Source: The Indian Express

Introduction

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 it. While the 2018 amendment to the PCA clearly made bribe-giving a crime, different High Courts have interpreted pre-2018 cases differently. The case stems from a 2016 incident in Orissa where a businessman allegedly offered a Rs. 2 lakh bribes to a police inspector who refused it. The matter, to be heard by Justices Dipankar Datta and Prashant Kumar Mishra on 21st January 2024, will address conflicting views from the Bombay and Madras High Courts on whether merely offering a bribe constituted an offense before 2018.

What are the Legal Challenges in Interpreting the Pre-2018 PCA in Rabindra Kumar Patra’s Case ?

• On 16th February, 2016, Berhampur police in Orissa received information about an illegal gutka manufacturing operation run by Rabindra Kumar Patra, who owned Maa Biraja Products.
• During a raid on the godowns, police discovered large quantities of Gutka and Zarda Gutka along with manufacturing machines, and summoned Patra to produce documents proving his business's legitimacy.
• Instead of providing documents, Patra allegedly offered a Rs. 2 lakh bribe to the inspector-in-charge, requesting him to halt further legal action and release the seized gutka.
• When the inspector refused and warned of legal consequences if the bribe was offered again, Patra insisted he would return later that night with the money.
• The inspector reported this to the Superintendent of Police, leading to the formation of a 'trap team' to catch Patra in the act.
• As predicted, Patra returned with the money and made the bribe offer again, which the inspector refused. The trap team, monitoring the conversation, rushed in and found the money on the office table.
• Patra was charged under Section 12 of the PCA, which dealt with 'abetment' of offenses under Sections 7 or 11 of the Act before its 2018 amendment.
• When Patra sought discharge from the case under Section 239 of the CrPC, both the trial court and the Orissa High Court refused, leading to the current Supreme Court case.
• The case's complexity stems from differing interpretations by the Bombay and Madras High Courts on whether offering a bribe constituted an offense under the pre-2018 PCA, even if the public servant refused it.

What are the Provisions and Changes in the Prevention of Corruption Act, 1988, After the 2018 Amendment?

• Prevention of Corruption Act (PCA), 1988 (After 2018 Amendment):
  • Section 7: Criminalizes public servants taking gratification other than legal remuneration
  • Section 11: Punishes public servants accepting valuable things without adequate consideration
  • Section 12: Makes abetment of offenses under the Act punishable, regardless of whether the bribe was accepted
  • Section 8: Explicitly makes giving bribes to public servants a criminal offense
• Indian Penal Code (IPC) Historical Provisions (Now Repealed):
  • Section 161: Dealt with public servants taking gratification (replaced by PCA Section 7)
  • Section 165: Covered public servants obtaining valuable things (replaced by PCA Section 11)
  • Section 165A: Punished the act of bribing public servants (incorporated into PCA)
  • Prevention of Corruption (Amendment) Act, 2018 Key Changes:
• Made giving bribes a direct offense
  • Introduced corporate criminal liability for commercial organizations
  • Added provisions for prior sanction before investigation
  • Introduced time limits for trial completion
• Key Penalties Under Current PCA:
  • Minimum imprisonment of 3 years, extendable up to 7 years with fine for basic bribery offences
  • Up to 7 years imprisonment for "habitual" offenders
  • Mandatory minimum imprisonment of 3 years for both bribe-givers and bribe-takers
• Prevention Mechanisms:
  • Requires organizations to have adequate procedures to prevent bribery
  • Mandates internal guidelines and compliance mechanisms
  • Protection for whistleblowers who report corruption
• Commercial Organizations:
  • Specific provisions dealing with bribery by commercial organizations
  • Liability of company directors and officers
  • Requirements for corporate compliance programs
• Investigation and Trial:
  • Special courts for trying corruption cases
  • Designated authorities for investigation
  • Specific procedural requirements for corruption cases
• Forfeiture Provisions:
  • Allows attachment and forfeiture of property obtained through corrupt means
  • Provisions for recovery of losses from corrupt practices
  • Mechanisms for international cooperation in asset recovery
• Related Laws:
  • Lokpal and Lokayuktas Act, 2013
  • Whistleblowers Protection Act, 2014
  • Benami Transactions (Prohibition) Act, 1988
  • Prevention of Money Laundering Act, 2002

What are the Legal Consequences of Offering Bribes Under the Prevention of Corruption Act?

• Direct Criminalization After 2018:
  • The 2018 PCA amendment explicitly made offering bribes a criminal offence under Section 8
  • Even if the public servant refuses the bribe, the mere act of offering is punishable
  • The punishment includes imprisonment of up to 7 years and a fine
• Treatment Before 2018:
  • Prior to 2018, offering bribes was dealt with under Section 12 of PCA as 'abetment'
  • Different High Courts interpreted this differently:
    • Bombay HC held mere offer wasn't an offense
    • Madras HC considered it a substantive offense

Current Legal Position on Failed Bribe Attempts:

• Offering a bribe is criminal even if:
  • The public servant refuses it
  • The transaction is not completed
  • No actual corruption takes place
• Special Provisions:
  • Section 8(2) provides immunity to bribe-givers who report the incident within 7 days
  • This protection is designed to encourage reporting of corruption
  • The bribe-giver must cooperate with law enforcement
• Corporate Liability:
  • Companies can be held liable if employees offer bribes
  • Directors/managers responsible for company conduct can face prosecution
  • Companies must prove they had adequate procedures to prevent bribery
• Punishment Framework:
  • Minimum 3 years imprisonment
  • Maximum 7 years imprisonment
  • Additional monetary fine
  • Possibility of confiscation of bribe amount
• Investigation Process:
  • No prior sanction needed to investigate private individuals offering bribes
  • Law enforcement can set up 'trap cases' to catch bribe offers
  • Evidence of intention to bribe is sufficient for prosecution

Way Forward

• The Supreme Court's decision will be crucial in resolving the conflicting interpretations between High Courts and establishing a clear precedent for handling pre-2018 bribery cases, particularly where bribes were offered but refused.
• The ruling will have significant implications for pending corruption cases filed before the 2018 PCA amendment, potentially affecting numerous cases where only the offer of a bribe was documented without actual acceptance.
• This judgment could also influence how future anti-corruption legislation is drafted and interpreted, particularly in cases involving attempted bribery and failed corruption attempts.