Generally speaking, offences can be sub-divided in two different categories; offences falling under (1) general statutes like the Indian Penal Code 1860 (“IPC”); and (2) special statutes like the Prevention of Corruption Act, 1988 (“PoCA”), Essential Commodities Act 1955, the Customs Act 1962, etc. In relation to the offences falling under the general statutes, a person would have no vicarious liability. Whereas under the special statutes, for example, under the Essential Commodities Act 1955, the directors may be proceeded against for commission of an offence by a company along with it, on the premise that they are vicariously liable therefor.
The PoCA is primarily special legislation to combat corruption in India. PoCA makes it an offence to accept, obtain or attempt to obtain any undue advantage as a motive or reward for doing/forbearing to do any official act or for showing favor/disfavor to any person.[1]
PoCA also makes it an offence to receive undue advantage as a motive or reward for inducing a public servant by corrupt or illegal means or by the exercise of personal influence.[2] Bribing a public servant by an individual or a commercial organization is also considered as an offence under the PoCA.[3] However, the accused must have the requisite animus or intent, at the time when he or she receives gratification that is received as a motive or reward for inducing a public servant by corrupt or illegal means.
Abetment of offences of bribing a public servant is also a punishable offence.[4] The term ‘abetment’ having not been defined under PoCA, reference thereto needs to be made to the exhaustive definition provided in the IPC.[5]When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.[6]
Keeping the aforementioned legal backdrop in mind, Section 39(1)(iii) of the Code of Criminal Procedure, 1973 (“the Code”) which is relevant may be noticed. It reads as under:
“39. Public to give information of certain offences.
(1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely:-
i. …….
ii. …….
iii. Section 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
iv. …….
shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.”
At the outset, it may be noticed that Sections 161-165A of the IPC, referred to in Section 39(1) (iii) of the Code have been omitted in terms of Section 31[7] of PoCA. The provisions of Section 161-165A were incorporated by way of Section 7 to 12 of PoCA.[8] Additionally, the objects and reasons for the enactment of PoCA can also be of assistance to understand the amplitude of the provisions stated therein. In that regard, the Apex Court in the case of Bhaiji v Sub-Divisional Officer, Thandla and Ors,[9] has observed that reference to the statement of objects and reasons of a bill is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy. The objects and reasons for the enactment of the PoCA are mentioned below:-
“STATEMENT OF OBJECTS & REASONS
(1) The Bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions.
(2) The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable the attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.
(3) The Bill, inter alia, envisages widening the scope of the definition of the expression “public servant”, incorporation of offences under sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for the day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.
(4) Since the provisions of section 161 to 165A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision.
(5) The notes on clauses explain in detail the provisions of the Bill.”
Further, it is a very well recognized rule of interpretation of statutes that where a provision of an act is omitted by an act and the said act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re-enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of the re-enacted provision.[10] In that regard, the Apex Court in the case of State of Punjab v Harnek Singh has observed that the 1988 Act (PoCA) is both repealing and re-enacting the law relating to the prevention of corruption.[11] In light of the said observations of the Apex Court, there is no dispute that PoCA is both repealing and reenacting the law relating to the prevention of corruption. A question that arises here is that what would be the effect of the said provision vis–a-vis the General Clause Act, 1897 (hereinafter “the GCA”).
Since PoCA is repealing and reenacting law, Section 8 of the GCA gets attracted. Section 8 of the GCA which is reproduced herein as under:
“8. Construction of references to repealed enactments.
(1) Where this Act or any [Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.”
Also, it is pertinent to mention that Section 31 of PoCA which incorporated provisions of Sections 161-165A of IPC into PoCA was itself deleted from the statute book with effect from 03.09.2001. However, in terms of Section 6A of GCA[12], the repeal and consequent incorporation of Sections 161- 165A of the IPC in PoCA stands saved.
In light of the above, we proceed on the premise that the provisions contained in Section 39 (1) (iii) of the Code require every person who is aware of the commission of an offence under the PoCA to give information available to him with the police. [13] The aforementioned provision, thus, imposes a duty on every person to give information of certain offences specified in the clauses referred to in sub-section (1) thereof but for the aforementioned purpose, the concerned person evidently must know the commission or intention of the commission of such offences. In the absence of any reasonable excuse and in the event of, having such knowledge, a duty is cast upon such person to lay such information before the nearest Magistrate/police.
Failure to perform the obligations in terms of the aforementioned provision attracts penalty in terms of Sections 176 and 202 of the IPC which read as under:
“176. Omission to give notice or information to public servant by person legally bound to give it.– Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or, in the notice or information required to be given is required by an order passed under sub-section (1) of Section 565 of the Code of Criminal Procedure, 1898 (5 of 1898), with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
“202. Intentional omission to give information of offence by person bound to inform. – Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
Be it also noted that Section 177 of the IPC makes false information furnished to a police officer a punishable offence. It is therefore evident that in order that Section 39 of the Code should be attracted, the person must be aware of the commission or intention of the commission of any offence enumerated under Section 39 of the Code, subject to any reasonable excuse.
Future contingencies are not sufficient to attract the provision. The duty of a person to inform the police/ Magistrate arises only when he is aware of the commission or intention of the commission of such an offence, subject to any reasonable excuse. The question of reporting commission of or potential commission of an offence under Section 39 of the Code arises only in the event the intention of any other person to commit an offence specified under Section 39 of the Code is known to a person and not otherwise. An intention to commit an offence must be a positive act and the information in regard thereto must emanate from reliable sources and not on the basis of any presuppositions.
In order to attract Section 39 of the Code, the person must be aware of the commission of any offence under the enumerated sections, then only the person has a duty to inform authorities. The duty to inform arises only upon being aware of the commission or intention of the commission of the offence and not otherwise.
Further, the Kerala High Court in the case of T. S. John v State of Kerala [14] has observed that: “The maker of the statement must be aware, at the time of making the statement, that an offence (of the kind mentioned) had been committed. The state of mind, the belief of the maker is crucial. A prudent person on making a due enquiry or by a reasonable deductive process may arrive at the awareness that such an offence had been committed, but that does not mean that the maker of the statement had the awareness. His duty to inform arises only on his awareness of the commission of the offence. When he is not so aware, naturally he could not give any information and it cannot be said that he had a duty to inform. Awareness is not something which could be proved independently. That must be reflected in the statement sought to be declared as admissible…… Awareness is different from and something more than suspicion…….”
In the event clear unimpeachable evidence is collected which reveals commission/ potential commission of an offence as stated under Section 39 of the Code, in that event such person would have a duty to report and not otherwise.
References
[1] See Section 7 of the PoCA.
[2] See Section 7-A of the PoCA.
[3] See Sections 8 and 9 of the PoCA.
[4] See Section 12 of the PoCA.
[5] See Section 107 of Indian Penal Code 1860.
[6] See Section 34 of Indian Penal Code 1860.
[7] Section 31 of the Prevention of Corruption Act 1988: Omission of certain sections of Act 45 of 1860.— Sections 161 to 165A (both inclusive) of the Indian Penal Code, 1860 (45 of 1860) shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act
[8] State of Punjab v. Harnek Singh, (2002) 3 SCC 481.
[9] Bhaiji v Sub-Divisional Officer, Thandla and Ors, (2003) 1 SCC 692.
[10] Commissioner of Income Tax v Venkateswara Hatcheries, AIR 1999 SC 1225.
[11] State of Punjab v. Harnek Singh, (2002) 3 SCC 481.
[12] Section 6A of the General Clauses Act, 1897: Repeal of Act making textual amendment in Act or Regulation. Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.
[13] Lokayukta, Justice Ripu Sudan Dayal (Retired) & Ors v. State of Madhya Pradesh & Ors., (2014) 4 SCC 473 at para 78.
[14] T. S. John v State of Kerala, 1984 Cr LJ 753 (Ker).
Mr. Abhishek Emmanuel Kisku is an Advocate based in Delhi and presently is a part of the Disputes Resolution Team of L&L Partners Law Offices, Delhi, designated as a Managing Associate. Mr. Kisku completed his graduation in 2009 from The West Bengal National University of Juridical Sciences, Kolkata (NUJS, Kolkata). After graduating, he started his career as an Associate at Fox & Mandal, Kolkata where he worked for almost 2 and a half years. Thereafter, he moved to New Delhi where he practised his trade with RDA Legal, a law firm started by his college seniors. Prior to joining L&L Partners, Mr. Kisku worked under the able guidance of Mr. Arun Monga (then practising before the Hon’ble Supreme Court of India and Hon’ble Delhi High Court and presently Ld. Judge at the Hon’ble High Court of Punjab and Haryana). His areas of interest and expertise involve Arbitration Laws, Insolvency and Bankruptcy Laws, Corporate Commercial disputes, other Civil and Criminal Laws, etc., and has an experience of around eleven years into the profession.
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