Demand: Pre-Requisite for an Offence under the Prevention of Corruption Act

By Neha Meena 

Introduction

The object of the Prevention of Corruption Act, 1988 is to make the laws stronger and more effective so as to prevent corruption and the matters connected with it. It is necessary to have clarity on the concept of demand of undue advantage by public servants because in most cases the accused are being trapped and are unaware of the circumstances or about the possession of the currency notes with them which unfortunately leads to the inappropriate conviction of the public servants. Thus, the outcome defeats the purpose of the Act i.e. to prevent corruption.

The law of the Prevention of Corruption Act, 1988 requires “demand” of illegal gratification to bring the accused within the purview of the offence. For establishing the culpability of the accused, it is essential to have proof of demand of illegal gratification to constitute the offence under the provision. Also, without proof of demand of bribe the offence cannot be constituted against the accused person under the Act. Even mere possession and recovery of the bribe or monetary amount (currency notes) from the accused cannot establish the offence unless there is proof of demand of illegal gratification. The evidence on record before the Courts to decide the matter should be visibly sufficient to prove the demand of illegal gratification unless the evidence proves the demand the conviction against the accused cannot be sustained.

According to the 2018 Amendment to the Act, ‘undue advantage’ has been added under Section 2 (d) which means any gratification whatever, other than legal remuneration. It also explains that ‘gratification’ is not limited to pecuniary gratifications or to gratifications estimable in money.

Thus, the research paper focuses on the question of law as to whether ‘demand’ of illegal gratification is the sine qua non for an offence under the Prevention of Corruption Act, 1988 to convict the accused. It also aims to find out whether mere recovery of currency notes will constitute an offence against the accused person and conviction under the Prevention of Corruption Act, 1988.

Constituents of A Bribe Under PCA, 1988: Earlier View

Earlier, the Supreme Court has a different perspective for the conviction of accused in regard to offence for the bribe, if it has been recovered from the accused. While deciding the matter judges just focused on the obtaining of the bribe by the accused irrespective of the situations how it has been recovered from the accused.

It was observed by the Supreme Court in Subash Parbat Sonvane v. State of Gujarat[1], that words like “accepts” and “obtains” has been especially used by the legislature in Sections 7 and 13(1)(a) and (b) of the Act but in Section 13(1)(d) there is withdraw of the word “accepts” and put importance on the word “obtains”. It has cited its prior decision of Ram Krishna v. State of Delhi[2], where it observed that-

We have primarily to look at the language employed and give effect to it. 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. It is enough, if by abusing his position as a public servant, a man obtains for himself any pecuniary advantage entirely, irrespective of motive or reward for showing favour or disfavor.[3]

According to the dictionary, the word “obtain” means that the person who receives anything originality vests upon them; so far as then the demand or request will be indispensable against the accused was observed in judgments of M.W. Mohiuddin v. State of Maharashtra[4] & C.K. Damodaran Nair v. Union of India[5] which were referred in Subash Parbat Sonvane[6] by the Supreme Court and further, it concluded that Section 20 of the Act which provides the statutory presumption is available for the offences as in Section 7 or Section 11 or Section 13(1) (a) or (b) and not for Section 13(1)(d). The reason for this is the explicit words of Section 20 which states statutory presumption for the mentioned provisions only.

Thus, this is where a line was drawn between both the words “accepts” and “obtains” as used in the Act and cannot be interpreted as harmonious to each other. The unsolicited payment and question of whether there is demand; did not arise in the former judgment. Moreover, the word “obtains” provides for a few efforts by the public servant so far as in the form of demand or extortion.

In State of Madras v. A. Vaidyanatha Iyer[7], wherein the Supreme Court draws its attention to the fact that it shall be presumed that gratification was accepted or received by the accused as a bribe unless the contrary is proved by the same. However, by the passage of time the judiciary has changed its interpretation as firstly, it shall to be proved beyond a reasonable doubt that the accused has demanded the gratification and secondly, then only the role of statutory presumption comes into play. Now, without proof of demand for gratification by the accused the charges cannot be framed; so the first step is indispensable for a conviction under the Act.

Need For The Interpretation

Previously there might be something lacking in the Prevention of Corruption Act, 1988 due to which there was a requirement of interpretation by the Apex Court in order to decide the matter effectively.

Section 7[8] of the Act states that public servant who ‘obtains’ or ‘accepts’ or ‘attempts to obtain’ from any person, an undue advantage in respect of an official act will be punishable. Also, Section 7 needs to be read with Section 20 as it provides for presumption of guilt where it is proved that a public servant has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant.[9]

As per the literal interpretation of the Act, if it is possible to prove that the accused being the public servant has accrued a gratification, then statutory presumption comes, through Section 20 of Act, that the accused has accrued or received the said gratification with an illegal motive as per the Section 7 of Act. Further, it is on the accused to convince the Court that what he has accrued or received is not illegal gratification but a valuable consideration as the burden of proof shifts on the accused. According to the plain reading of the section in the statue, it relieved the prosecution from proving that there was a demand for illegal gratification from the side of the accused. Therefore, an interpretation of demand is never been imagined by the literal meaning.

‘Demand’ A New Phase For The Offence of Bribe

The law has now been settled by the Supreme Court that to convict the accused it is necessary to have adequate proof of demand and acceptance of illegal gratification by the public servants under Sections 7 and 13 of the Prevention of Corruption Act, 1988 in the case of P. Satyanarayana Murthy v. State of A.P.[10] It also laid down, as has been underlined in B. Jayaraj, that without the proof of demand by the accused, mere possession and recovery of currency notes would not establish the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act. The Supreme Court has made the below-mentioned observations:

The proof of demand for illegal gratification, thus, is the gravamen, of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably, the charge, therefore, 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 the two sections of the Act.[11]

Also, it was held that proof of demand is to be indispensable and is of permeating mandate for an offence under Sections 7 and 13 of the Act. The presumption against public servant under Section 20 can only be drawn and applied after it has been proved that there was a demand for and acceptance of illegal gratification for doing or forbearing to do any official act. Moreover, such presumption is only extendable for an offence under Section 7 and not under Section 13 (1)(d)(i) and (ii) of the Act. It is of attention to consider that proof of acceptance would only follow if there was proof of demand. Therefore, it is unquestionable that on absence of proof of demand, the statutory presumption under Section 20 of the Act could not arise.[12]

In the case of State of Kerala v. C.P. Rao[13], the Court held that mere recovery by itself 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.

Similar views were held in B. Jayaraj v. State of A.P.[14], where the complainant turned hostile and where there was no other witness present at the moment of transaction between them so the contents of the complaint cannot be relied upon. It was held that the demand for illegal gratification was not proved beyond all reasonable doubt that the accused accepted the money voluntarily; knowing to be a bribe. So there was no proof of demand for illegal gratification, the abuse of position as a public servant for obtaining any valuable thing or gaining and pecuniary advantage or use of corrupt or illegal means cannot be held to be proved; the offences under Sections 7 and 13 (1)(d)(i) and (ii) cannot be established. Thus, the offence under Section 7 is concerned, it has now been a settled position in law that demand of illegal gratification is a must needed condition to constitute the offence under the Act and further, mere possession and recovery of tainted currency notes from the accused without proof of demand are not adequate to constitute the commission of offence and also for the conviction thereunder.

In A. Subair v. State of Kerala[15], the Supreme Court held that the charge of an offence has to be proved by the prosecution beyond all reasonable doubt similarly as to any other criminal offence. Till an offence is established otherwise, by appropriate or sufficient proof of demand and acceptance of illegal gratification, the accused being the public servant must be considered to be innocent; as these are essential elements that are to be proved necessarily in order to record the conviction under the Act.

Relying on the P. Satyanarayana Murthy judgment, the Supreme Court in Mukhtiar Singh v. State of Punjab[16], held that mere recovery of the bribe would not prove the charges against the accused under the Act. The appellant had been accused of taking bribe and the complaint was filed with DSP so later a trap was laid down to catch him red-handed which proved to be a success. In Trial Court the appellant was held liable under Sections 7 and 13(2) of the Act and the decision of the Trial Court was upheld by the High Court. It was argued that there was insufficient evidence before courts to establish the proof of demand, receipt, and recovery of the amount being illegal gratification. Supreme Court on setting aside the decision held that mere recovery of the amount without the proof of demand would not prove the alleged charges against the public servant and also conviction cannot be made on the absence of the evidence of payment of bribe or he accepted the amount, knowing it to be a bribe, voluntarily. Also, in order to attract the offence under the Act, the twin requirements of demand for and acceptance of illegal gratification has to be proved so far as the proof of acceptance can only follow if there is proof of demand by the accused.

In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede[17], it was also laid down that demand is a sine qua non for the establishment of an offence under the provisions of the Act. It said that the court must take into account all the facts and circumstances which are placed on record in its entirety to reach out the conclusion, whether all ingredients of an offence has been satisfied or not i.e., demand, acceptance, and recovery of the amount of illegal gratification. The standard of burden of proof of both the accused and prosecution differs. The prosecution must establish the foundational facts before the accused is called for explaining the circumstances as to how the amount was found in his possession. If any explanation is offered by the accused then the court is required to take into consideration the explanation, while Section 20 of the Act is invoked, only on the touchstone of preponderance of probability but not on the touchstone of proof beyond all reasonable doubt.

The same point is also viewed in Satvir Singh v. State of Delhi[18]. It also held that to constitute an offence under the Act, demand, and acceptance of the illegal gratification as to be amount is a condition precedent to sustain the conviction. It is prominent that the accused can dislodge the statutory presumption which is provided under Section 20 of the Act by bringing some evidence on record before the Court, either direct or circumstantial, to show that the amount accepted was other than for the motive or reward as required under Section 7 of the Act.

In State through Central Bureau Of Investigation v. Anup Kumar Srivastava[19], the Supreme Court said that the High Court was justified in quashing the charges, on the absence of the proof of demand as it is indispensable essentiality and also of permeating mandate for an offence under the Sections 7 and 13 of the Act. It held that what constitutes illegal gratification is a question of law while whether on evidence that crime is committed is a question of fact. As the evidence in regards to demand and acceptance of a bribe, where leaves the room for doubt and did not displace entirely presumption of innocence so it cannot be said that the charges have been established under the Act. Additionally, in order to prove the case against the accused, it was necessary for the prosecution to prove requirement of demand and acceptance of the bribe amount by him.[20]

In the recent judgment of S. Nagoor Hussai Mohaideen v. State represented by The Inspector of Police[21], the Court took into consideration all the opinion of the judgments by the Supreme Court like P. Satyanarayana Murthy, B. Jayaraj, A. Subair, Dnyaneshwar Laxman Rao Wankhede and Mukhtiar Singh and decided the matter on the same principle that demand of bribe is requisite for an offence under the Act and to convict the accused. Thus, it analyzed the case on the point that whether the demand and acceptance of the bribe amount by the accused is proved by the prosecution which is in line with the above cases.

Previously, if a public servant if found to be in possession of any unaccounted money then he can be charged under Section 7 as well as Section 13 i.e. for criminal misconduct as well. This used to obstruct the public servant from performing his duty as well as creating fear in his mind of being prosecuted even if there is bona fide intention on his part. An offence can be constituted by itself if there is obtaining, accepting or the attempt to obtain an undue advantage, even if the public duty is not improper by the public servant. Through the Amendment Act the misuse of earlier Section 13(1)(d)(iii) of the Act is now being removed. Therefore, to protect the bonafide performance of duties by the public servant and to enable them for making bona fide decisions without fear of prosecution under the Act, these amendments are made.

After analyzing a series of decisions by the Supreme Court, it is now been a principle that if accused demanded then only it’s a sine qua non for the conviction under the Act in respect of the said sections. Moreover, the attention may be drawn to an important point that the word “demand” has not been mentioned or placed in the Prevention of Corruption Act, 1988 instead in order to achieve the aim and object of the Act, the Supreme Court has inserted the word ‘demand’ in the statue virtually by its interpretation.

Conclusion

In view of the earlier judgments of the Supreme Court, we can see that its interpretation in deciding the case was taken in a literal sense. By this interpretation, it can be said that if the accused has received gratification he will be convicted without taking into consideration, whether he actually demanded any kind of gratification. On analyzing it, this could not have been the intention of the legislature because this would result in putting the innocent ones behind bars who didn’t even know about such circumstances or have been trapped. So, in order to fulfill the purpose of the Act, the judiciary came up with the new interpretation which says that proof of demand is an indispensable requirement for an offence under Section 7 and 13 of the Act and after this only legal presumption under Section 20 can be invoked. The Courts have rightly laid down the law that mere possession or recovery of the currency notes from the accused does not satisfy the demand for illegal gratification and it is also, not enough to bring the charges under Sections 7 and 13 of the Act. Therefore, by relaxing the literal interpretation of the Act, judges played their role well adequately by virtually inserting the word ‘demand’ in the Act for deciding the matters of corruption or related to it effectively.

[1] (2002) 5 SCC 86.

[2]  AIR 1956 SC 476.

[3] Id., 478, para 9.

[4] (1995) 3 SCC 567.

[5] (1997) 9 SCC 477.

[6] Supra note 1.

[7] AIR 1958 SC 61 at p. 65.

[8] Prevention of Corruption Act, 1988 S. 7- Offence relating to public servant being bribed.

[9] Prevention of Corruption Act, 1988 S. 20- Presumption where public servant accepts any undue advantage.

[10] (2015) 10 SCC 152.

[11] Id., 159, para 23.

[12] Supra note 1, p. 159, para 22.

[13] (2011) 6 SCC 450.

[14] (2014) 13 SCC 55.

[15] (2009) 6 SCC 587.

[16] (2017) 8 SCC 136.

[17] (2009) 15 SCC 200.

[18] (2014) 13 SCC 143.

[19] (2017) 15 SCC 560.

[20] Dashrath Singh Chauhan v. CBI, 2018 SCC OnLine SC 1841.

[21] 2019 SCC OnLine Mad 1104.

[The author is a final year student at the National University of Study and Research in Law, Ranchi.]