Prevention
of Corruption Act, 1988
CHAPTER V: SANCTION
FOR PROSECUTION AND OTHER MISCELLANEOUS PROVISIONS
19. Previous sanction necessary for prosecution
(1) No court shall take cognizance of an offence punishable under section
7, 10, 11, 13 and 15 alleged to have been committed by a public servant,
except with the previous sanction,-
(a) in the case of a person who is employed in connection with the
affairs of the Union and is not removable from his office save by or
with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the
affairs of a State and is not removable from his office save by or with
the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to
remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether
the previous sanction as required under sub-section (1) should be given
by the Central Government or the State Government or any other authority,
such sanction shall be given by that Government or authority which would
have been competent to remove the public servant from his office at the
time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the code of Criminal Procedure,
1973,-
(a) no finding, sentence or order passed by a special Judge shall be
reversed or altered by a Court in appeal, confirmation or revision on
the ground of the absence of, or any error, omission or irregularity
in, the sanction required under sub-section (1), unless in the opinion
of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground
of any error, omission or irregularity in the sanction granted by the
authority, unless it is satisfied that such error, omission or irregularity
has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other
ground and no court shall exercise the powers of revision in relation
to any interlocutory order passed in any inquiry, trial, appeal or other
proceedings.
(4) In determining under sub-section (3) whether the absence of, or
any error, omission or irregularity in, such sanction has occasioned
or resulted in a failure of justice the court shall have regard to the
fact whether the objection could and should have been raised at any earlier
stage in the proceedings.
Explanation.-For the purposes of this section,-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement
that the prosecution shall be at the instance of a specified authority
or with the sanction of a specified person or any requirement of a similar
nature.
20. Presumption where public servant accepts gratification other than
legal remuneration
(1) Where, in any trial of an offence punishable under section 7 or
section 11 or clause (a) or clause (b) of sub-section (1) of section
13 it is proved that an accused person has accepted or obtained or has
agreed to accept or attempted to obtain for himself, or for any other
person, any gratification (other than legal remuneration) or any valuable
thing from any person, it shall be presumed, unless the contrary is proved,
that he accepted or obtained or agreed to accept or attempted to obtain
that gratification or that valuable thing, as the case may be, as a motive
or reward such as is mentioned in section 7 or, as the case may be, without
consideration or for a consideration which he knows to be Inadequate.
(2) Where in any trial of an offence punishable under section 12 or
under clause (b) of section 14, it is proved that any gratification (other
than legal remuneration) or any valuable thing has been given or offered
to be given or attempted to be given by an accused person, it shall be
presumed, unless the contrary is proved, that he gave or offered to give
or attempted to give that gratification or that valuable thing, as the
case may be, as a motive or reward such as is mentioned in section 7,
or, as the case may be, without consideration or for a consideration
which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-section (1) and (2),
the court may decline to draw the presumption referred to in either of
the said sub-sections, if the gratification or thing aforesaid is, in
its opinion, so trivial that no inference of corruption may fairly be
drawn.
21. Accused person to be a competent witness
Any person charged with an offence punishable under this Act, shall
be a competent witness for the defence and may give evidence on oath
in disproof of the charges made against him or any person charged together
with him at the same trial:
Provided that-
(a) he shall not be called as a witness except at his own request;
(b) his failure to give evidence shall not be made the subject of any
comment by the prosecution or give rise to any presumption against himself
or any person charged together with him at the same trial;
(c) he shall not be asked, and if asked shall not be required to answer,
any question tending to show that he has committed or been convicted
of any offence other than the offence with which he is charged, or is
of bad character, unless-
(i) the proof that he has committed or been convicted of such offence
is admissible evidence to that he is guilty of the offence with which
he is charged, or
(ii) he has personally or by his pleader asked any question of any
witness for the prosecution with a view to establish his own good character,
or has given evidence of his good character, or the nature or conduct
of the defence is such as to involve imputations on the character of
the prosecutor or of any witness for the prosecution, or
(iii) he has given evidence against any other person charged with the
same offence.
22. The Code of Criminal Procedure, 1973 to apply subject to certain
modifications
The provisions of the Code of Criminal Procedure, 1973, shall in their
application to any proceeding in relation to an offence punishable under
this Act have effect as if,-
(a) in
sub-section (1) of section 243, for the words "The accused
shall then be called upon", the words "The accused shall then
be required to give in writing at once or within. such time as the Court
may allow, a list of the persons (if any) whom he proposes to examine
as his witnesses and of the documents (if any) on which he proposes to
rely and he shall then be called upon" had been substituted;
(b) in sub-section (2) of section 309, after the 'third proviso, the
following proviso had been inserted, namely:-
"Provided also that the proceeding shall not be adjourned or postponed
merely on the ground that an application under section 397 has been made
by a party to the proceeding.";
(c) after sub-section (2) of section 317, the following sub-section
had been inserted, namely:-
"(3) Notwithstanding anything contained in sub-section (1) or
sub-section (2), the Judge may, if he thinks fit and for reasons to be
recorded by him, proceed with inquiry or trial in the absence of the
accused or his pleader and record the evidence of any witness subject
to the right of the accused to recall the witness for cross-examination.";
(d) in sub-section (1) of section 397, before the Explanation, the
following proviso had been inserted, namely:-
"Provided
that where the powers under this section are exercised by a Court on
an application made by a party to such proceedings, the Court shall
not ordinarily call for the record of the proceedings:-
(a) without giving the other party an opportunity of showing cause
why the record should not be called for; or
(b) if
it is satisfied that an examination of the record of the proceedings
may be made from the certified copies.".
23. Particulars in a charge in relation to an offence under section 13(1)
(c).
Notwithstanding anything contained in the Code of Criminal Procedure,
1973, when an accused is charged with an offence under clause (c) of
sub-section (1) of section 13, it shall be sufficient to describe in
the charge the property in respect of which the offence is alleged to
have been committed , and the dates between which the offence is alleged
to have been committed, without specifying particular items or exact
dates, and the charge so framed shall be deemed to be a charge of one
offence within the meaning of section 219 of the said Code:
Provided that the time included between the first and last of such dates
shall not exceed one year.
24. Statement by bribe giver not to subject him to prosecution
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 an 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 subject such person to a prosecution under section 12.
25. Military, Naval and Air Force or other law not to be affected
(1) Nothing in this Act shall affect the jurisdiction exercisable by,
or the procedure applicable to, any court or other authority under the
Army Act. 1950, the Air Force Act, 1950, the Navy Act, 1957, the Border
Security Force Act, 1968, the Coast Guard Act, 1978 and the National
Security Guard Act, 1986.
(2) For the removal of doubts, it is hereby declared that for the purposes
of any such law as is referred to in sub-section (1), the court of a
special Judge shall be deemed to be a court of ordinary criminal justice.
26. Special Judges appointed under Act 46 of 1952 to be special Judges
appointed under this Act
Every special Judge appointed under the Criminal Law Amendment Act,
1952,, for any area or areas and is holding office on the commencement
of this Act shall be deemed to be a special Judge appointed under section
3 of this Act for that area or areas and, accordingly, on and from such
commencement, every such Judge shall continue to deal with all the proceedings
pending before him on such commencement in accordance with the provisions
of this Act.
27. Appeal and revision
Subject to the provisions of this Act, the High Court may exercise,
so far as they may be applicable, all the powers of appeal and revision
conferred by the Code of Criminal Procedure, 1973 on a High Court as
if the court of special Judge were a court of Session trying cases within
the local limits of the High Court.
28. Act to be in addition to any other law
The provisions of this Act shall be in addition to, and not in derogation
of, any other law for the time being in force, and nothing contained
herein shall exempt any public servant from any proceeding which might,
apart from this Act, be instituted against him.
29. Amendment of the Ordinance 38 of 1944
In the Criminal Law Amendment Ordinance, 1944,-
(a) in
sub-section (1) of section 3, sub-section (1) of sector 9, clause (a)
of section 10, sub-section (1) of section 11 and sub-section (1) of
section 13, for the words "State Government", wherever they
occur, the words "State Government or, as the case may be, the Central
Government" shall be substituted;
(b) in
section 10, in clause (a), for the words " three months",
the words "one year" shall be substituted;
(c) in the Schedule,-
(i) paragraph 1 shall be omitted;
(ii) in paragraphs 2 and 4,-
(a) after
the words "a local authority", the words and figures "or
a corporation established by or under a Central, Provincial or State
Act, or an authority or a body owned or controlled or aided by Government
or a Government company as defined in section 617 of the Companies Act,
1956 or a society aided by such corporation, authority. body or Government
company" shall be inserted;
(b) after
the words "or authority", the words "or corporation
or body or Government company or society" shall be inserted;
(iii) for paragraph 4A, the following paragraph shall be substituted,
namely: -
"4A. An offence punishable under the Prevention of Corruption
Act, 1988.";
(iv)
in paragraph 5, for the words and figures "items 2, 3 and
4", the words, figures and letter "items 2, 3, 4 and 4A" shall
be substituted.
30. Repeal and saving
(1) The Prevention of Corruption Act, 1947 and the Criminal Law Amendment
Act, 1952 are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application
of section 6 of the General Clauses Act, 1897, anything done or any action
taken or purported to 'have been done or taken under or in pursuance
of the Acts so repealed shall, in so far as it is not inconsistent with
the provisions of this Act, be deemed to have been done or taken, under
or in pursuance of the corresponding provision of this Act.
31. Omission of certain sections of Act 45 of 1860
Sections 161 to 165A (both inclusive) of the Indian Penal Code shall
be omitted, and section 6 of the General Clauses Act, 1897, shall apply
to such omission as if the said sections had been repealed by a Central
Act.
|
