Criminal Misconduct, and the Sanction to Prosecute

The two big losses are (d) and the old (e).

Clause (d) was the workhorse. "Abuse of position to obtain a pecuniary advantage for himself or for any other person" was the clause under which most decision-based corruption cases were charged, and it was also the clause most criticised, because a decision that turned out badly could be described as an abuse of position after the event.

The 2018 Act's answer was to delete it and to convert the disproportionate assets clause from an offence into a presumption. Disproportionate assets are no longer the offence; illicit enrichment is the offence under clause (b), and disproportionate assets are the evidence from which it is presumed.

How to state the change in an answer. Criminal misconduct is now confined to misappropriation and illicit enrichment. Conduct formerly charged under clause (d), taking an undue advantage in connection with official action, now falls to be charged under the rewritten sections 7 and 11, which chapter 730 sets out. The Act moved the emphasis from the quality of a decision to the taking of an advantage, and that is a defensible policy: it protects the honest officer who takes a risky decision and does not protect the one who is paid.

Section 14: the habitual offender. Whoever, convicted of an offence under this Act, subsequently commits an offence punishable under it, is punishable with not less than five years, extending to ten years, and fine.

Section 17: who may investigate

Chapter 710 read it. Notwithstanding the Code of Criminal Procedure, no police officer below the rank of an Inspector of Police in the Delhi Special Police Establishment, of an Assistant Commissioner of Police in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and any other notified metropolitan area, and of a Deputy Superintendent of Police or an officer of equivalent rank elsewhere, may investigate an offence under the Act without the order of a Magistrate, or arrest for it without a warrant.

The rank requirement is itself a safeguard, and an unusual one: the ordinary rule is that any officer in charge of a police station may investigate a cognizable offence. Corruption cases were thought too easy to misuse against public servants, so the Act raised the floor.

Section 17A: the Single Directive's ghost

No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties, without the previous approval of:

(a) the Central Government, for a person employed, or employed at the time of the alleged offence, in connection with the affairs of the Union; (b) the State Government, for a person so employed in connection with the affairs of a State; (c) the authority competent to remove him from his office at the time of the alleged offence, in any other case.

First proviso. No approval is 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 any other person.

Second proviso. The authority shall convey its decision within three months, extendable by one month for reasons to be recorded in writing.

Now put chapter 680 beside this, because the pair is the best single illustration in the paper of a legal idea being defeated and then re-enacted in a form that survives.

1997. The Single Directive, an executive instruction requiring prior sanction before the Central Bureau of Investigation could investigate senior officers, was struck down in Vineet Narain v. Union of India, (1998) 1 SCC 226.

2003. Parliament re-enacted it as section 6A of the Delhi Special Police Establishment Act 1946, inserted by section 26(c) of the Central Vigilance Commission Act 2003, requiring the Central Government's previous approval where the allegation related to officers of the level of Joint Secretary and above.

2014. A Constitution Bench struck that down too, in Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682, as violative of article 14, and declared section 26(c) invalid with it. The vice was the classification by rank: the seniority of the accused has no rational relation to whether the offence was committed.

2018. Parliament enacted section 17A, which requires approval not by reference to the rank of the officer but by reference to the nature of the act: only where the alleged offence is relatable to a recommendation made or a decision taken in the discharge of official functions or duties.

That distinction is the whole point, and it is what an examiner is looking for. Section 6A protected a class of persons. Section 17A protects a class of acts, and it protects them for a reason the courts have themselves given many times: an officer who must decide should not be deterred by the prospect that his decision will be investigated as a crime. A trap case is expressly outside it, by the first proviso.

Whether section 17A survives article 14 is a fair question to raise and not to answer. It is a wider protection than section 6A in one way, since it covers every public servant and not only the senior; and narrower in another, since it protects only decision-related allegations. State the argument on both sides and stop there.

Section 18: bankers' books

Where a police officer competent under section 17 has reason to suspect an offence and considers it necessary for the investigation or inquiry, he may, notwithstanding any other law, inspect bankers' books so far as they relate to the accounts of the suspected persons or of any person suspected of holding money on their behalf, and take certified copies; and the bank is bound to assist him.

Proviso. The power may not be exercised by an officer below the rank of Superintendent of Police unless specially authorised by an officer of or above that rank.

Section 18 is what makes clause (b) of section 13 provable. Illicit enrichment is presumed from disproportionate assets, and assets are traced through bank accounts, including accounts held by others on the officer's behalf, which Explanation 1 expressly covers by the words "or any person on his behalf".

Section 19: previous sanction for prosecution

Section 19(1). No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act 2013:

(a) for a person employed, or employed at the time of the alleged offence, in connection with the affairs of the Union, and not removable save by or with the sanction of the Central Government, of that Government; (b) the same for a State, of the State Government; (c) in any other case, of the authority competent to remove him from his office.

Two amendments in the opening words matter. "Sections 7, 10, 11, 13 and 15" became "sections 7, 11, 13 and 15" in 2018, section 10 having become the corporate officers' provision. And the words "save as otherwise provided in the Lokpal and Lokayuktas Act 2013" were inserted by that Act with effect from 16 January 2014: chapter 220 read section 23 of the Lokpal Act, under which the Lokpal grants the sanction in cases before it, which is the one place in Indian law where the sanction has been taken out of the employer's hands.

The provisos, inserted in 2018, and they are examinable.

First: a private complainant, that is a person other than a police officer or an officer of an investigating agency or other law enforcement authority, cannot even request sanction unless (i) he has filed a complaint in a competent court and (ii) the court has not dismissed it under section 203 of the Code of Criminal Procedure and has directed him to obtain the sanction.

Second: on such a request from a private person, the Government or competent authority shall not accord sanction without providing an opportunity of being heard to the public servant.

Third: the authority shall endeavour to convey the decision within three months of receiving the proposal.

Fourth: where legal consultation is required, that period may be extended by one month for reasons to be recorded in writing.

Fifth: the Central Government may prescribe guidelines for the purpose of sanction.

The Explanation extends "public servant" in sub-section (1) to a person who has ceased to hold the office during which the offence is alleged to have been committed.

And now the link this whole Module has been building towards. Chapter 630 read section 8(1)(f) of the Central Vigilance Commission Act: the Commission shall review the progress of applications pending with the competent authorities for sanction of prosecution. Section 19 is why that function exists. A sanction never decided is a prosecution never begun, and the three month endeavour in the third proviso has no consequence attached to its breach. The only thing that happens to a Ministry that sits on a sanction request is that the Commission counts it and publishes the count in a report laid before Parliament.

The private complainant provisos cut the other way and deserve a critical sentence. They were added in 2018 and they make a citizen's prosecution of a public servant considerably harder: he must first file a complaint in court, survive section 203, obtain a direction, and then face a sanction process in which the public servant is heard and he is not. Whether that is a safeguard against harassment or an obstacle to accountability is exactly the kind of question this paper sets.

A worked example

An investigation discloses that a Deputy Secretary of a Ministry recommended a licence to a firm whose director is his brother-in-law, and that his family's assets grew by an amount he cannot explain.

Before any inquiry into the recommendation. Section 17A requires the previous approval of the Central Government, because the alleged offence is relatable to a recommendation made in the discharge of official functions, and the authority must convey its decision within three months, extendable by one for reasons recorded.

The assets allegation is different. It is not relatable to any recommendation or decision, so section 17A does not apply to it and the investigation may proceed.

Who investigates. Section 17: at least a Deputy Superintendent of Police or equivalent outside the metropolitan areas, or an Inspector if the Delhi Special Police Establishment is investigating.

The bank accounts. Section 18 allows inspection of bankers' books, including of persons suspected of holding money on his behalf, by an officer of or above the rank of Superintendent of Police or one specially authorised by such an officer.

The charge. Not under the old clause (d), which no longer exists. Section 13(1)(b), intentional illicit enrichment, with Explanation 1 raising the presumption from the disproportionate assets which he cannot satisfactorily account for; and, if he was paid, section 7.

Before the court can take cognizance. Section 19: the previous sanction of the Central Government, he being a Union employee not removable save by or with its sanction. The authority should convey its decision in three months, or four where legal consultation is needed.

If the sanction request sits undecided for two years. Nothing in section 19 provides a remedy. The Commission reviews the pendency under section 8(1)(f) and publishes it under section 14.

Now suppose he had retired before the complaint. The Explanation to section 19(1) applies: he is still a public servant for the purpose of sanction, and sanction is still required.

And suppose the complaint had come from a private citizen and not from the agency. The first proviso stops him from even requesting sanction until he has filed a complaint in a competent court, survived section 203 of the Code and obtained a direction to seek sanction; and the second proviso requires the public servant to be heard before sanction is accorded.

What beginners get wrong

That section 13(1)(d) is the law. It was deleted by Act 16 of 2018. Criminal misconduct is now misappropriation and illicit enrichment only.

That disproportionate assets are an offence. They are the basis of a presumption under Explanation 1 to section 13(1)(b).

That known sources of income means income known to the department. Explanation 2 defines it as income received from any lawful sources.

That section 17A is the same as section 6A. Section 6A classified by rank and was struck down. Section 17A classifies by the nature of the act, and expressly exempts a trap case.

That sanction is always the Government's to give. Section 19(1) is expressly "save as otherwise provided in the Lokpal and Lokayuktas Act 2013", and section 23 of that Act gives it to the Lokpal in cases before it.

That a retired officer needs no sanction. The Explanation to section 19(1) says otherwise.

Quick revision

s.13(1) criminal misconduct, as substituted in 2018: (a) dishonest or fraudulent misappropriation or conversion of property entrusted or under control, or allowing another to do it; (b) intentional illicit enrichment. Explanation 1: presumed from possession, by him or on his behalf, of pecuniary resources or property disproportionate to known sources of income which he cannot satisfactorily account for. Explanation 2: known sources = income from any lawful sources. s.13(2): four to ten years and fine (raised from one to seven by the Lokpal Act, w.e.f. 16 January 2014). The old clauses (a) to (e), including abuse of position, are GONE.

s.14 habitual offender: five to ten years and fine.

s.17 ranks: Inspector in the Delhi Special Police Establishment; Assistant Commissioner of Police in the metropolitan areas of Bombay, Calcutta, Madras, Ahmedabad and any other notified metropolitan area; Deputy Superintendent of Police or equivalent elsewhere.

s.17A previous approval before any enquiry, inquiry or investigation where the offence is relatable to a recommendation made or decision taken in the discharge of official functions; Union, State or removing authority as the case may be; no approval for an on-the-spot arrest in a trap case; decision in three months, extendable by one, reasons in writing. Replaces the rank-based s.6A struck down in Subramanian Swamy.

s.18 inspection of bankers' books, including accounts of persons holding money on his behalf; the bank bound to assist; not below Superintendent of Police unless specially authorised.

s.19 previous sanction before cognizance of an offence under ss.7, 11, 13 and 15, save as provided in the Lokpal Act; from the Union, the State or the removing authority. Provisos of 2018: a private complainant must first file a complaint, survive s.203 of the Code, and be directed to obtain sanction; the public servant must be heard; decision endeavoured in three months, extendable by one for legal consultation; guidelines may be prescribed. Explanation: includes a person who has ceased to hold the office.

Test yourself

1. What is criminal misconduct under section 13 as it now stands? Since Act 16 of 2018 a public servant commits criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant, or allows another person to do so; or if he intentionally enriches himself illicitly during the period of his office. Explanation 1 raises a presumption of intentional illicit enrichment where he, or any person on his behalf, is or at any time during the period of office has been in possession of pecuniary resources or property disproportionate to his known sources of income which he cannot satisfactorily account for, and Explanation 2 defines known sources of income as income received from any lawful sources. The punishment is imprisonment of not less than four years extending to ten years and fine.

2. What did the amendment of 2018 remove from section 13, and with what effect? It removed the five clauses of the old sub-section (1), of which the most important were clause (d), obtaining a valuable thing or pecuniary advantage by corrupt or illegal means, by abusing his position, or without any public interest, and clause (e), possession of disproportionate assets as a substantive offence. The effect is twofold. Conduct formerly charged as an abuse of position in connection with an official decision must now be charged, if at all, under the rewritten sections 7 and 11, which turn on the taking of an undue advantage. And disproportionate assets have been converted from an offence into the evidentiary foundation of a presumption of illicit enrichment. The policy behind the change is that an officer should be prosecuted for being paid and not for taking a decision that turned out badly.

3. Explain section 17A and its relation to the Single Directive. Section 17A, inserted in 2018, forbids a police officer to conduct any enquiry, inquiry or investigation into an offence under the Act alleged against a public servant where the offence is relatable to a recommendation made or decision taken by him in the discharge of his official functions or duties, without the previous approval of the Central Government, the State Government or the authority competent to remove him, as the case may be; no approval is necessary for an arrest on the spot on a charge of accepting or attempting to accept an undue advantage, and the authority must convey its decision within three months, extendable by one month for reasons recorded in writing. Its relation to the Single Directive is that of a third attempt at the same idea. The Directive was an executive instruction requiring prior sanction to investigate senior officers, struck down in Vineet Narain in 1998; it was re-enacted as section 6A of the Delhi Special Police Establishment Act by section 26(c) of the Central Vigilance Commission Act 2003 and struck down again in Subramanian Swamy in 2014 as violative of article 14 because it classified by the rank of the accused. Section 17A avoids that vice by classifying by the nature of the act rather than the seniority of the actor.

4. What is the requirement of previous sanction, and who grants it? Section 19(1) provides that no court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged against a public servant except with previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act 2013. The sanction is granted by the Central Government where the person is or was employed in connection with the affairs of the Union and is not removable save by or with its sanction, by the State Government in the corresponding case of a State, and in any other case by the authority competent to remove him from office. Under section 23 of the Lokpal Act the Lokpal grants the sanction in cases before it, which is the single instance in Indian law of the sanction being taken away from the employer.

5. Why does the Central Vigilance Commission review sanction applications, and what can it do about them? Because section 19 makes the sanction a precondition of cognizance, so that a sanction request which is never decided defeats the prosecution as completely as a refusal, and because the third proviso to section 19(1) requires only that the authority endeavour to convey its decision within three months, attaching no consequence to a failure. Section 8(1)(f) of the Central Vigilance Commission Act 2003 accordingly empowers the Commission to review the progress of applications pending with the competent authorities for sanction of prosecution. What it can do is count and publish: it cannot grant the sanction, cannot direct the authority to decide and cannot penalise delay, and its only remedy is to record the pendency in the annual report which section 14(3) requires to be laid before each House of Parliament.