This article is written by Adv. Arijit Kundu, pursuing a Certificate Course in Criminal Law, Litigation and Trial Advocacy from LawSikho.
Table of Contents
Corruption – what it means
Corruption can be generally meant to be dishonest or fraudulent conduct by those in power, which refers to a person holding an office of authority or power especially in government offices, which typically involves bribery and various other undue advantages like advancement of sexual favours and other benefits.
No corruption – duty of the state
The modern state is supposed to be a welfare state, the purpose of which is not subordination or arbitrary subjugation of its subjects or indiscriminate curbing of the rights of the subjects to suit one’s needs, but the ensuring of the overall development of the society as a whole and the providing of opportunities to an individual where he can grow to his fullest potential and ability and develop himself to the best of his ability and the state cooperates with him in this regard. On the contrary, what we often see today is that almost all agencies and functionaries of the government are affected by a deadly social disease called corruption which focuses solely on the benefit of an individual or group of individuals who are in authority at the expense of the society at large. Corruption not only adversely affects the efficient functioning of the government but also causes feelings of frustration among the citizens who are deprived of proper service from the government agencies whereas undeserving persons get various benefits. The concept of government and its sovereign power rests substantially in the sanctity of the promise of the welfare of the citizens and any deviation from such sacred duty would create doubt in the mind of the people about its effectiveness, which could result in mass protests, which are often seen today in various nations across the globe. One such reflection of loss of faith in government institutions is seen in the preference of people of India towards private enterprises than public ones as they often display more efficiency in services. The nation is also slowly moving towards the privatisation of various units including those who were traditionally considered to be belonging to the public sector e.g. Indian Railways.
Need for the Act
Large scale corruption in almost all wings of the government especially regarding various social welfare schemes has made it imperative to have a special legislation to tackle with the issue of corruption in our country. It is here that the Prevention of Corruption Act comes into necessity.
Decoding the Prevention of Corruption Act
Features
The Prevention of Corruption Act, 1988 is a special legislation intended to tackle corruption in government agencies and public sector enterprises in India. It prescribes the formation of special courts which are to try offenses under this Act and the trial is to be completed within four years at the most. The investigations are conducted by senior police officials. This Act was necessary in order to have a comprehensive special legislation that deals with the particular issue of corruption. It is a central act and is applicable in all states throughout India. In Delhi, the cases under the Act are investigated by an Inspector of police and elsewhere by a Deputy Superintendent of Police/ Assistant Commissioner of Police.
Why did the Amendment of 2018 come into being
As time went by, the mode of corruption changed and the benefits that were advanced to the persons in authority also expanded, it often included benefits in kind or sexual favours. An amendment became inevitable to settle these issues and make the Act in line with the modern concept of corruption.
The latest amendment of 2018 sought to bring the act in tune with the United Nations Convention on Corruption, 2005 and brought forth various changes including the introduction of the term “undue advantage” which has a broader meaning and includes gratification of any kind including sexual advances, making the net wider to easily catch hold of the offenders who were receiving benefits which were different from the traditional concept which usually meant benefits in terms of money.
Understanding the concept of proof of demand
Concept
When an act of corruption takes place, there is a giver and taker of the undue advantage. It is often seen that a person out of gratitude, gives some benefit, often money of token amount as a token of thanks to the person who has processed the concerned facility for the beneficiary. On the contrary, at various offices, it has almost become a custom that a certain sum of money is to be paid in order to receive a particular service and citizens are often deprived of services that they are lawfully entitled to or have to face unnecessary harassment or prolonged delay if a particular sum of money is not paid as illegal gratification.
Also, there is a rise in investigative journalism, involving the laying of traps or sting operations where money is often given voluntarily or during a friendly understanding without any demand of it being made.
In order to make a person liable to be punished under the Prevention of Corruption Act, it has to be seen that under what circumstances the illegal gratification was given or taken. One such issue that needs to be considered here is whether the person taking the illegal gratification actually “demanded” it from the person giving it or has it been given to him by the other person voluntarily. It is the proof of such a question that is being referred to here as “proof of demand”.
Thus, proof of demand basically means that the illegal gratification or as the latest amendment puts it to be “undue advantage” must be asked for by the accused and there must be proof of such demand which must be proved before the court, otherwise the conviction under the act cannot be ensured.
Observations of the courts
In the case of Criminal Appeal No. 1098 of 2006, State of Kerala and Anr. vs. C.P Rao it was observed by the apex court that “ mere recovery by itself would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained”. Thus, this judgement highlights the necessity of a malafide intent and the illegal consideration to be in the nature of bribe for a charge under the P.O.C.A.
In A. Subair vs. State of Kerala, Criminal Appeal No. 639 of 2004, the apex court held that “the charge of an offence has to be proved by the prosecution beyond all reasonable doubt similarly as to any other criminal offence. Till an offence is established otherwise, by appropriate or sufficient proof of demand and acceptance of illegal gratification, the accused being the public servant must be considered to be innocent; as these are essential elements that are to be proved necessarily in order to record the conviction under the Act.” Thus the apex court seeks to place a shield for the public servants who are provided illegal gratification against their wishes.
In Criminal appeal no. 696 of 2014, B. Jayaraj vs. State of A.P, it was decided by the apex court that “ the offence under Section 7 is concerned, it has now been a settled position in law that demand of illegal gratification is a must needed condition to constitute the offence under the Act and further, mere possession and recovery of tainted currency notes from the accused without proof of demand are not adequate to constitute the commission of offence and also for the conviction thereunder.” This judgement specifically states that even recovery of notes are not sufficient in order to establish an offense under the POCA, the nature of the gratification received and more importantly, the proof of demand of it by the accused person needs to be proved and not proving it can prove fatal to the prosecution case.
Settled law: proof of demand
Although there was some ambiguity due to conflicting judgements of several courts regarding essentiality of proof of demand but now, several judicial pronouncements including those from the Supreme Court of India have now settled that the proof of demand of the illegal consideration by the accused person must be proved so that the accused can be punished.
Although it is necessary to prosecute the offenders regarding illegal demand for providing of services which is a right of the receiver, it is also imperative that it needs to be ensured that the law is not misused particularly in a situation where some person is unwillingly given some undue advantage and later on is subjected to a charge under the Prevention of Corruption Act. Thus the apex court has rightly decided that proof of demand is a sine qua non for making a charge under the said act. The unwilling receiver of some illegal gratification is protected from being roped in under this Act in the pursuance of some conspiracy or otherwise but the person who demands such amount and commits this serious offense of corruption is punished under the relevant provisions of the Act.
That being said, the law being dynamic, we the lifelong learners of law have to keep a watch on the future course regarding the essentiality of proof of demand in a charge under Prevention of Corruption Act.
References
- https://indiankanoon.org/doc/1754827/
- https://indiankanoon.org/doc/176018104/
- https://indiankanoon.org/doc/848046/
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