Introduction

The Prevention of Corruption Act 1988(1) is the main anti-corruption legislation in India. It addresses bribery and corruption offences committed by public servants.(2)

Section 7 of the act deals with public servants taking gratifications other than legal remuneration in respect of an official act, while Section 13 of the act pertains to criminal misconduct by public servants.

Both sections are fairly broad in scope, and over the years their scope and ambit has been interpreted by judicial precedent.

In the recent case of Krishan Chander v State of Delhi(3) the Supreme Court postulated on the essential factors for determining whether bribery, as contemplated under Section 7 read with Section 13 of the act, has been committed. The court held that in order to prove an offence under these sections, it is necessary to establish that the public servant both demanded and accepted the bribe.

In the case at hand, the Supreme Court also dealt with the evidentiary value of a hostile witness's evidence and held that his or her evidence cannot be ignored in its entirety merely because the witness has become hostile.

Facts

The accused – a constable in the police department – was alleged to have demanded a bribe of Rs5,000 from the complainant to release the complainant's brother on bail. Allegedly, the complainant immediately paid a portion of the demand in order to secure bail for his brother. The complainant and accused were said to have agreed that the complainant would pay the remainder of the bribe at a later date.

After purportedly posting the first tranche of the bribe, the complainant filed a complaint with the Anti-corruption Bureau, following which the bureau set up a trap using marked currency notes, which were to be given to the accused. An independent witness was also brought in to witness payment of the bribe.

According to the prosecution, the accused was caught while accepting the marked currency notes from the complainant, and thus proceedings were initiated against him for offences under Sections 7 and 13 of the act.

Decisions

First-instance decision
During trial, the complainant withdrew his original statement and refused to support the prosecution's case that the accused had demanded illegal gratification.

However, the Supreme Court relied on, among other things, the fact that the accused was caught red handed accepting the marked currency notes and convicted him of offences under Sections 7 and 13 of the act, sentencing him to "rigorous imprisonment" for two years, along with a Rs500 fine.

Appeal
Aggrieved by the court's orders, the accused appealed to the high court. When the high court refused to interfere and upheld the trial court decision, the accused appealed to the Supreme Court, requesting that the high court's decision be impugned.

Supreme Court decision
The accused argued that proof of a demand for illegal gratification was paramount to finding that an offence had occurred under Sections 7 and 13 of the act. Without such proof, guilt could not be established.

The Supreme Court examined all material facts, including the evidence on record. The Supreme Court also analysed the law laid down in Satvir Singh v State of Delhi(4) and Satyanarayana Murthy v Dep Inspector of Police Andhra Pradesh.(5)

After due consideration, the Supreme Court held that although the act does not specifically stipulate the requirement of demand and acceptance, these are essential factors that must be fulfilled before a public servant can be convicted of an offence under the act.

The Supreme Court further held that mere recovery of marked money is insufficient to convict a public servant without clear evidence to prove that the money was voluntarily taken as a bribe.

In the case at hand, the Supreme Court opined that while there was evidence to prove the acceptance of money, there was nothing to show that the public servant had demanded a bribe.

The Supreme Court emphasised that proof of a demand for illegal gratification is the gravamen of offences under Sections 7 and 13 of the act and, in absence thereof, charges cannot be upheld.

Interestingly, when arriving at its finding that the prosecution had failed to establish the factum of demand, the Supreme Court in part relied on the complainant's testimony, who had turned hostile during the trial and denied that the accused had demanded or accepted a bribe.

In doing so, the Supreme Court took the view that merely declaring a witness as hostile is insufficient to render the witness as unreliable and exclude his or her evidence from consideration altogether.

Comment

Under the act, a rebuttable presumption is created against a public servant if he or she accepts gratification other than legal remuneration. Therefore, the cornerstone for penalising a public servant should not be the mere acceptance of gratification – rather, a clear case that the public servant has demanded and accepted gratification must be made.

It has thus been clarified that in the absence of any proof of a demand for illegal gratification, a public servant's use of corrupt or illegal means or abuse of his or her position to obtain any valuable object or pecuniary advantage cannot be proven.

Thus, proof of demand has been held to be essential for an conviction under Sections 7 and 13 of the act.

The Supreme Court's judgment has clarified that mere evidence of the payment of monies without proof of a demand and acceptance of the bribe is insufficient to ensure conviction under the act.

For further information on this topic please contact Jasleen K Oberoi or Samanvya D Dwivedi at Shardul Amarchand Mangaldas & Co by telephone (+91 11 4159 0700) or email (jasleen.oberoi@amsshardul.com or samanvya.dwivedi@amsshardul.com). The Shardul Amarchand Mangaldas & Co website can be accessed at www.amsshardul.com.

Endnotes

(1) https://indiankanoon.org/doc/1331755/.

(2) As defined in Section 2(cc) of the act.

(3) MAN/SC/0003/2016 Cr Appeal 4/2016.

(4) (2014) 13 SCC 143.

(5) (2015) 10 SCC 152.

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