Corruption Act

advertisement
CORRUPTION - ill effects
 undermines investment and economic growth
 decreases the resources available for human
development goals
 deepens the extent of poverty
 subverts the judicial system, and undermines
the legitimacy of the state
 it can devastate the entire economic, political,
and social fabric of a country
 urgent need to create a zero tolerance for
corruption
1
CONDUCT RULES
Government servant is expected
to
 maintain absolute integrity
 show devotion to duty
 not exhibit conduct unbecoming
of a Government servant
2
Objectives
 to launch a systematic campaign
against corruption by involving all
members of an organization in
fighting this social evil
 to educate them about the dangers
of corruption and sensitise them
about the evil consequences of
corruption
3
Prevention of Corruption Act,
1988 - (the ACT)
 Definition
 Legislative
framework to fight
corruption
 Allied Acts applied in
the PCA, 1988
 use of public office
for private gain
 Prevention of
Corruption Act,
1988
 Indian Penal Code
(IPC), and Criminal
Law (Amendment)
Act, 1952
4
Criminal Misconduct
when the public servant
 misappropriates the property entrusted to him
 obtains a valuable thing by abusing his official
position
 is in possession of disproportionate assets to the
known sources of his income
 abuses office
 obtains a valuable thing or pecuniary advantage
by corrupt or illegal means or by abusing his
official authority
he commits a criminal misconduct
5
The ACT
 Date of effect
 Applicability
 The Act received the
consent of the President
of India on September
9, 1988(Act, No, 49 of
1988) and came into
force on that date
 whole of India except the
State of Jammu and
Kashmir and it is applies
also to all citizens of
India outside India
6
The ACT
– Salient Features
 Essential feature of this Act
it makes it obligatory for the Court to make
certain presumptions of guilt against the
accused
radical departure from the normal rule under
which the prosecution is required to prove
‘beyond doubt’ all the ingredients of an
offence
7
The ACT
 consists of 31 sections covering different
authorities, offences and the punishments
 The Act is divided into five Chapters
 Chapter I - extent and definitions
 Chapter II – appointment of special judges, procedure and
powers
 Chapter III – actions amounting to offence and relative
penalties
 Chapter IV – investigation authorities and their powers
 Chapter V – sanction of prosecution and misc.
8
Chapter I
 Section 1 - gives extent of the ACT
 Section 2 – defines terms like public
servant, Government, etc.
 term ‘public servant’ as contained in section 21 of
IPC has been enlarged to include a large number of
employees within the ambit of definition by
incorporating sections 2(c)(iii) and 2(c)(ix) covering
employees of Nationalised Banks and office bearers
of Co-operative societies of the Central and State
9
Chapter II
Section 3
 empowers Central Government and
State Government to appoint Special
Judges to try the following offences
 offence
punishable under this Act
 any conspiracy to commit or any
attempt to commit offences specified in
above
10
Chapter II
Section 4
 specifies the jurisdiction of the special
Judges appointed in sec 3
 offences described in sec 3 are to be
tried by Special Judges
 Special Judge also has powers to try any
offence, other than an offence specified
in sec 3
11
Chapter II
Section 5
 describes the procedure to be followed and
the powers of Special Judge
Special judge
 can take cognizance of offences without the
accused being committed to him
 may tender a pardon to such person who
makes a true disclosure of the whole
circumstances relating to the offence
Provisions of CrPC shall apply to the
proceedings before the Special Judge
12
Chapter II
Section 6
 authorises Special Judge to conduct a trial in a
summary manner, in cases where violation of
section 12-A(1) of Essential Commodities Act,
1955
 and pass upon any person a sentence of
imprisonment for a term not exceeding one
year
 convicted person will not have any right to
appeal against such summary trial if the term
of imprisonment does not exceed one month
13
Chapter III - Section 7
If a public servant is charged with
 Accepting any gratification other than
legal remuneration in respect of an
official act, as a motive or reward for doing
any official act or showing any favour or
disfavour to any person in official function
14
Chapter III - section 8
If a public servant is charged with
Accepting or attempting to
obtain any gratification by corrupt
or illegal means, to do any official
act
15
Chapter III
- Section 9
If a public servant is charged with
Accepting or attempting to obtain
any gratification for exercise of
personal influence with public
servant, to do any official act
16
Chapter III
If any public servant
 Section 10 - abets the offences
defined in sec 8 & 9
 Section 11 - obtains valuable thing,
without consideration form person
concerned in proceeding or business
transacted by such public servant
17
Chapter III - Section 12
Punishment for abetment of criminal
offences defined in sec 7 & 11
 Public servant shall be punishable with
imprisonment which shall not be less than
six months but which may extend to five
years and shall also be liable to fine
 It would be seen that a minimum sentence of six
months has been made mandatory and fine is no more
optional before the Courts
18
Chapter III
Criminal misconduct defined
-contd.
 Section 13 - actions which can be
described as criminal misconduct
if the public servant
 habitual defaulter under section 7
 under section 11
 dishonestly or fraudulently misappropriates
any property entrusted to him or under his
control as public servant or allows any other
person to do so
19
Chapter III
 obtains for himself or for any other person any
valuable thing or pecuniary advantage
by corrupt or illegal means, or
by abusing his position
 possesses pecuniary resources or property
disproportionate to his known sources of
income
Punishment
 criminal misconduct shall be punishable with
imprisonment for a term which shall be not less
that one year but which may extend to seven
years and shall also be liable to fine
20
Chapter III - Section 15
Any attempt to commit an offence
referred in section 13
punishable with imprisonment for a term
which shall be not less that two years but
which may extend to seven years and
shall also be liable to fine
21
Chapter III - Section 14
Habitual committing of criminal
offence under section 8, 9 and 12
punishable with imprisonment for a term
which may extend to three years and
shall also be liable to fine
22
Chapter III - Section 16
Where a sentence of fine is imposed
under section 13 or 14, the court shall
take into consideration the amount or
the value of the property which the
accused has obtained by committing
the offence
23
Chapter IV
Section 17
 offence punishable under the PC Act can be
investigated by a police officer not below the rank
of
 an Inspector of Police - Metropolitan areas
 a DSP or a police officer of equivalent rank elsewhere
Section 18
 a Police Officer empowered to investigate under
section 17 can even inspect any bankers’ books
in so far as they relate to the accounts of the
person suspected to have committed that offence24
Chapter V
Section 19
 before taking cognizance of an offence
punishable under sections 7, 10, 11, 13
and 15 alleged to have been committed by
a public servant, court shall obtain prior
sanction of the authority competent to
remove the public servant from office
25
Chapter V
Section 20
 deeming fictions in regard to the
offences committed under section 7 or
11 or 12, 13 (1) (a) or (b) or 14 (b)
 it shall be presumed that the public
servant accepted or obtained the
gratification, unless the contrary is
proved
26
Chapter V
Section 21
 defines the accused public servant as a competent
witness to disprove the charges made against him. He
can give evidence on oath to defend himself
Section 22
 describes application of CrPC, 1973 in respect of
Sections 243(1), 309(2), 317(2) and 397(1), to the
proceedings under ‘the Act’ with certain modifications
Section 23
 deeming fiction and enjoins upon the authority under
‘the Act’ to deem the public servant accused of the
offence U/S 13(1) (c), i.e. in charge of property without
specifying particulars
27
Chapter V
Section 24
 grants immunity to the bribe giver from
prosecution proceedings U/S 12
Section 25
 PC Act not interfere with the procedure
applicable to Military, Naval and Air Force Acts
Section 26
 Special Judges appointed under Criminal
Law Amendment Act, 1952 shall be deemed
as Special Judge
28
Chapter V
Section 27
 Authorises High Court to exercise all
powers of appeal and revision conferred by
the Cr.CP as if the Court of the Special
Judge were a Court of Session trying cases
within the local limits of the High Court
29
Chapter V
Section 28
nothing contained in ‘the Act’ shall
exempt any public servant from any
proceeding which might be instituted
against him
30
Chapter V
Section 29
 lists various amendments/ substitutions/
insertions, in respect of authorities, time limit,
Schedules, Paragraphs etc., in the Criminal Law
Amendment Ordinance, 1944
Section 30
 repeal and saving
Section 31
 allows application of section 6 of the General
Clauses Act, 1897 in place of sections which had
been repealed
31
PC ACT - Synopsis
a comprehensive statute incorporating all
offences of corruption, laying down
special rules of procedures to combat
corruption, arming the investigating
agencies with sufficient powers and
denying dilatory tactics by the accused
persons
32
VIGILANCE MATTERS
vis-à-vis Conduct Rules
Misconduct
 not capable of precise definition, its
reflections receive its connotations from
the context
 Its ambit has to be construed with
reference to the subject-matter and the
context wherein the term occurs, regard
being had to the scope of the statute and
the public purpose it seeks to serve
33
“Prevention is better than cure” in
the context of Vigilance matters
 In general parlance Vigilance means
“Punitive Vigilance” which is in the
nature of conducting a ‘Postmortem’
 act of omission or commission is detected
and acted upon long after loss & damage
to the Organisation has already resulted
 taking timely steps would prevent wrong
decision making or other acts of omission
or commission
34
VIGILANCE
– Related Concepts
-Contd.
“Preventive Vigilance”
 stratagem of taking precautionary step in
advance
“Prevention”
 Ending, Controlling, Stopping, Barring, Checking,
Blocking, Curbing, Halting. Similarly, the term
“Vigilance”
 Planning, Wisdom, Caution, Insight, Judgement,
Awareness, Preparation, Precaution, Prudence,
Alertness, Farsightedness and Watchfulness.
35
VIGILANCE
– Related Concepts
-Contd.
 moot point of Conduct Rules is to go for
Preventive Vigilance so that all
Government servants maintain certain
standards of discipline and decorum
To be fore-warned is to be fore-armed  each one of us a Sentinel of Vigilance
 accept the slogan of ‘Participative
Vigilance’ for plugging any loopholes
36
VIGILANCE
– Related Concepts
-Contd.
Integrity at the highest level
 to restrain from getting swamped by the current
trend towards “Materialism/ Consumerism”
System improvement
 settlement of Medical claims, Payment of
Loans, Advances etc., to the employees
become possible within the shortest possible
time frame
37
VIGILANCE
– Related Concepts
-Contd.
Decision making - Avoid delays
 decision making should be pragmatic and fast
and as per Rules and Procedure
Co-operation with vigilance activities
 Conduct Rules - onus has been cast upon the
employees either to inform about a particular
transaction or in some cases to obtain priorpermission thereabout
 resist all temptations to make any “wrong
claims” whether they are medical, LTC or TA/
DA
38
VIGILANCE
– Permission under Conduct
Rules
-Contd.
 Activities Requiring Prior
Permission / Sanction of the
authorities
 emphasis on ‘Preventive Vigilance’
 Relevant Conduct Rules – 3, 5, 8, 9, 10,
12, 13, 14, 15, 18, 18-A and 19
 Relevant Pension Rules – 10(1)
39
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 3 - every Government servant at all times to
 maintain absolute integrity;
 maintain devotion to duty; and
 do nothing which is unbecoming of a
Government servant
Rule 5 - Taking part in politics and elections
 No Government servant shall be a member,
or be otherwise associated with, any political
party
40
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 8
 no Government servant, except with the previous sanction
of the Government, is permitted to own wholly or in part or
conduct or participate in the editing or management of,
any newspaper or other periodical publications or
electronic media
Rule 9
 no Government servant shall, in any radio broadcast,
telecast through any electronic media or in any document
make any statement of fact on opinion criticising any
current or recent policy of the Central or State
Government
41
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 10
 prohibits a Government servant from giving
evidence in connection with any inquiry
conducted by any person, committee or
authority
Rule 12
 No Government servant shall except with the
previous sanction of the Government or of the
prescribed authority, ask for or accept
contributions to, or otherwise associate himself
with the raising of any funds
42
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 13
 Except as provided in the Conduct Rules, no
Government servant shall accept, or permit any
member of his family or any other person acting
on his behalf to accept, any gift
Rule 14
 No Government servant shall, except with the
previous sanction of the Government, receive any
complimentary or valedictory address held in his
honour
43
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 15
 No Government servant shall, except with the
previous sanction of the Government
 engage directly or indirectly in any trade or
business
Rule 18
 Every Government servant to submit a return of
his assets and liabilities, immovable property,
shares, debentures and cash, movable property;
44
owned, acquired or held by him
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 18
 No Government servant shall accept without the
previous knowledge of the prescribed authority
acquire or dispose off any immovable property
Rule 18-A
 No Government servant shall, except with
previous sanction of the prescribed
authority,acquire, dispose of, or enter into any
transaction in respect of any immovable
property situated outside India
45
VIGILANCE
– Permission under Conduct Rules
-Contd.
Rule 19
 No Government servant shall, except with the
previous sanction of the Government, have
recourse to any Court or to the Press for the
vindication of any official act
 Appendix III – Orders regarding contact of
Government servants with Foreign Nationals,
etc.
 Government servants should not stay as guests
with foreign nationals in India
46
CCS (Pension) Rules
Rule 10 (1), CCS (Pension) Rules
Group ‘A’ officers after retirement
not to accept any commercial
employment, within two years from
the date of their retirement
47
Time Limit For Grant or Refusal Of
Permission
Sl. No.
Purpose for which permission is sought
Time limit for
grant/ refusal
of permission
1
publish a book
30 days
2
participate in a Radio Broadcast
30 days
3
Acceptance of gifts
30 days
4
immovable property transaction
30 days
5
transaction in movable property
30 days
6
transaction in immovable property outside India
60 days
7
property transaction with any foreigner
60 days
8
take recourse to any Court of Law
6 weeks
9
In the case of pensioners commercial appointment
60 days
48
GOI/ CVC/ C & AG
Guidelines / Instructions on
vigilance matters
 Vigilance Angle - Only those cases in
which there is an allegation of corruption or
improper motive, need be referred to the
CVC
 Disciplinary authority to inform - about
the final action taken on Commission advice
 Rotation of staff - specially those working
in sensitive posts should be strictly resorted
to after every 2/3 years
49
GOI/ CVC/ C & AG
Guidelines / Instructions on
vigilance matters
 Denial of LTC - to Government
servants found guilty of misuse of
facility
 Non-supply of CVC’s advice to the
delinquent is violative of procedural
safeguard
 Amendment to CCS (CCA) Rules, 1965
50
Download
Related flashcards

Rhodes Scholars

33 cards

CTrain stations

43 cards

Public finance

17 cards

Truman Scholars

29 cards

Create Flashcards