Prosecution Of Judges For Corrupt Practices
- Prevention of Corruption Act, 1988 (hereinafter referred to as “PCA”) provides the law for Prosecution of Judges for Corrupt Practices.
- Anticipatory Bail in such offenses is generally rejected if a prima facie offence has been made out from the evidence on record.
- It is immaterial whether the ‘favour’ is done before or after the taking of the Bribe.If the prosecution successfully proves that an undue advantage has been accepted, then the onus falls on the accused to prove that the said undue advantage was not taken to do a ‘favour’.
- Previous Sanction from an Appropriate Authority is required for prosecuting ‘Judges’ under Sections 7, 11, and 13 of the PCA.
- The trial of a Judge who has committed an offence under PCA is to be undertaken by a Special Judge appointed by the Central or the State Government.
The Prevention of Corruption Act, 1988is the appropriate Act if we are looking for the law relating to the prevention of corruption and matters related there with.
Section 2 of this Act states that Every Judge including any person empowered to discharge law is a Public Servant. So, for prosecuting Judges for Corrupt Practices, we will have to refer to the provisions of PCA, 1988.
Acceptance of an Undue Advantage – Section 7
Section 7 of the PCA, 1988 provides punishment if a ‘Judge’ obtains or accepts, or attempts to obtain an undue advantage with the intention of performing a ‘corrupt practice’. Term ‘Corrupt Practice’ has not been specifically used in this Section, but several scenarios have been mentioned in the Section which would amount to a Corrupt Practice. The punishment provided under this Section includes imprisonment ranging from 3 to 7 years and a fine.
It has been clarified in the case of Hodal Singh v. State of Rajasthan [2008 (1) Cr LR 186], that it is immaterial whether the bribe is received before or after the favour is done. Further, in the case of Panalal Damodar Rathi v. State of Maharashtra (AIR 1979 SC 1191), the Supreme Court has held that the evidence of the complainant should be corroborated in material particulars.
In the case of Archana Deepak Jatkar v. State of Maharashtra [Anticipatory Bail Application No. 591 of 2021, Bombay HC], the Anticipatory Bail application of a sitting judicial officer (Judicial Magistrate First Class) was rejected after it was found by the Hon’ble Bombay HC that a prima facie case under the provisions of Section 7, PCA was made out through the evidence available on record. In this case, co-accused Shubhavari was caught red-handed, accepting bribes from a milk vendor for getting a case (filed against the milk vendor by Amul) dismissed. For rejecting the Anticipatory Bail plea, the Hon’ble Bombay HC relied on the telephone conversation between the said co-accused Shubhavari and Archana Deepak Jatkar (Bail Applicant). Obtaining Undue Advantage without Consideration – Section 11 Section 11 states that if a Public Servant accepts or obtains or attempts to obtain, any undue advantage without consideration or with inadequate consideration, from a person who is interested in any business transacted by such public servant, then such public servant shall be said to have committed an offence under this Section. The punishment for such an offence includes imprisonment from 6 months to 5 years and fine. In the case of M. Narsinga Rao v. State of A.P. (2001) 1 SCC 691, the Hon’ble Supreme Court has observed that where it is proved by the prosecution evidence that an accused has accepted an Undue Advantage, the courts are legally bound to presume that such Undue Advantage was for conduct of public duty. So, under Section 11 of the PCA, if an Undue Advantage without any adequate consideration has been obtained by a‘Judge’ and it is proved that the person from whom the Undue Advantage has been received is interested in the business being conducted by the Judge, then it would be presumed that such Undue Advantage was given to get a ‘favour’ from
Criminal Misconduct – Section 13 (1) (b)
If a ‘Judge’ intentionally enriches himself during the period of his office, i.e., he is found to be in possession of property or pecuniary resources disproportionate to his known income sources, then he will be said to have committed the offence of Criminal Misconduct.The punishment for this offence includes imprisonment for a period ranging from 4 to 10 years anda fine.
Section 17 of PCA explicitly states that this offence (of enriching) cannot be investigated without the order of an office of the rank of Superintendent of Police or higher.
HC relied on the telephone conversation between the said co-accused Shubhavari and Archana Deepak Jatkar (Bail Applicant).
Obtaining Undue Advantage without Consideration – Section 11
Section 11 states that if a Public Servant accepts or obtains or attempts to obtain, any undue advantage without consideration or with inadequate consideration, from a person who is interested in any business transacted by such public servant, then such public servant shall be said to have committed an offence under this Section. The punishment for such an offence includes imprisonment from 6 months to 5 years and fine.
In the case of M. Narsinga Rao v. State of A.P. (2001) 1 SCC 691, the Hon’ble Supreme Court has observed that where it is proved by the prosecution evidence that an accused has accepted an Undue Advantage, the courts are legally bound to presume that such Undue Advantage was for conduct of public duty. So, under Section 11 of the PCA, if an Undue Advantage without any adequate consideration has been obtained by a ‘Judge’ and it is proved that the person from whom the Undue Advantage has been received is interested in the business being conducted by the Judge, then it would be presumed that such Undue Advantage was given to get a ‘favour’ from the Judge.
Criminal Misconduct – Section 13 (1) (b)
If a ‘Judge’ intentionally enriches himself during the period of his office, i.e., he is found to be in possession of property or pecuniary resources disproportionate to his known income sources, then he will be said to have committed the offence of Criminal Misconduct.The punishment for this offence includes imprisonment for a period ranging from 4 to 10 years and a fine.
Section 17 of PCA explicitly states that this offence (of enriching) cannot be investigated without the order of an office of the rank of Superintendent of Police or higher. In State v. Anil Sharma [1997 AIR SC 3806], it was observed that in cases of 13 (1) (b), PCA, effective interrogation of a suspected person is of tremendous importance. So, the Hon’ble Supreme Court had cancelled an Anticipatory Bail issued to a Public Servant. Investigation into Cases of Corrupt Practices All the offenses under the PCA can be investigated without warrant of a Judicial Magistrate by an officer of the rank of:
- Inspector (or higher) of the Delhi Special Establishment Act (CBI).
- Assistant Commissioner of Police (or higher) in metropolitan areas.
- Deputy Superintendent of Police elsewhere.
Such an Investigating Officer can even arrest without a Warrant. Furthermore, the State Government can specify an officer of the rank of Inspector (or higher) for conducting the Investigation under PCA. It has been clarified in the case of Ramnaresh Prasad v. State of MP [2001 (1) MPLJ 259 (MP)], that even though the word ‘Magistrate’ has been used in Section 17, still Special Judge (who has the status of Court of Sessions) can grant the permission for investigation.
Requirement of Previous Sanction
Section 19 of the PCA states that no court shall take cognizance of an offence punishable under Sections 7 (Offence relating to public servant being bribed), 11 (Public servant obtaining undue advantage, without consideration), 13 (Criminal misconduct by a public servant), and 15(Punishment for Attempt) of the PCA, alleged to have been committed by a ‘Judge’, without the previous approval of the authority competent to remove him from his Office. The Hon’ble Supreme Court has observed in the case of Jaswant Singh v. the State of Punjab (AIR 1958 SC 124), that the object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances is sanctioned or forbidden. In other words, this provision aims to prevent harassment of public servants. Once a sanction has been given by the appropriate authority, it is the duty of the Special Judge to try the Offender under the sections applicable to his illegal act (L.E. Jacobs v. Union of India, 1958 Cri LJ 827). The Hon’ble Supreme Court has held in the case of R.R. Chari v. State of
UP (AIR 1962 SC 1573), that if a trial, for which a sanction was required under PCA, is undertaken without such sanction then such trial would be considered to be without appropriate jurisdiction.
Presumption on Acceptance of Undue Advantage Section 20 of the Prevention of Corruption Act states that when it is proved that a public servant, accused of an offence under Section 7 or 11
of PCA, has obtained or attempted to obtain any undue advantage, then it shall be presumed that he accepted such advantage to commit an offence under Section 7 and/or 11. It was held in the case of V. D. Jhingan v. State of Utter Pradesh [A.I.R.1966 S.C. 1762] that if the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal
remuneration in any form or any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in Sec. 161, Penal Code (Sec. 7 of PCA, 1988). The burden of proof on the accused to shed this presumption is a preponderance of probabilities. He does not need to prove his case beyond reasonable doubt. This has been held in M. P. Gupta v. the State of Rajasthan [1974) 1 Cr LJ509]. Trial of PCA cases by Special Judge As per Section 22 of the Prevention of Corruption Act, 1988, the provisions of the Code of Criminal Procedure apply to any proceeding in relation to an offence punishable under PCA. Furthermore, a Special Judge is to be appointed by the Central or the State Government, under Section 3 of the PCA, for the trial of offences punishable under the said Act.Such a trial is undertaken according to the provisions of the CrPC relating to the Trial of Warrant Cases by Magistrate.
In this way, the Prevention of Corruption Act, 1988 provides detailed Provisions regarding the Prosecution of Judges for Corrupt Practices. This Act has been made even more effective by the Prevention of Corruption (Amendment) Act, 2018. Judiciary has been entrusted with the purpose of providing justice to all sections ofsociety. So, in my opinion, Corruption in Judicial System is the worst form of corruption and it must be dealt with strictly by the appropriate authorities.
Read more at: https://www.lawyersclubindia.com/articles/prosecution-of-judges-for-corrupt-practices-14823.asp
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