Define corruption
Illegal, immoral or unauthorized act done by a person in due course of his employment which eventually contributes to social inequality and conflict
define undue advantage under the act
“Undue advantage” means any gratification whatever, other than legal remuneration.”
📌 Explanation:
Gratification includes money, gifts, favours, jobs, or any other benefit, not legally due.
Legal remuneration includes only what a public servant is legally permitted to receive as per service rules or government orders.
Public servant
2c
- Service and pay
- Nature of work - judges , arbitrators , election officers, persons in service commission, universities, or any Instn receiving aid
3 judicial interpretation over the years
- mla, mp, cm, pm
- former civil servants
- chairperson of cooperative society
List down the offences under PCA
- Sec 7 - undue advantage - Improperly doing his duty OR, to induce another to do his duty improperly for gratification other than legal remuneration)
- sec 7a- Taking undue advantage to influence public servant by corrupt/illegal means
- Sec 8- bribe givers
- Sec 9 , 10- commercial org
- sec 11 - obtains undue avantanage does public duty -no considertion - inadequate consideration
- Sec 13 - criminal misconduct
Punishment: 3 to 7 years + fine
- Higher degree of punishment for habitual offender
- Attempt to commit offences under Sections 13
Criminal misappropriation prior to 2018 amendment
- Using illegal means Valuable thing/monetary reward
2 Abusinv his position to
3 VT/MR w/o public interest for any other person
Sec 13 post amendment
- Misappropriation or conversion for his own use any property entrusted
- amassing wealth disproportionate to known source of income
Purpose of the Amendment:
1. To prevent misuse of the law against honest public servants
2. To require clear evidence of misappropriation or disproportionate assets,
3. To align with global anti-corruption standards (like UNCAC).
Lacunaes in pca
- What if not within 4 years
- Corporate viel
- Sec 17(a) - permission - 4 months - leakage
- Bribe givers
- Presumption of guilt only in UA –; Habitual offenders, abetting an offence
- Not preventive - primitive or post Mortem
How are commercial org held liable under pcra
Sec 9,10
- When a person associated with CO gives UA to public servant with an aim of
- obtaining and retaining business for CO
- obtain and retain adv in conduct of business - Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduc
- The capacity in which the person performs services for or on behalf of the commercial organisation shall not matter
- Whether or not the person is a person who performs services for or on behalf of the commercial organisation is to be determined by reference to all the relevant circumstances
- If the person is an employee of the commercial organisation, it shall be presumed unless the contrary is proved that such person is a person who has performed services for or on behalf of the commercial organisation.
- h offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer ,, they shall be punished under the act
Comparative analysis of poca before and after 2018 amendment
- Undue advantage
- Bribe giver -7A
- Protection to bribe givers
- Commercial org
- Criminal misconduct narrowed
- Prior sanction serving —-> extended to former
- Forfeiture of property — apply pmla
- Time frame for trial - in 2 years — 6 month at a time, max 4 years
who is authorised to investigate
- a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
- Metropolitan area- ACP
- Other- DSP
Features in the Act to Prevent Victimisation of Honest Public Servants & Ensure Fair Trial
- Prior Sanction for Investigation – Section 17A- without prior approval of the competent authority.
Exception: Trap cases (e.g., caught red-handed). - Prior Sanction for Prosecution – Section 19-No court can take cognizance of an offence without prior sanction from:
-The Central Government for central public servants
-The State Government for state employees
-Ensures screening by a competent authority before trial starts.
-Applies to serving and retired public servants (as per 2018 amendment). - Time Limit for Granting Sanction-Prevents delay and uncertainty in the officer’s career.
- Limited Definition of Criminal Misconduct – Section 13 (Post-Amendment)-not vague terms like “abuse of position
- Mere administrative errors or unintended consequences do not amount to corruption.
–> Undue advantage must be shown to be taken with intent or knowledge. - Accused as Competent Witness – Section 21
- Provision for Appeal in high court
