The Prevention of Corruption Act of 1947 created a new offence of 'Criminal Misconduct' by public servants. Section 5 of the Act refers to various types of offences under this category. Section 5 (1) (a) to (e), Section 5 (2) are incorporated under Section 13 of the P.C. Act, 1988. Section 5 (3) of Act of 1947, is incorporated in Section 14 of the amended Act of 1988. However while splitting this offence in two sections, the P.C. Act, 1988 has also made the punishment for the respective offences in the two sections more severe.

A public servant is said to commit the offence of criminal misconduct under this Section,

if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section- 7;

A public servant is said to commit the offence of criminal misconduct under this Section.

If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned.

The offences specified under clauses (a) and (b) of Section 13(1) of the Prevention of Corruption Act, 1988, have the same ingredients as those specified in Section 7 and 11 of the Act. The fundamental difference between the two provisions of the two Acts is that offences under Section 13(1) (a) and 13(1) (b) are an aggravated form of those provided for in Sections 7 and 11. Whereas under Section 7 and 11, a prosecution can be laid even in the case of a single act of acceptance of illegal gratification, there must be habitual commission of the offence to attract clauses (a) and (b) of Section 13(1) of the Prevention of Corruption Act. Another point of difference is that, while punishment of imprisonment from minimum of one year and up to maximum of seven years has been prescribed under Section 13(2) for the offence committed under Sections 13(1)(a) and 13(1) (b) of the Act, the punishment of imprisonment for the office committed under Sections 7 and 11 may vary from a minimum of 6 months to a maximum of five years.

A public servant is said to commit the offence of criminal misconduct under this Section-

if he, dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so;

"Criminal Breach of Trust: - Whoever, being in any manner entrusted with property, dishonestly misappropriates, or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust."

Section 409 of Indian Penal Code provides punishment for criminal breach of trust by a public servant or other fiduciary agents

"Criminal breach of trust by Public Servant, or by Banker. Merchant or Agent- Whoever being in any manner entrusted with property, or with any domain over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with, imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Criminal breach of trust can be practised by other fiduciary agents like banker, mercantile agent, factor, broker etc. in addition to public servants. The punishment under Section 409 of IPC is more severe, as compared to the punishment under section 13 of the P.C. Act, 1988, which "shall be not less than one year but which may extend to seven years and shall also be liable to fine ". When the offence is committed by anyone, who is not a public servant, the prosecution will be only under IPC, but in respect of public servants the prosecution for this offence will be under both the acts".

CVC Manual further explains as under:

The offence mentioned in this clause is analogous to that mentioned in Section 409 of Indian Penal Code. However, whereas under Section 409 of the Indian Penal Code, a public servant is guilty only if he commits the criminal breach of trust himself, under clause 13(1)(c) of the Prevention of Corruption Act, he is guilty, whether he himself misappropriates or allows any other person to misappropriate property entrusted to him in his official capacity. Another difference between the two sections is that while under Section 409 of the Indian Penal Code, no minimum punishment is prescribed and the maximum punishment may be imprisonment for life or imprisonment which may extend to 10 years, the minimum punishment under Section 13 of the Prevention of Corruption Act is one year and the maximum seven years.

" In cases which fall both under Section 409 of Indian Penal Code and under clause (c) of Section 13(1) of Prevention of Corruption Act, prosecuting agency may charge the public servant under the Indian Penal Code or under the Prevention of Corruption Act as it may consider appropriate in each case. The gravity of the offence and other relevant matters will need to be taken into consideration in exercising the discretion. If the facts disclose the commission of a serious offence for which the maximum punishment provided for under the Prevention of Corruption Act is not sufficient, the accused may be charged under Section 409 of Indian Penal Code which provides for severe punishment for the same kind of offence. The public servant may also be charged simultaneously both under Section 409 of the Indian Penal Code and Section 13(1) (c) of the Prevention of Corruption Act 1988. The advantage of such combination will be that in the event of conviction, the punishment to be awarded by the Court will be subject to a minimum of one year as prescribed in the Prevention of Corruption Act and the maximum may go up to on a term of imprisonment up to ten years as prescribed in the Indian Penal Code."

In cases in which the alleged offence falls both under Section 409 of the Indian Penal Code and under Section 13(1) (c) of the Prevention of Corruption Act and in which a public servant is charged under the Prevention of Corruption Act only, the question may arise whether on his acquittal of that charge the public servant could be tried again under Section 409 of the Indian Penal Code. The Supreme Court (State of Madhya Pradesh Vs. Veerashwar Rao) has held that there can be no objection to a trial and conviction under Section 409 of Indian Penal Code even if the accused has been acquitted of an offence under Section 5(1) (c) of the Prevention of Corruption Act, 1947 (analogous to Section 13(1)(c) of the PC Act, 1988)".

A public servant is said to commit the offence of criminal misconduct under this Section- if he, -

1. by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

2. by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

3. while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public: interest;

The scope of this Section is far more than dealing with solitary instances of public servants taking bribes. This offence was included in the earlier Act, i.e. P.C. Act, 1947 under Section 5 (d). While it contained only two clauses, the 3rd clause is included in the new P.C.Act, 1988 under Section 13(d)(iii).

A public servant is said to commit the offence of criminal misconduct under this Section-

if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation --For the purposes of this Section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

This is the unique provision to punish a public servant by the proving the fruits of corruption indulged by him over years undetected. The public servant accustomed for habitual acts of bribery and corruption has to invest his ill-gotten wealth. The display of the ill-gotten wealth and opulence, and a standard of life and conspicuous consumption behaviour, not befitting his position betrays him. Disproportionate wealth by other sections of society like businessmen and industrialist. Leads to presumption of unassessed income and action is taken for tax evasion. But in respect of a public servant the presumption is earnings byway of corrupt means and action can be taken under this Section of P.C.Act, 1988.

For proving the offence under this Section the prosecution computes his possible savings over a period of the public servant by computing his actual income and estimated expenses over the period. The prosecution can prove the extent of the assets held by the public servant in his name or in the name of some one else on his behalf far exceeds the possible investments he can make from his normal earnings. Once the prosecution establishes the disproportionate nature of his assets, the public servant will be presumed of guilty of offence under this Section and the onus of proving that he acquired the asses through legal means will rest with the public servant. If he is unable to prove, his offence is deemed to have been established and he is declared guilty.

To prevent the disposal of such assets suspected to have been acquired through bribery and corruption, pending prosecution and passing of orders by the Court, such properties can be attached by the authorities under provisions of the Criminal Law Amendment Ordinance of 1944.

Punishment for all offences listed under Sections 13(1) (a) to 13(e) of the act is stated in Section 13(2)

Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.