This piece was originally published on Chambers and Partners at:
https://practiceguides.chambers.com/practice-guides/anti-corruption-2025/india/trends-and-developments

Introduction of New Laws

On 1 July 2024, India saw a complete overhaul of its criminal justice system with the enactment of three new criminal laws:

• the Bhartiya Nyaya Sanhita, 2023 (BNS), which is the new penal code;
• the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which is the new criminal procedure code; and
• the Bharatiya Sakshya Bill, 2023 (BSA), which is the new statute on evidence.

This also impacts on the prosecution of corruption cases.

Procedural changes under the BNSS

The BNSS was made applicable to the trial of any offence committed under the Prevention of Corruption Act, 1988 (PCA). Some important changes under the BNSS that would apply to any process or prosecution related to offences under the PCA are as follows:

Registration of first information report (FIR) that marks the start of an investigation

Under the previous regime (the Criminal Procedure Code – CrPC), the jurisdiction of a police officer was restricted to the territorial jurisdiction of a particular police station. However, under the BNSS, the concept of “Zero FIR” has been introduced. This means that a victim or any individual can approach any police station in any territorial jurisdiction, and the police are bound to register an FIR. This obligation holds true even if the offence in question did not occur within the territorial jurisdiction of that police station. Upon registration, the police officer is bound to transfer said Zero FIR to the relevant police station having territorial jurisdiction to investigate the offence.

Use of technology

The BNSS has introduced the concept of “e-FIR”, which can be registered by way of an electronic communication/complaint to a police officer (as prescribed). However, the provision mandates that said e-FIR will only be taken on record after it is physically signed by the complainant or person giving information, within three days from said electronic communication. Some of the additional provisions whereunder technology has been introduced are mentioned below.

• The BNSS mandates audio-video recording of any search and seizure, including the preparation of a seizure memo.
• Service of summons to either a witness or accused issued by the court or the police can be made via electronic means.
• Any statements recorded in the course of the investigation may also be recorded via audio-video means. Similarly, upon completion of an investigation, the investigating agency may supply documents in electronic form.
• Proceedings or trials, including the recording of statements of witnesses, may also be conducted via electronic communications or the use of audio-video means.

Victim-centric approach

The police are required to update the victim on the progress of the investigation every 90 days, resolving a long-debated void left under the CrPC by ensuring that the victim/complainant has a right to be heard before withdrawal of any prosecution.

Upon completion of the investigation and filing of a final report, the police are obligated to supply a copy of said report and other documents to the victim if represented before the court.

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/complainants who may testify against the accused individual.

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, “community 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 punishment 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 prescribes timelines for some of the pretrial proceedings, 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 production/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.

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 provided under the Indian Penal Code – IPC). After the introduction of the PCA, and the consequent repeal of the provisions dealing with illegal gratification by a public servant, there was no consequent 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 obligation 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 corruption provided in the IPC) had been repealed by the PCA.

Fortunately, the confusion has been resolved with the introduction of the BNSS. The obligation 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 “bribery” 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.

The BNS imposes punishment for bribery with imprisonment extendable up to one year or with a fine, or both. Even bribery by treating – which is gratification consisting of food, drinks, entertainment or provisions – is punishable with a fine. The BNS categorically excludes a declaration of public policy or a promise of public action from the offence of bribery.

There are no other offences on corruption/bribery in the BNS, and the PCA is now the primary law on corruption in India.

Law on Sanctioning Required for Prosecuting a Public Servant

Need for sanctioning before the commencement of investigation

The PCA mandates that prior approval of the competent authority is required before investigating alleged offences by public servants in the discharge of their official functions or duties. Section 17A of the PCA, which came into effect on 26 July 2018, aims to protect honest public servants from harassment during inquiries in respect of the decisions taken or acts done in the bona fide performance of their official functions or duties. Recent court cases have explored the application and scope of Section 17A, which are discussed below.

In Nara Chandrababu Naidu v State of Andhra Pradesh, 2024, SCC OnLine SC 47, a two-judge bench of the Supreme Court gave a split verdict on the applicability of Section 17A to an inquiry initiated after the inclusion of the provision in the PCA, and referred the matter to a larger bench. Although the Court agreed on the prospective nature of Section 17A, the divergence of views was on the issue of the timing of applicability of Section 17A – ie, whether it applies when the inquiry has started or when the offence is committed. While a larger bench of the Supreme Court is yet to decide on this moot point, various High Courts have expressed views on the scope and application of Section 17A.

More recently, in Ranidan Singh v State of Rajasthan and Another, SB Criminal Misc (Pet) No 1219/2022, the Rajasthan High Court held that a prior approval under Section 17A is not required to trap a public servant who allegedly demanded gratification. However, after the trap is successful, prior approval under Section 17A must be obtained from the competent authority of the State to lodge an FIR against said public servant and to initiate an investigation into the offence.

In the case of Bindulal and Others v State and Another, WP (Crl) No 281/2024, the Kerala High Court directed the State Vigilance and Corruption Bureau to conduct a preliminary inquiry under Section 154 of the CrPC, and, while doing so, waived the mandate of a prior sanction on the grounds that the prior sanction is not required when a constitutional court passes an order to enquire or investigate under Section 17A of the PCA. Section 154 of the CrPC mandates the registration of an FIR by the police upon receiving information about the commission of a cognisable offence.

Recently, in Shri Siddaramaiah v State of Karnataka and Others, WP No 22356 of 2024, the Karnataka High Court dismissed Chief Minister Siddaramaiah’s plea challenging the governor’s decision to grant a sanction under Section 17A of the PCA for an investigation into an alleged corruption scam. The Court ruled that approval under Section 17A can be sought by the complainant directly from the competent authority, who in the present case was the governor of Karnataka. The Court further held that the governor in normal circumstances has to act on the aid and advice of the Council of Ministers as obtained under Article 163 of the Constitution of India, but can take independent decisions in exceptional circumstances, as was the case here since the approval was sought to conduct investigation against the Chief Minister. The Court also distinguished the sanction to be taken prior to commencement of investigation and the sanction to be taken prior to taking cognisance and after the commencement of investigation, as provided in Section 218 of the BNSS and Section 19 of the PCA.

Need for sanctioning after completion of investigation and before cognisance is taken

Section 19 of the PCA requires prior sanction from the relevant government or from the competent authority before prosecuting certain public servants for offences such as bribery or misuse of power.

In State of Punjab v Partap Singh Verka, 2024, SCC OnLine SC 1659, the Supreme Court of India upheld the law in that the provisions of Section 19 of the PCA will have an overriding effect over the general provisions in Sections 190 or 319 CrPC. Section 190 of the CrPC empowers a magistrate to take cognisance of any offence upon receiving a police report, private complaint or information received on the commission of such offence. On the other hand, a sanction as provided under Section 19 is required to be taken by the Special Court before taking cognisance; the question of taking cognisance or issuing summons upon merely receiving a communication would be insufficient.

Section 319 of the CrPC allows the court to summon and try any person who was not initially the accused but against whom evidence emerges during trial for the offence they appear to have committed. While trying an offence under the PCA, the Special Court cannot summon another person and proceed against them under Section 319 if no sanction is granted by the appropriate authority for prosecution of such person.

A court refusing to take cognisance of an offence under Section 19 of the PCA on the grounds that no valid sanction is obtained must still record its findings on the merits of the case. In PI Babu v CBI, Criminal Appeal No 1864/2013, the Supreme Court of India (by way of its order dated 18 January 2024), remanded the matter to the Special Court with a direction to decide the case afresh and to record its findings on each of the issues involved on merits. In this case, the Supreme Court held that, since the Special Court had failed to record any specific findings on merits and acquitted the appellant only on the grounds that the sanction obtained by the prosecution was not valid, the Special Court had committed an error.

Introduction of the concept of a “deemed sanction”

Similarly, Section 218 of the BNSS provides that “no court shall take cognisance of an offence committed by a public servant in discharge of his official duties and functions, except with the previous sanction of the competent authority”. While the requirement for sanctioning to prosecute a public servant under the CrPC existed even before the introduction of the BNSS, the BNSS stipulates that the relevant authority, upon receiving a request for sanction, must decide whether to grant it within a time limit of 120 days. Furthermore, if the competent authority fails to make its decision within the prescribed timeframe, the sanction will be deemed granted, allowing legal proceedings to proceed against the public servant.

This concept of a “deemed sanction” has been introduced to address delays in obtaining approval for prosecuting public servants. This delay often arises from the tendency of competent authorities to either postpone or deny a sanction for extraneous considerations. It is noteworthy that the PCA does not include a similar concept of a “deemed sanction”. Although the BNSS framework has been applied to the PCA, as a specialised statute the PCA already has a defined process for granting of a sanction. Therefore, said concept of a “deemed sanction” may not be relevant for PCA prosecutions.

Immunity for Members of the Legislative Assembly

Articles 105 and 194 of the Indian Constitution grant legal immunity to members of parliament and state legislatures, respectively, for anything said or any votes cast during legislative proceedings or in committees. They also protect individuals from legal action for publishing reports or proceedings authorised by parliament or state legislatures. These provisions are crucial in ensuring that elected representatives can speak and act freely in the course of their duties, fostering open debate without fear of legal consequences.

The question of whether such immunity extends to cases of bribery was dealt with by the Supreme Court in Sita Soren v Union of India, (2024) 5 SCC 629. In this case, the Supreme Court denied protection under Articles 105 and 194 of the Constitution to Mrs Soren, who was accused of accepting a bribe for the 2012 Rajya Sabha election for voting in favour of an independent candidate for the Rajya Sabha seat representing the State of Jharkhand.

The Court overruled its earlier decision in PV Narasimha Rao v State, (1998) 4 SCC 626 (PV Narasimha) to hold that a member of parliament or the legislative assembly cannot claim immunity from prosecution on a charge of bribery in a criminal court under Articles 105 and 194 of the Constitution. The Supreme Court further clarified that the offence of bribery is complete upon the acceptance of a bribe or even at the conclusion of an agreement to accept a bribe. The offence of bribery is no longer dependent on the fulfilment of the promised act for which the bribe is given or agreed to be given.

Recent Ruling on Granting of Bail in PCA-Related Offences

A significant case concerning the granting of bail in PCA-related offences involved the chief minister of a state being prosecuted. In Arvind Kejriwal v CBI, 2024, SCC OnLine SC 2550, the Supreme Court granted regular bail to Mr Kejriwal. The bail was granted subject to certain conditions imposed in the related Enforcement Directorate (ED) case, marking an important development in the ongoing legal proceedings.

In this case, Mr Kejriwal was alleged to be the key conspirator in framing the Delhi Liquor Excise Policy 2021–22 in a way as to financially benefit his party’s election campaign in Goa. He was first arrested for offences under the Prevention of Money Laundering Act, 2002, and subsequently by the Central Bureau of Investigation for offences committed under the PCA. The Supreme Court granted bail, noting that continued incarceration for an extended period pending trial would infringe upon Mr Kejriwal’s right to liberty under Article 21 of the Constitution.

Even though the PCA mandates the trial court to endeavour to ensure that the trial is concluded within a period of two years, due to the practical complexities of a trial for complex offences like those under the PCA, trials normally take much longer than the timelines prescribed. Therefore, as a recent trend, the Supreme Court of India, being cognisant of the fundamental right of an individual to a speedy trial under Article 21 of the Constitution, has observed that even in serious offences such as corruption and money laundering an individual cannot be kept in incarceration until the ultimate conclusion of the trial.