Are there any defences available?
Bribery & Corruption
There is no defence to an act of corruption in India. No exceptions or protections are provided under the Indian law for ‘grease’ or facilitation payments as well. So long as money is paid, with the criminal intent of bribing a public servant, prosecution follows irrespective of the quantum of money paid. However, under the PCA the ‘bribe giver’ may be granted immunity from prosecution for deposing against the public servant.
Article 43 of LCMLO provides certain defenses in the form of cases of dismissal or reduction of the sentence.
The sentence is dismissed when:
a) The agent has reported the crime within 90 days following the act and always before the opening of the correspondent legal procedure;
b) Before the act is committed, the agent voluntarily refuses the offer or promise that he / she had previously accepted, or restore the undue advantage received or, in case the thing is fungible, its value; or
c) Before the act is committed, withdraw the promise or refuse the offering of an advantage or request its restitution.
The sentence is especially reduced when the agent:
a) Until the closing of the trial hearing in the first instance, concretely aids in obtaining or producing decisive proofs for the identification or the capture of other responsible parties; or
b) Has committed the act at the request of the civil servant, directly or through a third person.
Both natural and legal persons under investigation for the alleged commission of a crime of corruption have the same general rights of defence provided in the Criminal Procedure Code for any accused in criminal proceedings such as the right to appoint a lawyer or to request the appointment of legal defence, the right to be heard by the judge in charge of preliminary enquiries whenever the latter has to take any decision that personally affects the person under investigation, or the right to be informed of the facts imputed to them before making any statements before any entity.
Pursuant to Law no. 36/94 pertaining to the measures to combat corruption and economic and financial crime, the person accused of an active corruption crime is also entitled to request the provisional stay of proceedings provided that the Public Prosecution Service and the judge in charge of the preliminary enquiries agree that the requirements have been met for discovering the truth and for complying with injunctions and the rules of conduct on which their application by the judge is contingent. The possibility of a provisional stay of proceedings is also regulated in Article 281 Criminal Procedure Code in respect of crimes punishable by a prison sentence of less than five years.