Wednesday, November 18, 2015

Special Offences - The Prevention of Corruption Act (Part I)

Today if one opens the newspaper, corruption seems to rank right up there with bodily offences in terms of crime that newspapers sell to the public. The Central Bureau of Investigation seemingly unearths one new conspiracy every day of public servants robbing the public of tax-payer monies. Debates rage over how effective our laws are to deal with this 'menace'. In all this, very little space is devoted to actually explaining what exactly this apparently inept law is all about. Over the next few posts, I hope to fill that space by (hopefully) providing some basic understanding of the Prevention of Corruption Act, 1988. Readers might find an earlier guest post on the blog discussing the CBI useful while reading these posts.

Who can Investigate/try Offences?
Section 17 restricts the scope of officers competent to investigate offences under the Act without prior permission from a Metropolitan Magistrate/Judicial Magistrate First Class. A Police Officer in Bombay, Calcutta, Madras Ahmedabad and other metropolitan area notified under the Criminal Procedure Code, 1973 [Cr.P.C.] must be the Assistant Commissioner of Police or an officer of higher rank. Elsewhere, that officer must be the Deputy Superintendent of Police or higher rank. In case its the CBI, the investigating officer can be an Inspector of Police or anyone of higher rank.

Similarly, for trial of offences the Act creates a 'Special Judge'; a Sessions Judge/Assistant Sessions Judge/Additional Sessions Judge appointed by the Central Government or State Government by notification [Section 3]. Importantly, though these are Sessions level officers, Section 5 prescribes that the case shall follow procedure for trial of warrant cases by Magistrates. Offences punishable under the Act can only be tried by these judges [Section 4(1)]. However, this does not mean that these judges can only try Corruption Act offences - Section 4(3) enables them to prosecute all other offences with which the accused is charged at the same trial [This was recently in issue before the Supreme Court in Essar Teleholdings Ltd. v. CBI (decided on 29.09.2015)].

Who can be Prosecuted? 
The Prevention of Corruption Act creates offences under Sections 7 to 15 (including inchoate crimes such as attempts). Every offence is not capable of being committed by any person. Certain offences can only be committed by public servants, and others by everybody else. Sections 7, 10, 11, and 13 begin with "whoever, being a public servant", or "a public servant is said to commit the offence". As against this, we have Sections 8, 9 and 12, which begin simply with "whoever". There is no overlap either, as the content of Sections 8, 9, 10 and 12 clearly shows the two sets are mutually exclusive.

There are two things of note here. One, is that the restriction of offences to only public servants can be misleading.This does not mean the act is really narrow in scope. 'Public servant' is defined under Section 2(c) of the Act, and is a very expansive definition as can be seen simply from Section 2(c)(viii): "any person who holds an office by virtue of which he is authorised or required to perform any public duty.". ['Public duty' is again expansively defined under Section 2(b) as "a duty in the discharge of which the State, the public or the community at large has an interest]. So, say a private hospital is found overcharging patients in times of medical emergencies such as swine flu. Could that not lead to corruption charges against concerned officials?

Two, these offences by definition exclude certain people participating in the corruption process from being prosecuted. The corrupt officer giving favours is roped in [Sections 7, 10, 11 and 13], and so is the middle man [Sections 8 and 9]. But the bribe-giver remains untouched by the scheme of offences, and is in fact protected from prosecution upon becoming a witness [Section 24]. These persons can at best be roped in via an additional abetment or conspiracy charge, but cannot be prosecuted directly under the Corruption Act. This creates unnecessary problems for the prosecution as more facts must be proved to secure convictions.*

Second we have corporations, and the issue of organised corruption. The massive fines imposed on Alstom last week show how rampant corporate-sponsored corruption really is. Today, corporations are prosecuted under the Prevention of Corruption Act much like individuals, i.e. by making them co-conspirators. But to establish presence of a guilty mind the corporation would be imputed with the acts/omissions of someone in the company. This makes the prosecution job rather hard, and its not like alternative models of corporate criminal liability don't exist [see, The Corporate Homicide and Manslaughter Act, 2007]. Prosecuting that person for being a person of authority is not possible today because the Corruption Act doesn't have the statutory provisions allowing it. Given the kind of influence corporations have on business and investment, not having a statutory basis to make them accountable seems a pretty big loophole. Conspiracy theorists might suggest that the very fact of statutes not addressing this problem is the product of corruption driven by these corporations. The Prevention of Corruption (Amendment) Bill 2013 considered introducing offences which adequately curb the bribe-givers; both individual and corporate. Their viability was considered by the Law Commission recently in its 254th Report. The Bill has not been passed.

The Trial and Evidence
Before proceeding to trial, there must be a sanction to prosecute as required by Section 19. I won't dwell too much on sanction here, as the issue will be treated exclusively later on. Sanction under this Act is required before taking cognizance of offences. A sanction order is therefore usually filed with the chargesheet. One would assume, therefore, that if the Judge finds that further offences of the Corruption Act are made out in a chargesheet than the ones mentioned, he would have to defer prosecution till requisite sanction is received.

This sanction is mandatory for prosecuting currently serving officers for any offence under this Act: there is no additional test of the act being done in the course of duty etc. Interesting issues of dual sanction arise in context of cases where a person is charged with offences under the IPC as well as the Corruption Act. If the Special Judge can prosecute all offences for which the person accused is jointly charged at the same trial, should not sanction under Section 19 suffice? Or is sanction under Section 197, Cr.P.C. required due to the different legal standards employed by that provision and Section 19? Several decisions of the Supreme Court have dealt with this. We'll look at these later.

At the trial itself, the existence of a reverse-onus clause in Section 20 makes things interesting. It requires the prosecution to establish the fact of accepting/obtaining illegal gratification to trigger a presumption that the same was done with a view to commit offences under Sections 7 or 13, as the case may be. As the section specifically uses the words "proved" when referring to what is required of the prosecution to shift the burden, it can be reasonably assumed that the prosecution must satisfy the court beyond reasonable doubt on its part.

Subsequent Post(s)
The idea behind this introductory post was to serve as a Corruption Act 101, to build on and discuss more technical issues later .The next post will address the issue of sanction, before moving on to the final post in this series on the Prevention of Corruption Act that compares the two principal offences under Section 7 and Section 13.

*{This extension to cover private via abetment charges is partly statutory: Section 12 only prosecutes abetment of offences committed under Sections 7 and 11. Abetting Section 13 offences came through from the Supreme Court's decision in Nallammal [(1999) 6 SCC 559]. The Court held the general IPC provisions on abetment [Section 107-119 IPC] would apply even for offences under Section 13.}

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