Offences under the Prevention of Corruption Act,1988

Introduction

Corruption is a concerning issue which is present in almost all parts of the world. It not only hampers the economic status of a country but also affects its development pace. In the Corruption Perception Index, 2023 released by Transparency International, India was ranked 93 out of 180 counties which implies a very high level of corruption. The index rates countries based on scores ranging from 0 (highly corrupt) to 100 (very clear). The overall score of India was 39 which is a serious concern. Prior to the enactment of the Prevention of Corruption Act, 1988 corruption as an offense was dealt with under the Prevention of Corruption Act, 1947. This act was enacted to punish bribery, embezzlement and corruption in public offices. However, it was criticized as being inadequate and ineffective in dealing with corruption. Thus, a new act called the Prevention of Corruption Act, of 1988 with more stringent provisions and stricter punishments was enacted to consolidate and strengthen anti-corruption laws. Over the years, the Act has been amended to address new challenges and enhance its effectiveness.

To whom does the Act apply?

Generally, the act has a wider extent and application, it extends to the whole of India and applies to overseas citizens of India as well[1]. However, the act specifically applies to public servants discharging a public duty.

For clarification, Section 2(b) of the act defines a duty in the discharge of which the State, the public, or the community atlarge has an interest;[2] as a public duty.

State defined

The state is defined in Article 12 of the Indian Constitution. To remove any doubts, the state has also been defined under this act. Any corporation established by or under a Central,Provincial, or State Act, or an authority or a body owned or controlled or aided by the Government or aGovernment company as defined in section 617 of the Companies Act, 1956[3]. The court held that the expression ‘other authorities’ is wide enough to include all those bodies created by the constitution or by any law on whom powers are conferred[4]

Who is a public servant?

The act also defines a public servant under Section 2(c). The definition is similar to that of the Indian Penal Code prescribed under Section 21 of the act. According to section 2 (c) of the Prevention of Corruption Act, the following are categorised as public servants;

1. Any person receiving remuneration from the government or the ones performing public duties.
2. Employees of local authorities.
3. Employees of government-established or government-aided corporations.
4. Judicial officers including judges.
5. Court-appointed officials like liquidators or receivers.
6. Arbitrators or referees appointed by a court or public authority.
7. Officials responsible for electoral rolls or elections.
8. Office holders who are required to perform public duties.
9. Office-bearers of financially aided co-operative societies.
10. Members or employees of Service Commissions or Selection Boards.
11. University officials, professors, employees,etc who are involved in exams.
12. Employees of institutions receiving government financial assistance.

Offences under the Prevention of Corruption Act,1988

Chapter III of the Prevention of Corruption Act extending from Section 7 to 16 covers all the offences and penalties committed by or against public officials.

Section 7- Offence relating to public servants being bribed:

This section is related to public servants being bribed to do something contrary to their duty. The section reads that whoever obtains or attempts to obtain undue advantage from any person to their duty improperly or dishonestly or forbear or causing forbearance to perform that duty either by himself or by any other personor, accepts or obtains any undue advantage for doing his duty dishonestly or forbearing in that duty. or,Performs, or induces another public servant to perform his duty improperly or dishonestly,or forbears performance of such duty in the anticipation of or as a consequence of accepting an undue advantage from any person.

The punishment prescribed under the act for the offence prescribed herein above is imprisonment for a term not less than three years and up to seven years, and shall also be liable to a fine.

To conclude the section makes obtaining or attempting to obtain any undue advantage in lieu of public duty a punishable offence.

Section 7A-Taking undue advantage to influence public servants by corrupt or illegal means or by the exercise of personal influence: 

This section makes influencing a public servant by any means a punishable offence with a punishment of imprisonment for a term not less than three years and up to seven years, and shall also be liable to a fine. The section reads as ‘whoever accepts, obtains, or attempts to obtain an undue advantage from another person for themselves or for someone else, as a motive or reward to induce a public servant, by corrupt or illegal means or by using personal influence, to perform or cause the performance of a public duty improperly or dishonestly, or to forbear or cause forbearance to perform such duty by the public servant or another public servant.[5]’

Section 8-Offence relating to bribing of a public servant:

This section makes bribing a public servant a punishable offence. Under this section, the one who bribes or attempts to bribe a public servant shall be the offender and not the public servant. If the public servant accepts the bribe or undue advantage, he shall be liable under Section 7 of this act. The section reads as any person who gives or promises to give any person some undue advantage with the intention to induce a public servant to do his duty improperly or to reward for a public duty done improperly.

However, this section is not absolute, the proviso to the section lays down that any person who is compelled to bribe a public officer shall not be liable under this section. However, the person who is being compelled shall report the incident to the concerned authorities within seven days of giving such undue advantage.

Section 9-Offence relating to bribing a public servant by a commercial organisation:

Under this section, a commercial organisation shall be punishable with a fine if any person associated with it is found of giving or promising to give any undue advantage to any public officer with the intention of;

• obtaining or retaining business for the organisation; or
• obtaining or retaining an advantage in the conduct of business for the organisation.

Proviso to clause 1 provides for the defence of the commercial organisation that it can defend itself by showing the organisation took adequate measures to prevent the conduct of that person.

Section 10- Person in charge of commercial organisation to be guilty of offence:

This section is an extension of liability of offence prescribed under section 9 of this act. It reads that if an offence under section 9 has been proved. And that it is also proved in the court that the offence was committed with the consent or connivance of the director, manager, secretary, or other officer of the organisation, then that officer shall be liable for punishment under this act.

The section prescribes a punishment of imprisonment for a term not less than three years and up to seven years, and shall also be liable to a fine.

Section 11- Public servant obtaining[undue advantage], without consideration from person concernedin proceeding or business transacted by such public servant:

The section in its simplest language makes it a punishable offence for any public servant who serves any undue favour to any other person including their seniors. It prescribes a punishment of imprisonment for a term not less than six months which may extend to five years, and shall also be liable to a fine.

Section 12- Punishment for abetment of offences:

This section makes abetment of any offence under this act a punishable offence with a punishment of imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.

It is pertinent to note that it is immaterial whether the abetted act has been committed or not for prosecution under this section.

Section 13- Criminal misconduct by a public servant:

Under this section a public servant shall be liable for criminal misconduct if he;

• if he dishonestly or fraudulently misappropriates or otherwise converts for his own use anyproperty entrusted to him or any property under his control as a public servant or allows any otherperson so to do; or
• if he intentionally enriches himself illicitly during the period of his office[6].

The section prescribes the punishment of imprisonment for a term which shall be not less than 2[four years] but which may extend to 3[ten years] and shall also beliable to fine.

Section 14- Punishment for habitual offenders:

The section provides for a punishment of imprisonment for a term which shall not be less than five years but which may extend to ten years and shall also be liable to fine for the ones who commit an offence under this act subsequently.

Section 15- Punishment for attempt:

According to this section whoever attempts to commit a crime prescribed under section13(1) of this act shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall also be liable to fine.

Offences by/against Public Servants under Bhartiya Nyaya Sanhita, 2023

Chapter XII of the Bhartiya Nyaya Sanhita 2023 deals with the offences committed by or against public servants. It extends from Sections 198 to 205 which are explained below;

Section 198- Public servant disobeys law with intent to injure someone:

This section is similar to Section 166 of the Indian Penal Code. It reads as whoever being a public servant, voluntarily disobeys any direction of the law relating to his conduct knowing that such disobedience will probably cause injury to any person shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Section 199- Public servant disobeying direction under law:

A public servant shall be liable under this section

• If he knowingly disobeys any direction of the law which prohibits him from requiringthe attendance at any place of any person for the purpose of investigation into anoffence or any other matter; or
• Or if knowingly disobeys, to the prejudice of any person, any other direction ofthe law regulating the manner in which he shall conduct such investigation; or
• fails to record any information given to him under sub-section (1) ofsection 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in relation to a cognizableoffence punishable under Section 64, section 65, section 66, section 67, section 68,section 70, section 71, section 74, section 76, section 77, section 79, section 124,section 143 or section 144[7].

Section 200- Punishment for failing to give attention to a victim:

A comparison of this section may be drawn with Section 166-B of the Indian Penal Code. The section makes nonattendance to a victim a punishable offense. The section reads as whoever being an incharge of a hospital whether government or private if in any case contrives the provisions of section 397 of the Bharatiya Nagarik Suraksha Sanhita, 2023, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.

Section 201-Writing a wrong document with the intention to harm has been done by a public servant:

This section is similar to Section 167 of the Indian Penal Code. It prescribes that a public servant, who is vested with the duty of creating or translating any paper or e-document, is guilty of an offense under this section if he or she prepares or translates it in a manner that he or she knows or believes to be falsely aiming at causing harm either intentionally or with the knowledge that it will probably do so in order to cause any harm to anybody else.

Section 202- Public Servant taking part in unauthorized trade is an infringement of the law:

According to this section if any individual who is a public servant who is bound by law to not engage in any trade acts contrary to the provisions of the law by engaging in any trade or business transactions shall be liable punished with simple imprisonment for a term which may extend to one year, or with fine, or with both or with community service. This section is drawn from the Indian Penal Code of 1860.

Section 203- Public servant unlawfully buying or bidding for: (similar to section169 of Indian Penal Code)

Whoever, being a public servant bound by statute not to buy or sell a particular prop­erty, acquires such property himself, by himself or jointly with another, shall be pun­ished with simple imprisonment for a term which may ex­tend to two years or with fine or with both, and Suit-ability of simple imprisonment for a term which may extend to two years, or with fine, or with both.

Section 204-Impersonating a public official: Similar toSection-170 of the Indian Penal Code.

According to this section, if any person falsely represents himself as occupying a certain post under the government, knowing that he does not hold such a post or falsely personates a person lawfully holding such post, and in such assumed character does or attempts to do any act under colour of such post, he shall be punished with imprisonment for a term not less than six months but which may extend to three years.

Section 205-Wearing garb or carrying token used by public servant with fraudulent intent:

According to this section whoever, not belonging to a certain class of public servants, wears any garb orcarries any token resembling any garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that the belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both.

Conclusion

The Prevention of Corruption Act was enacted long back in 1988, before that too we had the Prevention of Corruption Act, 1947 yet we come across news every day involving corruption in some or other sectors of the government. Thus, we can conclude that effective implementation of the anti-corruption measures is the need of the hour.

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[1] Section 1 of the Prevention of Corruption Act, 1988

[2] Section 2(b) of the Prevention of Corruption Act, 1988

[3] Section 2 of the Prevention of Corruption Act, 1988

[4]Rajasthan Electricity Board v. Mohan Lal AIR 1967 SC 1857

[5]Section 7A of the Prevention of Corruption Act, 1988

[6]Section 13 of the Prevention of Corruption Act, 1988

[7]Section 199 of the Bhartiya Nyaya Sanhita,2023