The Distinction Between Section 7 And Section 13(1)(d) Of P.C ACT, 1988 Prior To Amending Act 16 Of 2018

Since all the three clauses under Section 13(1)(d) (by and large corresponding to Section 5(1)(d) of the P.C Act, 1947) use the expression "obtains" which involves some personal effort on the part of the public servant, nobody will dispute that a conviction is possible under the said Section only on proof of "demand" and "acceptance" of the bribe. But, Section 7 of the P.C Act corresponding to old Section 161 of the Indian Penal Code ("IPC" for short) which is very often charged along with Section 13(1)(d), is a provision which is misunderstood as a companion Section which is subject to the same rigours as are applicable to Section 13(1)(d). According to me, the Apex Court itself is responsible for injecting much confusion and ambiguity in interpreting Section 7 resulting in many unmerited acquittals. My present endeavour is to give vent to the personal opinion of mine that a few rulings of the Supreme Court have really inflicted palpable injustice to the said provision of law. Let us now examine the nuances and semantics of those two Sections of the P.C Act. Eventhough the penal provisions of the P.C Act have undergone drastic changes, innumerable cases are pending before various Courts where this question may crop up for resolution in some form or the other. Hence this article.

Let us start with a comparative analysis of the two Sections to note the similarities and dissimilarities.

COMPARISON OF THE ESSENTIAL INGREDIENTS OF THE TWO SECTIONS

IS PROOF OF "DEMAND AND ACCEPTANCE" A CONDITION PRECEDENT FOR BOTH THESE OFFENCES?

Section 7 is attracted where a public servant or an expectant public servant does any of the following acts with regard to gratification:-

(i) Agrees to accept, or

(ii) Accepts, or

(iii) Attempts to obtain, or – mere demand is sufficient

(iv) Obtains – both demand and acceptance are necessary

While the conduct of agreeing to accept and accepting gratification unaccompanied by any conscious effort on the part of the public servant, are passive acts of acceptance of what is offered, the conduct of obtaining gratification involves not only acceptance of what is given or offered but also an active exercise in the form of a conscious effort on the part of the public servant.

It is only in situation (iv) of Section 7 above which somewhat coincides with Section 13(1) (d) (i) and (ii) that the law insists both "demand and acceptance". Going by the verdict of the Supreme Court in Bhagawan Sahai v. State of Panjab- AIR 1960 SC 487, "Pecuniary advantage" and "valuable thing" are included in the expression gratification. In Zohara Khatoon v. Mohd. Ibrahim - AIR 1981 SC 1243 the Apex Court observed that the word obtained may as well be used in the sense of "procured with effort".

Clause (iii) of Section 13 (1) (d) stands on a different footing since there the public servant does not obtain anything for himself.

Such conscious effort on the part of the public servant usually manifests in the form of a request, solicitation or demand making the exercise bilaterally reciprocal. The distinction between "accepts" and "obtains" was lucidly delineated by the Apex Court in (vide Ram Krishan v. State of Delhi - AIR 1956 SC 476 - 4 Judges and C.K Damodaran Nair v. Government of India - (1997) 9 SCC 477= AIR 1997 SC 551).

Note : Even in a prosecution for an offence under Section 7 on the allegation that the accused public servant demanded and accepted gratification, if there is no evidence of demand but there is evidence of acceptance of the bribe, a conviction under Section 7 would be legitimate though a conviction under Section 13(1)(d) may not be justified. Some of the judicial pronouncements have missed this aspect of the matter resulting in unmerited acquittals.

We will now examine the march of law through the various judicial pronouncements dealing with cases involving either both Sections 161 IPC and 5 (1) (d) of PC Act, 1947 or both Sections 7 and 13 (1) (d) of PC Act, 1988.

• Panalal Damodar Rathi v. State of Maharashtra – (1979) 4 SCC 526 = AIR 1979 SC 1191 – 3 Judges.

This was a trap case. The offences alleged were Sections 161 IPC and 5(1)(d) of P.C Act, 1947. Holding that the version of the complainant regarding the demand of bribe by the public servant, was not corroborated, the Apex Court reversed the concurrent conviction and sentence passed by the Trial Court and the High Court.

There is no declaration that demand and acceptance of bribe is a pre-requisite for the offence of Section 161 IPC which corresponds to Section 7 of the P.C Act.

• M.W Mohiuddin v. State of Maharashtra - (1995) 3 SCC 567. This was a trap case in which the prosecution was for offences under Section 161 IPC and Section 5(1)(d) of the P.C. Act, 1947. But when charge was framed in the year 1990, the Trial Court framed charge for offences under Sections 7 and 13(1)(d) of P.C Act, 1988. The objection regarding the defect in the charge was raised for the first time only before the Supreme Court which overruled the same holding that no prejudice was caused to him. The Supreme Court relied on Ram Kishan v. State of Delhi AIR 1956 SC 476 – 4 Judges to hold that the word obtains in Section 5 (1)(d) of the P.C. Act, 1947 involves an element of effort on the part of the accused public servant. Also held that there was evidence of demand and acceptance and confirmed the concurrent conviction.

• C.K Damodaran Nair v. Government of India - (1997) 9 SCC 477= AIR 1997 SC 551. This was a trap case. The offences were Section 161 IPC and Sections 5(1)(a) to (d) of P.C Act, 1947. It was held in paragraph 11 that it cannot be laid down as an abstract proposition of law that there cannot be acceptance of gratification without a prior demand so as to attract an offence under Section 161 IPC which corresponds to Section 7 of PC Act, 1988. In paragraph 12 the meaning of the expression "obtains" in Section 5(1)(d) of the PC Act, 1947 (corresponding, for our purpose, to Section 13 (1) (d) of PC Act, 1988) was considered. It was held that a demand or request was a primary requisite for an offence under Section 5 (1) (d) unlike the offence under Section 161 IPC which can be established by proof of either acceptance or obtainment. The semantic distinction between the words "accept" and "obtain" was clearly elucidated. The appeal by the accused was accordingly dismissed confirming the conviction and sentence.

• Subash Parbat v. State of Gujarat - (2002) 5 SCC 86=AIR 2003 SC 2169- 3 Judges. It was a prosecution under Sections 7 and 13 (1) (d). From the judgment it is not clear whether it was a trap case or not. With regard to the concurrent conviction and sentence under Section 7, the Supreme Court confirmed the same at the time of admission hearing itself. Notice in the appeal was issued only with regard to the conviction and sentence under Section 13 (1)(d). Hence the observation that without proof of demand the appellant cannot be found guilty under Section 13 (1)(d) is fully justified since Section 13 (1)(d) uses the expression "obtains". But the said observation cannot be applied in the case of Section 7 which did not survive for consideration in the appeal.

• T. Subramanian v. State of T.N - (2006) 1 SCC 401 = AIR 2006 SC 836- para 12. This was a trap case. Here the conviction was only under Section 5 (1) (d) read with Section 5 (2) of PC Act, 1947. The judgment is silent as to whether Section 161 IPC was included in that case. The finding that mere receipt of money, in the absence of any evidence of demand and acceptance, is not sufficient to establish the offence under Section 5 (1) (d), cannot obviously be applied to a prosecution either under Section 161 IPC or under Section 7 of PC Act,1988.

• B. Noha v. State of Kerala - (2006) 12 SCC 277. This was a trap case. The prosecution was under Sections 7 and 13 (1)(d). Confirming the conviction and sentence, the Supreme Court held that when there is voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive (Para 10). Relying on State of A.P v. Kommaraju Gopala Krishna Murthy - (2000) 9 SCC 752, held that when amount is found to have been passed on to the public servant, the burden is on him to establish that it was not by way of illegal gratification. (Madhukar Bhaskarrao Joshi v. State of Maharastra - (2000) 8 SCC 571; M. Narasinga Rao v. State of A.P - (2001) 1 SCC 691 followed.)

• Subair A v. State of Kerala - (2009) 6 SCC 587.This was a trap case. The prosecution was under Sections 7 and 13 (1) (d). Paragraphs 6 to 10 deal with the requirement of demand or request in respect of an offence under Section 13 (1) (d). Paragraphs 12 to 23 consider the non- examination of the complainant and the untrustworthy testimony of the other witnesses. With regard to the conviction under Section 7, noticing the fact that the bribe money allegedly paid was only Rs.25, the Supreme Court refused to draw the presumption under Section 20 (1) in view of Section 20 (3). The concurrent conviction was accordingly reversed. This decision is not an authority for the view that an offence under Section 7 should be preceded by a demand.

• State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede- (2009) 15 SCC 200. This was also a trap case. The charge was only under Section 7 for the alleged demand and payment of money. There were two earlier unsuccessful traps. The High Court of Bombay reversed the judgment of conviction by the Trial Court and acquitted the accused who was a Head Constable of Police on the ground that the prosecution evidence was not reliable and that the prosecution had failed to prove the demand of bribe. The Supreme Court also confirmed the acquittal. The improbability of the accused accepting the bribe from a public place also was highlight. But, paragraph 16 of the judgment of the Supreme Court starts with the following strange proposition:-

"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act"

Such a wide proposition could not have been made in respect of Section 7 the wording of which has already been examined.

• Banarsi Dass v. State of Haryana - (2010) 4 SCC 450. This was a prosecution under Section 161 IPC and Section 5 (1) (d) read with Section 5 (2) of P.C. Act, 1947. Relying on M.K. Harshan v/s State of Kerala (1996) 11 SCC 720; C.M. Girish Babu v/s CBI, Cochin (2009) 3 SCC 779; Suraj Mal v/s State (Delhi Admn.) (1979) 4 SCC 725; M. Narasinga Rao v/s State of A.P. (2001) 1 SCC 691; Madhukar Bhaskarrao Joshi v/s State of Maharashtra (2000) 8 SCC 571 and Sita Ram v/s State of Rajasthan (1975) 2 SCC 227 held that mere recovery of the tainted money by itself cannot prove the charge against the accused in the absence of evidence to prove both demand and voluntary acceptance of money.

NOTE: Though the charge was for offences under Section 161 IPC and under Section 5 (1) (d) of the P.C. Act, 1947 the discussion proceeded with reference to the charge under Section 5 (1) (d) where both demand and acceptance are relevant to find whether the accused obtainedthe bribe money in question. However, the observation in paragraph 11 which reads :-

"To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused".

does violence to the wording of Section 161 IPC corresponding to Section 7 of the P.C Act, 1988. It is not so in all situations.

• C.M Sharma v. State of A.P - (2010) 15 SCC 1 = AIR 2011 SC 608. This was also a trap case. The prosecution was under Sections 7 and 13 (1) (d). The Supreme Court confirmed the conviction and sentence concurrently recorded by the Trial Court as well as the High Court. After quoting the aforementioned passage from State of Maharashtra vs Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200,the Supreme Court made the following observation:-

"15. We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredientsto bring the act within the mischief of S.7 and S.13 (1) (d) (ii) of the Act are satisfied."

Note : with due respect, such a generalized proposition cannot be made in the case of Section 7. Even in cases where the allegation has been that the public servant demanded bribe, if the evidence reveals that the public servant accepted bribe without any proof of an anterior demand, he has to be convicted under Section 7.

• State of Kerala v. C.P Rao- (2011) 6 SCC 450. The charge was under Sections 7 and 13(1)(d). The accused, presumably an invigilator, allegedly demanded from CW1 Rs. 5000 for giving pass marks to all the students who appear for practical examination for the D-Pharm final year examination. The High Court had reversed the conviction recorded by the trial Court and the appeal before the Supreme Court was, therefore, one against acquittal. The Supreme Court confirmed the acquittal. Apart from the fact that the accused alone could not have allotted any pass marks, CW1 the complainant was not examined by the prosecution. PWs 1 and 2 examined by the prosecution had heard shouts of the accused from a hotel room where CW1 had attempted to thrust currency notes in his pocket. There was also evidence of previous animosity towards the accused.

Note : The observation in paragraph 10 that mere recovery of tainted money, divorced from the circumstances under which it was paid, is not sufficient to convict of the accused, cannot be understood to mean that in the absence of demand and acceptance a conviction under Section 7 is impermissible. In cases where the marked notes are recovered from the accused person soon after the trap and without any demur on his part, the feasibility of invoking the presumption under Section 20 is very often seen ignored by Courts.

Where receipt of gratification is proved by the prosecution the Court is under a legal obligation to presume under Section 20(1) that such gratification was received as a reward for doing the public duty. (vide paras 24 and 25 of M. Narasinga Rao v. State of A.P – (2001) 1 SCC 691 = AIR 2001 SC 318 – 3 Judges.

Where the public servant is caught red handed with the marked currency notes obtained from the complainant, the Court may even press into service the doctrine of res ipsa loquitur . (vide Reghubir Singh v. State of Haryana - (1974) 4 SCC 560 = AIR 1974 SC 1516 – 3 Judges ; State of A.P v. Jeevaratnam – (2004) 6 SCC 488 = AIR 2005 SC 4095 and para 25 (l) of Ramdas M.P v. State of Kerala – 2011 KHC 236 = ILR 2011 (2) Kerala 375).

• Jayaraj B v. State of A.P – (2014) 13 SCC 55 = 2014 KHC 4199 – 3 Judges. This was also a trap case. The charge was under Sections 7 and 13(1)(d). The complainant had turned hostile to the prosecution to say that the accused had not demanded the bribe. No other witness was examined by the prosecution. Possession of the tainted currency notes was admitted by the accused. His version was that the currency notes where put into his pocket with a request to deposit the same in the Bank towards renewal of license fee. Accepting the said version as probable, the concurrent conviction was set aside by the Supreme Court holding that mere recovery of currency notes from the accused cannot constitute the offences under Section 7 or 13(1)(d). What is revolting is the general statement of law made in paragraph 7 as follows :-

"In so far as the offence under Section 7 is concerned, it is settled position in law that demand of illegal gratification is a sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe".

(C. M Sharma v. State of A.P – (2010) 15 SCC 1 = AIR 2011 SC 608; C. M GirishBabu v. CBI – (2009) 3 SCC 779 = AIR 2009 SC 2022 etc. relied on).

In paragraph 9 there is yet another statement which reads

"Proof of acceptance of illegal gratification can follow only if there is proof of demand.As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn, are wholly absent"

Note : Above observation is really strange. The presumption under Section 20(1) is to be applied when there is proof of acceptance and not when there is absence of demand. (vide M. Narasinga Rao; Reghubir Singh; Jeevaratnam etc). The above observation has been followed in another 3 Judges verdict in para 20 of Satyanarayana Murthy v. District Inspector of Police to which reference will be made.

• Somabhai Gopalbhai Patel v. State of Gujarat – (2014) 15 SCC 103 = 2014 KHC 4615. This was also a trap case. The charge was under Sections 7 and 13(1)(d). The Supreme Court confirmed the concurrent conviction but reduce the sentence under Section 7 to the minimum. But the discussion of the evidence in paragraphs 7 and 8 would seem to show that demand and acceptance is necessary not only for the offence under Section 13(1)(d) but also under Section 7.

• Satyanarayana Murthy v. District Inspector of Police – (2015) 10 SCC 152 = AIR 2015 SC 3549 – 3 Judges. This was also a trap case involving Sections 7 and 13(1)(d). The High Court in appeal had confirmed the conviction under Section 13(1)(d) but reversed the conviction by the Trial Court under Section 7. Supreme Court reversed the conviction under Section 13(1)(d) which alone was the subject-matter of appeal.

Note : In paragraph 20the verdict in B. Jayaraj is followed. In paragraph 21 there is a startling proposition of law as follows :-

"21 . The proof of demand of illegal gratification, thus, is the gravamen of the offence under Section 7 and Section 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, 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 these two Sections of the Act."

While the above observation may be true with regard to Section 13(1)(d), the same cannot be true with regard to Section 7 where even if the alleged demand is not proved, acceptance of the bribe clearly brings the case under Section 7 and the presumption under Section 20(1) also can be pressed into service by the Court . It is not clear as to why clause (iii) of Section 13(1)(d) which also uses the expression "obtains", was omitted from the above proposition.

• Mukhtiar Singh v. State of Punjab – (2016) 11 SCC 357 = AIR 2016 SC 3100 (Mukhtiar Singh – I). This was also a trap case. The charge was under Sections 7 and 13(1)(d). The Supreme Court confirmed the conviction and sentence concurrently recorded by the Trial Court and the High Court and held that both demand and acceptance had been proved. The following proposition of law laid down in paragraph 15, however, does not appear to be sound in law. This is what has been stated –

"15. The premise to be established on the facts for drawing the presumption is that there was demand, payment and acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as a motive or reward" for doing or forbearing to do any official act."

Note : My humble opinion is that for invoking the presumption under Section 20(1) it is not necessary to prove all the three things, namely, demand, payment and acceptance. Mere proof of acceptance is enough to draw the presumption.

• Mukhtiar Singh (deceased) v. State of Punjab –(2017) 8 SCC 136 = AIR 2017 SC 3382 (Mukhtiar Singh – II).This was also a trap case involving Sections 7 and 13(1)(d). The accused was a Station House Officer who had allegedly demanded and accepted Rs. 3000 and had demanded a further amount of Rs. 2000 which was paid to him through the trap proceedings. The Trial Court and High Court convicted the accused. The said conviction was, however, set aside by the Supreme Court which acquitted the accused of those offences. The propositions laid down in paragraphs 14 and 15, in my humble view, cannot be applied at all to a charge under Section 7. Those paragraphs are extracted hereinbelow :-

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under S.7 and S.13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair v. State of Kerala, 2009 KHC 4663 : 2009 (6) SCC 587 : 2009 (3) KLT SN 16 : 2009 (3) SCC (Cri) 85 : 2009 CriLJ 3450 : 2009 (8) SCALE 585, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C. P. Rao, 2011 KHC 4515 : 2011 (6) SCC 450 : 2011 (2) KLT 812 : 2012 CriLJ 2607 : 2011 (104) AIC 155 : 2011 (2) SCC (Cri) 1010 : 2011 (2) SCC (L&S) 714 that mere recovery by itself of the amount said to have been paid by way of illegal gratification 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.

15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj v. State of A.P., 2014 KHC 4199 : 2014 (13) SCC 55 : 2014 (2) KHC SN 20 : 2014 (1) KLD 608 : 2014 CriLJ 2433 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under S.7 as well as S.13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under S.7 and S.13 of the Act, it was held as well qua S.20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre - requisites of S.7 and S.13 and the proof thereof summed up its conclusions as here-under:

23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under S.7 and S.13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, 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 these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under S.7 and 13 of the Act would not entail his conviction thereunder. (emphasis supplied)"

Note :It is submitted with due respect that proof of demand and acceptance can be relevant only under Section 13(1)(d) which employs the expression "obtains" but the same need not be relevant for an offence under Section 7 where evidence of mere acceptance or even agreement to accept will be sufficient to bring home the offence.

Justice V Ramkumar is a former Judge Of High Court Of Kerala