The Object and Scheme of the Prevention of Corruption Act

The Act is short, and its architecture is easy to hold in the mind once the three layers are separated. The first layer creates the offences. The second builds a special forum and a procedure for trying them. The third supplies evidentiary aids and protective screens: a presumption in favour of the prosecution once acceptance is proved, and requirements of approval and sanction before a public servant may be investigated and prosecuted. Reading the statute in that order, rather than section by section, is what makes sense of it.

1. The Object

The long title states that the Act is to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Three objects were stated when it was introduced: to bring together the provisions then scattered across the Penal Code, the Act of 1947 and the Act of 1952; to widen the definition of public servant so that persons performing public duties outside the traditional services were covered; and to make the prosecution of corruption more effective through enhanced punishments, a dedicated forum and procedural provisions designed for speed.

2. The Three Layers

2.1 The offences

• Section 7. Bribery by a public servant: obtaining, accepting or attempting to obtain an undue advantage connected with the improper or dishonest performance of a public duty.
• Section 7A. Taking an undue advantage to influence a public servant, which reaches the middleman.
• Section 8. Giving or promising an undue advantage, with the seven-day reporting protection for the coerced giver.
• Sections 9 and 10. Commercial organisations and their officers.
• Section 11. A public servant obtaining a valuable thing without consideration or for inadequate consideration from a person concerned in a proceeding or business transacted by him.
• Section 12. Abetment of any offence punishable under the Act, whether or not the offence is committed in consequence of the abetment.
• Section 13. Criminal misconduct: misappropriation of entrusted property, and intentional illicit enrichment.
• Sections 14 to 16. Habitual offenders, attempt, and the matters relevant to the quantum of fine, which include the pecuniary resources or property for which the accused is unable to account.

2.2 The forum and the procedure

1. Sections 3 and 4. The Government appoints special judges; offences under the Act are triable by them alone; a special judge may also try any offence with which the accused may be charged at the same trial under the criminal procedure law; and the trial is to be held on a day to day basis and concluded within two years, extendable but not beyond four.
2. Section 5. The special judge follows the procedure for warrant cases tried by magistrates, may take cognizance without commitment, and may tender a pardon, so the machinery of an approver is available.
3. Section 6. Power to try certain offences summarily in defined cases.
4. Section 17. The rank of the officer who may investigate: an Inspector of Police in the Delhi Special Police Establishment, an Assistant Commissioner of Police in the metropolitan areas, and a Deputy Superintendent of Police or equivalent elsewhere, subject to the order of a magistrate and to the special rule for illicit enrichment cases.
5. Section 18. Power to inspect bankers' books, without which the disproportionate assets offence could not be investigated.
6. Section 22. Modifications of the criminal procedure law in its application to proceedings under the Act.
7. Section 27. Appeal and revision, the High Court exercising the powers it has in relation to a court of session trying cases within the local limits of its jurisdiction.

2.3 Evidentiary aids and screens

• Section 20. The presumption that an undue advantage proved to have been accepted was accepted as a motive or reward for improper performance, the burden of displacing it lying on the accused.
• Section 23. A rule of pleading for the offence of misappropriation, permitting the particulars to be stated in a general way with reference to gross sums.
• Section 17A. Prior approval before an enquiry or investigation into conduct relatable to an official decision or recommendation.
• Section 19. Previous sanction before a court takes cognizance, now extending to former public servants, with a timeline and with a requirement of permission for a private complaint.
• Section 18A. Application of the Criminal Law Amendment Ordinance, 1944 to attachment and forfeiture of property.

3. The Concluding Provisions

Section 28 provides that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force, so a prosecution under the Act does not exclude the general criminal law, the money laundering legislation or departmental proceedings on the same facts. Section 29 amended the Criminal Law Amendment Ordinance, 1944 to bring the offences under this Act within its attachment machinery. Section 30 repealed the Act of 1947 and the relevant provisions of the Act of 1952, with a saving. Section 31 omitted Sections 161 to 165A of the Penal Code, which the Act had re-enacted in expanded form, and that omission is the reason those familiar section numbers no longer exist.

4. Related Topics and Provisions