The prevention of corruption (amendment) act 2018

jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—18 REGISTERED NO. DL—(N)04/0007/2003—18 vlk/kkj.k EXTRAORDINARY Hkkx II — [k.M 1 PART II—Section 1 izkf/kdkj ls izdkf'kr PUBLISHED BY AUTHORITY lañ 28] ubZ fnYyh] c`gLifrokj] tqykbZ 26] 2018@Jko.k 4] 1940 ¼'kd½ No. 28] NEW DELHI, THURSDAY, JULY 26, 2018/SHRAVANA 4, 1940 (SAKA) bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA Separate paging is given to this Part in order that it may be filed as a separate compilation. MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 26th July, 2018/Shravana 4, 1940 (Saka) The following Act of Parliament received the assent of the President on the 26th July, 2018, and is hereby published for general information:— THE PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018 NO. 16 OF 2018 [26th July, 2018.] An Act further to amend the Prevention of Corruption Act, 1988. BE it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:— 1. (1) This Act may be called the Prevention of Corruption (Amendment) Act, 2018. Short title and commencement. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 49 of 1988. 2. In the Prevention of Corruption Act, 1988 (hereinafter referred to as the principal Amendment of Act), in section 2,— section 2. (i) after clause (a), the following clause shall be inserted, namely:— ‘(aa) ‘‘prescribed’’ means prescribed by rules made under this Act and the expression ‘‘prescribe’’ shall be construed accordingly;’; (ii) after clause (c), the following clause shall be inserted, namely:— ‘(d) “undue advantage” means any gratification whatever, other than legal remuneration. Explanation.—For the purposes of this clause,— (a) the word “gratification” is not limited to pecuniary gratifications or to gratifications estimable in money; 2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (b) the expression “legal remuneration” is not restricted to remuneration paid to a public servant, but includes all remuneration which he is permitted by the Government or the organisation, which he serves, to receive.’. Amendment 3. In section 4 of the principal Act, for sub-section (4), the following sub-section shall of section 4. be substituted, namely:— “(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of an offence shall be held, as far as practicable, on day-to-day basis and 2 of 1974. an endeavour shall be made to ensure that the said trial is concluded within a period of two years: Provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so: Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate.’’. Substitution of 4. For sections 7, 8, 9 and 10 of the principal Act, the following sections shall be new sections substituted, namely:— for sections 7, 8, 9 and 10. Offence ‘‘7. Any public servant who,— relating to (a) obtains or accepts or attempts to obtain from any person, an undue public servant being bribed. advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.—A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. Explanation 2.—For the purpose of this section,— (i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3 ‘‘7A. Whoever accepts or obtains or attempts to obtain from another person for Taking undue himself or for any other person any undue advantage as a motive or reward to induce a advantage to influence public servant, by corrupt or illegal means or by exercise of his personal influence to public servant perform or to cause performance of a public duty improperly or dishonestly or to forbear by corrupt or or to cause to forbear such public duty by such public servant or by another public illegal means servant, shall be punishable with imprisonment for a term which shall not be less than or by exercise three years but which may extend to seven years and shall also be liable to fine. of personal influence. 8. (1) Any person who gives or promises to give an undue advantage to another Offence person or persons, with intention— relating to bribing of a (i) to induce a public servant to perform improperly a public duty; or public servant. (ii) to reward such public servant for the improper performance of public duty; shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both: Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage: Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage: Provided also that when the offence under this section has been committeed by commercial organisation, such commercial organisation shall be punishable with fine. Illustration.—A person, ‘P’ gives a public servant, ‘S’ an amount of ten thousand rupees to ensure that he is granted a license, over all the other bidders. ‘P’ is guilty of an offence under this sub-section. Explanation.—It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform, or has performed, the public duty concerned, and, it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party. (2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating agency in its investigation of the offence alleged against the later. 9. (1) Where an offence under this Act has been committed by a commercial organisation, Offence such organisation shall be punishable with fine, if any person associated with such commercial relating to organisation gives or promises to give any undue advantage to a public servant intending— bribing a public servant (a) to obtain or retain business for such commercial organisation; or by a commercial (b) to obtain or retain an advantage in the conduct of business for such organisation. commercial organisation: Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct. (2) For the purposes of this section, a person is said to give or promise to give any undue advantage to a public servant, if he is alleged to have committed the offence under section 8, whether or not such person has been prosecuted for such offence. (3) For the purposes of section 8 and this section,— (a) “commercial organisation” means— (i) a body which is incorporated in India and which carries on a business, whether in India or outside India; 4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (ii) any other body which is incorporated outside India and which carries on a business, or part of a business, in any part of India; (iii) a partnership firm or any association of persons formed in India and which carries on a business whether in India or outside India; or (iv) any other partnership or association of persons which is formed outside India and which carries on a business, or part of a business, in any part of India; (b) “business” includes a trade or profession or providing service; (c) a person is said to be associated with the commercial organisation, if such person performs services for or on behalf of the commercial organisation irrespective of any promise to give or giving of any undue advantage which constitutes an offence under sub-section (1). Explanation 1.—The capacity in which the person performs services for or on behalf of the commercial organisation shall not matter irrespective of whether such person is employee or agent or subsidiary of such commercial organisation. Explanation 2.—Whether or not the person is a person who performs services for or on behalf of the commercial organisation is to be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between such person and the commercial organisation. Explanation 3.—If the person is an employee of the commercial organisation, it shall be presumed unless the contrary is proved that such person is a person who has performed services for or on behalf of the commercial organisation. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence under sections 7A, 8 and this section shall be cognizable. 2 of 1974. (5) The Central Government shall, in consultation with the concerned stakeholders including departments and with a view to preventing persons associated with commercial organisations from bribing any person, being a public servant, prescribe such guidelines as may be considered necessary which can be put in place for compliance by such organisations. Person in 10. Where an offence under section 9 is committed by a commercial organisation, charge of and such offence is proved in the court to have been committed with the consent or commercial connivance of any director, manager, secretary or other officer shall be of the commercial organisation to be guilty of organisation, such director, manager, secretary or other officer shall be guilty of the offence. offence and shall be liable to be proceeded against and shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation.—For the purposes of this section, ‘‘director’’, in relation to a firm means a partner in the firm.’’. Amendment 5. In section 11 of the principal Act,— of section 11. (i) in the marginal heading, for the words ‘‘valuable thing’’, the words ‘‘undue advantage’’ shall be substituted; (ii) the words ‘‘or agrees to accept’’ shall be omitted; (iii) for the words ‘‘valuable thing’’, the words ‘‘undue advantage’’ shall be substituted; (iv) for the words ‘‘official functions’’, the words ‘‘official functions or public duty’’ shall be substituted. Substitution of 6. For section 12 of the principal Act, the following section shall be substituted, new section namely:— for section 12. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 5 “12. Whoever abets any offence punishable under this Act, whether or not that Punishment offence is committed in consequence of that abetment, shall be punishable with for abetment imprisonment for a term which shall be not less than three years, but which may extend of offences. to seven years and shall also be liable to fine.”. 7. In section 13 of the principal Act, for sub-section (1), the following shall be Amendment substituted, namely:— of section 13. “(1) A public servant is said to commit the offence of criminal misconduct,— (a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or (b) if he intentionally enriches himself illicitly during the period of his office. Explanation 1.—A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.—The expression ‘‘known sources of income’’ means income received from any lawful sources.”. 8. For section 14 of the principal Act, the following section shall be substituted, Substitution of namely:— new section for section 14. “14. Whoever convicted of an offence under this Act subsequently commits an Punishment offence punishable under this Act, shall be punishable with imprisonment for a term for habitual which shall be not less than five years but which may extend to ten years and shall also offender. be liable to fine.”. 9. In section 15 of the principal Act, for the words, brackets and letters “clause (c) or Amendment clause (d)”, the word, brackets, and letter “clause (a)” shall be substituted. of section 15. 10. In section 16 of the principal Act,— Amendment of section 16. (a) for the words, brackets and figures, “sub-section (2) of section 13 or section 14”, the words, figures and brackets “section 7 or section 8 or section 9 or section 10 or section 11 or sub-section (2) of section 13 or section 14 or section 15” shall be substituted; (b) for the word, brackets and letter “clause (e)”, the word, brackets and letter “clause (b)” shall be substituted. 11. In section 17 of the principal Act, in the second proviso, for the words, brackets, Amendment of letter and figure “clause (e) of sub-section (1)”, the words, brackets, letter and figure section 17. “clause (b) of sub-section (1)” shall be substituted. 12. After section 17 of the principal Act, the following section shall be inserted, Insertion of namely:— new section 17A. “17A. (1) No police officer shall conduct any enquiry or inquiry or investigation Enquiry or into any offence alleged to have been committed by a public servant under this Act, Inquiry or where the alleged offence is relatable to any recommendation made or decision taken investigation of offences by such public servant in discharge of his official functions or duties, without the relatable to previous approval— recommendations (a) in the case of a person who is or was employed, at the time when the made or offence was alleged to have been committed, in connection with the affairs of decision taken the Union, of that Government; by public servant in (b) in the case of a person who is or was employed, at the time when the discharge of offence was alleged to have been committed, in connection with the affairs of a official State, of that Government; functions or duties. 6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.’’. Insertion of 13. After Chapter IV of the principal Act, the following Chapter shall be inserted, new Chapter namely:— IVA. ‘CHAPTER IV A ATTACHMENT AND FORFEITURE OF PROPERTY Provisions of 18A. (1) Save as otherwise provided under the Prevention of Money Laundering Criminal Law Act, 2002, the provisions of the Criminal Law Amendment Ordinance, 1944 shall, as far 15 of 2003. Amendment as may be, apply to the attachment, administration of attached property and execution Ord. 38 of Ordinance, of order of attachment or confiscation of money or property procured by means of an 1944. 1944 to apply to attachment offence under this Act. under this Act. (2) For the purposes of this Act, the provisions of the Criminal Law Amendment Ordinance, 1944 shall have effect, subject to the modification that the references to Ord. 38 of “District Judge” shall be construed as references to “Special Judge”.’. 1944. Amendment of 14. In section 19 of the principal Act, in sub-section (1),— section 19. (i) for the words and figures “sections 7, 10, 11, 13 and 15”, the words and figures "sections 7, 11, 13 and 15" shall be substituted; (ii) 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; (iii) 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; (iv) after clause (c), the following shall be inserted, namely:— “Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless— (i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and (ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 and directed the complainant to 2 of 1974. obtain the sanction for prosecution against the public servant for further proceeding: Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant: Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt: SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 7 Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month: Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, presecribe such guidelines as it considers necessary. Explanation.—For the purposes of sub-section (1), the expression "public servant" includes such person— (a) who has ceased to hold the office during which the offence is alleged to have been committed; or (b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.". 15. For section 20 of the principal Act, the following section shall be substituted, Substitution of namely:— new section for section 20. ‘‘20. Where, in any trial of an offence punishable under section 7 or under Presumption section 11, it is proved that a public servant accused of an offence has accepted or where public obtained or attempted to obtain for himself, or for any other person, any undue servant accepts any advantage from any person, it shall be presumed, unless the contrary is proved, that undue he accepted or obtained or attempted to obtain that undue advantage, as a motive or advantage. reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11.". 16. In section 23 of the principal Act,— Amendment of section 23. (a) in the marginal heading, for the word, figures, brackets and letter “section13(1) (c)”, the word, figures, brackets and letter “section 13 (1) (A)” shall be substituted; (b) for the word, brackets and letter “clause (c)”, the word, brackets and letter “clause (a)” shall be substituted. 17. Section 24 of the principal Act shall be omitted. Omission of section 24. 18. After section 29 of the principal Act, the following section shall be inserted, Insertion of namely:— new section 29A. "29A. (1) The Central Government may, by notification in the Official Gazette, Power to make make rules for carrying out the provisions of this Act. rules. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) guidelines which can be put in place by commercial organisation under section 9;". (b) guidelines for sanction of prosecution under sub-section (1) of section19;". (c) any other matter which is required to be, or may be, prescribed. (3) Every rule made under this Act, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the 8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— SEC. 1] rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”. Amendment 19. In the Prevention of Money Laundering Act, 2002, in Part A of the Schedule, for of Act 15 of Paragraph 8, the following Paragraph shall be substituted, namely:— 2003. “PARAGRAPH 8 OFFENCES UNDER THE PREVENTION OF CORRUPTION ACT, 1988 (49 OF 1988) Section Description of offence. 7. Offence relating to public servant being bribed. 7A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence. 8. Offence relating to bribing a public servant. 9. Offence relating to bribing a public servant by a commercial organisation. 10. Person in charge of commercial organisation to be guilty of offence. 11. Public servant obtaining undue advantage, without consideration from person concerned in proceeding or business transacted by such public servant. 12. Punishment for abetment of offences. 13. Criminal misconduct by a public servant. 14. Punishment for habitual offender.”. ———— DR. G. NARAYANA RAJU, Secretary to the Govt. of India. UPLOADED BY THE MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI–110002 AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI–110054. GMGIPMRND—1063GI(S3)—26-07-2018.