Anti-Corruption Lawyer in Delhi / India

Anti-Corruption Laws in India

Brief:
In India, public servants can be penalized for corruption under the Prevention of Corruption Act, 1988 and under the Indian Penal Code, 1860. Offenses of money laundering by public servants are also punishable under The Prevention of Money Laundering Act, 2002 and benami transactions are prohibited under The Benami Transactions (Prohibition) Act, 1988.

Original Jurisdiction:
A Session Judge with Special Jurisdiction [Session Judge/PC] has the original jurisdiction to deal with such matters.

The Prevention of Corruption Act, 1988:

‘public servant’ has been defined under Section 2:(c) of The Prevention of Corruption Act, 1988 as a person who falls under any of the descriptions hereinafter mentioned:

1. any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
2. any person in the service or pay of a local authority;
3. any person in the service or pay of a 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 a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
4. any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
5. any person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
6. any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
7. any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
8. any person who holds an office by virtue of which he is authorized or required to perform any public duty;
9. any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
10. any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
11. any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
12. any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the central Government or any state Government, or local or other public authority.

The Prevention of Corruption Act, 1988 states under Section 13 as to what consists of a criminal misconduct by a public servant. As per the Act, a public servant is said to commit the offence of criminal misconduct when:

1. he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
2. he intentionally enriches himself illicitly during the period of his office

Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 4 year but which may extend to 10years and shall also be liable to fine.

The Indian Penal Code, 1860: A ‘public servant’ has been defined under section 21 of the Indian Penal Code, 1860 as a person who falls under any of the descriptions hereinafter mentioned:

1. Every Commissioned Officer in the Military, Naval or Air Forces;
2. Every Judge including any person empowered by law to dischargeany adjudicatory functions;
3. Every officer of a Court of Justice including a liquidator, receiver or commissioner;
4. Every juryman, assessor, or member of a panchayat;
5. Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
6. Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
7. Every officer of the Government who has a dutyto prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
8. Every officer who has a duty to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;
9. Every officer whose duty it is to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenti¬cate or keep any document for the ascertaining of the rights of the people of any village, town or district;
10. Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an elec¬toral roll or to conduct an election or part of an election;
11. Every person(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

Whereas, a public servant can be punished under the provisions of IPC in the following offences:

Section	Offence	Punishment	Cognizance	Bail	Compoundable
169: Public servant unlawfully buying or bidding for property	Whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others	Simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, if purchased, shall be confiscated.	Non-Cognizable [Triable by Magistrate of First Class]	Bailable	Non-Compoundable
409: Criminal breach of trust by public servant, or by banker, merchant or agent	Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, mer­chant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property	Imprisonment for life, or with imprisonment of either descrip­tion for a term which may extend to 10 years, and shall also be liable to fine	Cognizable [Triable by Magistrate of First Class]	Non - Bailable	Non - compoundable

Misappropriation of Assets
The Prevention of Corruption Act, 1988 states under Section 13 (b) as to what consists of misappropriation of assets by a public servant. As per the Act, a public servant is said to commit the offence of misappropriation of assets when:

(b) he intentionally enriches himself illicitly during the period of his office

Explanation 1: A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2: The expression “known source of income” means income received from any lawful sources.

Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 4 year but which may extend to 10 years and shall also be liable to fine.

Ingredients that must be proved to substantiate a charge under Misappropriation of Assets:

To substantiate a charge under section 13(b), the prosecution must prove the following ingredients, namely:

1. the prosecution must prove that the accused is a public servant
2. the nature and extent of the pecuniary resources or property which are found in his possession
3. it must be proved as to what were his known sources of income i.e., known to the prosecution
4. it must prove quite objectively that the resources or property found in possession of the accused were misappropriate to his known source of income

Once the above ingredients are satisfactorily proved, the offence of misappropriation of assets is complete, unless the accused is able to account for such resources or property and it is only thereafter the burden shifts to the accused to prove his innocence Possession of misappropriate assets:
The prosecution has to establish that the pecuniary assets acquire by the public servant are misappropriate and larger than his known sources of income. Thereafter, accused, the public servant has to account for excess. Offence becomes complete on the failure of the public servant to account or explain such excess.