Criminal Misconduct: Section 13

Section 13 is the provision under which the largest corruption cases have been brought, and it was cut in half in 2018. Until then it described criminal misconduct in five clauses, of which clause (d), covering a pecuniary advantage obtained by corrupt or illegal means, by abuse of position, or without any public interest, was the most used. The substituted section contains two clauses only: fraudulent misappropriation of entrusted property, and intentional illicit enrichment. Because conduct before 26 July 2018 is still tried under the old provisions, both versions must be known, and the case law on each must be kept apart.

1. The Section Before and After

The punishment was raised in 2018 from a minimum of one year to a minimum of four years, extending to ten years, with fine.

2. Clause (a): Misappropriation of Entrusted Property

1. The property must be entrusted to him, or under his control as a public servant. The entrustment is the foundation, and it distinguishes the offence from ordinary theft.
2. The act. Dishonestly or fraudulently misappropriating the property, or otherwise converting it for his own use.
3. Allowing another to do so. The clause expressly covers the public servant who permits another person to misappropriate or convert the property, which reaches the officer who does not benefit personally but allows a subordinate or an outsider to take the property.
4. The mental element. Dishonesty or fraud in the sense the general criminal law gives those words; a loss caused by negligence or by an error of accounting is not within the clause.

The clause overlaps almost exactly with criminal breach of trust by a public servant under the general penal law, now in the Bharatiya Nyaya Sanhita, 2023. The differences are of forum and of consequence rather than of substance: a charge under this Act is tried by a special judge, requires sanction under Section 19, attracts the attachment machinery applied by Section 18A, and carries the minimum sentence prescribed here. Both are commonly charged together, and Section 28 preserves the general law.

3. Clause (b): Intentional Illicit Enrichment

Two features of the drafting matter. The offence is framed as intentional illicit enrichment, with the disproportion operating through a presumption rather than as the offence itself, which is a change of form from the old clause (e). And the requirement that the income be lawful, read with the requirement under the earlier provision that its receipt be intimated in accordance with the applicable rules, is what excludes undisclosed income from the computation.

4. How a Disproportionate Assets Case Is Built

1. The check period. The period over which the accumulation is examined, ordinarily beginning at a date on which the accused's position can be established and ending at the date of the search or of the registration of the case. The choice of period is a frequent ground of attack, since a period beginning at a favourable point can create or remove a disproportion.
2. Assets at the beginning of the period. The opening balance, established from returns, records and the accused's own statements.
3. Assets at the end of the period. The closing balance, established from the search, from documents of title, from bank records and from valuation.
4. Income during the period. Salary and allowances, and any other lawful income, subject to the requirement that it be from a lawful source and, under the older provision, intimated as the rules required.
5. Expenditure during the period. Household expenses, education, travel, ceremonies, medical expenditure and the like, which are frequently estimated and are therefore contested.
6. The computation. The assets acquired during the period, together with the expenditure incurred, are set against the income; the excess is the disproportion, usually expressed as a percentage of income.
7. The explanation. The accused is then called on to account satisfactorily for the excess.

5. Assets in the Names of Others

• The words are wide. The Explanation covers resources or property in the possession of the public servant or of any person on his behalf, so property standing in the name of a spouse, child, relative or associate is included where it was acquired from his funds or is held for him.
• The prosecution must connect the property to him. The mere fact that a relative owns property proves nothing; the source of the funds and the absence of independent means on the relative's part are what establish that it is held on his behalf.
• Independent income of the family member is a complete answer to the extent it is proved, which is why the defence in such cases concentrates on establishing the spouse's business or the family's agricultural income.
• The benami legislation runs alongside. Property held benami may be attached and confiscated under that statute independently of the prosecution here, and proceedings under the money laundering legislation may also follow, offences under this Act being scheduled offences for that purpose.

6. The Deleted Clause (d)

The old clause (d) made it criminal misconduct for a public servant to obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means, by abusing his position as a public servant, or without any public interest. Its distinctive feature was that the public servant need not have received anything: it was enough that another person obtained an advantage through the abuse of his office. It was therefore the provision under which the award of contracts, the grant of licences and the allocation of resources were prosecuted, and its deletion is the most consequential single change made in 2018.

7. Pending Cases and Article 20(1)

1. Conduct before 26 July 2018 is tried under the old provisions. The repeal of a penal provision does not obliterate liability already incurred, and Article 20(1) protects the accused only against conviction under a law not in force at the time of the act and against a heavier penalty than that then available.
2. So the old clause (d) continues to govern pending cases, and the substantial body of authority on abuse of position remains relevant to them.
3. Conduct after that date is not an offence under clause (d), because the clause no longer exists, and must be brought within Section 7, Section 11 or the surviving clauses of Section 13.
4. The enhanced punishment introduced in 2018 cannot be applied to earlier conduct, by force of the second limb of Article 20(1).

8. Related Topics and Provisions