PREVENTION OF CORRUPTION(AMENDMENT) ACT,2018

Preamble

Corruption or bribing is a cankerworm, which destroys honesty of public servants and consequently, diminishes the trustworthiness of bureaucrats and public servants. To defenestrate the corruption, the Prevention of Corruption Act, 1947 had enacted with the sole intention or object of the more effective prevention of bribery and corruption and further advised to make provision for the prevention of bribery and corruption. The 1947 Act replaced the 1988 Act, which added stringent provisions of the penalties, incorporating the provision of sanction for trial, an expedition of proceedings, and daily trial of cases for prevention of corruption.

Provisions

• Section 1 and 2: The Prevention of Corruption Act, 1988 and the Amendment Act, 2018 applies to whole India except the State of Jammu & Kashmir.

Section 2 of the Act laid down the vital definitions of Public Servant, Public Duty and Undue Advantage. The latter two defined as 'the duty which State, public authority or community has an interest' and 'Gratification, other than legal remuneration permitted by Government or organization' respectively. The definition of Public Servant has divided into twelve clauses, which consists of servants of Government, Local authority, Judicial services, Universities, Co-operative Societies in mentioned fields and so on.  

• Section 3: The Act has empowered the Central and State Government to appoint Special Judges for any offence punishable under this Act; and any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

• Section 5: The special Judge may take cognizance of cases, which are not committed. The special Judge may offer pardon to accused of obtaining evidence; true and full disclosure of circumstances, the persons concerned with, as a principal or abettor, and grant pardon as per section 308 of the CrPC. For Section 326 and 475 of CrPC special Judge acts as Magistrate and while trying offences under this Act shall exercise all powers of District Judge under the Criminal Law Amendment Ordinance, 1944.

• Section 6: The Sp. Judge empowered to try any offence under the Act summarily when it was committed by a Public servant in contravention of section 12A of the Essential Commodities Act or an order mentioned in the same section.

• Chapter III: The 2018 amendment has excluded the word 'Gratification' from the entire Act and introduced a new word 'Undue Advantage'.

Section 7 (Amended in 2018): This section punishes public servant with imprisonment and fine, who improperly or dishonestly, perform or forbear performance his public duty or induces another public servant to perform duty dishonestly or forbear performance, obtains or accepts or attempts to obtain from any person, an undue advantage, before performing or as a reward of performance or non-performance of such public duty. Obtaining or accepting or attempting to obtain itself is punishable, whether the duty has been performed or not and includes obtaining undue advantage for himself or another person in an illegal way, by abusing his position. Third-party involvement is immaterial.

Section 7A: It is a newly inserted section in 2018 amendment. It laid down that an individual is punishable with imprisonment and fine, who himself or by another person, accepts or obtains or attempts to obtain an undue advantage, for inducing the public servant illegally or under his influence, to perform or cause to perform the public duty dishonestly or improperly or to forbear or cause to forbear such duty.

Section 8 (Amended in 2018): This section laid down the provisions for a person who is a giver in case of bribing or corruption. A person who promises or gives undue advantage to another to induce to or reward for the dishonest performance of public duty would be punishable under the Act, unless the giver must not be compelled to do so and if he was, then must have reported a complaint to the investigating agency within seven days. Third-party involvement is immaterial; also, the receiver of bribe and performer of duty may not be the same person.

Section 9(Amended in 2018): Any person associated with a commercial organization gives or promises undue advantage for obtaining business or an advantage in the conduct of business; then such commercial organization would be punishable with fine unless compliance of guidelines proved by such organization. Such a person would also be liable under Section 8 of the Act. The term commercial organization, business is defined and person associated means he performs services on behalf of organization irrespective of undue advantage. Offences under Section 7A, 8 and 9 declared as cognizable, irrespective of CrPC provisions. Also clarified the doubts in three Explanations given under sub-section (3).

Section 10 & 11 (Amended in 2018): Section 10 laid down when the commercial organization commits an offence under Section 9, the director, manager, secretary or another officer shall be punishable with imprisonment and fine if their consent or connivance is proved before the court. Section 11 laid down if a public servant accepts or obtains or attempts to obtain an undue advantage without or insufficient consideration from a person he knows or by several means he known to have been, is punishable with imprisonment and fine.

Section 12 & 13 (Amended in 2018): Section 12 laid down punishment for the abettor, irrespective of commencement of the offence. Section 13 laid down that, a public servant commits criminal misconduct when he fraudulently misappropriated or converts for his use any property, which entrusted on him or under his control or intentionally enriched himself by way of receiving income from the possession of property which public servant cannot account for, shall be punishable with imprisonment and fine. Amendment 2018 has consolidated the clauses of sub-section 1 of 13.

• Section 17 & 17A (Amended in 2018): In Section 17, an authorized person with rank has been determined for investigation in the metropolitan areas of Madras, Calcutta, Bombay, Delhi and Ahmedabad and for other areas within India. It also empowered the State to authorize police personnel below the determined rank by way of a special order. In Section 17A, no public servant shall be enquired or investigated without prior permission of Central, State Governments or competent authority, if the offence committed is relatable to recommendations made or decisions taken while discharging an official duty, unless such public servant not arrested red-handed while accepting undue advantage for himself or another.

• Section 18: The investigating officer, not below the rank of Superintendent of Police, after receiving any information of commission of an offence under this Act, if he deems fit it necessary to inspect the banker's book, then he may inspect banker's books related to the suspect or any other person holding money on suspect's behalf, and he may take certified copies of the relevant entries.  

• Section 19(1) (Amended in 2018): No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15, without prior sanction of Central, State Government or competent authority. The request for sanction has to be made by a police or officer of investigating authority, for taking cognizance by the court, when the complaint is filed, the prosecution is sought, the court has not dismissed the case and directed prosecution. If another person made the request, then the opportunity of being heard may be given to a public servant. Appropriate authority tries to convey the decision within three months from receipt of the complaint. The legal consultation period for grant of sanction shall be recorded.

• Section 21: The accused under this Act is himself as a competent witness for the defence and gives evidence on his oath to disprove the charges. The accused only called on his request, failure to provide evidence shall not raise any presumption against him. He may not ask regarding other offences committed or convicted for, unless there is admissible evidence is produced or the accused asked the question of the bonafide character of the prosecution witness for showing the accused's good character and whereby he is delineating the character of prosecution or its witnesses.  

• Section 24: Statement of a person in any proceedings about the offence committed by a public servant under this Act shall not subject such person to a prosecution. This section has repealed the 2018 amendment.

• Section 165A of the Indian Penal Code has been repealed by the 1988 amendment Act.