A bribe is a quid-pro-quo to perform one’s duty improperly or dishonestly.
Broadly speaking corruption exists at following levels-
• Criminal-Bureaucratic-Political nexus
This is a high-level corruption and many times it goes unpunished either due to the complex nature of the evidence or lack of political will for prosecution. However, its complex nature does not mean that wrongdoer goes unpunished. Enforcement Directorate enforces the Prevention of Money Laundering Act 2002 and Foreign Exchange Management Act 1999. Central Board of Direct Taxes enforces the Prohibition of Benami Property Transactions Act 1988, and the Serious Fraud Investigation Office is the designated agency to look into the white-collar crimes. Some of the cases that may fall under this category include lobbying by MNC’s for securing a government contract, economic offences like money laundering by shell companies, defaulting on bank loans, influencing a national or international investigation, media manipulation, policy change, mafia connections, etc. An appropriate example is milking of huge infrastructure contracts by politicians and high-ranking officials. The bribe is paid by the companies through a series of intermediaries or shell companies to escape detection. Usually, the bribe transactions are clothed as consulting fees to create a smokescreen around the transactions and persons involved in such transactions.
• Corruption at the Grassroots level
Corruption at the grassroots level may include a variety of illegal acts. Adulteration in construction material and food industry, allocation of resources, job appointments, delivery of basic services like ration card, certificates, health, electricity, water, compromise in ethical standards, use of influence, neglect in performing one’s duties, regularization of illegal property, etc.
What are the various legislations under which a person is punishable for corruption?
For the offences pertaining to the Prevention of Corruption Act 1988 and Indian Penal Code, a person can approach directly to CBI, CVC, Police, State Vigilance or Court to make a complaint against a public servant asking for a bribe. Under the Lokpal & Lokayukta Act and Whistle-blower’s Protection Act, a person has to address the complaint to the Lokpal and competent authority respectively.
The various legislations to contain corruption in India are as follows –
The Prevention of Corruption Act, 1988 and Prevention of Corruption Amendment Act 2018. The aforesaid Act is supplementary to the other existing laws against corruption. The scope of bribery under POCA revolves around the term “undue advantage”, which is defined as “any gratification whatever, other than legal remuneration”. The explanation attached to Section 2 (d) defines gratification as “not limited to pecuniary gratifications or to gratifications estimable in money.” Thus, gratification can be related to cash or kind.
What is the Procedure to file a complaint under the Prevention of Corruption Act?
Following government agencies are empowered to investigate and make an arrest under the Act
- CBI – Inspector of Police
- In Metropolitan Areas under CrPC – Assistant Commissioner of Police
- Elsewhere – Deputy Superintendent of Police or a Police Officer of equivalent rank
- Any other person other than above can investigate or arrest for the offences under POCA under two situations:-
- First – When a Metropolitan Magistrate or First-Class Magistrate orders such other person from aforesaid agencies to make such arrest.
- Two – When a State Government authorizes Police officer below the rank of Inspector of Police to make an arrest or investigate the matter under POCA.
Also, if any Public Servant is guilty of Criminal Misconduct as per Section 13 (1) (b) then to continue with investigation authorization of Superintendent of Police is required as per Act.
Which Court has jurisdiction over POCA offences?
According to the Act, the Central or State Government is permitted to designate a person as a Special Judge or Judges to try the matters who is a Sessions Judge, Additional Sessions Judge, or Assistant Sessions Judge under CrPC. The trial must be finished within two years; if it is not, the trial judge must document the reasons in writing for the delay in the trial’s end. This time frame may be extended by six months at a time, but no more than four years may pass after the has begun.
The procedure to obtain sanction to prosecute Public Servant is as follows –
- First, a person brings a complaint regarding the alleged offence for which a Public Servant is being pursued for prosecution before a Court of Special Judge together with reasonable materials.
- Secondly, The Court orders the complainant to get the sanction for legal action against the public servant after receiving the complaint.
- Thirdly, someone must submit an application to the relevant authority to request permission to charge the public servant.
- Then, the accused public servant must be given “opportunity to be heard” by the responsible government agency in order to explain why he should not be prosecuted, and
- Last but not least, the applicable government has a 3-month window, with the possibility of an extension by a period of one month.
Indian Penal Code
Chapter IX of the IPC deals with offences by or relating to Public Servants and Chapter IX A deals with offences relating to elections. Also, a complaint can be filed against the Public Servant u/s 409 for the Criminal Breach of Trust. The aforesaid offences fall under cognizable as well as non-cognizable offence.
A complaint against the Public Servant for an offence of bribery or relating to bribery, under the IPC, can be registered in the following ways –
- For the cognizable offence one can go to Police Station with the material evidence and lodge an FIR u/s 154 of the CrPC. The complaint can be oral or in writing. If the Police Station refused to lodge an FIR, the aggrieved complainant can send his complaint to the Superintendent of Police u/s 154(3) of the CrPC to investigate the case.
- For non-cognizable offence, a person can give the information to the Police Officer, who may record the information in a book, but section 155 (2) of the CrPC divests the Police Officer of any investigating power in such a case. The Police Officer can refer the informant to the Magistrate empowered to try the case or commit the case to trial.
- Under section 200 of the CrPC, a person may make the complaint, orally or in writing, to the Magistrate.
The States Anti-Corruption Bureau or State Vigilance Commission can receive complaints about corruption by State Government workers. Under statutes like the Essential Commodities Act of 1955 and the POCA of 1988, among others, State Vigilance Commissions or ACB are typically permitted to file corruption prosecutions. Any State Vigilance can receive information about any Public Servant taking or requesting bribes in person, by mail, email, phone, or fax.
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