Ingredients of sec 7 prevention of corruption act

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  • 1. Ingredients of Sec- 7 & Sec- 13(1) (d) read with Sec- 13(2) of PC Act, 1988 by Ronak Karanpuria1DR. ANUP KUMAR SRIVASTAVA & Anr v. CBI2012 (11) TMI 953 (DELHI HIGH COURT) by HONBLE MR. JUSTICE M.L. MEHTAThe essential ingredients of Section 7 are that(i) the person who accepts gratification should be a public servant,(ii) he should have accepted the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.Insofar as Section 13 (1) (d) of the Act is concerned, the essential ingredients are(i) he should be a public servant(ii) he should have used corrupt or illegal means or otherwise abused his position as such public servant and(iii) he should have obtained a valuable things or pecuniary advantage for himself or for any other person. Without any public interestIn Section 13(1) (d), the word used is ‘obtained’. The Apex Court in the case of C.K. DamodaranNair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word ‘obtained’ used inSection 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12thus: “The position will, however, be different so far as an offence under Section 5 (1)(d) readwith Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that theaccused `obtained the valuable thing or pecuniary advantage by corrupt or illegal means or byotherwise.”C.K. Jaffer Sharief Vs. State (Through CBI) (2012) 39 SCD 721Bench: P. SATHASIVAM AND RANJAN GOGOI, JJ.Held:- A bare reading of the provisions of s.13(i)(d) the Prevention of Corruption Act, 1988 wouldgo to show that the offence contemplated therein is committed, if a public servant obtains forhimself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means;by abusing his position as public servant or without any public interest. In the instant case, theappellant besides working as the Minister of Railways was the Head of the two PSUs in question atthe relevant time. The record indicates that the four persons while in London had performed certaintasks to assist the Minister in the discharge of his public duties. Therefore, the appellant cannot beconstrued to have adopted corrupt or illegal means or to have abused his position as a publicservant to obtain any valuable thing or pecuniary advantage either for himself or for any of the saidfour persons. As a Minister, it was for the appellant to decide on the number and identity of theofficials and supporting staff who should accompany him to London if it was anticipated that hewould be required to perform his official duties while in London. The said decision cannot be saidto be actuated by a dishonest intention to obtain an undue pecuniary advantage. That dishonestintention is the gist of the offence u/s. 13(1)(d) is implicit in the words used i.e. corrupt orillegal means and abuse of position as a public servant.Soma Chakravarthy v State 2007 (5) SCC 403.We have primarily to look at the language employed and give effect to it. One class of cases mightarise where corrupt or illegal means are adopted or pursued by the public servant to gain forhimself a pecuniary advantage. The word ―”obtains”, on which much stress was laid does noteliminate the idea of acceptance of what is given or offered to be given, though it connotes also an1 1st Year LL.M., NLSIU Bangalore
  • 2. element of effort on the part of the receiver. One may accept money that is offered, or solicitpayment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniaryadvantage by abusing his position as a public servant. The word “obtains” is used in Sections 161and 165 of the Penal Code. The other words “corrupt or illegal” means find place in Section 162.Apart from ―corrupt and illegal means, we have also the words ―or “by otherwise abusing hisposition as a public servant”. If a man obtains a pecuniary advantage by the abuse of his position,he will be guilty under subclause (d). Sections 161, 162 and 163 refer to a motive or a reward fordoing or forbearing to do something, showing favour or disfavour to any person, or for inducingsuch conduct by the exercise of personal influence. It is not necessary for an offence under clause(d) to prove all this. It is enough if by abusing his position as a public servant a man obtains forhimself any pecuniary advantage, entirely irrespective of motive or reward for showing favour ordisfavour. To a certain extent the ingredients of the two offences are common, no doubt.Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260:―An honest though erroneous exercise of power or indecision is not an abuse of power. Adecision, action or instruction may be inconvenient or unpalatable to the person affected but itwould not be an abuse of power. It must be such an abuse of power which would render aCouncilor unworthy of holding the office of President.Kanwarjit Singh Kakkar v. State of Punjab And Anr [2011] 6 S.C.R. 895Bench: MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.HELD:In the light of the definition of ‘corruption’ defined under the Prevention of Corruption Act in itsPreamble and under Section 7 of the Act, it would clearly emerge that ‘corruption’ is acceptanceor demand of illegal gratification for doing an official act. The demand/ receipt of fee whiledoing private practice by itself cannot be held to be an illegal gratification as the same obviously isthe amount charged towards professional remuneration. It would be preposterous to hold that if adoctor charges fee for extending medical help and is doing that by way of his professional duty, thesame would amount to illegal gratification as that would be even against the plain common sense.If however, it isalleged that the doctor while doing private practice as Government doctor indulged in malpracticein any manner as for instance took money by way of illegal gratification for admitting the patientsin the government hospital or any other offence of criminal nature like prescribing unnecessarysurgery for the purpose of extracting money by way of professional fee and a host of othercircumstances, the same obviously would be a clear case to be registered under the IPC as alsounder the Prevention of Corruption Act which was not the case in the instant matter. The FIRsought to be quashed, merely alleged that the appellants were indulging in private practice whileholding the post of government doctor which restrained private practice, and charged professionalfee after examining the patients. [Para 11]Before a public servant can be booked under the Prevention of Corruption Act, the ingredients ofthe offence will have to be deduced from the facts and circumstances obtained in the particularcase. Judging the case of the appellants on this anvil, the amount that was alleged to have beenaccepted even as per the allegation of the complainant/informant was not by way of gratificationfor doing any favour to the accused, but admittedly by way of professional fee for examining andtreating the patients. However, no presumption can be drawn that it was accepted as motive orreward for doing or forbearing any official act so as to treat the receipt of professional fee asgratification much less illegal gratification. Even as per the case of the complainant/ informant, theact on the part of the appellants was contrary to the government circular and the circular itself had arider in it which stated that the government doctor could do private practice also, provided hesought permission from the government in this regard. Thus, the conduct of the appellants who
  • 3. were alleged to have indulged in private practice while holding the office of government doctor andhence public servant at the most, could be proceeded with for departmental proceeding under theService Rules but in so far as making out of an offence either under the Prevention of CorruptionAct or under the IPC, would be difficult to sustain as examination of patients by doctor and therebycharging professional fee, by itself, would not be an offence. In that event, the said act clearlywould fall within the ambit of misconduct to be dealt with under the Service Rules but would notconstitute criminal offence under the Prevention of Corruption Act. [Para 15]State of Maharashtra v. Dnyaneshwar Laxaman Rao Wankhede (2010) 2 SCC (Cri.) 385Bench: S.B. Sinha, Cyriac JosephHELD: The demand of illegal gratification is a sine qua non for constitution of an offence underthe provisions of the Prevention of Corruption Act, 1988. For arriving at the conclusion as towhether all the ingredients of an offence - demand, acceptance and recovery of the amount ofillegal gratification have been satisfied or not, the court must take into consideration the factsand circumstances brought on the record in their entiretay. For the said purpose, the presumptiveevidence, as is laid down in section 20 must also be taken into consideration but then in respectthereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden ofproof on the prosecution would differ. Before, however, the accused is called upon to explain as tohow the amount in question was found in his possession; the foundational facts must be establishedby the prosecution. Even while invoking the provisions of section 20, the court is required toconsider the explanation offered by the accused, if any, only on the touchstone of preponderance ofprobability and not on the touchstone of proof beyond all reasonable doubt. [Para 16](C.M. Girish Babu vs CBI, Cochin, High Court of Kerala), (2009) 3 SCC 779 Bench: Lokeshwar Singh Panta, B. Sudershan ReddyFact: In this regard, the High Court found that there is nothing in the evidence of PW-11 -Natarajan, official witness, to arrive at any conclusion of appellant making any demand ofgratification. PW-11 stated that from the conversation between the appellant and PW-10, he couldheard the appellant asking & ”is it ready?” and PW-10 only nodding his head. It is for that reasonthe High Court recorded that the alleged demand by the appellant on 2.10.1999 is highly doubtfuland is not proved beyond reasonable doubtHeld: The Apex Court has held that(1)It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. Theaccused charged with the offence could rebut it either through the cross-examination of thewitnesses cited against him or by adducing reliable evidence. If the accused fails to disprove thepresumption the same would stick and then it can be held by the court that the prosecution hasproved that the accused received the amount towards gratification.(2)It is equally well settled that the burden of proof placed upon the accused person against whomthe presumption is made under Section 20 of the Act is not akin to that of burden placed on theprosecution to prove the case beyond a reasonable doubt.Subash Parbat Sonvane vs. State of Gujarat2, 2002 Cri.L.J. SC 2787 1. P.C. Act, 1988—Sec.13 (1)(d) P.C. Act, 1988 — ‘accepts’ as against ‘obtains’ 2. Mere acceptance of money would not be sufficient for convicting the accused under sec. 13(1)(d)(i) of P.C. Act, 1988, as sec. 7 of the Act used the words ‘accepts’ or ‘obtains’ whereas sec. 13(1)(d)(i) omitted the word ‘accepts’ and emphasized the word ‘obtains’. 3. P.C. Act, 1988 — Sec. 202 http://apvc.ap.nic.in/js/vol3/c1t1s545.html
  • 4. The Supreme Court further held that the statutory presumption under sec. 20 of the Prevention of Corruption Act, 1988 is available for the offence punishable under sec. 7 or sec. 11 or clause (a) or clause (b) of sub-section (1) of sec. 13 and not for clause (d) of subsection (1) of sec. 13Held: The Supreme Court observed that mere acceptance of money without there being any otherevidence would not be sufficient for convicting the accused under sec. 13(1)(d)(i). In Secs. 7 and13(1)(a) and (b) of the Act, the Legislature has specifically used the word ‘accepts’ or ‘obtains’. Asagainst this, there is departure in the language used in clause (1)(d) of sec. 13 and it has omitted theword ‘accepts’ and has emphasized the word ‘obtains’.Further, the ingredient of sub-clause(i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause(ii) he obtains such thing by abusing his position as public servant; and(iii) Contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under sec. 13(1)(d), there must be evidence on record that accused ‘obtained’ for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.Madhukar Bhaskarrao Joshi vs State Of Maharashtra [2000 (8) SCC 571]).The premise to be established on the facts for drawing the presumption is that there was payment oracceptance of gratification. Once the said premise is established the inference to be drawn is thatthe said gratification was accepted `as motive or reward for doing or forbearing to do any officialact. So the word `gratification need not be stretched to mean reward because reward is the outcomeof the presumption which the court has to draw on the factual premise that there was payment ofgratification. This will again be fortified by looking at the collocation of two expressions adjacentto each other like `gratification or any valuable thing. If acceptance of any valuable thing can helpto draw the presumption that it was accepted as motive or reward for doing or forbearing to do anofficial act, the word `gratification must be treated in the context to mean any payment for givingsatisfaction to the public servant who received it.Suraj Mal Vs. State (Delhi Admn.) [(1979) 4 SCC 725],Court took the view that mere recovery of tainted money divorced from the circumstances underwhich it is paid is not sufficient to convict the accused when the substantive evidence in the case isnot reliable. The mere recovery by itself cannot prove the charge of the prosecution against theaccused, in the absence of any evidence to prove payment of bribe or to show the accusedvoluntarily accepted the money knowing it to be bribe.Trilok Chand Jain vs State Of Delhi 1977 AIR 666, 1976 SCR (1) 348Bench: Sarkaria, R SinghOne of the essential ingredients of the offence under s. 161, I.P.C., is that the gratification musthave been received by the accused as a motive or reward for committing an act or omission inconnection with his official functions. Even if the government servant was incapable of showingany favor or rendering any service in connection with his official duties, he may be guilty; but, theexistence of an understanding that the bribe was given in consideration of some official act orconduct is an important factor bearing on the question as to whether the accused had received thegratification as a motive or reward as mentioned in s. 161, I.P.C.
  • 5. Manual of Investigation of Economic Offences , State Crime Branch Haryana