PC Act: No Offence Made Out By Showing Mere Acceptance Of Bribe Without Proving Offer Or Demand: Supreme Court

CASE TITLE:
Neeraj Dutta Vs. State

DATE OF ORDER:
15 December 2022

JUDGE(S):
JusticeS. Abdul Nazeer
Justice B.R. Gavai
Justice A.S. Bopanna
Justice V. Ramasubhramanian
Justice B.V. Nagarthna

SUBJECT

The learned Constitutional Bench of the Apex Court held that direct or primary evidence of the demand of illegal gratification is not necessary to prove the guilt of a public servant accused u/s 7 or 13(1)(d) of the Prevention of Corruption Act and opined that the same can be established through means of circumstantial evidences. The Court also observed that proof of both the demand as well as acceptance of the illegal gratification has to be give in order to attract the offence u/s 7 and 13(1)(d)(i) and (ii) of the Act. The Court observed- “the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under S. 7 or Section 13(1)(d)(i) and (ii)”

IMPORTANT LEGAL PROVISIONS

THE PREVENTION OF CORRUPTION ACT, 1988

Section 7-provides that a public servant who accepts or obtains or agrees to accept or attempts to obtain and illegal gratification from any person in the exercise of his official function shall be punished with an imprisonment of a term which shall not be less than six months and can be extended up-to a maximum if 5 years.

Section 13(1)(d)- provides that a person is said to have committed the offence of criminal misconduct

• by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
• by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
• while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;

BRIEF FACTS OF THE CASE

The three-judge bench of the Apex Court had referred the question of law framed to be decided by a Bench of appropriate strength. The following three judgements were referenced to in the Order of Reference-

• B. Jayarajvs. State of Andhra Pradesh

In this case u/s 7 and 13(1)(d) of the PC Act, the complainant turned hostile and no other witness who was present at the time the money was allegedly handed over to the accused was examined by the prosecution. The only evidence was the recovery of tainted notes from the accused’s possession. The Court held that mere possession of the currency notes when there exists no other proof of demand would not be sufficient to attract the provisions of section 7 of the Act.

• P. Satyanarayana Murthyvs. D. Inspector of Police,

In this case, the complainant died before he could be examined by the prosecution. The Court here, reiterated the ratio of B. Jayaraj and held that proof of demand is an essential requisite for an offence u/s 7 and 13(1)(d)(i) and (ii) of the Act.It was also observed that in the absence of the proof of demand, the legal presumption embedded in section 20 of the Act can not arise.

• M. Narasinga Raovs. State of A.P.

In this case also the two of the prosecution witnesses turned hostile. The Court here drew a factual presumption that the appellant had willingly received the tainted notes. The Court based its presumption on the preceding circumstances and the discovery of tainted noted in the appellant’s pocket.

Thus, while the accused was acquitted in the first two cases, in the third case he was convicted even though two witnesses had turned hostile. It is in the above said backdrop that reference was made ti the larger Bench and ultimately to the Constitutional Bench.

LEGAL ISSUE

• Whether in the absence of evidence of complainant or direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability or guilt of a public servant u/s 7 and section 13(1)(d) r/w section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?

ANALYSIS BY THE COURT

• The Court observed that in all the cases cited before it, it was either the witness’s refusal to support the prosecution case or his death that prevented the Court from raising the legal presumption under secretary 20.
• The Court also cautioned that if a witness is termed ‘hostile’, his evidence is not to be disregarded completely but should be considered with due care and circumspection and then must be acted upon. Even the evidence of a hostile witness can be taken into consideration while judging the guilt of the accused provided the same can be corroborated from the other facts of the case.
• While adjudicating upon the specific question of law referred to it, the Constitutional Bench made the following observations-

1. Proof of demand and acceptance of illegal gratification is a sina quo non to establish the guilt of a public servant u/s 7 and 13(1)(d)(i) and (ii) of the Act.
2. The prosecution has to first prove the demand of illegal gratification and then the acceptance of the same subsequently.
3. Such proof of demand and acceptance can be given by either direct or circumstantial evidence.
4. If there is only an offer to pay the bribe but no demand of the same from the public servant and the latter accepts it, it would amount to acceptance u/s 7 of the Act.
5. If there is demand of bribe by the public servant and the bribe giver tenders it, it would amount to obtainment u/s 13(1)(d)(i) and (ii) of the Act.
6. In order to attract the offence in both of the situations mentioned above, the offer as well as acceptance of the illegal gratification has to be duly proved.
7. The presumption of fact with regard to the demand and acceptance/obtainment of illegal gratification may be inferred only when the foundational facts have been proved by relevant oral and documentary evidence. Such presumption of fact, however, is rebuttable
8. In case of a witness’s refusal to support the prosecution case or his death, the demand of illegal gratification can be proved by allowing the evidences of other witnesses.
9. As far as section 7 is concerned, on the proof of the facts in issue, section 20 makes it mandatory upon the Court to raise a presumption the illegal gratification was for the purpose of a motive or reward as mentioned in the said section. This presumption too is rebuttable. However, it is to be noted that section 20 does not apply to section 13(1)(d)(i) and (ii) of the Act.

CONCLUSION

In view of the above observations, the learned Constitutional Bench while concluding that there exists no conflict in the three judge Bench decisions of the Apex Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, answered the legal issue in question in the affirmative.

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