Is Bribe-Giver Liable For Abetment Under S.12 Prevention Of Corruption Act Before 2018 Amendment? Supreme Court To Settle Conflicting HC Views

The Supreme Court is set to consider whether a person who, despite the public servant's refusal, voluntarily offers a bribe to a public servant, should be held liable for abetment for an offence under the Prevention of Corruption Act, 1988, when the bribe amount is recovered from the officer's desk. 

The bench of Justices Dipankar Datta and Prashant Kumar Mishra was hearing a challenge to the Orissa High Court order dismissing a criminal revision filed by the petitioner against the trial court order which refused to discharge him of offence under S. 12 of the PCA. 

The issue framed by the Court reads: Whether an alleged voluntary offer of bribe made by the complainant without a demand by the accused public servant and discovery of the bribe amount on the desk of the latter, prior to 26th July, 2018, would amount to an offence under Section 12 of the Prevention of Corruption Act, 1988 (as amended). 

S. 12 of PCA states: "Whoever abets any offence punishable under this Act, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years, but which may extend to seven years and shall also be liable to fine."  

The Court issued notice in the matter and observed the difference of opinion between the Madras High Court and Bombay High Court on the said issue. 

Notably, the Bombay High Court in Kishor Khachand Wadhwani And Anr vs The State Of Maharashtra had set aside proceedings for offence u/s 12, observing that the incident of crime occurred in 2007, before the coming of S.12 through the 2018 amendment enforced only from July 26, 2018. 

On the contrary, the Madras High Court in Ghanshyam Aggarwal vs. The State (CRL A (MD) No.15 of 2016) held that offering bribery was an offence even before the coming of S.12 via the 2018 amendment, in light of S. 165 A of the IPC which penalised the abetment of offences under S. 161 or 165 IPC with 3 years imprisonment or fine or both. 

The High Court here while referring to precedents of the Apex Court observed "that the offer of bribe was always treated as a substantive offence under Section 165 A of IPC by the Hon'ble Supreme Court." 

S. 161 dealt with a public servant taking illegal gratification. In contrast, S. 165 dealt with the offence of a public servant taking valuable things without consideration from a person in any proceeding or business transaction. Notably, S.161, 165 and 165A have been repealed by the PCA. 

The petitioner in the present case is charged with offence u/s 12 of the PCA for allegedly offering a bribe of 2 Lakh rupees to a police officer in a case related to the illegal manufacturing of Gutkha. The Trial Court had rejected the petitioner's discharge plea u/s 239 CrPC. The High Court in criminal revision upheld the trial court's order considering the evidence prima facie on record. 

Case Details : K. RABINDRA KUMAR PATRA v. THE STATE OF ODISHA | SPECIAL LEAVE PETITION (CRIMINAL) Diary No.9315/2024