Source: Supreme Court 

Why in News? 

Recently the Supreme Court in the matter of Mir Mustafa Ali Hasmi v. The State of A.P. has emphasized that for a public servant to be convicted of accepting a bribe, both the demand and acceptance of the bribe must be established by the prosecution. It highlighted that in cases where a trap is set to catch a public servant accepting a bribe, the investigating officer must verify the demand for the bribe by the public servant. 

• The Court warned that failure to prove the demand for bribe could be fatal to the prosecution's case under the Prevention of Corruption Act. 
• This clarification has garnered attention due to its implications on the burden of proof in bribery cases involving public servants. 

What was the Background of Mir Mustafa Ali Hasmi v. The State of A.P.? 

• The appellant, Mir Mustafa Ali Hasmi (AO1), was a Forest Section Officer convicted of demanding and accepting a bribe of Rs. 5,000 from the complainant, Mukka Ramesh (PW-1). 
• On 06th January 2003, AO1 and his team conducted a raid on PW-1's sawmill, detected illegal teakwood, and imposed a fine of Rs. 50,000 on one M. Ashok, an employee. 
• PW-1 alleged that AO1 later demanded a monthly bribe of Rs. 5,000 to avoid further action against his business. 
• On 22nd January 2003, PW-1 filed a complaint with the Anti-Corruption Bureau (ACB).  
• A trap was set for 23nd January 2003, at Hotel Quality-Inn. 
• During the trap, PW-1 claimed to have given the bribe money to AO1 in the hotel's cellar, which was recovered from AO1's rexine bag. 
• AO1 was convicted by the trial court and High Court for offenses under the Prevention of Corruption Act. 
  • He appealed to the Supreme Court. 
• The defense argued that the case was fabricated, there was no credible evidence of demand, and that PW-1 may have planted the money in AO1's bag. 
• Issues involved:  
  • The credibility of witnesses,  
  • Inconsistencies in testimonies, 
  • Lack of independent verification by the ACB,  
  • The role of M. Ashok in potentially orchestrating the trap. 

What were the Court’s Observations? 

• The Court observed that a public servant cannot be held guilty of accepting a bribe unless the prosecution establishes both the demand for and subsequent acceptance of the bribe. 
• The Court emphasized the importance of verifying the factum of demand before initiating trap proceedings. This can be done by: 
  • The Trap Laying Officer is making efforts to verify the demand. 
  • Recording telephonic conversations between the decoy and the suspect. 
  • Secretly placing a recording device on the decoy to capture conversations during the bribe acceptance. 
• The Court noted that failure to prove the demand for a bribe can be fatal to the prosecution's case. 
• In this specific case, the Court acquitted the public servant due to: 
  • The Trap Laying Officer's failure to verify the factum of demand before initiating proceedings. 
  • The prosecution's inability to prove the accusation is beyond reasonable doubt. 
• The Court criticized the use of an interested witness (a relative of the decoy) as a shadow witness to oversee and overhear the transaction, without any effort by the investigating officer to disassociate from this potentially biased witness. 
• The bench, comprising Justices BR Gavai and Sandeep Mehta, gave the benefit of doubt to the public servant due to these shortcomings in the prosecution's case. 

What is The Prevention of Corruption Act, 1988? 

• The Prevention of Corruption Act, 1988 is an act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India.  
• The Act aims to prevent corruption in government agencies and public sector businesses in India, consolidating laws related to the prevention of corruption and matters connected therewith. 
• It covers all public servants, including government employees, judges, and those working in government-owned corporations or state-funded organizations. 
• The Act defines various forms of corruption, including bribery, criminal misconduct, and possession of disproportionate assets. It prescribes punishments for these offenses, which can include fines and imprisonment. 
• The Act includes provisions for speedy trials, expanded definitions of criminal misconduct, and the concept of 'presumption of guilt' in certain cases, shifting the burden of proof to the accused. 
• The Act was significantly amended in 2018 to include corporate bribery, provide for time-bound trials, and protect coerced bribe-givers who report the offense within seven days.  

Who are Public Servants According to Act of 1988 

• Section2(c) deals with Public Servant means. 
  • (i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty; 
  • (ii) any person in the service or pay of a local authority; 
  • (iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); 
  • (iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; 
  • (v) any person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; 
  • (vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority; 
  • (vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; 
  • (viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty; 
  • (ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); 
  • (x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; 
  • (xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a university or any other public authority in connection with holding or conducting examinations. 

What are Legal Provisions Related to Bribery? 

• Section 7: Offence relating to public servant being bribed 
• Section 8: Offence relating to bribing of a public servant. 
  • (1) Any person who gives or promises to give an undue advantage to another person or persons, with intention—  
    • (i) to induce a public servant to perform improperly a public duty; or 
    • (ii) to reward such public servant for the improper performance of public duty, shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both:  
    • Proviso provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage:  
    • Proviso provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage:  
    • Proviso provided also that when the offence under this section has been committed by a commercial organisation, such commercial organization shall be punishable with fine. 
• Section 9: Offence relating to bribing a public servant by a commercial organization 
• Section 10: Person in charge of commercial organisation to be guilty of offence. 
• Section 11: Public servant obtaining valuable things without consideration from person concerned in proceeding or business transacted by such public servant. 
• Section 12: Punishment for abetment of offences defined in Section 7 or 11 which may extend to seven years and shall also be liable to fine.  
• Section 13: Criminal misconduct by a public servant, including: 
  • Habitually accepting gratification 
  • Habitually accepting valuable thing without adequate consideration 
  • Misappropriation of property 
  • Obtaining any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing position 
  • Possessing disproportionate assets 
• Section 14: Punishment for habitual offenders under Sections 8, 9, and 12. 
• Section 15: Punishment for attempt to commit offences defined in Sections 13(1)(c) and 13(1)(d). 
• Section 20: Presumption where public servant accepts any undue advantage. 

What is Landmark Case under PC Act? 

• In Neeraj Dutta v. State (2022) it was held that mere acceptance or receipt of an illegal gratification, without establishing the offer made by the bribe giver or demand raised by the public servant, would not make it an offence under Section 7 or Section 13 (1)(d)(i) or Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988. 
  • The court has clarified that 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 Prevention of Corruption Act, 1988.