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The Corruption Act of 1988 and The Role and Treatment of Victims & witnesses in corruption cases 24.2.2000
The prevention of corruption Act 1988 (No. 49 of 1988) received the assent of the President of India on 9.9.1988 and came into force on the same day. As seen from its preamble, it is an act to consolidate and amend the law relating to the Prevention of Corruption and for matters connected therewith. Prior to the coming into force of this Act, There were at least three Statues which held the field connected with the prevention of corruption.
They were : -
1. Indian Penal Code – sections 161 to 165- A
2. Prevention of Corruption Act 1947 ( Act 2 of 1947)
3. Criminal Law Amendment Act 1952.
The present Act seeks to incorporate the provisions of the above three enactments in a single Statute in order to present the same in a consolidated form.
The Prevention of Corruption Act 1988 (hereinafter referred to as the “Act”) furnishes an expanded definition of the term “Public Servant”, to cover various persons who were not covered under the prevention of Corruption Act of 1947, which had adopted the definition of the term as per Section 21 of Indian Penal Code. Therefore more persons who were previously outside the purview have now been brought within the net. One of the significant additions is the inclusion of “any persons who holds an office by virtue of which he is authorized or required to perform any public duty.” (vide-Section 2 (c ) (viii) of the Act. ).
The term “ Public duty” is defined in section 2 (b) of the Act as a duty in the discharge of which the state, the public or the community at large has an interest”.
The purpose of the present discussion is to focus on certain important difficulties faced by victims, witnesses in the corruption cases and about some important aspects which demand amendment of the Act.
The Cases arising under this Act can be broadly divided into (i) Trap Case and (ii) Non-trap cases. Non-trap cases included cases of criminal misappropriation, habited corruption, obtaining of pecuniary advantages for the public servant or for others in certain circumstances and also cases involving possession of disproportionate assets. It may be stated that among the non-trap cases, cases of possession of disproportionate assets occupy a special category having unique features.
In this type of cases the role of witnesses is very vital. Choosing reliable, independent and trustworthy persons are more important. Any mistake in choosing a wrong person may prove to be fatal to the prosecution.
Trap Cases : It has been held that laying of traps is a step in investigation. The Hon’ble Supreme Court of India and the various High Court have laid down important guidelines for the purpose of ensuring that the traps laid are “legitimate”. A distinction is therefore made between “legitimate” and “illegitimate” traps, and the latter are viewed with disapproval by courts.
Though ‘traps’ are often organized in connection with the offence under section 7 of Prevention of Corruption Act, 1988, such traps can also be organized in respect of offences arising under sections 8, 9 and 11 of the Act, but the principles governing such traps are more or less the same.
An offence under section 7 of the Prevention of Corruption Act, 1988 is made out when a public servant accepts a gratification other than legal remuneration. A trap cannot be organized for the purpose of extending an inducement to a public servant to accept such a gratification. The Courts have laid down that a trap could be organized only if there is a prior demand from the public servant for gratification other than legal remuneration, therefore before acting on a complaint of any person, the police officer has to satisfy himself that the public servant had in fact made a demand for such gratification. This is to ensure that no inducement is offered to the public servant to accept a bribe when he had not made such a demand earlier and also to avoid the Police Officer being utilized by any irresponsible person as an instrument for wreaking his own vengeance on public servant for his personal reasons. Thus there is an onerous responsibility cast on the police officer before organizing a trap to ensure that the same is a “legitimate” one and the complaint of the victim is bona fide.
Before organizing a trap, a police officer is therefore required to discreetly verify the reputation of the public Servant concerned and also of the victim to find out whether the latter has any personal motive against the public servant. It would also be necessary to verify whether the matter connected with the demand for bribe was pending with the pubic servant at any point of time and whether the said public servant has the capacity to extend any official favour in connection with that matter. It would be necessary for the Police Officer to record that such a verification was done before he decided to organize the trap and depose to the same while giving evidence in court.
Wherever possible, police officers have been instructed to ensure that an independent witness, preferably an official, accompanies the informant (decoy) when the latter goes to meet the public servant to make the payment during the trap. The accompanying witness is provided with a “Cover Story” for the reason for his accompanying is important, so that his presence does not raise any suspicion in the mind of the public servant. The decoy is also required to make a connection with the public servant or at suitably, so that there is a reiteration of the demand for the bride amount in the presence of the independent official witness.
Offences under Section 13 (1) and ( C) and (d ) of the prevention of Corruption Act 1988, and connected offences under Sections 408, 409 and 420 IPC, etc. come under this category. Sometimes, offense under Sections 167, 218, 477-A I.P.C are also investigated along with the offences under Prevention of Corruption Act 1988. In most cases, the witnesses for these cases will be the colleagues and superior officers/ subordinates of the accused public servant and the persons with whom he has official dealings. One of the difficulties encountered in the cases relating to disproportionate assets is problem of rebutting the defenses evidence regarding source of income, which comes as surprise during trial. It very often happens that the accused puts forward a new theory like loans taken by him or his family members, marriage and other gifts etc., to boost his income, which he had not mentioned earlier to the Investigation Officers during investigation. The Criminal Procedure Code does not provide for such situations where the need for letting in “rebuttal evidence” comes into play. Similarly the explanations offered by the accused in writing during investigation is also very often objected to, as hit by section 162 Cr. P.C., as it is inconvenient to the accused at the later stage.
Other difficulty is that immediately after close of the prosecution witnesses, the accused should be called upon to enter defence and produce his witnesses. Section 243 of Cr. PC will apply with some modifications as edumberated in Section 22 of Prevention of Corruption Act. One of the sections most frequently abused by defence in order to protract the proceedings is section 243 of Cr. PC and Section 22 of Prevention of Corruption Act. Though Section 20 (a) provides a list of witnesses and documents relied, but nothing has been mentioned what for and for what purpose they are necessary. So a Suitable inclusion is necessary to this effect to avoid unnecessary delay. In case of an offence under Section 13 (1) (e) read with 13 (2) the burden is on the accused to account for the properties possessed by him. Under the guise of discharging his burden the accused would try to examine as many as more witnesses, some time 100 to 1000 or more witnesses. If the accused is given permission to examine all witnesses it will take not less than 3 years to complete the process. No doubt Section 243 (2) gives permission to Magistrate/ Special Judges to curtail the number of witnesses. Section 243 (1) and (2) read as follows :- 243.
EVIDENCE FOR DEFENCE :-
(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross –examination, or the production of any document or other tings, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purpose of the trial be deposited in court. With a view to curtail unnecessary time and have a speedy trail, a suitable amendment to the Criminal Procedure Code, to rectify these difficulties, appears to be overdue, in view of the peculiar ingredients of section 13 (1) (e) of Prevention of Corruption Act, 1988 which places a responsibility on the accused to “Satisfactorily account” for the assets found to be disproportionate to a public servant’s known sources of income. A Conjoint reading of Section 3 (1) and Section 4 (2) of the Act is misleading and causes some confusion. Section 3 says that both the Central Government as well as State Government have got powers to appoint special judges.
Section 4 (2) of the Act reads as follows :- Every offence specified in sub section (1) of Section 3 shall be tried by the Special Judge for the area within which, it was committed or as the case may be by the Special Judge appointed for the case of where there are more special Judges that one for such area by such one of them as may be specified in this behalf by the Central Government.
At Madras, there were more than seven Special Judges who tried cases under Prevention of Corruption Act. Subsequently three other Special Judges were appointed to try the cases under Prevention of Corruption Act. When the trials were in progress, the Central Government stepped in and issued a notification under section 4 (2) of the Act, reallocating the cases already allotted to the three newly constituted courts to try the offences under prevention of Corruption Act against VIPs. The matter went up to the Supreme Court of India. In order to avoid confusion and delay , it is advisable that section 3 (1) and 4 (2) of the Act have to be amended suitably.
Even though Section 4 (4) of the Act says that cases under Prevention of Corruption Act have to be tried on day by day basis by Special Judges, it is not adhered to uniformly. The reasons may be many. One of the reasons is that the courts constituted for trial of cases under Prevention of Corruption Act have got number of cases and so it is not possible to post the cases day by day. So some provision is to be made, If case is adjourned, reasons to be assigned.
The recent Civil Procedure Code (Amendment ) Act 1999 has suggested that witnesses could be examined by junior lawyer so that unnecessary adjournments and the time consumed for examination of witnesses would be avoided. By introducing such amendments in the Prevention of Corruption Act it will have a salutary effect. The time consumed for examination of witnesses could be curtailed.
Section 278 (1) of Cr. P.C. says that immediately after completion of the evidence, it should be read over to the witnesses in the presence of the accused, if in attendance, or his pleader if he appears by pleader. Even though Section 278 of Cr. P.C. says that it should be read over, in practice it causes a lot of inconvenience. Many times it is taken advantages of by the accused who are more interested to protract the Proceedings. Therefore by introducing an amendment to the effect that evidence of witnesses should be recorded by junior lawyers cum commissioners such difficulty could be avoided further more, the said commissioner have to read the deposition in the presence of the witnesses and lawyers. Hence section 278 (1) would be followed in letter and spirit in such cases. Junior lawyers will be benefited and they will become good judges also if they in future so appointed.
Sections 18 and 19 of the Probation of offenders Act Specifically exclude the Prevention of Corruption Act. So Section 360 of Cr. P.C. of Act 2 of 1974 (Section 562 of Act 1888) and section 4 of the Probation of offenders Act cannot be invoked for any offence under the Prevention of Corruption Act. No doubt the offences under the Prevention of Corruption Act have to be viewed seriously so that whosoever be high, cannot be escaped from the clutches of law. In such cases there is no harm to invoke the benevolent provisions of probation of offenders Act, if the amount involved is meager. In dealing with such offenders, no doubt it is also desirable that section 12 of Probation of Offenders Act Should be excluded so that one cannot claim future benefits and it will be sufficient enough to meet the ends of justice. Section 17 of the Act says that in the case of Delhi, Special Police Establishment Inspector of Police could investigate the case under Prevention of Corruption Act. However in other places the Investigating Officer is Deputy Superintendent of Police or Assistant Commissioner of Police in Metropolitan Cites, Tamil Nadu Government has issued a G.O. Ms. No. 269, Personal and Administrative Reforms (Personnel N) Department, dated 4.6.1990. investing powers on Inspector of Police to investigate the cases. Unfortunately many of the courts as well as advocates are ignorant of the G.O., Hence suitable amendment has to be made in Section 17 (b) of the Act.
The C.P.C. Amendment Act 1999 suggests that only three adjournment should be given. Under the Prevention of Corruption Act also for valid reasons three adjournments should be given for the entire trial period for each side. If any party wants adjournments for more than three times, he should be penalized by imposing a fine on him sufficient enough to cover the expenses incurred by the other side including the expenses of the witnesses brought and it should be a deterrent one for him to seek any more adjournment. Usually adjournments would be sought for on the ground that the accused or prosecution has to file documents or send for documents. Order XIV C. P.C. says that after issues are framed, documents should be filed within a particular time by both sides. In that same way, the accused should be directed to file their documents within two weeks after charges are framed. The prosecution would have filed their documents at the time of filing charge sheet itself. If any party wants to file any document subsequently it should be left to the discretion of the court that too by imposing fine. It is seen that no petition under section 397 Cr.. P.C. or under Section 482 Cr. P.C. shall be entertained except under inherent power and with the leave, under section 378(3) Cr. P.C. which is equal ? But, parties are approaching the High Court. Therefore necessary provision should be made.
Not only the person who receives bribe but also the person who gives bribe, is an offender. If the bribe giver is prosecuted and the mischief of the Act is extended to him, no one would come forward to give a complaint against a public servant who demands bribe. Even in the Prevention of Corruption Act 1947, the bride giver was not protected. Subsequently it was thought that the bribe giver should be protected, if he is prepared to come and give a complaint against public servant. With that view the prevention of Corruption Act 1947 was amended by Criminal Law Amendment Act 1958. Section 8 of the prevention of Corruption Act 1948 is more or less a replica of the present Section 24 of the Act 49 of 1988. Section 24 of the Act reads as follows :-
STATEMENT BY BRIBE GIVER NOT TO SUBJECT HIM TO PROSECTUTION : Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for on offence under sections 7 to 11 or under Section 13 or Section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not be subject such person to a prosecution under section 12 of the Act. This Section provides that bribe-giver shall not be subjected to prosecution for making a statement in any proceedings against a public servant for an offence under section 7 to 11 or under Sections 13 to 15 of the Act. Thus this action confers immunity from prosecution, on persons who figure as witnesses in any proceedings against a public servant for an offence mentioned above.
Judge High Court, Madras - Justice N. K. Jain 24.2.2000
