INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Pranav Tomar and Puneet Dhanoa, AZB & Partners
For criminal misconduct, whereby a public serv - ant either misappropriates public property or owns assets far exceeding their known source of income, as provided under Section 13 of the PCA, the punishment prescribed is minimum imprisonment of four years and up to ten years, along with a fine. Being convicted under the PCA and subse - quently being convicted under the PCA again constitutes a separate offence, punishable with minimum imprisonment of five years and up to ten years, and with a fine, as provided under Section 14 of the PCA. An attempt to commit an offence under Section 13(1)(a) of the PCA – ie, the misappropriation of public property by a public servant – is punish - able with minimum imprisonment of two years and up to five years, and with a fine, as provided under Section 15 of the PCA. 5.2 Guidelines Applicable to the Assessment of Penalties Section 16 of the PCA provides for calculation of quantum of a fine for offences under Sections 7, 8, 9, 10, 11, 13(2), 14 and 15 of the PCA. The court shall consider and be mindful of the value of the property that the accused persons have obtained by committing the offence. For offenc - es under Section 13(1) of the PCA, the court shall consider the value of the public property proved to have been misappropriated and that the accused was unable to account for. Section 14 of the PCA provides for punishment for habitual offenders, wherein subsequent com - mission of an offence under the PCA is punisha - ble with imprisonment for a term of not less than five years, which can be extended to ten years.
Further, there is no formal sentencing policy in India. Consequently, there is wide discretion for courts in matters concerning sentencing of the accused. As per the guidelines outlined by the Supreme Court, while awarding sentences, courts must consider the principles of propor - tionality and deterrence.
6. Disclosure Processes 6.1 Disclosure Obligations
No express provision under the PCA casts a duty on any person to report commission of any offence under the PCA by another person to any law enforcement authority. However, Section 8 of the PCA states that, if a person has been compelled to give a bribe to any public officer, such person is legally obli - gated to report/disclose this to a law enforce - ment authority within a period of seven days. Section 8 also envisages a duty to disclose in a scenario where a person, before giving a bribe to a public officer, is obligated to inform a law enforcement authority when such bribe is being offered in order to assist any law enforcement authority or investigating agency to investigate any offence under the PCA against an identified person. While the duty of disclosure under the PCA is limited to the aforementioned circumstances, a duty is nonetheless cast upon listed com - panies under Section 177(9) of the Companies Act, 2013 to internally implement a “vigil mecha - nism” enabling their directors and employees to report illegal conduct and behaviour. In cases where such conduct is reported, Section 177(10) requires such listed company to disclose this on its website and in its board report. Further, it is also the duty of independent directors to ensure
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