The strange interpretation of the ingredients of offences under the Prevention of Corruption Act, coupled with the ambiguous summary, may perpetuate the prevailing confusion and deliver a blow to legal certainty.
—
"WE hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption."
– Supreme Court in Neeraj Dutta versus State (Govt. of NCT of Delhi), December 15, 2022.
It is with these words that a five-judge Constitution bench of the Supreme Court concluded its recent judgment on proving cases under the Prevention of Corruption Act, 1988 ('PC Act'). While the court seems to envision a vigorous battle against corruption by the victims and the prosecution, the law laid down in the judgment may have delivered a setback to the prosecution of corrupt public servants.
The judgment arose out of a reference by a three-judge bench of the Supreme Court which was constituted pursuant to a referral by a division bench. The referrals were necessary as it appeared as though there were conflicting decisions of three-judge benches of the Supreme Court on proving demand of illegal gratification. The question considered by the five-judge bench reads as follows:
"Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) [prior to its 2018 amendment,] read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?"
The question assumes significance as there have been cases in which the complainant died before the trial commenced, turned hostile, or refrained from testifying before the court. In the referred case, the first information report ('FIR') was filed in 2000, and the complainant died before the trial. However, the trial court convicted the accused by relying on the testimony of the shadow witness who accompanied the complainant and the proof of recovery of chemically treated currency notes from the accused. Subsequently, the high court upheld the conviction of one of the accused under sections 7, 13(1)(d) and 13(2) of the PC Act.
“The referrals were necessary as it appeared as though there were conflicting decisions of three-judge benches of the Supreme Court on proving demand of illegal gratification.
Before the Supreme Court, the accused contended that in the absence of direct evidence of the complainant to prove demand of illegal gratification, a conviction based on proof of receipt or acceptance of illegal gratification, is erroneous. As the division bench and the three-judge bench opined that there were conflicting decisions on the consequences of demand not being proved through direct evidence, the case was referred to a five-judge Constitution bench.
After analysing its decisions in B. Jayaraj versus State of Andhra Pradesh (2014), P. Satyanarayana Murthy versus District Inspector of Police, State of Andhra Pradesh (2015), and M. Narsinga Rao versus State of Andhra Pradesh (2001), among other, the court held that even in the absence of direct evidence of the complainant, demand of illegal gratification may be proved through circumstantial evidence , direct evidence of other witnesses or documentary evidence. Interestingly, the court opined that there was no conflict between its decisions in B. Jayaraj, P. Satyanarayana Murthy and M. Narsinga Rao, as pointed out by the three-judge bench in its referral.
While the court is right in holding that a demand for illegal gratification may be proved through other evidence when direct evidence of the complainant is not available, it appears that the court's interpretation of the ingredients of sections 7 and 13 of the PC Act is flawed. Furthermore, the court's summary of its findings may become a source of confusion regarding the law on demand, obtainment and acceptance of illegal gratification.
As the case dates back to 2000, the Court had to interpret the provisions of the PC Act as they stood before the 2018 Amendment. The relevant portion of the unamended Section 7 reads as follows:
"7. Public servant taking gratification other than legal remuneration in respect of an official act. — Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act …" (Emphasis supplied)
A close reading bearing in mind the use of the word 'or' reveals that the provision criminalises the following acts: a) accepting illegal gratification, b) obtaining illegal gratification, c) agreeing to accept illegal gratification, and d) attempting to obtain illegal gratification. Section 7 does not stipulate that acceptance of illegal gratification must be preceded by demand. In fact, the expression "attempts to obtain" is broad enough to include demand. Therefore, demand and acceptance have been separately criminalised.
“The insistence on proving both demand and acceptance of illegal gratification negates the use of the expression 'attempts to obtain'.
In C.K. Damodaran Nair versus Government of India (1997), the Supreme Court observed:
"'[A]ccept' means to take or receive with a `consenting mind … It cannot be said, therefore, as an abstract proposition of law, that without a prior demand there cannot be acceptance".
Unfortunately, while deciding the referred case, the five-judge bench observed quite early in the judgment that section 7 would apply only if both demand and acceptance were proved. In the second paragraph of the judgment, the court observed:
"Thus, the proof of demand is a sine qua non for an offence to be established under Sections 7, 13(1)(d)(i) and (ii) of the Act ..Thus, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof in the absence of proof of demand would not be sufficient to bring home the charge under Sections 7, 13(1)(d)(i) and (ii) of the Act"
In the summary of the judgment, the court reiterated this point in the following words: "In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact". (emphasis supplied)
Such an interpretation may defeat the legislative intent and make it unduly hard to prove the guilt of corrupt public servants. A public servant may willingly accept illegal gratification from a citizen though they had not expressly asked for it. Consider instances of citizens paying 'speed money' out of sheer desperation, and bearing in mind the prevailing 'tradition' of paying a bribe though a particular public servant may not have expressly demanded a bribe. To discern the implications of the court's insistence on demand, it is crucial to examine how the court distinguished obtainment from acceptance (discussed later in this piece).
As pointed out earlier, the insistence on proving both demand and acceptance of illegal gratification negates the use of the expression 'attempts to obtain'. Suppose a Station House Officer demands illegal gratification and instructs the citizen to handover the money to a constable. The citizen manages to record a video of the conversation, approaches an anti-corruption agency and lodges an FIR. Thereafter, he calls the constable regarding the bribe and he agrees to accept it. Subsequently, the trap laid by the agency fails as the constable has an inkling of the trap and flees shortly before receiving the money. In such a case, insistence on both demand and acceptance of illegal gratification would enable the SHO and the constable to go scot-free though they have 'attempted to obtain' and 'agreed to accept' illegal gratification respectively.
A common ingredient in both sections 7 and 13(1)(d) is obtainment. However, in point d of the summary, the court opined that when the public servant merely accepts a bribe offered by a citizen, it is a case of acceptance, which is an offence under section 7. On the contrary, if the public servant had demanded illegal gratification and subsequently accepted it, it is a case of obtainment under the former section 13(1)(d).
This distinction between obtainment and acceptance merely based on prior demand is not well founded. In as early as 1956, the court had eschewed a clear distinction between 'acceptance' and 'obtainment' in the following words:
"The word 'obtains', on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant" (emphasis supplied)
Realistically, the stages of demand, offer, acceptance, and so on, are not clear-cut and such transactions should not be viewed as a typical contract. The legislature consciously criminalised both demand and acceptance of a bribe, and also deployed the wider expression 'obtainment' to cover cases that do not strictly involve 'acceptance'. Furthermore, among other things, section 7 deals with obtainment of 'gratification' as a motive or reward for certain acts or omissions whereas section 13 deals with obtainment of 'any valuable thing or pecuniary advantage' by corrupt means or abuse of position, among other things. Therefore, the court's interpretation of obtainment is fuzzy and incomplete.
“Realistically, the stages of demand, offer, acceptance, and so on, are not clear-cut and such transactions should not be viewed as a typical contract. The legislature consciously criminalised both demand and acceptance of a bribe, and also deployed the wider expression 'obtainment' to cover cases that do not strictly involve 'acceptance'.
Strangely, in point d(i) of the summary, the court briefly notes that in a case under section 7, there need not be prior demand if the citizen voluntarily offers illegal gratification and the public servant accepts it. However, in point d(iii), it goes on to reiterate its view expressed in the second paragraph of the judgment and point (a) of the summary, in the following words:
"In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act."
It is unclear why the court extensively probed the concept of demand, which has not been expressly mentioned in sections 7 and 13. These provisions do not criminalise mere receipt of illegal gratification as the legislature has consciously used the expression 'accept' as opposed to 'receive'. As acceptance implies knowledge and consent which ought to be proven anyway; the insistence on proof of demand is burdensome.
The vexed interpretation of the ingredients of offences under the PC Act, coupled with the ambiguous summary, may perpetuate the prevailing confusion and deliver a blow to legal certainty. A closer engagement with precedents, the modalities of corruption, and the nuances of pre-trap and post-trap procedures would have yielded a better judgment.