While a 2018 amendment to the PCA clearly criminalized offering bribes, courts have interpreted its application differently for cases prior to the amendment.
NEW DELHI: In a notable case that could affect corruption cases filed before 2018, the Supreme Court of India will decide whether offering a bribe is punishable under the Prevention of Corruption Act, 1988 (PCA), even if the public official refuses to accept it.
While a 2018 amendment to the PCA clearly criminalized offering bribes, courts have interpreted its application differently for cases prior to the amendment.
A bench of Justices Dipankar Datta and Prashant Kumar Mishra is set to hear the matter on January 21.
Brief Facts
The case originated from an incident in Berhampur, Orissa, on February 16, 2016. Police conducted a raid on the godowns of Maa Biraja Products, a company owned by Rabindra Kumar Patra. They discovered large quantities of allegedly illegally manufactured gutka and zarda gutka, along with production machines. Patra was summoned to provide documents proving the business’s legality.
Instead of providing documentation, Patra allegedly offered the inspector-in-charge Rs. 2 lakh to halt legal proceedings and release the seized goods. The officer refused the offer and warned Patra that legal action would follow if he persisted. Patra reportedly stated that he would return later with the money.
The inspector informed the Superintendent of Police about the bribe attempt, and a “trap team” was formed. When Patra returned with the money, the inspector again refused the bribe. An officer monitoring the conversation signaled the team, and the police entered the room, finding the money on the office table.
Charges Under Section 12 of the PCA
Patra was charged under Section 12 of the PCA. Before 2018, this section punished anyone who “abets” an offense under Section 7 or Section 11 of the PCA.
- Section 7 punishes public officials who accept bribes, referred to as “gratification,” apart from their lawful remuneration.
- Section 11 punishes officials who accept a “valuable thing” from someone involved in their official duties without adequate compensation.
Patra filed a plea under Section 239 of the Criminal Procedure Code (CrPC), which allows a magistrate to discharge an accused if the allegations are found to be “groundless.” However, the trial court rejected his plea, and the Orissa High Court upheld the decision. This led to the present appeal before the Supreme Court.
Differing High Court Interpretations
The question before the Supreme Court is whether an unsuccessful bribe offer constitutes “abetment” under the PCA. Section 12 of the Act 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.”
However, the interpretation of this provision has varied among High Courts.
Bombay High Court’s Judgement
In the 2019 case of Kishor Khachand Wadhwani v. The State of Maharashtra, the Bombay High Court dealt with an instance where a trap team caught an accused offering a bribe of Rs. 5 lakh to a police officer. The court held:
“Prior to the amendment of 2018, the mere offer of bribe was not constituting an offence.”
It further explained that the 2018 amendment introduced a specific provision titled “Offence relating to bribing a public servant,” which explicitly criminalized bribe-giving. Additionally, the court noted that the police officer in the case had not “demanded” the bribe, which it deemed necessary for an offense under Section 7 of the PCA.
Madras High Court’s Judgement
In contrast, the Madras High Court, in the 2020 case of Ghanshyam Aggarwal v. The State, focused on the historical context of the legislation. It referred to the PCA’s predecessor, the Indian Penal Code, 1860 (IPC), where similar provisions existed:
- Sections 161 and 165 of the IPC corresponded to Sections 7 and 11 of the PCA.
- Section 165A of the IPC punished the abetment of crimes under Sections 161 and 165.
The Madras High Court held:
“The offer of bribe to a public servant even without anything more does constitute a substantive offence.”
It relied on past Supreme Court rulings that deemed the act of offering a bribe punishable under Section 165A of the IPC. The court emphasized:
“This was always the position and the recent amendments have not made any difference.”
