Prevention of corruption Act | UPSC Law Optional mains notes


PREVENTION OF CORRUPTION ACT, 1998 | LAWXPERTSMV

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TRACING THE HISTORY TO ROOT OUT CORRUPTION : Regulation of corruption in some form or the other has a long history in India.

The first law : War time ordinance called the Criminal Law (Amendment) Ordinance, 1944 (Ordinance No. XXXVIII of 1944)

POINT TO NOTE : The Prevention of Corruption Act, 1947 was based on the recommendation of the Santhanam committee report.

THE CONCEPT : The Santhanam Committee describes Corruption as

“Improper or selfish exercise of power and influence attached to public office or to the special position one occupies in the public life”

THE CAUSE : This committee has identified certain procedural causes of corruption

1. Red tape and administrative delay.

2. Unnecessary regulations.

3. Scope of personal discretion.

4. Lack of transparency.

THE NEXT ACT : More comprehensive and broad piece of legislation - present enactment of The Prevention of Corruption Act, 1988.

SCHEME OF THE ACT : POCA 1988 consists of 31 sections covering different authorities, offences and the punishments :The Act is divided into five Chapters

Chapter I - extent and definitions

Chapter II – appointment of special judges, procedure and powers

Chapter III – actions amounting to offence and relative penalties

Chapter IV – investigation authorities and their powers

Chapter V – sanction of prosecution and misc.

It is a consolidating Act : Consolidates what? This act consolidates the provisions of the Prevention of Corruption Act, 1947, the criminal law amendment act, 1952 and sec.161 to 165 A of Indian Penal Code 1860.

WHAT IS THE MEANING OF CORRUPTION ? Corruption = the act of corrupting or of impairing integrity, virtue, or moral principle

  • Simply the state of being corrupted or debased; loss of purity or integrity; depravity; wickedness; impurity; bribery, due to which in civilized society.

THUS, precise meaning of corruption is illegal, immoral or unauthorized act done in due course of employment.

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IS CORRUPTION A CRIME AGAINST SOCIETY ? Corruption makes a significant contribution to social inequality and conflict. There is no doubt that this is a crime against society.

SALIENT FEATURES OF PREVENTION OF CORRUPTION ACT, 1988 :

  • New concept of “Public duty” introduces u/s 2(a) of the said act.

  • Scope of definition of “Public Servant” has given wider scope as compared or contemplated or existed in the IPC.

  • Offences relating to corruption in the IPC have been deleted and brought in chapter III of the said act.

  • All cases as per sec.3 of the said act are to be tried only by appoint special judges.

  • Proceedings of the court have to be held on a day to day basis.

  • Penalty provides for various offences in earlier laws are enacted.

  • To provide for expeditious trial, sec.22 provide certain modification u/s 243,309, 317 and 397 Cr.P.C in analogous to sec.7 of The Prevention of Corruption Act, 1988.

  • It has been stipulated under this act that, no court shall stay the proceedings under the act on the ground of any error or irregularity in the sanction granted unless in the opinion of the court it has led to failure of justice.

  • Other existing provision regarding presumption immunity to bribe given, investigation by an officer of the rank of Deputy Superintendent of Police access to record have been retained.

A. Public duty and Public servant

Public duty = ‘a duty in the discharge of which the State, the public or the community at large has an interest’.

POINT TO NOTE : The significance of the definition accorded to ‘public duty’ is that persons who are remunerated by Government for public duties or otherwise perform public duties, may also be public servants for POCA.

CONCEPT EXPLAINED !!!! Public servants as per definitions shall include 13 class of persons :

Those 13 class can be classified under 5 heads as

  1. Any person in service/pay of Central/State/Local Government or employed under Centre/state laws or in government company.

  2. Judge or Officers of Courts or Arbitrators or Election officers.

  3. Officers required performing Public duty.

  4. Office-bearers in co-operative societies[1] or Government Company.

  5. Persons in Service commission board, University, or an employee in institution receiving the financial aid from Government or local or public authority.

WHAT COURT SAYS ? WIDER INTERPRETATION SHOULD BE GIVEN : SC: P.V. Narasimha Rao v. State : the Supreme Court’s ruling made it clear that both public duty and public servant would be given a wide interpretation.

WIDER INTERPRETATION : SO FAR :

  1. BANK MANAGER – Public servant : In Ram Gelli’s case.

  2. INSURANCE COMPANY EMPLOYEE – Public Servant : In Bhupinder Singh Sikka v. CBI

  3. Supreme Court held that Minister, Prime Minister, Chief Minister are public servants and fall within the preview of The Prevention of Corruption Act, 1988.

  4. Whereas, Hon’ble Supreme Court held that, the Chairman of the Co-operative Society is a public servant.

CHAPTER II OF POCA

SECTION 3 : Appointment of special Judges to deal with the offences under this act.

SECTION 4 : Cases triable by special Judges

SECTION 5 : Procedure and powers of special Judge

THE MOVE : In order to ensure speedy trial of corruption cases the Prevention of Corruption Act, 1988 made following special provision -

All cases under the act are to be tried by Special Judge and even to appoint Special judge for a particular area or for a particular case………………………..CONTINUED

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