Report No. 29

Appendix 23

The Penal Code and The Prevention of Corruption, Etc., Act

The Prevention of Corruption Act, 1947 creates only one substantive offence, namely, "criminal misconduct", which is defined in section 5(1). The main object of the Act was to deal with the kind of "misdemeanour in which Government servants or public officers with no ostensible means of support or inadequate support are living obviously above their income and are in a position to invest in property, which it appears on the face of it to be impossible that they should have had the money to acquire or at any rate that they should have got those resources honesty1 It was felt that it was difficult to pin down, because in such cases all that the Government or the police could find was that the Government servant could have no ostensible source, which could be accounted for as the basis of extravagant expenditure. No specific action could be alleged against him or proved in the way of accepting a bribe or obtaining the money by corrupt means. The object of section 5 was to make it possible to detect and punish officers who had "managed to evade detection in that way"2.

The proposal for enacting the Act arose out of the recommendation made by a Committee appointed in Bengal in 1944, which suggested that legislation was necessary to tighten up the law relating to bribery and corruption. The Provincial Government of Bengal referred the matter to the Central Government, suggesting Central legislation3.

The recommendation was, that a new offence should be created to provide, that if a public servant was in possession of accretion of wealth, he should be deemed guilty of the offence of criminal misconduct, etc., unless he could prove that the accretion was honestly obtained. Now, it was not possible to frame a substantive clause creating such an offence. The only way in which the object (of making the unaccountable possession of more money than a public servant ought to have an offence) could be achieved, was the enactment of the presumption in section 5(3). Clause (c) was put to make it clear, that of the various ways by which a public servant could improperly acquire wealth, this was one4. It may not be possible to pin a public servant down that he has received a money as a bribe or by misappropriation or by abuse. All that could be proved was, that the public servant had been buying property or acquiring a fleet of motor cars, etc., beyond his means. That explains the form of section 5.

While bribery is a form of corruption, the long title of the Act makes it clear that other forms of corruption are also sought to be checked by the Act. As it is a socially useful measure conceived in the public interest, it is to be liberally construed so as to bring about the desired object of preventing corruption among public servants and at the same time, harassment of the honest among them5.

Though four classes of misconduct are mentioned in section 5(1) (a) to (d), apparently a charge merely under section 5(2) would suffice6.

The ingredients of the offence are described in section 5(1), and the penal provision is in section 5(2)7.

It would be useful to note the points of difference between the Indian Penal Code and the Prevention etc. Act. The latter Act contains various special rules of evidence, investigation and procedure which show how the provisions of the Act differ from the Indian Penal Code. The most important provision of the Act is section 5 (3), under which possession of pecuniary resources or property disproportionate to the known sources of income raises a rebuttable presumption that the accused is guilty of "criminal misconduct"8. Another presumption is that enacted in section 4 about motive, etc.9-10.

[As to section 4(1) of the Prevention etc., Act, it may be pointed out that the presumption under that is obligatory11-12].

The points of difference as to substantive provisions are analysed below.

1. Speech of Mr. Porter, Home Secretary, Council of State Debates, dated 25th February, 1947, Vol. 1, No. 5, p. 180 et seq.

2. Ibid.

3. Speech of Mr. Porter, Council of State Debates, 25th February, 1947, Vol. 1, No. 5, p. 180 et seq.

4. Ibid.

5. M. Narayanan v. State of Kerala, (1963) 2 Cr 14 186.

6. Compare Sajjan Singh v. State of Punjab, AIR 1964 SC 464.

7. Ram Sagar v. State of Bihar, (1964) 2 Cr LJ 65 (68), para. 8 (SC).

8. Sajjan Singh v. State of Punjab, AIR 1964 SC 464.

9. See State of Madras v. Vaidyanathan, AIR 1958 SC 61.

10. P.S. Aravamudhu (in re:), AIR 1960 Mad 27 (Ramaswamy J).

11. Dhanvantrai Desai v. State of Maharashtra, AIR 1964 SC 575.

12. State of Gujarat v. Madhav Bai, AIR 1964 Guj 206.