In a case that could significantly impact corruption cases lodged before 2018, the Supreme Court is set to decide whether offering a bribe is punishable under the Prevention of Corruption Act, 1988 (PCA), even if the public official refuses the offer. Though a 2018 amendment to the PCA clearly made it a crime to offer a bribe, separate High Courts have offered different perspectives in cases before 2018.
A bench comprising Justices Dipankar Datta and Prashant Kumar Mishra is tentatively set to hear the case on January 21.
A rejected offer and a ‘trap team’ in Orissa
On February 16, 2016, police in Berhampur, Orissa, got word of an allegedly illegal gutka manufacturing operation run by Rabindra Kumar Patra, the proprietor of Maa Biraja Products. During a raid on the godowns, the police found “huge quantities of Gutkha and Zarda Gutkha along with manufacturing machines”. That same day, Patra was summoned to produce documents supporting the genuineness of the business.
Instead, he allegedly offered a Rs. 2 lakh bribe to the inspector in-charge of the police station. In exchange, he asked the inspector to stop any further legal action and release the seized gutka. Though the officer refused and warned Patra that he would have to take legal action if the bribe was offered again, Patra said he would come back later that night with the money.
The inspector wrote a report informing the Superintendent of Police about Patra’s offer. A ‘trap team’ was quickly formed and Patra came with the money and offered it to the inspector, who refused again. An officer listening in on the conversation sent word to the team once the offer was made and refused, and the police rushed into the room to find the money on the office table.
Abetment under the PCA before 2018
Patra was charged under Section 12 of the PCA which — before 2018 — punished anyone who ‘abets’ anyone committing an offence under Sections 7 or 11 of the PCA. Section 7 punishes a public official who accepts a bribe or ‘gratification’ aside from ‘legal remuneration’ (such as her salary) in exchange for exercising her official functions.
Section 11 punishes officials who accept a ‘valuable thing’ from someone she is or might be in business with, or from someone who might be involved with her (or her superior’s) official functions without adequate ‘consideration’, i.e. without giving anything adequate in exchange.
The petitioner filed a case under Section 239 of the CrPC, which allows a magistrate to discharge an accused if she finds that allegations are ‘groundless’ after considering the police report and case documents. The trial court refused to discharge the accused and the decision was upheld by the Orissa High Court, leading to the current case before the SC.
Is an unsuccessful bribe ‘abetment’ under the PCA?
Section 12 of the PCA (both pre- and post-2018) 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 Bombay and Madras High Courts have understood the meaning of this provision very differently, and the difference in their opinions forms the core of the case.
The Bombay HC in the case of Kishor Khachand Wadhwani v. The State Of Maharashtra (2019) was dealing with a case where a trap team had caught the accused persons offering a bribe of Rs. 5 Lakh to a police sub-inspector.
However, the court held that “Prior to the amendment of 2018, the mere offer of bribe was not constituting an offence” as it was only in the 2018 amendment that the provision titled “Offence relating to bribing a public servant” was included to punish bribe-givers as well. Further, the court held that the police officer did not ‘demand’ the bribe, which is necessary for an offence under Section 7 of the PCA.
The Madras HC however, adopted a different line of reasoning in 2020. While the Bombay HC relied on recent developments surrounding the PCA, in the case of Ghanshyam Aggarwal v. The State, the Madras HC focused on the history of the legislation.
When the PCA was enacted in 1988, a series of similar offences under the Indian Penal Code, 1860 (IPC), were repealed and replaced by the provisions of the new law. Sections 161 and 165 of the IPC were similar to Sections 7 and 11 of the PCA. In addition, Section 165A of the IPC punished the abetment of crimes under Sections 161 and 165, in the same way that Section 12 of the PCA punished the abetment of crimes under Sections 7 and 11.
The Madras HC held that the “offer of bribe to a public servant even without anything more does constitute a substantive offence”. It relied on past Supreme Court decisions which held that the sole act of offering a bribe was an offence under Section 165A and stated, “This was always the position and the recent amendments have not made any difference”.
A Supreme Court bench comprising Justices Dipankar Datta and Prashant Kumar Mishra is tentatively set to hear the case on January 21. (Express photo by Praveen Khanna) 
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