TO BE INTRODUCED IN LOK SABHA
THE PREVENTION OF CORRUPTION (AMENDMENT)
BILL, 2008
A
BILL
to amend the Prevention of Corruption Act, 1988.
BE it enacted by Parliament in the Fifty-ninth Year of the Republic of India as follows:—
1. This Act may be called the Prevention of Corruption (Amendment) Act, 2008.
2. In the Prevention of Corruption Act, 1988 (hereinafter referred to as the principal
Act), in section 5, sub-section (6) shall be omitted.
3. In section 13 of the principal Act, in sub-section (1)—
(i) in clause (d), sub-clause (iii) shall be omitted;
(ii) in the Explanation, the words ''and such receipt has been intimated in
accordance with the provisions of any law, rules or orders for the time being applicable
to a public servant'' shall be omitted.
Amendment
of section 5.
Amendment
of section 13.
Short title.
49 of 1988.
Bill No. 70 of 2008
2
4. In section 16 of the principal Act, at the end, the following proviso shall be inserted,
namely:—
''Provided that where a sentence of fine is imposed on an accused person for an
offence referred to in clause (e) of sub-section (1) of section 13, such fine shall not
exceed the pecuniary resources or value of property referred to in that clause for which
the accused person in unable to account satisfactorily.''.
5. After Chapter IV of the principal Act, the following Chapter shall be inserted, namely:—
‘CHAPTER IVA
ATTACHMENT AND FORFEITURE OF PROPERTY
18A. In this Chapter, unless the context otherwise requires,—
(1) ''date of termination of criminal proceedings'' means-—
(a) where such proceedings are taken to the Supreme Court in appeal,
whether on the certificate of a High Court or otherwise, the date on which
the Supreme Court passes its final orders in such appeal; or
(b) where such proceedings are taken to the High Court and orders
are passed thereon and—
(i) no application for a certificate for leave to appeal to the
Supreme Court is made to the High Court, the day immediately
following the expiry of ninety days from the date on which the High
Court passes its final orders;
(ii) an application for a certificate for leave to appeal to the
Supreme Court has been refused by the High Court, the day
immediately following the expiry of sixty days from the date of the
refusal of the certificate;
(iii) a certificate for leave to appeal to the Supreme Court has
been granted by the High Court, but no appeal is lodged in the
Supreme Court, the day immediately following the expiry of thirty
days from the date of the order granting the certificate; or
(c) where such proceedings are not taken to the High Court, the day
immediately following the expiry of sixty days from the date of the last
judgment or order of a special Judge in the proceedings;
(2) ''property'' means any property or assets of every description, whether
corporeal or incorporeal, movable or immovable, tangible or intangible and
includes deeds and instruments evidencing title to, or interest in such property
or assets.
18B. (1) Where any police officer authorised to investigate any offence under
section 17 has reason to belive that any person has committed any offence under this
Act and such person has procured money or other property by means of such offence.
Investigating Officer may, with the prior approval of the Central Government or the
State Government, as the case may be, at any stage, whether or not any court has taken
cognizance, move an application before the special Judge appointed under section 3
for attachment of the said money or property or if such money or property cannot, for
any reason, be attached, other property of the said person of value as nearly as may be
equivalent to that of the aforesaid money or other property.
(2) An application under sub-section (1) shall be accompanied by one or more
affidavits, stating the grounds on which belief that the said person has committed any
offence under this Act is founded and the amount of money or value of other property
Amndment of
section 16.
Insertion of
new Chapter
IVA.
Definitions.
Application
for
attachment.
3
believed to have been procured by means of the offence.
(3) The application shall also furnish—
(a) any information available as to the location for the time being of any
such money or other property, and shall, if necessary, give particulars, including
the estimated value, of other property of the said person.
(b) the names and addresses of any other persons believed to have or to
be likely to claim, any interest or title in the property of the said person.
18C. Upon receipt of any application under section 18B, the special Judge shall,
unless for reasons to be recorded in writing, is of the opinion that there exists no prima
facie grounds for believing that the person in respect of whom the application is made
has committed any offence under this Act or that he has procured thereby any money
or other property, pass without delay an ad interim order attaching the money or other
property alleged to have been so procured, or if it transpires that such money or other
property is not available for attachment, such other property of the said person of
equivalent value as the special Judge may think fit:
Provided that the special Judge may, if he thinks fit, before passing such order,
and shall before refusing to pass such order, examine the person or persons making the
affidavit accompanying the application.
(2) At the same time as he passes an order under sub-section (1), the special
Judge shall issue to the person whose money or other property is being attached, a
notice accompanied by copies of the order, the application, affidavits and of the evidence,
if any, recorded, calling upon him to show cause why the order should not be made
absolute.
(3) The special Judge shall also issue, accompanied by copies of the documents
accompanying the notice under sub-section (2), to all persons represented to him as
having or being likely to claim, any interest or title in the property of the person to
whom notice is issued under the said sub-section calling upon each such person to
appear on the same date as specified in the notice under the said sub-section and make
objection if he so desires to the attachment of the property or any portion thereof on
the ground that he has an interest in such property or portion thereof.
(4) Any person claiming an interest in the attached property or any portion
thereof may, notwithstanding that no notice has been served upon him under this
section, make an objection as aforesaid to the special Judge at any time before an order
is passed under sub-section (1) or sub-section (3), as the case may be, of section 18D.
18D. (1) If no cause is shown and no objections are made under section 18C on
or before the specified date, the special Judge shall forthwith pass an order making the
ad interim order of attachment absolute.
(2) If cause is shown or any objections are made as aforesaid the special Judge
shall proceed to inquire the same and in so doing, as regards the examination of the
parties and in all other respects he shall, subject to the provisions of this Chapter,
follow the procedure and exercise all the powers of a court in hearing a suit under the
Code of Civil Procedure, 1908 and any person making an objection under section 18C
shall be required to adduce evidence to show that on the date of the attachment he had
some interest in the property attached.
(3) After inquiry under sub-section (2), the special Judge shall pass an order
either making the ad interim order of attachment absolute or varying it by releasing a
portion of the property from attachment or withdrawing the order:
Provided that the special Judge shall not—
(a) release from attachment any interest which he is satisfied that the
person believed to have committed an offence under this Act, has in the property,
Ad interim
attachment.
5 of 1908.
Inquiry of
objections to
attachment.
4
unless he is also satisfied that there will remain under attachment an amount of
the said person's property of value not less than that of the property believed to
have been procured by the said person by means of the offence; or
(b) withdraw the order of attachment unless he is satisfied that the said
person has not by means of the offence procured any money or other property.
18E. (1) Where the assets available for attachment of a person believed to have
committed any offence under this Act are found to be less than the amount or value
which he is believed to have procured by means of such offence, and where the special
Judge is satisfied, by affidavit or otherwise, that there is reasonable cause for believing
that the said person has, after the date on which the offence is alleged to have been
committed, transferred (whether after commencement of this Chapter, or not) any of his
property otherwise than in good faith and for consideration, the special Judge may by
notice require any transferee of such property (whether or not he received the property
directly from the said person) to appear on a date to be specified in the notice and
show cause why so much of the transferee's property as is equivalent to the proper
value of property transferred should not be attached.
(2) Where the said transferee does not appear and show cause on the specified
date, or where after inquiry in the manner provided in sub-section (2) of section 18D,
the special Judge is satisfied that the transfer of the property to the said transferee was
not in good faith and for consideration, the special Judge shall order the attachment of
so much of the said transferee's property as is, in the opinion of the special Judge
equivalent to the proper value of the property, transferred.
18F. An order of attachment of property under this Chapter shall be carried into
effect so far as may be practicable in the manner provided in the Code of Civil Procedure,
1908 for the attachment of property in execution of a decree.
18G. Any person whose property has been or is about to be attached under this
Chapter may, at any time, apply to the special Judge to be permitted to give security in
lieu of such attachment and where the security offered and given is in the opinion of
the special Judge, satisfactory and sufficient, he may withdraw or, as the case may be,
refrain from passing the order of attachment.
18H. (1) The special Judge may, on the application of any person interested in
any property attached under this Chapter and after giving the agent of the State
Government or, as the case may be, the Central Government, an opportunity of being
heard, make such orders as the special Judge considers just and reasonable for—
(a) providing from such attached property, as the applicant claims, an
interest in, such sums as may be reasonably necessary for the maintenance of
the applicant and of his family, and for the expenses connected with the defence
of the applicant where criminal proceedings have been instituted against him in
any court for the offence;
(b) safeguarding, so far as may be practicable, the interests of any business
affected by the attachment, and in particular, the interests of any partners in
such business.
(2) Where it appears to the special Judge to be just and convenient, he may, by
order appoint a receiver to manage any property attached under this Chapter in
accordance with such instructions as the special Judge may, from time to time, think fit
to give and where a receiver is so appointed, the provisions of rules 2, 3, 4 and 5 of
Order XL of the First Schedule to the Code of Civil Procedure, 1908 shall be applicable.
18-I An order of attachment of property under this Act shall, unless it is withdrawn
earlier in accordance with the provisions of this Act, continue in force—
Attachment
of property
of mala fide
transferees.
Execution of
orders of
attachment.
5 of 1908.
Security in
lieu of
attachment.
Administration
of
attachment.
5 of 1908.
Duration of
attachment.
5
(a) where no court has taken cognizance of the alleged offence at the time
when the order is applied for, one year from the date of the order under subsection
(1) of section 18C or sub-section (2) of section 18E, as the case may be,
unless cognizance of such offence is, in the meantime so taken, or unless the
special Judge on application by the Investigating officer showing reasons for
non-completion of the investigation and if the Judge is satisfied that reasonable
grounds exist, he may extend further period of attachment not exceeding six
months;
(b) where a court has taken cognizance of the alleged offence whether
before or after the time when the order was applied for until orders are passed by
the special Judge in accordance with the provisions of this Act after the
termination of the criminal proceedings.
18J. (1) The State Government or, as the case may be, the Central Government or
any person who has shown cause under section 18C or section 18E or has made an
objection under section 18C or has made an application under section 18G or
section 18H, if aggrieved by any order of the special Judge under any of the foregoing
provisions of this Chapter, may appeal to the High Court within thirty days from the
date on which the order complained against was passed.
(2) Upon any appeal under this section, the High Court, may, after giving such
parties as it thinks proper an opportunity of being heard, pass such orders as it thinks
fit.
(3) Until an appeal under this section is finally disposed of by the High Court,
no court shall, otherwise than in accordance with the provisions of section 18G or
section 18L, order the withdrawal or suspension of any order of attachment to which
the appeal relates.
18K. (1) Where before judgment is pronounced in any criminal trial for any
offence under this Act, it is represented to the Court that an order of attachment of
property has been passed under this Chapter in connection with such offence, the
Court shall, if it is convicting an accused, record a finding as to the amount of money
or value of other property procured by the accused by means of the offence.
(2) In any appeal or revisional proceedings against such conviction, the appellate
or revisional Court shall unless it sets aside the conviction, either confirm such
finding or modify it in such manner as it thinks proper.
(3) In any appeal or revisional proceedings against an order of acquittal passed
in a trial, such as, is referred to in sub-section (1), the appellate or revisional Court, if
it convicts the accused, shall record a finding, such as is referred to in that sub-section.
(4) Where the accused is convicted of any offence under this Act and where it
appears that the offence has caused loss to more than one Government or local authority
the finding referred to in this section shall indicate the amount of loss sustained by
each such Government or local authority.
(5) Where the accused is convicted in the same trial of one or more offences
specified under this Act, the finding referred to in this section shall indicate separately
the amounts procured by means of the two classes of offences.
18L. (1) Upon the termination of any criminal proceedings for any offence under
this Act in respect of which any order of attachment of property has been under this
Chapter or security given to in lieu thereof, the agent of the State Government or, as the
case may be, the Central Government shall, without delay inform the special Judge,
and shall where criminal proceedings have been taken in any Court, furnish the special
Judge with a copy of the judgment or order of the trying Court and with copies of the
judgment or orders, if any, of the appellate or revisional Court thereon.
Appeals.
Court to
evaluate
property procured
by the
offence.
Disposal of
attached property
upon
termination
of
criminal proceedings.
6
(2) Where it is reported to the special Judge under sub-section (1) that
cognizance of the alleged offence has not been taken or where the final judgment or
order of the court is one of acquittal, the special Judge shall forthwith withdraw any
orders of attachment of property made in connection with the offence, or where security
has been given in lieu of such attachment, order such security to be returned.
(3) Where the final judgment or order of the court is one of conviction, the
special Judge shall order that from the property of the convicted person attached
under this Chaper or out of the security given in lieu of such attachment, there shall be
forfeited to the Central Government or the State Government as the case may be, such
amount or value as is found in the final judgment or order of the courts in pursuance
of section 18K, to have been procured by the convicted person by means of the
offence, together with the costs of attachment as determined by the special Judge and
where the final judgment or order of the court has imposed or upheld a sentence of fine
on the said person (whether alone or in conjunction with any other punishment), the
special Judge may order, without prejudice to any other mode of recovery, that the
said fine shall be recovered from the residue of the said attached property of the
security given in lieu of attachment.
(4) Where the amounts ordered to be foreited or recovered under sub-section
(3) exceed the value of the property of the convicted person attached, and where the
property of any transferee of the convicted person has been attached under section
18E, the special Judge shall order that the balance of the amount order to be foreited
under sub-section (3) together with the costs of attachment of the transferee's
property as determined by the special Judge shall be forfeited to the Government
from the attached property of the transferee or out of the security given in lieu of such
attachment; and the special Judge may order without prejudice to any other mode of
recovery that any fine referred to in sub-section (3) or any portion thereof not recovered
under that sub-section shall be recovered from the attached property of the transferee
or out of security given in lieu of such attachment.
(5) If any property remains under attachment in respect of any offence under
this Act or any security given to in lieu of such attachment remains with the special
Judge after his orders under sub-sections (3) and (4) have been carried into effect,
the order of attachment in respect of such property remaining shall be forthwith
withdrawn or as the case may be, the remainder of the security returned, under the
orders of the special Judge.
(6) Every sum ordered to be forfeited under this section in connection with any
offence under this Act shall, after deduction of the costs of attachment as determined
by the special Judge, be credited to the Government or local authority to which the
offence has caused loss, or where there is more than one such Government or local
authority, the sum shall after such deduction as aforesaid, be distributed among them
in proportion to the loss sustained by each.
18M. Save as provided in section18J and notwithstanding anything contained
in any other law,—
(a) no suit or other legal proceeding shall be maintainable in any Court—
(i) in respect of any property ordered to be forfeited under section
18L, or which has been taken in recovery of fine in pursuance of an order
under that section; or
(ii) while any other property is attached under this Chapter, in respect
of such other property,
by any person upon whom a notice has been served under section 18C or
section 18E or who has made an objection under sub-secction (4) of section
18C; and
Bar to other
proceedings.
7
(b) no court shall, in any legal proceeding or otherwise, pass any decree
or order, other than a final decree to a suit by a person not being a person
referred to in clause (a), which shall have the effect of nullifying or affecting in
any way any subsisting order of attachment of property under this Chapter, or
the right of the special Judge to hold security in lieu of any such order of
attachment.
18N. No suit, prosecution or other legal proceeding shall lie against any person
for anything in good faith done or intended to be done in pursuance of this Chapter.’.
6. In section 19 of the principal Act, in sub-section (1),—
(i) in clause (a), for 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"
shall be substituted;
(ii) in clause (b), for 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" shall be substituted.
7. In the Criminal Law Amendment Ordinance, 1944, in the Schedule,—
(i) paragraph 4A shall be omitted;
(ii) in paragraph 5, for the words, figures and letter “items 2, 3, 4 and 4A”, the
words and figures "items 2, 3 and 4" shall be substituted.
Protection of
action taken
in
good faith.
Amendment
of
section 19.
Amendment
of
Ordinance 38
of
1944.
STATEMENT OF OBJECTS AND REASONS
The prevention of Corruption Act, 1988 was enacted to make anti-corruption laws
more effective. On the basis of actual experience in implementation and keeping in view the
recommendations of the Law Commission of India and the Committee on Civil Services
Reforms (Hota Committee), it is proposed to amend the said Act. Hence, the present Bill.
2. The salient features of the Bill are as follows:—
(i) The Law Commission of India in its 166th Report recommended for enactment of a
separate law providing for forfeiture of property acquired by the holders of public office
through corrupt means. The said recommendations were examined and it was considered
that the objective of confiscations of illegally acquired property could be achieved by
incorporating the provision of the Criminal Law (Amendment) Ordinance, 1944 in the
Prevention of Corruption Act, 1988 itself with suitable modifications. Therefore, it is proposed
to insert a new Chapter IVA in the Prevention of Corruption Act which empowers the special
judge to exercise the powers of attachment before judgment. The procedure provided will be
more effective and speedy.
(ii) The Committee on Civil Services Reforms (Hota Committee) in its Report favoured
a review of section 13 (1) (d) (iii) of the said Act by observing that if a decision of an officer
benefits a person without public interest, the officer concerned can be prosecuted in a court
of law. Since all commercial decisions benefit one party or another, it is often difficult for an
officer, even though acting in good faith, to ensure conformity with this provision. Therefore,
it is proposed to omit the said sub-clause.
(iii) It is also proposed to amend section 16 of the said Act to provide a quantum of fine
for a person accused of an offence under section 13(1)(e), so as to not exceed the pecuniary
resources or value of property for which the accused person is unable to account satisfactorily.
(iv) The purpose of section 19 of the said Act is to provide a safeguard to a public
servant from vaxatious prosecution from any bonafide omission or commission in the
discharge of his official duties. Presently, this protection is not available for a person who
has ceased to be a public servant. The said section is being amended to provide the said
protection to the persons who ceased to be public servants on the lines of section 197 of the
Code of Criminal Procedure, 1973.
3. The Bill seeks to achieve the above objectives.
NEW DELHI; PRITHVIRAJ CHAVAN.
The 17th October, 2008.
8
9
ANNEXURE
EXTRACTS FROM THE PREVENTION OF CORRUPTION ACT, 1988
(49 OF 1988)
* * * * *
5. (1) * * * * *
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all
the powers and functions exercisable by a District Judge under the Criminal Law Amendment
Ordinance, 1944.
* * * * *
13. (1) A public servant is said to commit the offence of criminal misconduct,—
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain
from any person for himself or for any other person any gratification other than legal
remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain
for himself or for any other person, any valuable thing without consideration or for a
consideration which he knows to be inadequate from any person whom he knows to
have been, or to be, or to be likely to be concerned in any proceeding or business
transacted or about to be transacted by him, or having any connection with the official
functions of himself or of any public servant to whom he is subordinate, or from any
person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for
his own use any property entrusted to him or under his control as a public servant or
allows any other person so to do; or
(d) if he,—
(i) by corrupt or illegal means, obtains for himself or for any other person
any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for
any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during
the period of his office, been in possession for which the public servant cannot
satisfactorily account, of pecuniary resources or property disproportionate to his
known sources of income.
Explanation.—For the purposes of this section, “known sources of income” means
income received from any lawful source and such receipt has been intimated in accordance
with the provisions of any law, rules or orders for the time being applicable to a public
servant.
(2) Any public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than one year but which may extend to seven
years and shall also be liable to fine.
* * * * *
CHAPTER V
SANCTION FOR PROSECUTION AND OTHER MISCELLANEOUS PROVISIONS
19. (1) No court shall take cognizance of an offence punishable under sections 7, 10,
11, 13 and 15 alleged to have been committed by a public servant, except with the
previous sanction,—
Previous
sanction
necessary for
prosecution.
Procedure and
powers of
special Judge.
Ord. 38 of
1944.
Criminal
misconduct
by a public
servant.
10
(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;
* * * * *
————
EXTRACTS FROM THE CRIMINAL LAW AMENDMENT ORDINANCE, 1944
ORD. 38 OF 1944
* * * * *
THE SCHEDULE
(See section 2)
Offences in connection with which property is liable to be attached.
* * * * *
4A. An offence punishable under the Prevention of Corruption Act, 1988.
5. Any conspiracy to commit or any attempt to commit or any abetment of any of the
offences specified in items 2, 3, 4 and 4A.
* * * * *
49 of 1988.
LOK SABHA
————
A
BILL
further to amend the Prevention of Corruption Act, 1988.
————
(Shri Prithviraj Chavan, Minister of State in the Ministry of Personnel,
Public Grivances and Pensions)
GMGIPMRND—3671LS(S-1)—24-10-2008.
No comments:
Post a Comment