[Ethics] Enquries: Preliminary, Discreet, Regular; Prevention of Corruption Act features, Investigation & case studiesDevendra Vishwakarma
- Preliminary Enquiry
- What is a preliminary enquiry?
- No protection to Accused
- Resignation during Prelim Enquiry
- Bogus Complaints
- Discreet Enquiry
- Discreet Enquiry of All India Services Members(AIS)
- Regular Enquiry
- Surprise checks
- Prevention of Corruption Act (PCA), 1988
- Special judges
- Who can investigate?
- Types of Offenses
- Cogni vs. Non-cogni
- Bailable-Non Bailable
- (Formal) Investigation
- FIR in corruption cases:
- Investigation: Provisions and safeguards
- Case Diary
- Accomplice, immunity and pardon
- Supreme Court on Prevention of Corruption Act
- Case Study: Bogus Sarkari hospital
So far, we’ve seen
- Conduct Rules
- sources of complaints (about misconduct / corruption)
Now time for different types of enquires and investigation and the prevention of corruption Act.
Suppose case study runs on following theme:
An NGO/Reporter/Citizen comes in Collector DevAnand’s Office and complaint how Tehsildar Prem Chopra is stalling a file/work for the want of bribes……What should DevAnand do?
|Wrong approach||DevAnand should immediately suspend Prem Chopra and initiate a departmental inquiry then…blah…blah…blah…|
|Right approach||DevAnand should conduct a preliminary enquiry to ascertain the facts…If prima facie it appears Prem Chopra involved in a wrongdoing then……blah…blah…blah…|
so what is this preliminary enquiry and how is it different from regular departmental inquiry?
What is a preliminary enquiry?
- Preliminary enquiry is a fact-finding enquiry.
- done by the Administrative authority (e.g. head of office, head of department- or any subordinate officer under their order)
- Done to ascertain a complaint/allegation made against a government employee. Because if departmental inquiry is started based on a fake complaint- it creates embarrassment for honest employee and destroys staff morale.
No protection to Accused
- Preliminary enquiry is not regular inquiry under the disciplinary rules. It is merely a ‘tool’ to help the boss decide follow up action.
- Therefore, Art.311 or the principles of natural justice DONOT apply to a preliminary enquiry. (Meaning accused employee doesn’t have the right to defend himself or cross-examine the witnesses etc.)
- It is not necessary for boss to seek explanation of accused employee at this stage-Especially when there is sufficient prima facie material to prove his mischief.
- Accused employee has no right to be heard at this stage. Boss can decide future course of action behind his back.
- Preliminary enquiry is not a precondition for taking disciplinary action. (Boss can directly start disciplinary action – if there is prima facie material.)
- There is no prescribed procedure for conducting preliminary enquiry. Boss can follow suitable procedure as he sees fit. He may do it orally, he may do it in writing. He may do it by himself, he may ask his junior to gather facts for him and so on.
- If complaint is made against a senior officer than preliminary enquiry should be done by an officer of sufficiently higher status.
- In complaints related to quality / completion of “work” e.g. MNREGA, IAY, PWD, roads, buildings, irrigation, NGO projects etc. the Enquiry Officer should make surprise site inspection to verify the facts on the spot. But he should not disturb the evidences or disclose real purpose of his visit to local staff.
- During the course of enquiry, if officer feels that it is necessary to collect evidence from non-official persons (e.g. banker, contractor, CA, share-broker, property dealer etc.) then further work should be entrusted to ACB/CBI via Vigilance Department.
Resignation during Prelim Enquiry
- If preliminary enquiry is ongoing but accused employee tenders resignation- it should not normally be accepted. Why? Because resignation =eligible for future employment to government, pension- gratuity benefits
- But what if he did some mischief so grave that he could be dismissed and be removed of all retirement/pension related benefits!
- Therefore, accused employee should not be allowed to escape easily by resigning.
- Genuine complainants should be given protection against harassment or victimization. (i.e. by transferring/ suspending the accused employee +/- protecting the identity of victim/witnesses as and where necessary)
- But if complaint turns out to be false and malicious after preliminary enquiry then criminal prosecution should be launched against such complainants- to deter other miscreants and to boost the staff morale.
- Indian Penal Code (IPC): a person making a false complaint = 6 months / fine / both (section 182)
- CBI/ACB has received a complaint but they donot have sufficient material to register a regular case/FIR. They start discreet enquiry.
- A Discreet Enquiry is exploratory in nature, conducted with utmost secrecy.
- Suspect employee is not approached directly.
- Instead, the investigating officer approaches his juniors, seniors, colleagues, neighbors, social contacts etc.
- He doesn’t record their statements officially. He camouflages the purpose of meeting e.g. CBI officer contacting chowkidar of the farmhouse, in disguise of a real-estate agent and inquiring about property owner.
- He also verifies the general reputation/lifestyle of the accused employee.
Outcome of Discreet Enquiry?
- if complaint/allegation/tip turns out to be fake => discarded OR
- If still need to collect more material=> start Regular (Formal) inquiry.
- If substantial material gathered=>FIR is registered under prevention of corruption act. (PCA)
Discreet Enquiry of All India Services Members(AIS)
In case of All India service member (IAS, IPS, IFoS) serving in State: – if discreet enquiry finds something fishy, then:
- ACB sends report to Vigilance commission
- Vigilance commissioner consults with Chief Secretary of the State + the secretary of the concerned department/ministry of the state
- GAD/Personnel for IAS
- Home affairs for IPS
- Environment and Forest for IFoS
- After that Vigilance commissioner may (or may not) authorize the ACB to conduct a formal enquiry / register an FIR under Prevention of Corruption Act against that All India service (AIS) officer.
^this is the mechanism in Andhra Pradesh. Other states may have some differences in the technicalities.
- CBI also needs to follow similar action while investigating AIS officers on deputation to central ministries/departments.
- As you can see this mechanism is meant to protect the honest officer, but often becomes an obstacle to deal with even guilty AIS officers.
- The secretaries don’t clear the files immediately, empires within empires, have a feudal mindset to protect their underlings= matter kept pending for months and in the meantime guilty Officers get the opportunity to temper witness/records/evidences.
- Regular Enquiry is an open enquiry (unlike the Discreet Enquiry)
- A Regular Enquiry is taken up depending on the nature of allegation, the material available and other factors.
- Regular Enquiry may become necessary where ACB/CBI wants to explore the complaint on a firmer ground before lodging FIR and taking up regular investigation.
- Here the investigating officer can directly and openly approach witnesses and accused employee.
- ACB/CBI can carry out surprise checks of offices known for rampant corruption. (Depending on their jurisdiction.)
- Following places are the first target of surprise checks:
- revenue- earning offices: sale tax, excise, octroi related checkposts
- expenditure- incurring offices: pension, treasury, accounts office
- Focal points with direct public contact: e.g. tehsildar, patwari, RTO, passport, social welfare etc.
- These surprise checks have dual objectives
- preventing the malpractices
- Punishing the guilty.
Salient Aspects / Principles:
- Also checks that no official has engaged a private person to perform official functions. e.g. in RTO office, passport office, tehsildar’s office- often you see dalal type elements doing all the filing, inspection work and the sahib merely signs the file without even looking at its contents or at your face. This type of Outsourcing=violation of conduct rules.
- In certain offices (e.g. Treasury/excise/pension), the employee has to declare his personal cash in the office register every day. ACB/CBI would verify the cash possessed by employee with reference to cash declared by them in morning. If there is mismatch= means he took bribe or stole money from office.
- Care should be taken that very few know about it, else someone might leak information to the given office and corrupt employees will become cautious.
- Usually Two independent public servants (from third Department) are kept as ‘mediators’ during the check. (To ensure that neither side plays mischief.)
- Sometimes joint surprise checks are done with help of local police and senior officers of the given department.
- Should be done in Remote areas- faraway tehsils as well.
Ok so far, under Ethics/Vigilance:
- We learned about the preliminary enquiry (to be done by administrative authority / departmental officer)
- We learned about discreet and regular enquiry (to be done by CBI, ACB officers)
- These enquiries were mostly informal in nature.
Now time for (formal) investigation. But before that, need to look at Prevention of corruption act (PCA). Because formal investigation starts when FIR is registered under PCA.
Prevention of Corruption Act (PCA), 1988
- Applies to whole India except J/K
- Even applies to all India citizen living outside India.
Following public servants are covered
- Employees of union, state, local authority, PSU and statutory boards.
- election commission and its employees
- Public service commission: its chairman, members and employees.
- Any PSU, company, statutory body, cooperative society, educational, cultural, scientific institution funded by Union/State government.
- Employees of SC, HC, various tribunals.
- Govt. universities: Vice-Chancellor, registrar, Professor, reader, lecturer and office employees
- PCA act doesn’t apply to following forces: army, navy, airforce, BSF, coast guard and NSG
Overall, the Vigilance jurisdiction is:
|offices funded by||vigilance/corruption matter looked after by|
- PCA Act empowers both union and state governments to appoint special judges for anti-corruption.
Ok but what is so ‘special’ about this ‘special’ judge?
- He can order summary trial in certain situations. Summary trial means no need for detailed examinations of witness/evidences before punishing the accused.=> quick justice, no more “taarikh pe taarikh”
- He can grant immunity/pardon/leniency to bribe-giver or the accomplice for their testimony.
Limitations of “Special” Judge:
- Against a state / central employee, he cannot take cognizance without previous sanction from respective government.
- Doesn’t apply to army, navy, airforce, BSF, coast guard and NSG.
Punishments under PCA
|offense||min. jail||maximum||+ fine?|
|Public servant taking/demanding bribes for doing official work. (even person expecting to be a public servant is covered)||6 months||5 years||yes|
|middle man taking/demaing bribe for any public servant||6 months||5 years||yes|
|public servant taking valuable things, without consideration from a person he has official dealings with.||6 months||5 years||yes|
|Voluntarily offering bribe to public servant.||6 months||5 years||yes|
|Criminal misconduct by Public Servant viz.
||1 year||7 years||yes|
Who can investigate?
With respect to PCA Act, following officers can investigate crime AND can arrest people without warrant from magistrate.
- CBI inspector (Delhi Special Police Establishment)
- Assistant Commissioner of Police (ACP)- in metropolitan areas under police commissioner. e.g. Mumbai, Chennai, A’bad etc.
- Dy.SP (Deputy Superintendent of Police) in remaining areas.
- Any other officers empowered by state government (e.g. Anti-corruption bureau/ ACB)
Speaking of warrants….
Types of Offenses
Just a brief overview for educational/public-awareness purpose:
Cogni vs. Non-cogni
|Police Officer may arrest without warrant||Police Officer has no authority to arrest without warrant|
|Rioting, kidnapping, murder, rape, extortion etc.||Defamation, cheating, forgery, adultery etc.|
|Police officer need not wait for the court orders. Has to start the investigation immediately.||Officer doesn’t start the investigation immediately, he advises the complainant or victim to approach the court for further directions.|
|police can give bail.||Only judge can give bail.|
||Police have to produce the accused in court (within 24 hours of arrest).Court decides following
|Example forgery, defamation.||example murder, dowry death, rape, robbery etc.|
What about bribes?
|public servant taking bribe||Cognizable =can arrest without warrent||Non-bailable|
|middleman taking bribe on behalf of public servant||Cognizable =can arrest without warrant||Non-bailable|
You can read more about all the offenses and their classification here: vakilbabu.com/laws/Classify/Classify.htm