INDIA Trends and Developments Contributed by: Kamal Shankar, Atul N Menon, Arjun Narang and Shivam Jain, AZB & Partners
Duty on an individual to report an offence under the PCA Initially, the obligation to report offences under the CrPC included an obligation to report cases of illegal gratification by a public servant (as pro - vided under the Indian Penal Code – IPC). After the introduction of the PCA, and the consequent repeal of the provisions dealing with illegal grati - fication by a public servant, there was no conse - quent amendment to the provision dealing with the obligation to report. Nonetheless, the Supreme Court in Lokayukta, Justice Ripusudan Dayal v State of MP, (2014) 4 SCC 473, observed that it is the duty and obli - gation of every citizen under Section 39 of the CrPC to report an offence under the PCA to the police. However, there was doubt regarding the duty of candour housed in Section 39 of the CrPC, given the fact that the provisions listed in Section 39(1)(iii) (provisions in relation to cor - ruption provided in the IPC) had been repealed by the PCA. Fortunately, the confusion has been resolved with the introduction of the BNSS. The obliga - tion to mandatorily report certain offences under Section 33 does not impose an obligation to report offences under the PCA. Bribery under the BNS Notwithstanding the provisions of the PCA, the BNS under Chapter IX provides for “offences relating to elections”, and criminalises “brib - ery” in the context of the exercise of electoral rights. Bribery involves offering gratification to persuade someone to exercise an electoral right or rewarding them for doing so. It also includes, as an offence, accepting such gratification for exercising or attempting to encourage someone else to exercise that right.
In a positive change, the BNSS provides for a witness-protection scheme that will have to be notified by the respective state governments. In PCA offences, such a witness-protection scheme is bound to protect victims/complain - ants who may testify against the accused indi - vidual. Regarding punishments Under the BNSS, a first-time offender who has suffered one third of the maximum term of imprisonment has a right to be automatically released. A new form of punishment – namely, “communi - ty service” – has been introduced, and is defined in the BNSS as the work which a court (notably the First Class and the Second Class Magistrate) may order a convict to perform as a form of pun - ishment that benefits the community, for which they shall not be entitled to any remuneration. Timelines prescribed under the BNSS Trial under the PCA is required to be held – as far as practicable – on a day-to-day basis, and the court shall endeavour to ensure that the trial is concluded within a period of two years. The BNSS separately and for the first time pre - scribes timelines for some of the pretrial pro - ceedings, which would also be applicable to offences under the PCA. For example, the police are bound to supply a copy of the final report filed upon completion of investigation and other relevant documents within 14 days of the pro - duction/appearance of the accused within the trial court. Likewise, the trial court is required to frame charges, after the stage of cognisance/ summoning of the accused, within 60 days from the first hearing on charge.
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