Prevention of corruption Act
is going through drastic changes through the act and through the various Judgment
wrongly rendered by the high court and Supreme Court, but I had hardly heard any news from
thousands of people who marched along with team Anna and opposition government
which said congress government is corrupt, and we will eradicate the corruption.
In Karnataka for the past 5
years we have seen what we have not seen for the past 60 years of independence
ruling, especially with respect to corruption. I have argued with number of
people that corruption is not THE issue/threat and there are more serious
threats in the society. People have debated, debated and said only one issues
is corruption and eradication of corruption will solve all other problem. For
some reason people believe that present opposition, Loksatta party, Aam Aadmi party
are capable of bringing down the corruption. I never accepted this and I think
I am correct; the reason why I say this is because no one has said anything
about the recent development in eradicating the corruption.
Amendment
to the law
Central Government has
recently presented amendment to the Prevention of corruption act, 1988, “The
Prevention of Corruption (Amendment) bill -2013” which has 10 different
objectives and by look some of these objectives are great and worth amending
the law, but if one goes deep in to it and see the flaw which it created and
thereby brought the obstacles to prosecute the public servant is beyond
imaginable. I would like to elaborate with few example:
1. Section 19 of the act talk about the
“Previous sanction necessary for prosecution”
Section 19 (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,-
If someone want to file a case under
the provision of this act he/she can file either to the authority or to the
court asking to direct the investigation under 156(3) of Code of Criminal
Procedure, 1973 (Cr.P.C.), based on the investigation if there is a case then
the court will take the cognizance if the person no more public servant or
there is an order of sanction to prosecute from authority against that public
servant. The present amendment inserted new phrase after the words “who is
employed”, the words "who is
employed, or as the case may be, was at
the time of commission of the alleged offence employed" by this
insertion the person will continued to enjoy the benefits even though he is no
more public servant.
What
is the problem?: the
problem is simple if we are talking about the small scale employee in the
government department these things do not matter the petition filed against
these people are normally enquired and action will be taken. Assuming that the
action is not taken if you use the provision of Section 156(3) of Cr.P.C. an
investigation could be ordered an investigation can be conducted fairly and the
person can be brought under the scan of law easily. The real issues is with
respect to the high rank officials of the department and the ministers, MLA’s,
MLC’s and member of parliament and the member of Rajyasabha. We all know that
these people will have greater pull in the system. Think if one files a
petition to authority it will be closed without any progress, then if we go to
court by using Section 156(3) of Cr.P.C. even though court order for
investigation, the investigation
department will be influenced and favor report will be filed and then the real
issues starts. Now if I want to prosecute these people negating the
investigation report I need sanction which is the requirement under section 19
of the act. This is the most difficult part to obtain the sanction for
prosecution of a public servant who are politicians. However they could have
been prosecuted once they remitted the office without sanction. Politician’s
maximum terms either 5 years if they are member of lower house and 6 years if
they are member of upper house then they have to be re-elected. Now once they
finished their term and may be re-elected but it is not called continuation of
office hence we don’t need sanction to prosecute these people. However the new
act makes it mandatory thought they are not public servant. It means that the processes
of prosecution of these people are made more difficult through this amendment.
2. Increasing the punishment: It’s an
excellent idea that the punishment increased for the offences under the
prevention of corruption cases. They have also increased the punishment if the
offender commits crime again and again. The catch is they have not increased
the punishment based on the amount involved, and they have also not increased
the punishment if person possess property worth cores of rupees. For example if
someone is caught with giving or accepting
the bribe of Rs. 500 or 5000 or 5 lakh the punishment is minimum 3 years. If
the person possesses property worth cores of rupees, his/her punishment is not
less than 1 year. Which means the act never intended to prosecute the big fish.
Judicial verdict:
The
year 2010, 2011, 2012, 2013 has seen number of cases being filed under the
prevention of corruption act in Karnataka mostly against the ministers or
legislators. If I speak for Bangalore city court alone, in the year 2010 about
40 cases got filed and in 2011 about 70 + cases and in the year 2012 about 72
cases got filed and in 2013 also about 40+ cases so far filed in Lokayukta
court alone. Though there are number of cases filed in various districts in
Karnataka, Bangalore is highest in the list.
Karnataka
High Court in B.V. Acharya v/s N Venkatesh (W.P. No:14047 OF 2012) decided on 03.08.2012
declared that, sanction is necessary to file a case under the prevention of
corruption act against the public servant, trial court can’t pass order under section 156(3) of Cr. P.C
without valid sanction. However this judgment is not followed the principal
rendered by the five Judge’s bench of the Apex Court in R.R.Chari v/s State of
Uttar Pradesh (AIR 1951 SC 207). Number of other Judgment rendered by the
Karnataka High Court reiterated the same principal, which gave way to the
corrupt official and the politicians’ way to do what they want to do.
The
issues reached the Apex court challenging the order passed by the Karnataka
High court in M.K.Aiyappa V.s Anil Kumar where a case was filed by Anil Kumar
against the IAS officer M.K.Aiyappa who was the D.C. Bangalore Urban dist and others
include MLA officer for illegal granting land. High court quashed the case
registered against M.K.Aiyappa stating that there was no sanction to file
complaint before the special court. The complainant Anil Kumar challenged this
order before the Apex court. Bench of the Hon’ble Apex Court on 01-Oct-2013 in
Criminal Appeal Nos.1590-1591 of 2013 [Anil Kumar v. M.K. Aiyappa], it has been
held that a Magistrate or a Special Judge has no legal power to even direct
investigation by the police by recourse to Section 156(3) of the Cr.P.C unless
there is already a valid sanction from the Government tolerating a police
investigation. However, in R.R.Chari v.
State of Uttar Pradesh (1951 SCR 312 : AIR 1951 SC 207) said that, when a
Magistrate or a Special Judge directs investigation by the police in terms of
Section 156 (3) of the Criminal Procedure Code, 1973, he would not have taken
cognizance of any offence and this is the established law in this country till
date. However Anil Kumar v. M.K. Aiyappa, it has been very erroneously held by
the Apex Court, which is going to have an impact on the more than 400 cases
pending in Karnataka alone under the prevention of corruption cases and also
going to have an impact on the other state for the people who are fighting
against the corruption.
Though
such wide impact Judgment rendered by the Apex court, though such gross
violation amendment has mooted I heard no voice. I assume that people are not
aware these devolvement shall I?
