trial is available even at the stage of investigation (vide Vakil Prasad Singh v. State of Bihar – (2009) 3 SCC 355.

Meaning of the words “where the alleged offence is relatable to any recommendation made or decision taken by the public servant in discharge of his official functions or duties” in new Section 17-A

I am really at a loss to understand the meaning of the above words occurring in new Section 17-A. The Section does not say whether the recommendation or decision should be in writing. So, the recommendation or decision can be oral as well. One cannot conceive of an offence by a public servant without conveying his decision (oral or written) to the bribe-giver or to the abettor about his willingness to take bribe or influence another public servant. Likewise, if a public servant were to illicitly enrich himself, then without taking a decision in that behalf and conveying his inclination to a potential bribe-giver, it may not be possible to say that the offence of unlawful enrichment under Section 13 (1) (b) is not relatable to any decision taken by him so as to exclude the operation of new Section 17-A. Similarly, an oral or written recommendation by a public servant can be the cause for the receipt of an undue advantage by a public servant. It cannot, therefore, be said that there are offences under the Act not relatable to any recommendation made or decision taken by a public servant in the discharge of his official functions or duties, unless of course, he commits some other offence in his personal capacity. No attempt has been made to specify the offences covered by new Section 17-A. In my humble view, the above words do not have the character of excluding any particular class or category of offences from the applicability of new Section 17-A. In the absence of an intelligible differentia discernible from those words, a conclusion that arbitrariness and unreasonable classification are writ large in the above wording of new Section 17-A.

To sum up, subject to the vulnerability of new Section 17-A to be struck down as a provision impeding speedy trial, as a measure to resurrect Section 6-A (1) of Delhi Special Police Establishment Act, 1946 in a different form without any intelligible differentia and to get over the binding verdict of the Constitution Bench in AIR 2014 SC 2014, as a provision which is ex facie discriminatory and devoid of sufficient guidelines new Section 17-A–

  • is applicable only to Investigation, inquiry, enquiry etc. by a police officer in respect of the new offences under P.C Act, 1988.
  • is applicable only to investigation, inquiry or enquiry by a police officer without any order of Court.
  • is applicable only to prosecutions for offences under the P.C Act, 1988 as amended and not applicable to pending prosecutions for the old offences.
  • is not applicable to investigation, inquiry or enquiry by a police officer in compliance of an order of Court.

New Section 18-A – inserted by Amending Act 16/2018

New “Chapter IV-A”

18-A.   Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under this Act

This new Section placed under a separate chapter as “Chapter IV-A”, provides for attachment and eventual confiscation of ill-gotten properties (i.e. proceeds of crime) by amalgamating the procedures under the Criminal Law Amendment Ordinance, 1944 and the Prevention of Money Laundering Act, 2002 (“PML Act” for short). Sub-section (2) of new Section 18-A declares that references to “District Judge” in the Criminal Law Amendment Ordinance, 1944 shall be construed as references to the “Special Judge” under P.C Act, 1988.

An offence punishable under the P.C Act, 1988 is a scheduled offence by virtue of Entry 4-A of the Schedule to the aforesaid Ordinance as per which an application for attachment of the money or property believed to be constituting the proceeds of crime, can be made before the District Judge (the Special Judge if it is trial of an offence under the P.C Act, 1988) whether or not the Criminal Court concerned has taken cognizance of the scheduled offence. Instead of the offences punishable under old Sections 7, 8, 9, 10 and 13 of P.C Act, 1988 which were included in paragraph 8 of Part A of the Scheduled to the PML Act, offences punishable under new Sections 7, 7-A, 8, 9, 10, 11, 12, 13 and 14 have been incorporated as per Section 19 of Amending Act 16 of 2018. Since what has been included under Entry No.4-A of the Schedule to the Criminal Law (Amendment) Ordinance, 1944, is an offence punishable under the Prevention of Corruption Act, 1988, there is an incorporation by reference dispensing with the necessity to incorporate the new offences under the P.C Act in the Schedule to the said Ordinance.

Section 19 as amended by Amending Act 16/2018

Explanation to Section 19(1)

For the purpose of Section 19 (1), the expression “public servant” includes a person –

  1. who has ceased to hold the office during which the offence is alleged to have been committed;  or
  2.  who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.  

First proviso to Section 19(1)

A request to the appropriate Government or competent authority for prosecution sanction can be given by –

  • a police officer, or
  • an officer of an investigation agency, or
  • an officer of other law enforcement authority.

A request to the appropriate Government or other authority for prosecution sanction can be made by a person other than the three categories of officers mentioned above, only if –

  • (i) such person has filed a complaint for prosecution of the public servant in a competent Court,  and
  • (ii) the Court –

has not dismissed the complaint under Section 203 Cr.P.C

AND

has directed the complainant to obtain the prosecution sanction for proceeding further.

Second proviso to Section 19(1)

In the case of a request for prosecution sanction made by a private person as above, the appropriate Government or the competent authority shall not accord the sanction without providing for an opportunity of being heard to the public servant concerned.

 Third proviso to Section 19(1)

After the receipt of the proposal requiring prosecution sanction, the appropriate Government of the competent authority shall endeavour to convey its decision within 3 months of the date of receipt of the proposal.

Fourth proviso to Section 19(1)

In case where, for the purpose of grant of prosecution sanction, legal consultation is required, the above 3 months’ period may, for reasons to be recorded in writing, be extended for a further period of 1 month.

Fifth proviso to Section 19(1)

The Central Government may prescribe such guidelines as may be necessary, for the purpose of sanction for prosecution of a public servant.

(As per clause (b) of sub-section (2) of the newly inserted Section 29-A the Central Government is given the power to make rules by issuing notification in the official gazette laying down the guidelines for sanction of prosecution under Section 19 (1). 

(2) If any doubt arises as to whether the previous sanction should be given by the Central Government or the State Government or any other authority,

such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3)       Notwithstanding anything contained in the Code of Criminal Procedure, 1973 –

(a)       no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b)       no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c)       no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings

(4)       In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

 Explanation.For the purposes of this section,–

(a)  error includes competency of the authority to grant sanction;

(b)     a sanction  required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

Notes on amended Section 19

An important departure from old Section 19, made by amended Section 19 is that prosecution sanction is insisted even in the case of a retired public servant or a public servant who has ceased to occupy the post which he held while committing the offence but instead is occupying some other post. No prosecution sanction was necessary under old Section 19 with regard to both categories of public servants referred to above. The present amendment is evidently to make the provision in conformity with Section 197 Cr.P.C as per which prosecution sanction is necessary in the case of serving and retired Government servant. This is a welcome change.

Yet another deviation made is with regard to the mode of obtaining prosecution sanction in a case where the public servant is prosecuted under the Act by means of a private complaint. In the case of a private complaint, two pre-conditions are insisted upon for making a request for prosecution sanction. The first condition is that a private complaint should have been filed in a competent Court and the second condition is that the Court has not dismissed the compliant under Section 203 and has directed the complainant to obtain prosecution sanction. In the case of a private complaint, it has now become the responsibility of the Court to direct the complainant to obtain prosecution sanction. There is a further deviation made in the case of a request for prosecution sanction made by a private complainant. The accused public servant is given the right of an opportunity of being heard before the sanctioning authority if the request for prosecution sanction is made by a private person. But if the request for prosecution sanction is made by a police officer or by an officer of an investigating agency or an officer of any other law enforcement agency, the accused public servant has not right of hearing before the sanctioning authority. It is well settled that the act of granting prosecution sanction is an administrative function and the accused has no right to be heard before the authority competent to grant sanction. (vide K. Veeraswami v. Union of India – (1991) 3 SCC 655 – 5 Judges; State of Bihar v. P.P Sharma – 1992 Supp. (1) SCC 222 = AIR 1991 SC 1260; State of Maharashtra  v. Eshwar Piraji Kalpatri – (1996) 1 SCC 542 = AIR 1996 SC 22; State of M.P  v.  Dr. Krishna Chandra Saksena – (1996) 11 SCC 439; Supdt. of Police (CBI) v. Deepak Chowdhary – (1995) 6 SCC 225 = AIR 1996 SC 186; State Anti-Corruption Bureau v. P. Suryaprakasam – 1999 SCC (Cri) 373; Subramanian Swamy  v.  Manmohan Singh – (2012) 3 SCC 64; P.L Tatwal  v.  State of M.P – (2014) 11 SCC 431).

There is no intelligible differentia made in discriminating between the authorities and private complainants seeking prosecution sanction. There cannot be any presumption that the request for prosecution sanction if made by the police or other authorities, will be honest or genuine and the one made by private persons will be dishonest and not genuine. There can be both honest as well as dishonest requests for prosecution sanction both by the authorities and private persons. That apart, if an opportunity of being heard is given to the accused in requests for prosecution sanction by private persons, it can only add to the delay violating the principle of fair trial and speedy trial flowing from Article 21 of the Constitution of India. When legal consultation by the sanctioning authority is recognised by the fourth proviso to Section 19 (1), there is no reason why in cases instituted by means of a private complaint, the sanctioning authority who is discharging purely an administrative function should give the accused an opportunity of being heard. Moreover, that day in which a public servant prosecuted by the police or other authority may claim a right of hearing before the sanctioning authority, may not be far of.            

Amended Section 20

20 –  Presumption where public servant accepts any undue advantage

Where, in any trial of an offence punishable under Section 7 or under Section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage form any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11.

Notes on amended Section 20

While under old Section 20 a rebuttable presumption was permitted to be drawn in prosecutions under old Sections 7, 11, 12, 13 (1)(a), 13 (1) )(b) and 14, the substituted Section 20 permits such a presumption to be drawn only in prosecutions under Sections 7 and 11 only.

Amended Section 23

23 –  Particulars in a charge in relation to an offence under Section 13 (1) (A)

In the place of old Section 13 (1) (c) in old Section 23, new Section 13 (1) (A) has been substituted to say that in a prosecution for an offence under new Section 13 (1) (a) it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed and the dates between which the offence is allege to have been committed, without specifying particular items or exact dates.

 Eventhough the offence for which this Section was amended was new Section 13 (1) (a), by some accidental mistake, Section 13 (1) (A) has been mentioned instead of Section 13 (1) (a).  

New Section 28-A inserted by Amending Act 16/2018

28-A – Power to make rules

The Central Government has been given the power to make rules inter alia to provide for guidelines which can be put in place by commercial organisations under Section 9, guidelines for sanction of prosecution under Section 19 (1).

My Conclusion

To sum up, my humble opinion is that it is too early to think of an amendment to the existing penal provisions of the Prevention of Corruption Act, 1988 since the case-law on the said Act has not reached its optimum level. Barring a few judicial interpretations particularly on old Sections 7 and 13 (1) (d), the law of corruption as administered under the provisions of the existing P.C Act, 1988 is adequate enough to combat the vice of corruption. Now it will take not less than a decade for the new penal provisions to get finally established through judicial interpretations and justice may very often be the causality whenever a wrong verdict holds the field for an appreciably long period. The present amendment seems to be premature and uncalled for. Plugging the small loop holes in the existing law could have saved the situation.

In my humble view, there was no necessity to rush through a drastic amendment of the existing law which by and large, was adequate enough to cope up with the requirements of law. This amendment is going to be more harmful and counter-productive to the system rather than advancing it or rationalising it.

Justice v. Ramkumar is a  Former Judge, at High Court of  Kerala

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