Anti-Corruption

An allegation under the Prevention of Corruption Act, 1988 is among the most consequential a public servant, contractor or company officer can face. Investigations are conducted by the Central Bureau of Investigation or by a State anti-corruption bureau, and the professional consequences begin well before a charge-sheet is filed — often at the stage of a preliminary enquiry.

The 2018 amendment widened the Act materially. Bribe-givers were made directly liable under Section 8. Commercial organisations were brought within Section 9. Section 13 was rewritten. And Section 17A introduced a prior-approval requirement that has become the first battleground in a large proportion of defences.

August Attorneys LLP acts in these matters from the enquiry stage through to trial and appeal. The firm’s work in economic offence and regulatory defence means it approaches a CBI file the way the file was built — procedurally first, factually second.

Section 17A — The First Checkpoint

Section 17A, inserted in 2018, provides that no police officer shall conduct any enquiry, inquiry or investigation into an offence alleged to have been committed by a public servant under the Act, where the alleged offence relates to any recommendation made or decision taken by that public servant in the discharge of official functions or duties, without the previous approval of the competent authority. The provision covers a person who is or was so employed at the time of the alleged offence, so a retired officer is within its protection. Approval is to be conveyed within three months, extendable by one further month for reasons recorded in writing. The proviso excepts the case of a person arrested on the spot on a charge of accepting or attempting to accept an undue advantage.

In every PC Act matter the firm accepts, the existence and adequacy of the Section 17A approval is examined before any other aspect of the defence. Where the alleged offence is relatable to an official decision and no approval was obtained, that is a threshold point and not a peripheral one.

Two qualifications are stated on the page as published, and should be kept in view. First, whether non-compliance with Section 17A vitiates the investigation is unresolved: a two-Judge Bench of the Supreme Court split on the question in Nara Chandrababu Naidu v. State of Andhra Pradesh and referred it to a larger Bench. Second, the constitutional validity of Section 17A itself is sub judice following a further split verdict in Centre for Public Interest Litigation v. Union of India, 2026 INSC 55. The provision remains in force.

Sanction for Prosecution — Section 19

Section 19 requires previous sanction from the competent authority before a court takes cognizance of an offence under Sections 7, 11, 13 or 15 alleged to have been committed by a public servant. The Supreme Court has treated sanction as a jurisdictional requirement rather than a formality: a sanction granted without application of mind to the material, or by an authority not competent to remove the officer, is open to challenge, and a successful challenge can end the prosecution at the threshold.

The sanction order is examined in every matter as a matter of standard practice, before the merits are addressed.

Retired public servants.  The long-settled position, from S.A. Venkataraman and R.S. Nayak v. A.R. Antulay through Kalicharan Mahapatra and State of Punjab v. Labh Singh, is that sanction is not required where the public servant has ceased to hold the office alleged to have been abused by the date of cognizance. The 2018 amendment, however, substituted Section 19(1) so as to refer to a person who “is employed, or as the case may be, was at the time of commission of the alleged offence employed”. Whether that displaces the earlier line in relation to post-2018 conduct has not yet been authoritatively decided.

Trap Cases

A trap is a controlled operation conducted on a complaint that a public servant has demanded an undue advantage, using treated currency and independent witnesses, with the accused apprehended at the point of acceptance. On the face of the case diary a trap looks self-proving. It rarely is.

The prescribed procedure — how the complaint is recorded, how the complainant is briefed, how the currency is treated and the numbers noted, how the independent and shadow witnesses are positioned and what they were in a position to observe, how the recovery is effected and sealed — must be followed. Departures are not technicalities; the prosecution has to prove demand and acceptance, and the procedure is the evidence by which it proves them. Our review of a trap matter begins with the procedure and the panchnama, not with the narrative.

Illicit Enrichment — Formerly “Disproportionate Assets”

Following the 2018 amendment, criminal misconduct by illicit enrichment is dealt with by Section 13(1)(b): a public servant commits the offence if he intentionally enriches himself illicitly during the period of his office. Explanation 1 provides that a person shall be presumed to have done so if he, or any person on his behalf, is or has at any time during the period of office been in possession of pecuniary resources or property disproportionate to his known sources of income which he cannot satisfactorily account for. Explanation 2 defines known sources of income as income from lawful sources. Punishment under Section 13(2) is imprisonment for not less than four years and up to ten years, with fine.

For conduct alleged before 26 July 2018, the offence continues to be charged under the unamended Section 13(1)(e), and pending trials still carry that numbering. The distinction matters for charge framing and for Article 20(1) arguments.

These are document cases. The prosecution advances a computation of assets, income and expenditure over a check period; the defence answers it with the complete and documented financial history — salary and allowances, disclosed investments, inheritance and family income, agricultural income, loans, and every lawful receipt. Mr. Singh’s corporate and financial practice means the firm approaches that reconstruction as it would a forensic exercise in a commercial dispute, and builds an account capable of surviving cross-examination.

Bribe-Givers and Commercial Organisations

Section 8 makes it an offence for any person to give or promise an undue advantage to another with intent to induce or reward the improper performance of a public duty, punishable with imprisonment up to seven years, or fine, or both. The section carries a protection for a person compelled to give an undue advantage who reports the matter to a law enforcement authority within the prescribed period.

Section 9 makes a commercial organisation punishable with fine where a person associated with it gives or promises an undue advantage to a public servant in order to obtain or retain business, or an advantage in the conduct of business, for the organisation. The proviso affords a defence where the organisation proves it had in place adequate procedures, in compliance with such guidelines as may be prescribed, to prevent persons associated with it from engaging in that conduct. Section 10 extends liability to a director, manager, secretary or other officer with whose consent or connivance the offence was committed.

We advise companies on the compliance architecture that this defence presupposes, on internal investigations, and on the conduct of employees and intermediaries; and we defend organisations and their officers where proceedings have been initiated.

Bail and Anticipatory Bail

Anticipatory bail under Section 482 BNSS (formerly Section 438 CrPC) is contested vigorously in CBI and anti-corruption matters. The court weighs the nature and gravity of the accusation, the specific role attributed to the applicant, the risk of flight and of interference with evidence or witnesses, and the necessity of custodial interrogation. A well-documented application that answers each of these on material, rather than on assertion, materially improves the prospects. Regular bail lies under Section 483 BNSS (formerly Section 439 CrPC), and default bail under Section 187 BNSS (formerly Section 167(2) CrPC) where the charge-sheet is not filed within the statutory period.

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Is prior approval always needed before the CBI investigates a public servant?

Section 17A requires previous approval where the alleged offence is relatable to a recommendation made or a decision taken by the public servant in the discharge of official functions. It does not apply where a person is arrested on the spot on a charge of accepting or attempting to accept an undue advantage. The provision covers both serving and former public servants.

Yes. The Act applies to conduct while the person was a public servant. Whether sanction under Section 19 is required after retirement was long answered in the negative, but the 2018 substitution of Section 19(1) introduced wording referring to a person who was employed at the time of the alleged offence, and the point is not settled for post-2018 conduct. Specific advice should be taken.

Under Section 9, a commercial organisation can be punished with fine where a person associated with it gives an undue advantage to a public servant to obtain or retain business or a business advantage. The organisation’s defence is that it had adequate procedures in place to prevent such conduct. Section 10 exposes officers with whose consent or connivance the offence was committed.

A confession to a police officer is not admissible. So much of a statement as distinctly relates to a fact thereby discovered is admissible under Section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 27 of the Indian Evidence Act). A statement recorded by a Magistrate under Section 183 BNSS (formerly Section 164 CrPC) is not substantive evidence; it may be used to corroborate or to contradict the maker. Legal advice should be taken before any statement is made.

This page is provided for general information about the firm’s areas of practice. It is not legal advice, and no advocate–client relationship arises from reading it or from an enquiry. The law stated is current as at the date of publication and may change.