Prevention of Corruption Act 1988 Legal Article

Prevention of Corruption Act 1988 Legal Article

 Author:VIKASH SINGH, a Student of IIMT COLLEGE OF GREATER NOIDA

Preface, History and Need of this Act:

Corruption is one of the anti-social rudiments and constituents which present in the whole world’s countries from an ancient time. Corruption is a complaint from which the whole country of India is veritably affected. Corruption has an ancient history, the kautilya has written a book Arthashatra is states that “it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up at least a bit of the king’s revenue”. 

When the Britishers came into India, they made Indian Kings/lords Corrupted by the overdue Advantage. The Britisher made India slave by Corrupting the Kings/lords of India. Britisher made the kings puppet and kings followed the orders and instructions of the Britisher because they gave all types of gratification to kings. Corruption is one of the reasons why the Britishers overpower India.         

After Independence, India’s situation was very serious regarding corruption and everyday newspaper printed a new fiddle, fraud and scandal. Some popular scam is these, the 1948 Jeep Scam, the 1951 Mudgal case, the 1971 Nagarwala Scam, 1986 Bofors Scam (Rajiv Gandhi was accused of brokerage), 1993 Jharkhand Mukti Morcha bribery Scandal (P.V Narsimha Rao was accused), 1996 Fodder scam (Lalu Prasad Yadav found guilty), 2013 Augusta Westland. The list of corruption is not short but here are some popular and relevant cases.      

 After seeing this crucial condition of India Dr. Ram Manohar Lohiya gave a relevant statement on corruption is that “the relationship between the throne and business has become so corrupted and dishonest in India that it has not happened in the history of the world”. 

To solve the problem of corruption the legislature of India constitute an Act which name Prevention of Corruption Act 1988. The Prevention of Corruption Act 1988 came into existence by the legislature to fight the evil of corruption which is present in Indian Society in huge amounts. This act also fights malpractices in government and public sector business in India. This Act gives power to the central Government to appoint judges to investigate and try those cases which have been committed by the offences like offences punishable under the act and conspiracy to commit or an attempt to commit the offences under this act. The Act came into force in September 1988 and this act has a total of 5 chapters and 31 sections.

FEATURES OF THIS ACT: THE FOLLOWING ARE SOME OF THE IMPORTANT FEATURES OF THIS ACT: 

1. This act contains 5 chapters and 31 sections and these are the names of the chapter as follows:

CHAPTER I            Preliminary (Section 1 to Section 2) 

CHAPTER II          Appointment of Special Judges (Section 3 to Section 6) 

CHAPTER III        Offences and Penalties (Section 7 to Section 16)

CHAPTER IV        Investigation into cases under this act (Section 17 to Section 18)

CHAPTER V         Sanction for prosecution & other miscellaneous provision 

                                                                                                             (Sec 19 to Sec 31).  

2. Section 2 of this Act clearly defines the definition of Public Servant 2(c),  Election 2(a), Undue Advantage 2(D) and Public Duty 2(b). 
3. This act mentions that the minimum rank of Deputy superintendent of police is required for the investigation under this Act, Cases cannot be investigated below the rank of deputy superintendent.  
4. According to this act Special Judge is appointed by the central government and state government by the notification in the official gazette.    
5. This act clearly states that the Trial is excluded within 2 years if the trial is not complete then further extend for 6 months and extend only 4 times in such conditions.
6.  This Act deals with corrupt acts such as bribes, misappropriation, obtaining a pecuniary advantage, possessing assets disproportionate to income and the like.
7. According to this act High Court may exercise all the power of Appeal and Revision conferred by the CrPC.
8. It has shifted the burden of proof from the prosecution as mentioned in the CrPC to the accused who is charged with the offence.   

IMPORTANT PROVISION OF THIS ACT 

This act contains 5 chapters And 31 sections and some important provision stated below:

The first Chapter of the Prevention of Corruption Act contains Sec 1 and Sec 2 and  Section 2 of the Prevention of Corruption Act includes several important definitions that help clarify the scope and application of the Act.

Section 2(a) defines the term election, as follows election means any election including selecting members of Parliament or Legislature, local authority or other public authority.    

Public duty 2(b) means “a duty in the discharge of which the State, the public or the community at large has an interest.” 

The Act defines a public servant 2(c)as: 

• Any person who gets remuneration from the Government for the performance of any public duty.
• Any person who gets remuneration from the Local Authority for the performance.
• Any person in the service of a corporation established by Central, Provincial or State Act.
• Any Judge is considered a Public Servant.
• Any Person authorised by a court of justice to perform any duty.
• Any Arbitrator or other person to whom any cause for decision by a Court of Justice.
• Any person who holds an office by virtue of which he is powered to prepare, publish, and maintain part of the election.
• Any person who holds an office by which he is authorised to perform any public duty.     

  Section 2(d) defines the term Undue Influence as follows Any gratification whatever other than legal remuneration.

The second Chapter of the Prevention of Corruption Act contains sections 3 to section 6    and  Sec 3 of the Prevention of Corruption Act includes the appointment of judges.  The appointment of special judges under the Prevention of Corruption Act of 1988 is an important aspect of corruption cases. The Act realised the need for expeditious disposal of corruption cases and established special courts or designated specific judges to hear such cases. Section 3 of the Act the ‘Power to appoint special Judges’. It mentions “The Central Government or the State Government may, by declaration in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or such case or group of cases as may be specified in the notification to try the following offences, namely: (a) any offence punishable under this Act; and (b) any conspiracy to commit or any attempt to commit or any assist  of any of the offences specified in clause (a).” The Act also highlights that “A person shall be qualified for appointment as a special Judge under this Act if he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure,” as mentioned in Section 3(2) of the Act.  Section 5 of the Prevention of Corruption Act deals with the cases triable by special judges. Section 6 of this act deals with the procedure and power of the judge.

The third Chapter deals with the penalties and offences this chapter contains section 7 to section  16 and some important penalties and offences here of this act.

SECTION 

OFFENCES

PUNISHMENT

Sec 7 

Bribery taken by Public Servant.

Imprisonment  minimum  3 years and maximum of 7 years and  Fine 

Sec 7(a) 

Taking undue influence by corrupt/illegal means to influence a public servant

Imprisonment is  minimum  3 years and a maximum  7 year and a Fine

Sec 8

Who gives bribery to public servant.

Imprisonment maximum 7 year and a Fine or both 

Sec 9

Bribery given to public servant by commercial organization.

Sec 10

Person in charge ( director, manager, secretary or other officer) of commercial organisation 

Imprisonment minimum 3 year and maximum 7 year and Fine

Sec 11

Public Servant obtaining undue advantage without consideration

Imprisonment minimum 6 month and maximum 5 year and Fine

Sec 12 

Abetment of offences which is prohibited in the Prevention of corruption act.

Imprisonment minimum 3 year and maximum 7 year and Fine

Sec 13

Criminal misconduct by a Public Servant

Imprisonment minimum 4 year and maximum 10 year and Fine

Sec 14

Habitual Offender – commits subsequent offence

Imprisonment minimum 5 year and maximum 10 year and Fine

Sec 15

Attempt of punishable offence which is mentioned in the prevention of Corruption Act. 

Imprisonment minimum 2 year and maximum 5 year and Fine

Chapter 4 of this act has contained section 17 and section 18. Section 17 of this act tells about the persons Authorised to investigate and section 18 tells about the Power to inspect Bankers’ books and Bankers’ books shall be inspected by the superintendent of police and above rank. Investigation of corruption cases is done by a superintendent police officer, Section 17 of the Prevention of Corruption Act.

Chapter 5 of this act has contained section 19 to section 31.

Section 19 deals with the Previous sanction necessary for prosecution and this section says, No Court shall take cognizance of an offence punishable under sections sec7, sec 11, sec 13 and sec 15 but Court can take cognizance after the previous approval of central government and state government and any other person which has authority competent to remove.

Section 20 deals with the presumption where a public servant accepts any undue advantage and this section says it shall be presumed, that he accepted or obtained or attempted to obtain that undue advantage.

Section 25 deals with the Prevention of Corruption Act, not applied/or not affected. The Prevention of Corruption Act does not apply following acts:

• Army Act, 1950
• Airforce Act, 1950
• Navy Act, 1957
• BFS Act, 1968
• Coast Guard Act, 1978
• National Security Guard Act, 1986
• Military Acts

Section 27 deals with Appeal and Revision and this section says The High Court may exercise all the powers of appeal and revision conferred by the CrPC, 1973.

 gratification other than legal remuneration. Section action tell about the Accused person to be a competent witness. Section 24 says that the Statement by the bribe giver does not subject him to prosecution. Section 27 gives the provision appeal and revision.

IMPORTANT CASE OF RELATING PREVENTION OF CORRUPTION ACT

• Srinivasulu versus State Represented by Inspector of Police
• Ritu Chhabaria versus Union of Indian
• CBI, Bank Securities and Fraud cell versus Ramesh Gelli

LOOPHOLES OF PREVENTION OF CORRUPTION ACT, 1988

• No applicable to the private sector whereas the private sector has a lot of Corruption involved e.g. Some popular colleges demand donations in the name of admission and some hospitals charge very high fees of payment for treatment of disease.
• Delay in prosecuting, an accused person does not prove guilty or innocent because the trial proceeding is not finished soon.
• The term Corruption remains undefined and creates confusion but only defines the undue advantage.
• No Provision regarding confiscation of proceeds from bribery is not present in this Act.

CONCLUSION: 

The Prevention of Corruption Act of 1988 has remarkably contributed to India’s fight against corruption. By providing a sturdy legal framework, defining offences, and establishing stringent penalties, the Act has helped hold corrupt individuals accountable. While the Act has been instrumental in belching corruption, challenges persist. These challenges include the need for better collaboration among investigative agencies, reducing detainments in trials, and addressing the issue of political hindrance in corruption cases. Additionally, there is a growing recognition of the significance of preventive measures and ethical conduct in completing corrective conduct. Still, continuous efforts are necessary to address the challenges and strengthen the Act’s implementation. It is crucial to promote a culture of integrity and translucency to round legal measures and foster a corruption-free society.