A Constitution Bench of Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian, and B. V. Nagarathna held on December 15 that Section 7 of the Prevention of Corruption Act, 1988, as well as Sections 13(1)(d)(i) and 13(1)(d)(ii) do not apply to the mere acceptance or receipt of an illegal gratification without proof of the offer made by the bribe giver.

If the bribe giver makes an offer to pay, without there being any prior demand for the same by the public servant, but they accept and receive the bribe it would qualify as a case of acceptance under Section 7.

If the public servant themselves make the demand and the same is accepted by the bribe giver and the bride is paid, which is received by the public servant it would be a case of obtainment under Section 13(1)(d)(i) and Section 13(1)(d)(ii).

Thereafter the Bench held that in both these cases, the prosecution ought to prove the offer made by the bribe giver and the demand by the public servant as a fact in issue to establish an offence under the afore-mentioned provisions. Only when the foundational facts are proved, a presumption of fact with respect to the acceptance or obtainment of an illegal gratification may be made by the Court. If such a presumption of fact is raised, it is subject to rebuttal by the accused. However, if the presumption is not rebutted, it stands.

The following considerations must be kept in mind in order to prove the fact in question, namely the public servant's demand and acceptance of illegal gratification:

(i) If there is an offer to pay by the bribe giver, without there being any demand from the public servant, and the later simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per S. 7 of the Act. In such case there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe is given or the demanded gratification in tendered, which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment the prior demand of illegal gratification emanates from the public servant. This is an offence under S. 13(1)(d)(i) and (ii) of the Act.

Both times, the prosecution must establish the fact in dispute by proving the offer made by the bribe giver and the demand made by the public official. To put it another way, merely accepting or receiving an illegal gratification without further action would not constitute a crime under Section 7 or Section 13(1)(d)(i), and vice versa (ii).

The Constitution Bench further ruled that circumstantial evidence can be used to prove a fact such as the demand or acceptance of a bribe rather than direct evidence in order to convict a public official under the Prevention of Corruption Act.

CASE TITLE: Neeraj Dutta v. State (GNCTD)
Citation: Criminal Appeal No(s). 1669/2009

Read the complete judgment on the following link:-

https://main.sci.gov.in/supremecourt/2009/11311/11311_2009_3_1501_40650_Judgement_15-Dec-2022.pdf