The Prevention of Corruption Act, 1988 is the newest iteration of India’s anti-corruption laws. It criminalises the taking and the giving of bribes, the latter as abetment of the main offence of corruption, which consists of the following:
– Section 7 of the Act criminalises the act of taking gratification other than legal remuneration “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person”.
– Section 8 criminalises the taking of gratification, “for himself or for any other person” to influence a public servant.
– Section 9 criminalises taking gratification for exercise of personal influence with a public servant.
– Section 10 provides for punishment for abetment by a public servant of the offences defined in Sections 8 and 9, that is, when any other person takes gratification for influencing a public servant
– Section 11 criminalises the act of a public servant obtaining a valuable thing, without consideration (or for inadequate consideration) from a person concerned in any proceeding or business transacted by such public servant.
– Section 12, which stipulates the punishment for abetting the offences defined in Sections 7 and 11, criminalises the act of giving a bribe.
– Section 13 defines the offence of criminal misconduct, which is essentially a more aggravated form of the offences criminalised through the previous sections and includes the famous offence of holding ‘disproporationate assets’.
– Section 14 provides for enhanced punishment for habitual offenders committing offences defined in Sections 8, 9, and 12.
Together, these sections describe the various offences that are considered ‘corruption’ in Indian law.
Private-sector corruption is excluded. A concessionaire developing an airport for example, may have employees taking kickbacks for granting contracts, but that is not considered corruption. An offender has to be a “public servant”, that is, an employee of the Central or state governments, government companies, public sector banks, or an elected official.
Trials have to be conducted quickly before a “special judge”, which is also why records cannot be called in a revision petition (Section 22) unless there are reasons to do so. When a superior revisionary court calls for the records of a case, there is an automatic stay on proceedings as case files are transferred to the revisionary court. Taking away any real possibility of this happening ensures a speedy trial.
Reversal of burden of proof
The biggest hurdle while defending someone accused under this statute is the reversal of the burden of proof in cases where any gratification, other than legal remuneration, has been accepted by a public servant. This presumption also applies, under Section 20, where gratification has been offered by a bribe-giver, that is, where the gratification given was a bribe. While the prosecution still has to prove that a public servant has accepted such an amount or any other thing with some financial value, once it is proven, it is completely up to the accused to prove that such an amount or gratification was not a bribe. This has to be done in detail and a cursory explanation will not suffice.
After fulfilling the initial evidentiary burden, the prosecution no longer has to prove their case ‘beyond reasonable doubt’. Section 20 (3) however, specifies that the court may decline to make this presumption if the gratification is so ‘trivial’ that no inference of corruption may be drawn.
Special investigative scheme
Cases under the Prevention of Corruption Act, at least in Delhi, are usually investigated by the CBI. Under Section 17, only an officer of the rank of an Inspector in the CBI (or an Assistant Commissioner of Police or Deputy Superintendent of Police in case of the state police) can investigate. Investigative officers do not have many special powers beyond those provided by the Code of Criminal Procedure, 1973 apart from the crucial power to inspect bankers’ books (that is, accounts and ledgers) at any time as long as the investigating officer believes that those accounts are relevant to any ongoing investigation of any person. There is no requirement of a warrant, apart from a determination by an officer of the rank of Superintendent or above that some accounts need to be inspected. This section also empowers such officers to take immediate certified copies of relevant entries and a bank has to assist them with it. This extraordinary power is very useful in a swift investigation.
Most offences under this Act (apart from petty ones) rely on the financial record and the money trail. As result of this, the Prevention of Corruption Act is not one of the harsher statutes regarding grant of bail. Since most of the evidence is record based and the severity of the punishments are not very high (six months to ten years imprisonment), bail is usually granted as a matter of course after some days in custody.
Prosecution and protection of the bribe-giver
An interesting aspect of the Prevention of Corruption Act is the criminalisation of the act of giving a bribe. While Section 12 provides for punishing the abetment of bribe-taking, Section 24 seeks to protect bribe-givers when they becomes complainants or even witnesses. Under Section 24, a statement made by a person admitting to having offered illegal gratification cannot be used to prosecute him. So the (alleged) bribe-giver may, depending on the case, be a witness or a co-accused.
Cases under the Prevention of Corruption Act are usually of two kinds. They are either based on financial records of large amounts (these cases usually involved a conspiracy to defraud the government or a public sector bank) or what are known as ‘trap cases’. A trap case is where a person approaches the State Anti-Corruption Bureau or the CBI stating that there has been a demand of illegal gratification on the part of a public servant and the investigating agency then lays a trap for the accused officer along with the complainant. The trap may feature impartial witnesses (usually low-ranking government servants) and specially treated currency notes that leave a residue on the hands of people handling them so that they change colour when introduced into a particular solution. Apart from oral evidence, the prosecution uses this method to prove the incidence of the bribe.
However, the cornerstone of such cases remains the bribe-giver’s evidence. Since the bribe-giver is often an interested witness, that is, he asked the public servant to do or not do something, the bribe-giver’s testimony is also the focus for the defence. The credibility of the bribe-giver is often crucial to the result of a case.
Prior sanction to prosecute
Prior sanction is needed to prosecute public servants under Sections 7, 10, 11, 13, and 15. It has to be based on the original complaint as well as materials gathered during investigation and cannot be lightly or automatically given. It can only be given by the “Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.” However, the requirement of sanction is diluted to a large extent by the provisions of Section 19, which states that no conviction or finding can be altered on the ground of a defective sanction unless it has caused an actual failure of justice. It is not enough therefore, to show that a sanction is defective. The defence needs to show that it prejudiced the trial. So unlike some other statutes like the UAPA where it goes to the root of the matter, sanction under the Prevention of Corruption Act, once granted, is quite difficult to question.
Sarim Naved is a Delhi-based advocate.