Ppt 3

ANTI CORRUPTION CASES

BYShri. K.Sudhakar,

Deputy Legal AdvisorCBI, Mumbai

(Zone-I & Zone-II)

Need For Training ModuleNeed For Training Module The need for organizing ‘The need for organizing ‘Training Training

ModuleModule’ to meet the Press on the subject ’ to meet the Press on the subject is felt to enrich the Media with the anti-is felt to enrich the Media with the anti-corruption cases and its governing laws. corruption cases and its governing laws.

Organizing Workshops and Training Module Organizing Workshops and Training Module with the media is not new and earlier the with the media is not new and earlier the Press Council of India in association with Press Council of India in association with Hon’ble Supreme Court of India and Hon’ble Supreme Court of India and National Legal Services Authority and National Legal Services Authority and Editors Guild of India organized workshops Editors Guild of India organized workshops on the reporting of court proceedings by on the reporting of court proceedings by Media and Administration of Justice. Media and Administration of Justice.

Media has been recognized as Media has been recognized as ““FOURTH ESTATEFOURTH ESTATE” , occupies very ” , occupies very important and significant place in a important and significant place in a Democracy along with Legislature, Democracy along with Legislature, Executive and Judiciary.Executive and Judiciary.

Freedom of Speech and Expression are Freedom of Speech and Expression are recognized under recognized under Article-19 (1) (a) of Article-19 (1) (a) of the Indian Constitutionthe Indian Constitution subject to subject to certain restrictions. certain restrictions.

Media is expected and obliged to work Media is expected and obliged to work within the frame-work of the within the frame-work of the Constitution and other relevant Acts.Constitution and other relevant Acts.

The basic role of Media is to inform, The basic role of Media is to inform, educate and guide the society and it educate and guide the society and it is a ‘is a ‘Potent OrganPotent Organ’ of ’ of communication which can keep the communication which can keep the society well informed about the society well informed about the violation of laws. violation of laws.

We have witnessed that the Media We have witnessed that the Media has exposed powerful personalities has exposed powerful personalities stand before the law of the land. It is stand before the law of the land. It is a matter of concern that at times, a matter of concern that at times, the Media has become more the Media has become more proactive by liberally commenting on proactive by liberally commenting on the role of police in the investigation. the role of police in the investigation.

Such actions of Media often influence Such actions of Media often influence the general public to believe the same the general public to believe the same and putting undue pressure on the and putting undue pressure on the course of fair investigation by the police. course of fair investigation by the police. The end result is loss of public faith in The end result is loss of public faith in police and investigating agency. Hence, police and investigating agency. Hence, the Media needs a vigilant reporting. the Media needs a vigilant reporting. The reporters of Media should have The reporters of Media should have some basic knowledge about the cases some basic knowledge about the cases which fall under the category of which fall under the category of “Anti “Anti Corruption”Corruption”. .

Hence, to enrich with the subject and to Hence, to enrich with the subject and to refresh with the Anti Corruption Law, refresh with the Anti Corruption Law, this this Training ModuleTraining Module, , Meet-The-PressMeet-The-Press is coined. is coined.

EVOLUTION OF LAWEVOLUTION OF LAW

INDIAN PENAL CODEINDIAN PENAL CODE was brought into was brought into force from force from 01.01.186201.01.1862, though it received , though it received assent of Governor General of India onassent of Governor General of India on 6th 6th October 1860October 1860..

Indian Penal Code Indian Penal Code Chapter-IXChapter-IX deals with deals with all offences by or relating to public all offences by or relating to public servant. This Chapter does not deal with servant. This Chapter does not deal with misconduct and abuse of power by the misconduct and abuse of power by the public servant. public servant.

Section 161 to 165Section 161 to 165 of IPCof IPC deals with deals with various offences of corruption and this is various offences of corruption and this is the first step to fight against corruption the first step to fight against corruption committed by the public servants. committed by the public servants.

Section 161 of IPCSection 161 of IPC deals with a public deals with a public servant who accepts or obtains or agrees servant who accepts or obtains or agrees to accept from any person for himself or to accept from any person for himself or for any other person any gratification other for any other person any gratification other than the legal remuneration. than the legal remuneration.

Section 162 of IPCSection 162 of IPC deals with a person deals with a person who accepts or obtains or agrees to accept who accepts or obtains or agrees to accept or attempts to obtain for himself or for any or attempts to obtain for himself or for any other person any gratification by corrupt or other person any gratification by corrupt or illegal means to influence a public servant. illegal means to influence a public servant.

Section 163 of IPCSection 163 of IPC deals with a person deals with a person who accepts or obtains or agrees to accept who accepts or obtains or agrees to accept or attempts to obtain for himself or for any or attempts to obtain for himself or for any other person any gratification for inducing other person any gratification for inducing and by exercise of personal influence with and by exercise of personal influence with any public servant.any public servant.

Section 164 of IPCSection 164 of IPC deals with abetment deals with abetment of offence of sec.162 and 163 IPC. of offence of sec.162 and 163 IPC.

Section 165 of IPCSection 165 of IPC deals with a public deals with a public servant who accepts or obtains or agrees servant who accepts or obtains or agrees to accept or attempts to obtain for himself to accept or attempts to obtain for himself or for any other person any valuable thing or for any other person any valuable thing without any consideration or less without any consideration or less consideration.consideration.

There was no offence till 1952 for There was no offence till 1952 for abetment of any offence u/sec.161 or abetment of any offence u/sec.161 or 165. Hence, in 1952, by way of 165. Hence, in 1952, by way of Criminal Law Amendment, 165-A was Criminal Law Amendment, 165-A was inserted to make abettor of sec.161 inserted to make abettor of sec.161 or 165 of IPC as offenders. or 165 of IPC as offenders.

What amounts to a What amounts to a bribe?bribe?

I.I. The receiver must be a public servant.The receiver must be a public servant.

II.II. He must solicit or receive illegal He must solicit or receive illegal gratification.gratification.

III.III. He must have received the same as a He must have received the same as a motive or reward.motive or reward.

IV.IV. It should be other than legal It should be other than legal remuneration.remuneration.

Motive is for doing a future act.Motive is for doing a future act. Reward is for a past act.Reward is for a past act.

Mere demand of bribe by a public servant is Mere demand of bribe by a public servant is an offence u/sec. 161 IPC (an offence u/sec. 161 IPC (Mubarak Ali v/s Mubarak Ali v/s State AIR 1958 MP page-157State AIR 1958 MP page-157).).

Gratification is not restricted to pecuniary Gratification is not restricted to pecuniary gratification or estimable in money (gratification or estimable in money (C.I. C.I. Emden v/s State of UP AIR 1960 SC Emden v/s State of UP AIR 1960 SC 548548). ).

During During 2nd World War2nd World War, there was large , there was large scale of corruption in War Dept. which scale of corruption in War Dept. which necessitated for creation of a necessitated for creation of a Special Special Police EstablishmentPolice Establishment to curb corruption. to curb corruption.

Later the Special Police Establishment Later the Special Police Establishment became the Central Bureau of Investigation.became the Central Bureau of Investigation.

There was no special act for There was no special act for Prevention of Prevention of Corruption till 11th March 1947.Corruption till 11th March 1947.

A Special Act i.e. Prevention of A Special Act i.e. Prevention of Corruption Act, 1947 came into Corruption Act, 1947 came into existence from existence from 11th March 194711th March 1947 to to make more effective provision for the make more effective provision for the prevention of bribery and corruption. prevention of bribery and corruption.

By enacting the Special Act, in By enacting the Special Act, in addition to IPC provisions (Sec.161 to addition to IPC provisions (Sec.161 to 165) 165) Criminal MisconductCriminal Misconduct was was made as an offence as per Sec.5 of made as an offence as per Sec.5 of PC Act, 1947.PC Act, 1947.

Criminal MisconductCriminal Misconduct1.1. If a public servant If a public servant habituallyhabitually accepts accepts

any bribe. This offence is aggravated any bribe. This offence is aggravated form of 161 IPC. form of 161 IPC.

2.2. If a public servant If a public servant habituallyhabitually accepts accepts any valuable thing without consideration any valuable thing without consideration or for less consideration with whom he or for less consideration with whom he transacted business or about to be transacted business or about to be transacted. It is aggravated form of sec. transacted. It is aggravated form of sec. 165 IPC. 165 IPC.

3.3. Fraudulently Fraudulently misappropriates or misappropriates or convertsconverts for his own use any property for his own use any property entrusted to him or under his control or entrusted to him or under his control or allows any other person.allows any other person.

4.4. By By corruptcorrupt and and illegalillegal means or means or otherwise by abusing his official otherwise by abusing his official position as public servant obtains position as public servant obtains any valuable thing or pecuniary any valuable thing or pecuniary advantage.advantage.

5.5. Possession of Disproportionate Possession of Disproportionate Assets.Assets.

To consolidate the law relating to the To consolidate the law relating to the Prevention of Corruption, the old PC Prevention of Corruption, the old PC Act is repealed, and the provisions of Act is repealed, and the provisions of Section 161 to 165-A IPC were also Section 161 to 165-A IPC were also repealed by introducing PC Act, 1988 repealed by introducing PC Act, 1988 which came into effect from which came into effect from 09.09.198809.09.1988..

Under this Act, the provisions of IPC and the Under this Act, the provisions of IPC and the provisions of Sec. 5 of PC Act, 1947 were put provisions of Sec. 5 of PC Act, 1947 were put together as under: together as under:

Shall not be less than six months. May extend to five years.Sec. 123 yearsSec. 165 A6

Shall not be less than six months. May extend to five years.Sec.113 yearsSec. 1655

Shall not be less than six months. May extend to five years.Sec.103 yearsSec. 1644

Shall not be less than six months. May extent to five years.Sec.9Sec. 1633

Shall not be less than six months. May extend to five years.Sec.83 yearsSec. 162 2

Shall not be less than six months. may extend to five yearsSec.73 yearsSec. 161 1

PunishmentPC Act,1988

Punishment

PCAct,1947

Punishment

IPCSl.No.

Anti-Corruption can be basically Anti-Corruption can be basically divided into three categories. divided into three categories.

1.1. bribery and its abettors.bribery and its abettors.

2.2. Abuse of official positionAbuse of official position

3.3. Possession of disproportionate assets.Possession of disproportionate assets.

Bribery and its AbettorsBribery and its Abettors

Just as fish moving under water cannot Just as fish moving under water cannot possibly be found either as drinking or not possibly be found either as drinking or not drinking water.(Kautilya) Similarly, public drinking water.(Kautilya) Similarly, public servants cannot be found out while taking servants cannot be found out while taking money. money.

Sec. 7 of PC Act 1988 deals with public Sec. 7 of PC Act 1988 deals with public servant taking gratification other than legal servant taking gratification other than legal remuneration.remuneration.

The public servant becomes The public servant becomes functus officiofunctus officio when money offered to him as a bribe. when money offered to him as a bribe.

Payment of a sum to a public servant Payment of a sum to a public servant whether paid before or after the act would whether paid before or after the act would constitute bribe (constitute bribe (Mohinder Lal Bagai v/s Mohinder Lal Bagai v/s Delhi Administration 1970 Cr LJ 793Delhi Administration 1970 Cr LJ 793))

The practice of laying traps employing spies The practice of laying traps employing spies and trap witnesses for detection of offences and trap witnesses for detection of offences has been recognized in this country (has been recognized in this country (In re In re Ambujam Ammal, AIR 1954 Madras Ambujam Ammal, AIR 1954 Madras 326326). ).

Sting operation by a private television Sting operation by a private television channel for detection of crime was also channel for detection of crime was also accepted (accepted (Sri Bharadwaj Media Pvt. Ltd. Sri Bharadwaj Media Pvt. Ltd. v/s State 2008 (2) Crimes 244 Delhiv/s State 2008 (2) Crimes 244 Delhi). In ). In this case, a telecast programme was shown this case, a telecast programme was shown from MPs receiving money for raising from MPs receiving money for raising question in Parliament. The Delhi High Court question in Parliament. The Delhi High Court observed that FIR could be quashed only if observed that FIR could be quashed only if all facts stated when considered true did not all facts stated when considered true did not disclose cognizable offence. disclose cognizable offence.

Section 8 and 9 of PC ActSection 8 and 9 of PC Act are are complimentary to sec.7 of the PC Act complimentary to sec.7 of the PC Act and are intended to reach to the aiders and are intended to reach to the aiders and abettors of the offence.and abettors of the offence.

Section 8 and 9 of the PC ActSection 8 and 9 of the PC Act are are applicable to public servants as well as applicable to public servants as well as to private persons. to private persons.

The The abettorsabettors of the offences of of the offences of sec.7 sec.7 and 11and 11 are dealt under are dealt under sec.12sec.12 of the of the PC Act for the abetment. PC Act for the abetment.

The abettors of the offences u/The abettors of the offences u/sec. 8sec. 8 and and 99 are dealt u/ are dealt u/sec.10sec.10 of the PC of the PC Act. Act.

The The habitualhabitual abettors for the offences abettors for the offences u/sec. u/sec. 8, 9 and 12 of PC Act8, 9 and 12 of PC Act are are dealt under sec. dealt under sec. 14 of the PC Act14 of the PC Act..

The aggravated form of bribe i.e. The aggravated form of bribe i.e. habitual acceptance of bribe is a habitual acceptance of bribe is a criminal misconduct.criminal misconduct.

The habitual acceptance of valuable The habitual acceptance of valuable thing without consideration or thing without consideration or inadequate consideration is also inadequate consideration is also criminal misconduct. criminal misconduct.

The above forms are falling under the The above forms are falling under the category of bribery.category of bribery.

Abuse of official positionAbuse of official position Abuse means misuse i.e. using his Abuse means misuse i.e. using his

position for something for which it is position for something for which it is not intended. not intended.

The abuse of official position is wider The abuse of official position is wider than the offence of bribery. than the offence of bribery.

The abuse may be by corrupt or illegal The abuse may be by corrupt or illegal means .means .

To obtain pecuniary advantage or any To obtain pecuniary advantage or any valuable thing for himself or for any valuable thing for himself or for any other person .other person .

To obtain pecuniary advantage or any To obtain pecuniary advantage or any valuable thing for himself or for any other valuable thing for himself or for any other person without any public interest .person without any public interest .

All bribery cases squarely fall under All bribery cases squarely fall under “obtaining any pecuniary advantage “ in “obtaining any pecuniary advantage “ in addition to section addition to section 7 of the PC Act, 19887 of the PC Act, 1988 . .

Causing wrongful loss to the Govt to obtain Causing wrongful loss to the Govt to obtain pecuniary advantage for a third party falls pecuniary advantage for a third party falls under abuse of Power under abuse of Power (M Narayanan (M Narayanan Nambiar Vs State of Kerala AIR 1963 SC Nambiar Vs State of Kerala AIR 1963 SC 1116 ). 1116 ).

Issue of contracts to the bidders at higher Issue of contracts to the bidders at higher rates would also fall under abuse of powers rates would also fall under abuse of powers ((Narbahadur Bhandari Vs State 2003 Narbahadur Bhandari Vs State 2003 Cr.LJ 2799 Sikkim, Ghulam Din Butch Vs Cr.LJ 2799 Sikkim, Ghulam Din Butch Vs State of J& K AIR 1996 SC 1568 ) .State of J& K AIR 1996 SC 1568 ) .

Possession of disproportionate Possession of disproportionate assetsassets

Large numbers of public servants indulge Large numbers of public servants indulge in corrupt activities on regular basis and in corrupt activities on regular basis and some times it would be difficult to catch some times it would be difficult to catch them while accepting the bribe by laying a them while accepting the bribe by laying a trap and the ill-gotten money so colleted trap and the ill-gotten money so colleted by them are converted into assets. Hence, by them are converted into assets. Hence, to detect such officer, disproportionate to detect such officer, disproportionate asset was made as an offence in PC Act.asset was made as an offence in PC Act.

In K. Veera Swami v/s Union of India In K. Veera Swami v/s Union of India (1991) 3 SCC(1991) 3 SCC, the Hon’ble Supreme Court , the Hon’ble Supreme Court observed that if one possesses assets observed that if one possesses assets beyond his legitimate means, it goes beyond his legitimate means, it goes without saying that the excess is out of ill-without saying that the excess is out of ill-gotten gain. The assets are not drawn like gotten gain. The assets are not drawn like Nitrogen from the air. Nitrogen from the air.

In P. Nallamal v/s State 1999 Cr LJ 3967In P. Nallamal v/s State 1999 Cr LJ 3967, , the Hon’ble Supreme Court held that the the Hon’ble Supreme Court held that the abettor can also be prosecuted for aiding to abettor can also be prosecuted for aiding to acquire disproportionate assets by the acquire disproportionate assets by the public servant. Every public servant is public servant. Every public servant is legally bound to inform the receipt of legally bound to inform the receipt of income otherwise the same cannot be income otherwise the same cannot be treated as income. treated as income.

The above are only certain illustrations of The above are only certain illustrations of bribery and corruption and the media may bribery and corruption and the media may keep the same in mind while reporting any keep the same in mind while reporting any corruption related matter .corruption related matter .

If you shut your doors to all errors , truth will If you shut your doors to all errors , truth will be shut out (Rabindra Nath Tagore). be shut out (Rabindra Nath Tagore).

SanctionSanction No court shall take cognizance of an No court shall take cognizance of an

offence under sections offence under sections 7, 10, 11, 13 7, 10, 11, 13 and 15 of PC Act.and 15 of PC Act.

Sanction not required for the offences Sanction not required for the offences under sec under sec 8, 9, 12 and 14 of PC Act8, 9, 12 and 14 of PC Act..

In case of Group-A officers, sanction is In case of Group-A officers, sanction is accorded by the Central Govt.accorded by the Central Govt.

In case of others, viz., Public Sector In case of others, viz., Public Sector undertakings and Non Group-A undertakings and Non Group-A officers, sanction is accorded by the officers, sanction is accorded by the competent authority.competent authority.

High court cannot give direction to the High court cannot give direction to the sanctioning authority to grant sanctioning authority to grant sanction. sanction. (Mansukh Lal Vithal Das (Mansukh Lal Vithal Das Chauhan Vs. State of Gujarat 1997 Chauhan Vs. State of Gujarat 1997 Crl.L.J 4059 SC)Crl.L.J 4059 SC)

Sanction for retired employees not Sanction for retired employees not necessary.necessary.

Time limit of 3 months for issuing Time limit of 3 months for issuing sanction order fixed by Hon’ble sanction order fixed by Hon’ble Supreme court Supreme court (Vineet Naraian Vs. (Vineet Naraian Vs. Union of India AIR 1998 SC 889)Union of India AIR 1998 SC 889)

Central Vigilance Commission (CVC) is a Central Vigilance Commission (CVC) is a commission established under CVC Act commission established under CVC Act 20032003..

According to sec 8(g) of CVC Act, it According to sec 8(g) of CVC Act, it tenders advice to the Central Govt., tenders advice to the Central Govt., corporations established under any corporations established under any central act.central act.

CVC advices whether there is a prima CVC advices whether there is a prima facie case against a Group-A officer/ facie case against a Group-A officer/ Middle Management officer of a Middle Management officer of a Corporation to accord sanction or not.Corporation to accord sanction or not.

In case of difference of opinion between In case of difference of opinion between the organisation and CBI, CVC resolves the organisation and CBI, CVC resolves the difference of opinion.the difference of opinion.

In case of difference of opinion In case of difference of opinion between the organisation and CVC, a between the organisation and CVC, a committee will resolve the difference of committee will resolve the difference of opinion.opinion.

If commission’s advice to grant of If commission’s advice to grant of sanction is not accepted then the sanction is not accepted then the matter is referred to DOPT for final matter is referred to DOPT for final decision.decision.

The object of sanction is to save public The object of sanction is to save public servants for frivolous prosecution.servants for frivolous prosecution.

Sanction order is an administrative act.Sanction order is an administrative act.

Statement of bribe giver is not subject Statement of bribe giver is not subject to prosecution.to prosecution.

The bribe giver cooperates with the The bribe giver cooperates with the investigation and gets immunity under investigation and gets immunity under sec 24 of PC Act.sec 24 of PC Act.

Shri Bhupender Singh, a journalist Shri Bhupender Singh, a journalist employed in Akash Channel acted as employed in Akash Channel acted as conduit and offered a bribe of Rs.9 conduit and offered a bribe of Rs.9 Lakhs to Shri Dilip Singh Judeo, which Lakhs to Shri Dilip Singh Judeo, which he received in the presence of Addl. he received in the presence of Addl. Private Secretary. Shri. Singh Video Private Secretary. Shri. Singh Video recorded the incident arranged by recorded the incident arranged by Arvind Vijay Mohan.Arvind Vijay Mohan.

Shri Singh filled Criminal Revision Shri Singh filled Criminal Revision Petition in Delhi High Court challenging Petition in Delhi High Court challenging charges under sec 12 of PC Act.charges under sec 12 of PC Act.

Shri Singh contended that he is a Shri Singh contended that he is a journalist and wanted to expose journalist and wanted to expose corruption and no intention to aide the corruption and no intention to aide the crime.crime.

Hon’ble Delhi High Court held that his Hon’ble Delhi High Court held that his role can be ascertained during trial role can be ascertained during trial only only (Bhupinder Singh Patel Vs. CBI ,III (Bhupinder Singh Patel Vs. CBI ,III 2008 CCR 247 Delhi)2008 CCR 247 Delhi)

The role of Media is really laudable and The role of Media is really laudable and within the umbrella of Fundamental Rights , within the umbrella of Fundamental Rights , they can report the true facts subject to the they can report the true facts subject to the restrictions. Transparency is imperative restrictions. Transparency is imperative because it adds to the credibility and because it adds to the credibility and inspires the confidence of the public. Hence inspires the confidence of the public. Hence basic knowledge of Anti-Corruption is basic knowledge of Anti-Corruption is required so that no erroneous reporting required so that no erroneous reporting could be made . could be made .

Corrupt influence is itself the perennial Corrupt influence is itself the perennial spring of all prodigality and of all disorder, it spring of all prodigality and of all disorder, it loads us more than millions of debts , takes loads us more than millions of debts , takes away vigor from our arms , wisdom from our away vigor from our arms , wisdom from our councils , every shadow of authority and councils , every shadow of authority and credit from the most venerable parts of our credit from the most venerable parts of our constitution (Bruke).constitution (Bruke).

correct reporting of corrupt officials would correct reporting of corrupt officials would help the progress of the country . help the progress of the country .