Criminal Misconduct, and the Sanction to Prosecute

In one line

Two offences of criminal misconduct instead of five, a presumption that disproportionate assets are illicit enrichment, a prior approval before any inquiry into an official decision, and a prior sanction before any court can take cognizance.

In the wording a student can write in an exam: section 13 of the Prevention of Corruption Act 1988, as substituted by Act 16 of 2018, defines criminal misconduct as the dishonest or fraudulent misappropriation or conversion of property entrusted to a public servant or under his control, and intentional illicit enrichment during the period of office, with a presumption of illicit enrichment where he is or has been in possession of pecuniary resources or property disproportionate to his known sources of income which he cannot satisfactorily account for, punishable with four to ten years and fine; section 17 fixes the ranks of officers competent to investigate; section 17A requires the previous approval of the appropriate Government before any enquiry, inquiry or investigation into an offence relatable to a recommendation made or decision taken in the discharge of official functions; section 18 allows inspection of bankers' books; and section 19 forbids a court to take cognizance of an offence under sections 7, 11, 13 and 15 without the previous sanction of the authority competent to remove the public servant.

Section 13 as it now stands, and as it stood

Section 13(1), as substituted in 2018. 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: the presumption. 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. "Known sources of income" means income received from any lawful sources.

Section 13(2): punishment. Not less than four years, extending to ten years, and fine. The minimum was raised from one year and the maximum from seven years by Act 1 of 2014, section 58 and the Schedule, with effect from 16 January 2014, that is by the Lokpal and Lokayuktas Act.

What was removed, and you must know it because every older account still teaches it. The pre-2018 section 13(1) had five clauses: habitual acceptance of gratification (a) and of valuable things (b), misappropriation (c), obtaining a valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position or without any public interest (d), and possession of disproportionate assets (e).