The question as to whether "demand" and "acceptance" are essential pre-requisites for a conviction under Sections 7 and 13(1)(d) of the Prevention Prevention of Corruption Act, 1988o provisions by insisting on proof of the additional requirement of one Section as an inevitable concomitant of the other as well.
Since all the three clauses under Section 13(1)(d) (by and large corresponding to Section 5(1)(d) of the P.C Act, 1947) use the expression "obtains" which involves some personal effort on the part of the public servant, nobody will dispute that a conviction is possible under the said Section only on proof of "demand" and "acceptance" of the bribe. But, Section 7 of the P.C Act corresponding to old Section 161 of the Indian Penal Code ("IPC" for short) which is very often charged along with Section 13(1)(d), is a provision which is misunderstood as a companion Section which is subject to the same rigours as are applicable to Section 13(1)(d). According to me, the Apex Court itself is responsible for injecting much confusion and ambiguity in interpreting Section 7 resulting in many unmerited acquittals. My present endeavour is to give vent to the personal opinion of mine that a few rulings of the Supreme Court have really inflicted palpable injustice to the said provision of law. Let us now examine the nuances and semantics of those two Sections of the P.C Act. Eventhough the penal provisions of the P.C Act have undergone drastic changes, innumerable cases are pending before various Courts where this question may crop up for resolution in some form or the other. Hence this article.
Let us start with a comparative analysis of the two Sections to note the similarities and dissimilarities.
COMPARISON OF THE ESSENTIAL INGREDIENTS OF THE TWO SECTIONS
SECTION 13(1) (d)
A public servant or an expectant public servant-
for himself or for any other person, any gratification other than legal remuneration.
A public servant obtains (through a conscious effort on the part of the public servant).
for himself or for any other person, any valuable thing or pecuniary advantage.
S E C T I O N 7
SECTION 13 (1) (d)
This Section takes in not only a public servant but also a person expecting to be a public servant.
Public servant alone is covered by the Section.
Mere demand of bribe amounts to an attempt to obtain illegal gratification.
Mere demand of bribe is not an offence. Over and above the demand, the public servant should obtain the bribe.
If the public servant or expectant public servant accepts or obtains or agrees to accept or attempts to obtain illegal gratification, each of the acts will constitute the offence.
This Section is attracted only if the public servant obtainsfor himself or for any other parson any valuable thing or pecuniary advantage. Expectant public servant is not roped in.
Here what the offender takes is gratification other than legal remuneration.
Here the public servant obtains valuable thing or pecuniary advantage.
Mere acceptance of illegal gratification (where the initiative comes from the giver), is an offence. In such a case, there need not be any demand unless the act of receiving illegal gratification is the result of obtaining the same by means of effort on the part of the public servant.
There should be obtainment of valuable thing or pecuniary advantage in cases where the initiative comes from the taker himself. In other words, there should be both demand and acceptance.
Abetment under Sec. 7 is punishable under Sec. 12 and with the same punishment.
No provision for abetment of Sec. 13(1)(d). But it is punishable under Sec. 109 IPC.
Attempt to take illegal gratification is under Sec. 7 itself and punishment is the same.
Attempt to commit the offence is punishable under Sec. 15.Upto 5 years and fine.
For a habitual offender under Section 7 a graver offence is provided under Sec. 13(1)(a) prescribing a higher punishment.
No such provision.
Another person may suffer or incur monetary loss.
Another person need not necessarily incur monetary loss. The offence may occur by mere diversion of money from State coffers etc.
Punishable with imprisonment upto 7 years.
Punishable with imprisonment upto 10 years.
Minimum imprisonment 3 years.
Minimum is 4 years.
Proof made easier by creating a presumption under Sec. 20.
No such presumption.
No provision obliging the Court to take into consideration the amount or value of the property which the accused had obtained.
There is Section 16 providing for such consideration.
IS PROOF OF "DEMAND AND ACCEPTANCE" A CONDITION PRECEDENT FOR BOTH THESE OFFENCES?
Section 7 is attracted where a public servant or an expectant public servant does any of the following acts with regard to gratification:-
(i) Agrees to accept, or
(ii) Accepts, or
(iii) Attempts to obtain, or – mere demand is sufficient
(iv) Obtains – both demand and acceptance are necessary
While the conduct of agreeing to accept and accepting gratification unaccompanied by any conscious effort on the part of the public servant, are passive acts of acceptance of what is offered, the conduct of obtaining gratification involves not only acceptance of what is given or offered but also an active exercise in the form of a conscious effort on the part of the public servant.
It is only in situation (iv) of Section 7 above which somewhat coincides with Section 13(1) (d) (i) and (ii) that the law insists both "demand and acceptance". Going by the verdict of the Supreme Court in Bhagawan Sahai v. State of Panjab- AIR 1960 SC 487, "Pecuniary advantage" and "valuable thing" are included in the expression gratification. In Zohara Khatoon v. Mohd. Ibrahim - AIR 1981 SC 1243 the Apex Court observed that the word obtained may as well be used in the sense of "procured with effort".
Clause (iii) of Section 13 (1) (d) stands on a different footing since there the public servant does not obtain anything for himself.
Such conscious effort on the part of the public servant usually manifests in the form of a request, solicitation or demand making the exercise bilaterally reciprocal. The distinction between "accepts" and "obtains" was lucidly delineated by the Apex Court in (vide Ram Krishan v. State of Delhi - AIR 1956 SC 476 - 4 Judges and C.K Damodaran Nair v. Government of India - (1997) 9 SCC 477= AIR 1997 SC 551).
Note : Even in a prosecution for an offence under Section 7 on the allegation that the accused public servant demanded and accepted gratification, if there is no evidence of demand but there is evidence of acceptance of the bribe, a conviction under Section 7 would be legitimate though a conviction under Section 13(1)(d) may not be justified. Some of the judicial pronouncements have missed this aspect of the matter resulting in unmerited acquittals.
We will now examine the march of law through the various judicial pronouncements dealing with cases involving either both Sections 161 IPC and 5 (1) (d) of PC Act, 1947 or both Sections 7 and 13 (1) (d) of PC Act, 1988.
This was a trap case. The offences alleged were Sections 161 IPC and 5(1)(d) of P.C Act, 1947. Holding that the version of the complainant regarding the demand of bribe by the public servant, was not corroborated, the Apex Court reversed the concurrent conviction and sentence passed by the Trial Court and the High Court.
There is no declaration that demand and acceptance of bribe is a pre-requisite for the offence of Section 161 IPC which corresponds to Section 7 of the P.C Act.
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act"
Such a wide proposition could not have been made in respect of Section 7 the wording of which has already been examined.
NOTE: Though the charge was for offences under Section 161 IPC and under Section 5 (1) (d) of the P.C. Act, 1947 the discussion proceeded with reference to the charge under Section 5 (1) (d) where both demand and acceptance are relevant to find whether the accused obtainedthe bribe money in question. However, the observation in paragraph 11 which reads :-
"To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused".
does violence to the wording of Section 161 IPC corresponding to Section 7 of the P.C Act, 1988. It is not so in all situations.
"15. We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredientsto bring the act within the mischief of S.7 and S.13 (1) (d) (ii) of the Act are satisfied."
Note : with due respect, such a generalized proposition cannot be made in the case of Section 7. Even in cases where the allegation has been that the public servant demanded bribe, if the evidence reveals that the public servant accepted bribe without any proof of an anterior demand, he has to be convicted under Section 7.
Note : The observation in paragraph 10 that mere recovery of tainted money, divorced from the circumstances under which it was paid, is not sufficient to convict of the accused, cannot be understood to mean that in the absence of demand and acceptance a conviction under Section 7 is impermissible. In cases where the marked notes are recovered from the accused person soon after the trap and without any demur on his part, the feasibility of invoking the presumption under Section 20 is very often seen ignored by Courts.
Where receipt of gratification is proved by the prosecution the Court is under a legal obligation to presume under Section 20(1) that such gratification was received as a reward for doing the public duty. (vide paras 24 and 25 of M. Narasinga Rao v. State of A.P – (2001) 1 SCC 691 = AIR 2001 SC 318 – 3 Judges.
Where the public servant is caught red handed with the marked currency notes obtained from the complainant, the Court may even press into service the doctrine of res ipsa loquitur . (vide Reghubir Singh v. State of Haryana - (1974) 4 SCC 560 = AIR 1974 SC 1516 – 3 Judges ; State of A.P v. Jeevaratnam – (2004) 6 SCC 488 = AIR 2005 SC 4095 and para 25 (l) of Ramdas M.P v. State of Kerala – 2011 KHC 236 = ILR 2011 (2) Kerala 375).
"In so far as the offence under Section 7 is concerned, it is settled position in law that demand of illegal gratification is a sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe".
(C. M Sharma v. State of A.P – (2010) 15 SCC 1 = AIR 2011 SC 608; C. M GirishBabu v. CBI – (2009) 3 SCC 779 = AIR 2009 SC 2022 etc. relied on).
In paragraph 9 there is yet another statement which reads
"Proof of acceptance of illegal gratification can follow only if there is proof of demand.As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn, are wholly absent"
Note : Above observation is really strange. The presumption under Section 20(1) is to be applied when there is proof of acceptance and not when there is absence of demand. (vide M. Narasinga Rao; Reghubir Singh; Jeevaratnam etc). The above observation has been followed in another 3 Judges verdict in para 20 of Satyanarayana Murthy v. District Inspector of Police to which reference will be made.
Note : In paragraph 20the verdict in B. Jayaraj is followed. In paragraph 21 there is a startling proposition of law as follows :-
"21 . The proof of demand of illegal gratification, thus, is the gravamen of the offence under Section 7 and Section 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act."
While the above observation may be true with regard to Section 13(1)(d), the same cannot be true with regard to Section 7 where even if the alleged demand is not proved, acceptance of the bribe clearly brings the case under Section 7 and the presumption under Section 20(1) also can be pressed into service by the Court . It is not clear as to why clause (iii) of Section 13(1)(d) which also uses the expression "obtains", was omitted from the above proposition.
"15. The premise to be established on the facts for drawing the presumption is that there was demand, payment and acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as a motive or reward" for doing or forbearing to do any official act."
Note : My humble opinion is that for invoking the presumption under Section 20(1) it is not necessary to prove all the three things, namely, demand, payment and acceptance. Mere proof of acceptance is enough to draw the presumption.
"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under S.7 and S.13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair v. State of Kerala, 2009 KHC 4663 : 2009 (6) SCC 587 : 2009 (3) KLT SN 16 : 2009 (3) SCC (Cri) 85 : 2009 CriLJ 3450 : 2009 (8) SCALE 585, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C. P. Rao, 2011 KHC 4515 : 2011 (6) SCC 450 : 2011 (2) KLT 812 : 2012 CriLJ 2607 : 2011 (104) AIC 155 : 2011 (2) SCC (Cri) 1010 : 2011 (2) SCC (L&S) 714 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj v. State of A.P., 2014 KHC 4199 : 2014 (13) SCC 55 : 2014 (2) KHC SN 20 : 2014 (1) KLD 608 : 2014 CriLJ 2433 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under S.7 as well as S.13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under S.7 and S.13 of the Act, it was held as well qua S.20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre - requisites of S.7 and S.13 and the proof thereof summed up its conclusions as here-under:
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under S.7 and S.13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under S.7 and 13 of the Act would not entail his conviction thereunder. (emphasis supplied)"
Note :It is submitted with due respect that proof of demand and acceptance can be relevant only under Section 13(1)(d) which employs the expression "obtains" but the same need not be relevant for an offence under Section 7 where evidence of mere acceptance or even agreement to accept will be sufficient to bring home the offence.
Justice V Ramkumar is a former Judge Of High Court Of Kerala