Tips 15 on the Prevention of Corruption Act, 1988

TIPS 15 ON THE PREVENTION OF CORRUPTION ACT, 1988

(Incorporated the latest amendment of 2018)

  

GUIDELINES ON THE PREVENTION OF CORRUPTION ACT, 1988 IN A NUTSHELL 

  

1.     The Prevention of Corruption Act, 1988 was enacted as:- Answer:  Act 49 of 1988

2.     The Prevention of Corruption Act, 1988 was enacted on:- Answer:  09.09.1988

3.     Section 1 of the Prevention of Corruption Act, 1988 deals with:- Answer:  Short title and extent

4.     Section  2 of the Prevention of Corruption Act, 1988 deals with:- Answer: Definitions

5.     “Public servant” has been defined in which section of the Prevention of Corruption Act, 1988?   Answer:  Section 2 (c)                                     (IP 2019)

6. The term “Public Servant” is defined under section 2 (c) of the Prevention of Corruption Act, 1988 twelve categories of persons who get remuneration from the Government such as :- (i)     Any person in the service or pay of Government or remunerated by the Government by fees of commission for the performance of any public duty (ii)    Any person in the service or pay of a local authority (iii)   Any person in the service or pay of a corporation an authority or body and a Government company (iv)   Any Judge (v)    Any person authorised by court to perform any duty (vi)   Any arbitrator

7.     With reference to the Prevention of Corruption Act, 1988, the term “undue advantage” means:- Answer:  Any gratification whatever other than legal remuneration [Section 2 (d)]

8.     With reference to the Prevention of Corruption Act, 1988, the word “gratification” is not limited to pecuniary gratifications or Gratifications estimable in money [Explanation (a) under Section 2 (d)]          (IP 2019)

9. Section 3 deals with appointment of Special Judges:   The Central Government or the State Government may appoint required Special Judges. A person shall not be qualified as a Special Judge unless he is or has been  a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge

10.   Section 4 deals with  “Cases triable by special Judges”.   (i) Every offence under section 3 (1) shall be tried by the special Judges for the area within which it was committed.   (ii)    When trying any case, the special Judge may also try any offence other than an offence specified in section 3 with which the accused may be charged at the same trial.   (iii) Time limit for the trial: The trial of an offence shall be held on day today basis and an endeavour shall be made to conclude it within two years. Where the trial is not concluded within two years, the special Judge shall record the reasons for not having done so. In such case of delay, each extension not exceeding 6 months at a time recording the reasons up to four years in aggregate will be extended.

11. Section 5 deals “Procedure and powers of special Judge”.   (a)   The special Judge in trying the accused persons, shall follow the Code of Criminal Procedure, 1973   (b)   The Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor   (c)    A special Judge shall exercise all the powers and functions exercisable by a District Judge

12.   Section 6 deals “Power to try summarily”.   (a) Summary trial cases are disposed off speedily as the procedures are simplified. Only offences which are falling into small and petty cases are tried summarily.

(b) The special Judge shall try the offence in a summary way under the provision of sections 262 to 265 of the Code of Criminal Procedure, 1973.   (c)    In summary trial cases, the special Judge shall pass a sentence of imprisonment for a term not exceeding one year.   (d)    In case of summary trial case, no appeal lies when the punishment is imprisonment for a term not exceeding one month and fine not exceeding Rs.2,000/- is ordered

13.   Section 7 deals “Offences relating to public servant being bribed”. When?   Any public servant who- (i)  obtains or attempts to obtain an undue advantage with the intention to perform public duty improperly or dishonesty, or   (ii)  obtains or attempts to obtain an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform a public duty either by himself or another public servant.   Under section 7, it shall be immaterial whether a person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party.   The penalty for the offence under section 7:- Any public servant shall be punishable with imprisonment for term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.                          (IP 2024)

14.   A public servant “S” asks a person “P” to give him an amount of Rs.5,000/- to process his routine ration card application on time. Whether “S” is guilty of any offence under the Prevention of Corruption Act, 1988?        If so what is the penalty for the above offence?   “S” is guilty of offence under the section 7 of the Prevention of Corruption Act, 1988. “S” shall be punishable with imprisonment for term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. [Illustration below Explanation 1 under section 7]

15.   Under section 7 of the Prevention of Corruption Act, 1988, it shall be immaterial whether a person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party                                       [Explanation 2 (ii) under Section 7]

16. Section 7-A deals with “Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence”.   Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant by corrupt or illegal means commits the offence under section 7-A. This section is related to the messenger or mediator.   It shall be punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 7 years and shall also be liable to fine

17. Section 8 deals with “Offence relating to bribing of a public servant”.   Any person who gives or promises to give an undue advantage to another person or persons with intention to induce a public servant to perform improperly a public duty or to reward such public servant for the improper performance of public duty commits the offence under section 8. It is immaterial whether such undue advantage is given by the person directly or through a third party     It shall be punishable with imprisonment for a term which may be extend to 7 years or with fine or with both

18.   What are the provisions to section 8 of the Prevention of Corruption Act, 1988?   Answer:  (a) This section shall not apply where a person is compelled to give such undue advantage     (b)    The  person  so  compelled  to  report  the  matter  to  the  law enforcement authority or investigating agency within a period of 7 days   (c)    When  the  offence  under  this section  has  been  committed  by commercial organization it shall be punishable with fine

19. Section 9 deals with “Offence relating to bribing a public servant by a commercial organization”.   If any person associated with such commercial organization gives any undue advantage to a public servant intending to obtain or retain business for such commercial organization is committing offence under section 9. Under section 9 (3) (b)this Act, the term business includes a trade or a profession or providing service.

The offences under section 7A, section 8 and section 9 shall be cognizable [Section 9 (4)]

20. Section 10 deals with “Person in charge of commercial organization to be guilty of offence”.   Where an offence under section 9 is committed by a commercial organization and such offence is proved to have been committed or other officer or connivance of any director, manager, secretary, then such director, manager, secretary or other officer shall be guilty of the offence   Penalty: It shall be punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 7 years and also liable to fine.

21.   Section 11 deals with “Public servant obtaining undue advantage without consideration from person concerned in proceeding or business transacted by such public servant”.   Penalty:     It shall be punishable with imprisonment which shall not be less than six months, but which may extend to 5 years and also with fine

22.   Section 12 deals with “Punishment for abetment of offences”.   Whoever abets any offence punishable under this Act whether or not that offence is committed in consequence of that abetment.   Penalty: It shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to 7 years and also with fine.

23.   “Criminal misconduct by a public servant” has been defined in which section of Prevention of Corruption Act, 1988? Answer: Section 13      (IP 2019) and (IP 2023)

24.   Section 13 deals with “Criminal misconduct by a public servant”. Give details.   Section 13 (1) denotes that a public servant is said to commit the offence of criminal misconduct if he dishonesty misappropriate 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 intentionally enriches himself illicitly during the period of his office

Penalty: It shall be punishable with imprisonment for a term which shall Not be less than 4 years but which may extend to 10 years and also with fine.

25.   As per Section 13 of PCA 1988 public servant is presumed to have intentionally enriched himself illicitly if he has property disproportionate to his known sources of income. [Explanation 1 below Section 13]       (IP 2024)

26. Section 14 defines “Punishment for habitual offender”.   Section 14 denotes that whoever convicted of an offence under the Prevention of Corruption Act, 1988, subsequently commits an offence under this Act shall be punishable with imprisonment which shall not be less than 5 years but which may extend to 10 years and shall also be liable to fine

27.   A Government servant was previously convicted of accepting a bribe. Now, he is again caught misusing government property for personal gain. Under Section 14 of the Prevention of Corruption Act, what is the minimum imprisonment term this public servant could face for the new offense?   Answer:  Not less than 5 years, but up to 10 years           (IP 2024)

28. Section 15 deals with “Punishment for attempt”.   Section 15 denotes that whoever attempts to commit an offence under section 13 (1) shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to five years.

29. Section 16 deals with “Matters to be taken into consideration for fixing fine”.   The matters to be taken into consideration for fixing fine under section 16 are the amount or value of property if any, which the accused person Has obtained by committing the offence or where the offence is committed under section 13(1)(b) the person is unable to account satisfactorily

30.   Under Section 16 of Prevention of Corruption Act, 1988 when imposing a fine for offenses what  is the factor that is taken into consideration by the Court?   Answer:   The value of any property gained by the accused through the offense                                                                        (IP 2024)

31.   Section 17 deals with “Persons authorized to investigate”.   Persons authorized to investigate into cases under section 17 are:- (a)    In  the  case  of  Delhi  Special  Police  Establishment,    an Inspector of Police (b)    In the Metropolitan areas of Bombay, Calcutta, Madras and Ahamadabad of an Assistant Commissioner of Police (c)    Elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank   Section 17 denotes that the police officers authorized to investigate cases under this Act shall investigate any offence punishable under the Prevention of Corruption Act, 1988 without the order of a Metropolitan Magistrate or a Magistrate of the first class, make any arrest therefor without a warrant.

32.  Whether  the  following  statement is  true in  the context  of  the Prevention of Corruption Act, 1988?   Answer: Statement is correct. An Inspector of Police of Delhi Special Police establishment can investigate under Prevention of Corruption Act, 1988 [Section 17(a)]      (IP 2019) (IP 2023)

33.   Section 17-A  deals with “Enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties”.   (i)     No enquiry or inquiry or investigation of offences under section 17A, shall be done without the previous approval as given below:- (a)    In the case of a person who is or was employed at the time of commitment of the offence,  in connection with the Union of that Government  /State Government (b)   In the case of any person, of the authority competent to remove him from office at the time when the offence was alleged to have been committed   (ii)    Section 17-A denotes that the concerned authority shall convey its decision regarding approval for enquiry or inquiry or investigation within a period of three months which may be extended by a further period of one month for reasons to be recorded in writing by such authority.

34.   Section 18 deals with “Power to inspect bankers’ books”.   Powers to inspect bankers books shall not be exercised by a police officer under section 18 not below the rank of a Superintendent of Police unless he is specially authorized in this behalf by a Police Officer above the rank  of a Superintendent of Police.

35.   Section 18-A deals with “Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under the Prevention of Corruption Act, 1988”.

36.   Section 19 deals with “Previous sanction necessary for prosecution”.   Section 19 of Prevention of Corruption Act makes it necessary to obtain sanction for prosecution before launching “Prosecution of a public servant”.   Section 19 (1) denotes that no court shall take cognizance of an offence under sections  (7,11,,13 and 15)  of the Prevention of Corruption Act, 1988 except with previous sanction for prosecution.   No request can be made by a person other than a police officer or an Officer of the investigation agency for prosecution sanction unless:- (a)    Such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted (b)    The  court  has  not  dismissed  the  complaint  but  directed  the complainant to obtain the sanction for prosecution (c)    In such a case the appropriate Government or competent authority shall not accord sanction without providing an opportunity of being heard the public servant   The appropriate Government or any competent authority after receipt of the proposal for prosecution sanction shall convey the decision on proposal within a period of three months from the date of receipt. In case of legal consultation is required such period of three months may be extended by a further period of one month by the appropriate Government / authority.

37.   According to Section 19 (1) of Prevention of Corruption Act, under what circumstances can a Court not take cognizance of specific offenses against a public servant?                                   (IP 2024)   Answer:  If previous sanction for prosecution has not been obtained

38.   Section 20 deals with  “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 has accepted or obtained any undue advantage from any person it shall be presumed under section 20 of the Prevention of Corruption Act, 1988 that unless the contrary is proved that the public servant accepts / obtains any undue advantage as per section 7 /section 11.

39.   Section 21 deals with “Accused person shall be competent witness”.   Under section 21, any person charged with an offence shall not be called as witness except at his own request. He shall not be asked and if asked shall not be required to answer any question tending to show that he has committed any offence other than the offence with which he is charged or is of bad character

40.   Section 27 deals with “Appeal and Revision”.   Appeal and revision against the decisions of special Judges in the special courts under the Prevention of Corruption Act, 1988 lie with High Court.

41.   Section 29-A deals with “Power to make rules”.   The Central Government may make rules under the Prevention of Corruption Act, 1988, for all matters.   Every rule made under the Prevention of Corruption Act, 1988, shall be laid before each House of Parliament.

42.   Section 30 deals with “Repeal and Saving”.   Under section 30 of the Prevention of corruption Act, 1988: The following Acts are repealed:       (Repealed means cancelled) (a)    The Prevention of Corruption Act, 1947 (b)    The Criminal Law Amendment Act, 1952     The following Act is saved                    (Saved means retained) (a)    Section 6 of the General Clauses Act, 1897

Important sections:-   Section 7 deals with offence relating to any public servant who obtains bribe whether directly or through a third party     Section 7-A deals with offence who obtains bribe to influence public servant. This section is related to the messenger or mediator.   Section 8 deals with offence relating to any person who gives bribe to  a public servant.   Section 9 deals with offence relating to bribing a public servant by a commercial organization.  Section 10 deals with  offence with a person in charge of commercial organization  who bribes a public servant Section 11 deals with offence with a public servant obtaining bribe from a person concerned in a business transacted by such public servant.   Section 12 deals with offence relating to any person who abets (induces)  any offence.

 

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