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Preceding Demand Of Bribe Does Not Exempt The Accused From Section 7 Of Prevention of Corruption Act: Jharkhand HC
|25 March 2024 10:30 AM GMT
The Jharkhand High Court observed that the preceding demand of bribe does not exempt the accused from the provisions of Section 7 of the Prevention of Corruption Act, 1988.
The Court held thus after a plea by the petitioner that as per the prosecution a demand of bribe was made therefore, in that case offence under section 13(1)(d) is made and not under section 7.
The bench of Justice Gautam Kumar Choudhary relied on the decision in State v. A. Parthiban, (2006) 11 SCC 473 and quoted, “Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act.”
In this case, the accused, an Upper Division Clerk in C.M.P.F. Office was convicted by special judge CBI under section 7 and section 13(1)(d) read with section 13(2) of P.C. Act after he was apprehended by a CBI trap team on the information of the complainant, who was senior Telephone Operator in Central Mines Planning and Design Institute Ltd.(CMPDIL).
Counsel for the Petitioner, Senior Advocate A.K. Kashyap submitted that the deposition of the officer who sanctioned for prosecution does not disclose that he had applied his judicial mind to the materials collected in this case. The Court agreed with the argument of ASGI that before granting sanction for prosecution, he had perused FIR, statement of accused, CBI report, and other relevant documents.
Petitioner further argued that the provision of holding preliminary enquiry as required under CBI manual, was given a complete go by as he verified only by examining the complainant. The Court observed, “…no specific mode is laid down as to how the said enquiry, as it is confined to drawing subjective satisfaction, before the FIR is lodged and the law is set into motion.”
Counsel for the Petitioner contended that as the shadow witnesses turned hostile there is no corroborative evidence regarding the conversation that took place between complainant and accused. The Court stated that it is not fatal for the entire prosecution and relied on the decision in Neeraj Dutta Vs State (NCT of Delhi) (2023) 4 SCC 731 where it was observed, “(f) In the event of complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the presumption can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.”
The Court observed that there is sufficient oral evidence that proved the factum of the case, which was corroborated by a chemical analysis report of the CFSL accordingly, it rejected the argument that mere turning of hand into pink on the touch of solution is not conclusive evidence.
They further argued that the Inspector of CBI who led the trap team cannot be made the investigating officer.
The Court rejected the argument and stated that there is no law that the informant or the one leading the trap team cannot be the investigating officer. However, it observed that the test for that is whether any prejudice was caused on that count. As per the Court, in this case, the plea of bias is not supported by any material from which an inference can be drawn that the officer had any personal bias, or that his actions smacked of reasonable suspicion. Under the circumstance, the Court held that the mere plea of bias on this count is of no consequence.
Petitioner contended that it would not be the case of Section 7 but of Section 13(1)(d) of the P.C. as according to the prosecution, a demand was made leading to the acceptance of the bribe and under Section 20 a presumption can be drawn under Section 7 and 13(1)(a)(b) of the P.C. Act and not under Section 13(1)(d) of the P.C. Act.
The Court observed that in this case (Neeraj Dutta) while delineating the distinction between Sections 7 and 13(1) (d) of the P.C. Act held that while in case of former, mere offer and acceptance is sufficient to constitute the offence, whereas in the latter case the acceptance should be preceded by a demand which is a case of obtainment.
The Court observed, “…under the legislative scheme, once an offer and acceptance is proved in a charge under Section 7, presumption of law under Section 20 is raised that such acceptance or obtainment was for performing or to cause performance of public duty improperly or dishonestly either by himself or by any other public servant. These are mandatory presumption of law which is to be drawn once the foundational fact is proved.”
The Court noted that under Section 13(1)(d) of the P.C. Act the very obtainment by demand of illegal gratification and its acceptance complete the offence. No more facts need to be proved by drawing inferences from the proven foundational facts. Therefore, Section 20 does not apply in cases under Section 13(1)(d) of the P.C. Act.
As per the Court, in this case, there is direct evidence of the complainant that the accused made the demand. Offer and acceptance were also proved by direct evidence of the trap team, documentary evidence of the seizure list, post-trap memorandum, material exhibits of the seizure of currency notes, etc. and the CFSL report of the chemical analysis test of Sodium Bicarbonate and Phenolphthalein. Hence, according to the Court all this proves the demand, offer, acceptance, and recovery of the tainted money.
As far as the testimony of the official witnesses is concerned, the Court is of the view that unless and until there is material to show that the testimony of the official witnesses is not worthy of trust, the same cannot be discarded.
Accordingly, the Court stated that there is no infirmity in the Judgment of conviction under Sections 7 and Section 13(2) read with Section 13(1)(d) of the P.C Act.
However, according to the Court, there is an error in sentencing the convict both under Section 7 and 13 (2). As per the Court, while there is no bar to conviction under both these sections, the sentence cannot be imposed under both these Sections because of Section 71 of the I.P.C.
On the point of sentence, the Court considered the age and the criminal antecedent as well as the protracted nature of litigation and found it just to sentence RI for one year under Section 7 of the P.C. Act, with a fine of Rs 10,000/-.
Consequently, the criminal appeal was dismissed with a modification of the sentence.
Cause Title: Faizur Rahman v. The State of Jharkhand
Appearance:
Appellant: Senior Adv. A.K. Kashyap, Adv. D.K. Prasad
Respondent: : ASGI Anil Kumar