This article examines various provisions of prevention of corruption act 1988 in context of Neeraj Dutta vs state(Govt. of NCT of Delhi)[(2019) 14 SCC 311] which has been referred for consideration by a larger bench vide judgement dated 28.02.2019. This case is an appeal by the accused appellant who has been charged under Section 7 and Section 13(1)(d) read with Section13(2) of the Prevention of Corruption Act, 1988 for receiving bribe working as an LDC in Vidyut Board. The accused was caught red handed receiving the bribe & therafter she has been convicted for aforesaid offences. The controversy boils down to the issue that whether in absence of direct evidence of demand, is it permissible to draw inferential deduction of culpability? This issue is of imminence because reading proof of demand as an ingredient for establishing culpability dilutes & denudes the act of effect it was intended to produce. This article also ventures into the situation where precedence form a deadlock, making it incumbent upon the judge to clear the air. “Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more.” 1
- Aforementioned dilemma of choosing the correct law would require a judge to digress from one set of precedence and to side with other. There may be cases where either of the two lines of reasoning are not plausible and in such cases, it is incumbent upon the judge deciding the case to define the precise contours of his judgement.
2. If we make demand a requisite for the prosecution to prove it’s case of illegal gratification, it would mean reading into an ingredient which legislature has deliberately omitted. Nature of Judicial process. Legislation in hand is a stringent legislation & importing words which are otherwise put an additional impetus on the prosecution only go on to dilute the rigors of law.
- “The fact is,” says Gray in his lectures on the “Nature and Sources of the Law,“that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present. 2 In our case however, we must look into provisions of act to find the meaning supplied by the words used by legislature to constitute the offence of bribery.
- This finding that demand is a prerequisite to prove the offence under section 7, does not seem to be in accordance with either the letter or the spirit of the Act and also the judgments referred to earlier [Hazari Lal v. State (Delhi Administration) (1980) 2 SCC 390]. If this interpretation is taken in its literal sense, it may amount to saying that money received by a public official, without solicitation will not be an offence under the Act. Obviously, this could not be the intention of the legislature.
- Now the intention of legislature can also be interpreted from words actually used in the contentious provision. For the purposes of proving an offence under section 7, presumption has to be drawn under section 20. Section 20 requires proof of acceptance or obtaining of any undue advantage. As soon as initial burden of accepting/obtaining the receipt of money is dislodged under section 20, it is presumed that the person accepted or obtained that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly.
- Even a cursory look at section 20 reveals that the words accepted and obtained have been used in contradistinction to each other. As per section 2(b) of the Indian contract act, When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. Similarly obtained means to receive or be given something. 3 Hence the word accepted require a prior offer/demand whereas obtained is simple act of receiving or being given something. Digging deeper, sections 7, 8, 9, 11, 13(1)(a), (b) and (c) carry both the terms “accepts” and “obtains”. Only in Section 13(1)(d) the term “obtains” alone is used. The distinction between accepted and obtained is that of receiving unsolicited and solicited money. This drives home the point that section 20 includes all cases of receipt of monies, regardless of the fact whether a demand has been made or not.
- Creating an artificial requirement of proving demand for establishing the case of receipt of illegal gratification u/s 7 makes the standard of proof somewhat more demanding than the accepted standard of proof under criminal law of proving the case beyond reasonable doubt. A dishonest public servant who is otherwise used to taking bribes would be able to escape from the clutches of law just by ensuring that he leaves no trace of demand. This could never be the test where a prior complaint is infact corroborated by other circumstantial evidence and the receipt of illegal gratification itself.
- Before discarding the proof of demand as an ingredient for offence of receiving illegal gratification we must take a cue from other countries. Denmark is notably one of the least corrupt countries 4 which prohibits both active & passive bribery under it’s anti-corruption laws. The danish Criminal code under Chapter 16 deals with Offences Committed While Exercising a Public Function, further section 144 reads as under. 144- Any person who, while exercising a Danish, foreign or international public office or function, unlawfully receives, demands, or accepts the promise of a gift or other favour shall be liable to a fine or to imprisonment for any term not exceeding six years. 5 Here, again the words used are receives, demands or accepts which are three different word which mean mere taking, asking & taking money by asking for it respectively. Section 144 make abundantly clear that mere demand, mere acceptance & cases with both demand & acceptance constitute the offence of receiving bribe.
- In 2011, India ratified the United Nations Convention against Corruption (UNCAC), 2005 and agreed to bring its domestic laws in line with the UNCAC. 6 The UNCAC covers giving and taking a bribe, illicit enrichment and possession of disproportionate assets by a public servant as offences, addresses bribery of foreign public officials, and bribery in the private sector. Similarly, in the Criminal Law Convention on Corruption (Council of Europe), Articles 2 and 3 deal with active bribing and passive bribing, respectively. Hence laws dealing with corruption around the globe include solicited/active as well as unsolicited/passive accepting/ obtaining of illegal gratification for the offence of bribery
1 Benjamin N Cordozo, Lecture-I, Nature of Judicial process
2 John Chipman Gray, Nature and the sources of law
4 Corruption perception index, www.transperancy.org
5 The criminal code, denmark
Shri. Akhilesh Kumar Mishra,
LLB, Law Faculty, University Of Delhi
LLM, Indian Law Institute
LinkedIn Profile : https://www.linkedin.com/in/akhileshhinduite/