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

On Thursday, a Constitution Bench of the Supreme Court held that mere acceptance or receipt of an illegal gratification, without establishing the offer made by the bribe giver or demand raised by the public servant, would not make it an offence under Section 7 or Section 13 (1)(d)(i) or Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988.A Bench comprising Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna noted what would qualify as offences under Section 7 and Section 13(1)(d)(i) and (ii) - If the bribe giver makes an offer to pay, without there being any prior demand for the same by the public servant, but they accept and receive the bribe it would qualify as a case of acceptance under Section 7. If the public servant themselves make the demand and the same is accepted by the bribe giver and the bribe is paid, which is received by the public servant it would be a case of obtainment under Section 13(1)(d)(i) and Section 13(1)(d)(ii).Thereafter the Bench held that in both these cases, the prosecution ought to prove the offer made by the bribe giver and the demand by the public servant as a fact in issue to establish an offence under the afore-mentioned provisions. Only when the foundational facts are proved, a presumption of fact with respect to the acceptance or obtainment of an illegal gratification may be made by the Court. If such a presumption of fact is raised, it is subject to rebuttal by the accused. However, if the presumption is not rebutted, it stands.In order to prove the fact in issue, namely the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:(i) If there is an offer to pay by the bribe giver, without there being any demand from the public servant, and the later simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per S. 7 of the Act. In such case there need not be a prior demand by the public servant.(ii) On the other hand, if the public servant makes a demand and the bribe is given or the demanded gratification in tendered, which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment the prior demand of illegal gratification emanates from the public servant. This is an offence under S. 13(1)(d)(i) and (ii) of the Act.In both cases, 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)In 2019, a Division Bench of the Apex Court observed that insistence on direct proof or primary evidence for proving the demand of illegal gratification may not be in consonance with the view taken in catena of judgments, wherein in absence of primary evidence, the conviction was sustained by the Apex Court on the basis of other evidence. Considering the same it referred the issue to a 3-Judge Bench, which in turn referred it to a Constitution Bench. The specific question of law framed for the Constitution Bench was - "The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution."The 3-Judge Bench, further noted in its reference order - "We note that two three-judge benches of this Court, in the cases of B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55; and P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and Another, (2015) 10 SCC 152, are in conflict with an earlier three-judge bench decision of this Court in M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, regarding the nature and quality of proof necessary to sustain a conviction for the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 when the primary evidence of the complainant is unavailable.With respect to the question of reference, the Constitution Bench held that direct evidence of demand or acceptance of bribe is not necessary to convict a public servant under the Prevention of Corruption Act and that such a fact can be proved through circumstantial evidence.CASE TITLE: Neeraj Dutta v. State (GNCTD) |Criminal Appeal No(s). 1669/2009Citation : 2022 LiveLaw (SC) 1029Prevention of Corruption Act 1988- Constitution Bench answers reference on whether circumstantial evidence can be used to prove demand of illegal gratification- In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under...

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

Sohini Chowdhury

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