Criminal Justice and PC Act

*The author is encouraged by Ms. Ishani Das to write on this topic.

If Humans were Gods and angels, no law would perhaps be necessary. But as sociologists like Prins and Durkhain put it “Criminality…is not transcendent but immanent”. Therefore to curtail, curb and control this inherent and inevitable criminality and to prevent devolution of society into a State of lawlessness, a system is placed in every States i.e. the Criminal Justice System to address the social evils. In India, the Indian Penal Code and Code of Criminal Procedure being cardinal to the justice administration provides for systematic arrangements and functioning of the police, the prosecution, the courts, the probation and other aspects.

Corruption is a pernicious plague, which undermines the rule of law and leads to human rights violations, distort markets, and erode living standards. Being a profound reason of economic underperformance, it injects inequality and injustice into the system and discourages foreign investments. At the international level, India is signatory to the UN Convention against Corruption. It has also signed the Extradition and Mutual Legal Assistance Treaties with a number of countries. At the domestic level, the IPC deals with the crime of bribery and corruption under chapter IX i.e. Offences by or relating to public servants.

A special law is enacted when a particular crime cannot be handled by a regular law and obviously, Corruption is crime serious enough to merit a special law. Hence, the Prevention of Corruption Act. The PC Act, 1947 is the first legislation to deal specifically with the problem of corruption in public life. Various amendments were made with the changing times and later on, all these laws were replaced by a more comprehensive legislation i.e. The PC Act, 1988. The Parliament deleted Section 161 to 165A from the IPC and incorporated those provisions under Section 7 to 16 of the PC Act.

In addition, the judiciary, through its judgments has substantiated and contributed to the Administrative Law jurisprudence in general and fortification of Criminal Justice System in particular, thus making Judge made law as one of the existing realities of Indian social life.

THE PREVENTION OF CORRUPTION ACT, 1988

The PC Act, 1988 was enacted to consolidate different anti-corruption legislations and to make them more effective. Apart from the offences punishable under the IPC, the PC Act has enumerated a number of offences, which can be broadly categorized as:

·         Bribery of Public Servants

·         Embezzlement and Misappropriation of Property by Public Servants

·         Abuse of Functions by Public Servants

·         Illicit Enrichment of Public Servants etc.

I will only raise some specific features of PC Act, which are pertinent to mention as they have a wide range of ramifications and which showcases the political commitment towards corruption free society.

Special Courts

Section 4(1) of the PC Act makes it mandatory that the offences will be tried by the Special Judges only. This helps in effective and efficient administration of justice. However, the Special Judge being a Court of Session (Section 5(3)), the two layer protection and right to appeal (i.e. in the lower courts) is denied to the accused. Similarly, Section 4(3) confers jurisdiction on the special judge to try offence, other than those specified in section 3 and triable by magistrate under the CrPC*.

Trial on day-to-day basis

Notwithstanding anything contained in the CrPC, as per Section 4(4) a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.

Freezing of Ill-gotten Properties during Trial

The Criminal Law (Amendment) Ordinance, 1944 deals with freezing, seizure and confiscation of properties, which are proceeds of crime. Section 5(6) empowers the Special Judge to exercise all the powers and functions under the said law during the trial.

Power of Pardon

Under Section 5(2), the special Judge may, with a view to obtaining the evidence of any person tender a pardon on condition of his making a full and true disclosure of the whole circumstances. Such pardon shall be deemed to have been tendered under section 307 of CrPC.

Other important features include the Prohibition of the grant of stay on trial, Denial of appeal in cases tried summarily (Section 6(2)), Enhancement of punishment etc. Despite this strong law, the Indian criminal justice system still faces many challenges. The problem of corruption in the private sector is increasing with the expansion of the private sector but there is no law to tackle those corruptions. Secondly, the condition of Previous Sanction results in delay. Notwithstanding anything provided under Section 197 of the CrPC, Section 19 of the PC Act requires prior permission of the authority before launching prosecution against him. This often delays the launching of prosecution. The sanctioning authority taking 16 months to grant sanction for Mr. A. Raja, is the glaring example of this. However, the extension of the Vineet Narain judgment beyond bureaucracy by the Hon’ble Supreme Court in its landmark Order on 31^st January 2012, once again endorsed that A Bad case makes a Good law. 

The positive development of the anti-graft laws and the enforcement of PC Act have warned the corrupt that betrayal of the public trust will no longer be tolerated, thus strengthening the Indian Criminal Justice System. Though a richer scholarship than mine is requisite to address the topic intricately, however, in my limited understanding -the trial of 2G, CWG and the recent arrest of Babu Singh Kushwaha is the manifestation of our own efficacious Criminal Justice System. Whilst this positive move is viewed by the critics as not so positive, yet we may try to see things as objectively as we please. At the end, as Benjamin Cardozo put it, we can never see things with any eyes except our own.

Thank you!

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* For better understanding see: Essar Teleholdings Ltd. and Loop Telecom Ltd. v. The Registrar General, Delhi High Court & Ors. (Against the Administrative Order issued by the Delhi High Court on 15.03.2011 and the Notification dated 28.03.2011 issued by the Govt. of NCT of Delhi. Pending before the Hon’ble Supreme Court)