Special Offences: The Supreme Court on Section 7 and 13(1)(d) of the Corruption Act

[This is the fourth post in continuation of a stop-start series  discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here,  here and here]

Although an instance of malum prohibitum (acts made criminal by virtue of statute but not otherwise offences), many argue that corruption jars the moral fabric of democratic society as harshly as any act that is mala in se (murder, for instance). The criminal justice system in India seems to support this view. The space and attention devoted to public discussions of corruption allegations are a testament to it. In this discussion, the pre-eminent position has often been accorded to the Supreme Court. Circumstances have made it don the mantle of a full-service corruption dousing machine. It oversees investigations, sets up special trials, and then eventually decides cases in appeal. 

Habitual readers of this Blog (if any) would be aware that it is rather skeptical of the efficacy and accuracy with which the Supreme Court dispenses its judicial functions in this era of its heightened importance. This post on the Court's interpretation of the primary offences under Sections 7 and 13(1(d) of the Prevention of Corruption Act, 1988 [PC Act] is of a similar vein. I argue that recent decisions of the Court have conflated the two already-similar offences while ignoring their text. The Court's interpretation casts unnecessary doubts over the position of law and is thus undesirable from the perspectives of both prosecution and defence.

The Offences - Section 7 and 13

The PC Act was designed as an upgrade on its 1947 namesake by combining elements from the predecessor with a scheme of bribery-related offences previously contained in the Indian Penal Code.  Identical provisions can thus be found for most of the PC Act in these historical sources. Section 7 of the PC Act is strikingly similar to the now-repealed Section 161 of the IPC. Similarly, Section 13 is modelled on Section 5 of the 1947 Act. Section 13(1)(d) nearly identical to Section 5(1)(d).

The headnote for Section 7 reads "Public servant taking gratification other than legal remuneration in respect of an official act". The headnote for Section 13 - it criminalises various types of conduct - reads "Criminal misconduct by public servant". The scope for overlap is apparent, as taking illegal gratification falls within the larger, general, field of misconduct. The text of the provisions, Sections 7 and 13(1)(d) parts (i) and (ii) that is, make the possibility of overlaps a clear probability:

Section 13(1)(d): [A public servant is said to commit the offence of criminal misconduct] if he: (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; ...

Section 7: Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever,  other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, ... shall be punishable with imprisonment ... 

Imagine the two offences as concentric circles. The Section 7 offence can be very nearly subsumed within the broader offence created by Section 13(1)(d). Nearly and not completely subsumed, for there is one crucial difference in the preliminary conduct requirements of the two offences. Section 7 criminalises accepting or obtaining illegal gratification in a particular manner. Section 13(1)(d) only speaks of obtaining. Beyond this, the particular manner in which the illegal gratification is accepted under Section 7 can easily be classified as corrupt means and fall under Section 13(1)(d)(i).

Accepting, Obtaining, and the Supreme Court

Is there a difference between accepting and obtaining in the context so described? This question has arisen before the Supreme Court in context of the PC Act as well as the old 1947 Act and IPC regime. In Ram Kishan & Anr. v. State of Delhi [AIR 1956 SC 476] the Court while reading Section 5(1)(d) of the 1947 Act held that 'obtain' "does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver." Such sophistry was shed for clearer dictum by the Court in C.K. Damodaran Nair v. Government of India [(1997) 9 SCC 477], again a decision under the old regime. Implicitly building on Ram Kishan, the Court held that acceptance need not involve an element of demand, but obtaining necessarily involved demand on part of the public servant. Thus, demand was necessary for an offence under Section 5(1)(d) - now 13(1)(d) - whereas it was not necessary for an offence under Section 161 IPC and correspondingly an offence under Section 7 of the PC Act. This reading of the text was upheld in the context of the PC Act by the Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587].

Soon after, though, things begin to get interesting. After Subair, a spate of decisions emerged which hold that demand is the sine qua non for an offence under Section 7, and none of these cited C.K. Damodaran Nair. The list includes C.M. Girish Babu v. CBI [(2009) 3 SCC 779], C.M. Sharma v. State of A.P. [(2010) 15 SCC 1], and B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55]. Importantly, in all these cases the Appellants were alleged to have committed offences under Section 7 as well as Section 13(1)(d) based on the same underlying transaction. The cases were also factually similar - a trap was sprung to catch the public servant red-handed while taking illegal gratification, with the Accused arguing that the gratification must have been demanded for it to be an offence. Reading these decisions together with the view in Ram Kishan and C.K. Damodaran Nair makes it clear that the Court is wrong to hold that demand is a sine qua non for offences under Section 7. It is certainly necessary, though, for an offence under Section 13(1)(d). [As an aside, it is interesting that the charges against the Accused were under Section 13(1)(d)(ii) in two cases and 13(1)(d)(i) in one.] 

All these cases were decided by co-ordinate benches of two judges. A bench of three judges decided P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh [(2015) 10 SCC 152], yet another trap case involving allegations under Sections 7 and 13(1)(d)(i) & (ii). The three judges cited previous decisions noted above to conclusively opine that "the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail." Very recently in April 2016, the Supreme Court in V. Sejappa v. The State by Police Inspector, Lokayukta [Crl. Appeal No. 747/2008, decided on 12.04.2016] used an opportunity to present these decisions - excluding Subiar - as an impenetrable facade for the proposition that demand is the sine qua non for an offence under Section 7. Notably, this case also concerned allegations under both Sections 7 and 13(1)(d).

Cutting through the Rhetoric

I've been at pains to highlight the factual likeness of all the decisions mentioned above. A failure to adequately do so by the Supreme Court in these decisions is what today risks incorrectly conflating both offences. The Supreme Court, most notably in the three-judge bench decision of Satyanarayana Murthy, egregiously speaks in highly-general terms of demand being a necessary element for offences under Section 7 despite this being clearly unsupported by the text of that provision. In fact, the basic difference between the scope of offences under Section 7 and Section 13(1)(d) is the former possibly covers situations where there is no demand. 

Restricting the effect of these cases by considering their facts allows us to limit the extent of damage. Although facts are pithily discussed in the reported decisions, it is clear that the prosecution hinged its case every time on the existence of a demand and acceptance of a bribe for securing a conviction under both offences. By levelling both sets of allegations, the prosecution necessarily only argues that the Accused obtains the gratification - as Section 13(1)(d) excludes mere acceptance. Once the prosecution argues that the Accused obtains a bribe for purposes of Section 13(1)(d) it cannot also argue, on the same set of facts, that the Accused merely accepted the bribe to secure a conviction under Section 7. In this very limited context of trap cases where allegations are levelled under both Sections 7 and 13(1)(d) one can support the logic of the Supreme Court, though nothing can support the unnecessarily grandiose rhetoric.   

Conclusion

Why then, one might ask, are prosecutors insistent on levelling allegations under both sets of offences  in corruption cases despite the onerous requirements of Section 13(1)(d) - establishing both demand and acceptance? Or well, if you persist in levelling allegations for Section 13(1)(d) why must Section 7 also be added? There are reasons, of course. Prosecutors insist on Section 13(1)(d) because it carries a higher sentence - ten years, as against the seven years of Section 7. They continue on adding Section 7, however, because of evidentiary benefits that it entails at the trial. Section 20 of the PC Act contains a reverse-onus clause that applies in trials for Section 7 offences but not 13(1)(d). 

This framework is not likely to be amended anytime soon. Thus, the jurisprudence on corruption laws in India is bound to see several more cases involving laying of a trap to catch offenders red-handed, with prosecutors then levelling charges under both Sections 7 and 13(1)(d). But there will also be several more cases not involving these scenarios, with only allegations of an offence under Section 7. It is imperative that the Court appreciate the distinctions, rendered ever-so thin by its rhetoric. If not, Section 7 would then collapse completely within Section 13(1)(d) and be rendered redundant. 

Of Entrapment and Agent Provocateurs - Part I

Few things capture the public's imagination like a Sting Operation. X goes undercover and acquires the target's confidence, after which the target is induced to commit illegal acts or confess to the occurrence of alleged improprieties. If X is a police officer, then an arrest usually follows. If X is a journalist, then the footage is broadcast through news items labelled The Truth [about so and so]. A fiery debate rages on TV about the veracity of these claims and the propriety of such inducements. The society's moral dilemmas in accepting such sting operations is reflected in the criminal law as well, where for several years jurisdictions have debated how Eve and the Snake should be treated for biting the forbidden fruit [a reference used by the House of Lords in R v. Sang, [1980] AC 402]. The Indian experience is discussed here

The Snake

Our temptress, the Biblical Snake, is evocatively labelled an Agent Provocateur in the criminal law [so evocative, that perhaps for the first time the law shares names with lingerie]. I won't press the Biblical reference for long though, as the Madras High Court painstakingly illustrated in Re Ambujam Ammal [AIR 1954 Mad 326] that these agents of deception were well-embraced by historical texts in India. For removal of doubts, I make it clear that my idea of an Agent Provocateur is as defined by the Royal Commission on Police Powers & Procedure (1929): "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence."

Important questions emerge. Should these persons be tried for abetting an offence, or lauded for their covert investigation? Should the evidence be regarded circumspect, or enough to secure convictions? Does the identity of the person - private or state agent - matter?

In that order, we proceed.

Finding Crime or Abetting its Creation?

The judicial treatment of this issue depicts a curious state of affairs. In 1917, Aiyar J. of the Madras High Court in Re Lakshminarayana Aiyar [42 Ind Cas 989] unequivocally held that an Agent Provocateur could be guilty of abetment, while laudable motives may prompt the State to withdraw the case. Nearly a century later the Delhi High Court faced a similar issue in Aniruddha Bahal v. State [2010 172 DLT 269], where those who offered bribes to ministers to catch them in the act were chargesheeted. The Single Judge regarded exposing corruption as part of Fundamental duties under the Constitution. More importantly, he held that "in order to expose corruption at higher level and to show to what extent the State managers are corrupt, acting as agent provocateurs does not amount to committing a crime". 

But in 2014, the Supreme Court appeared to have reversed this dictum in Rajat Prasad v. CBI [(2014) 6 SCC 495]. The case was nearly identical to Aniruddha Bahal: a minister was caught on tape accepting bribes by journalists who were then accused as abettors [nearly, for in Aniruddha Bahal the journalists were accused as principals with no complaint against the ministers]. The Court held that whether journalists could be liable was a question for trial, and no blanket rule could be imposed in such cases. However, the Court said that "a journalist, or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment". It remains to be seen in what circumstances would this test of 'no remote connection' will be satisfied.

Questionable Accomplice or Star Witness? 

Less confusion prevails here. The testimony of an Agent Provocateur is admissible and can be relied upon, but Courts have differed in their treatment of such evidence. Nor would such persons be considered accomplices and thus their testimony is not affected by the presumption against such evidence under Section 114 of the Evidence Act 1872. But the Supreme Court in Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762] held that such witnesses were nevertheless interested and thus their testimony requires corroboration. Like any other question of evidence, treatment of such evidence also remains highly contingent on the facts and circumstances of the case.

Public or Private Agents

The Supreme Court in Rajat Prasad observed that operations akin to sting operations by state agents were "yet to be experimented and tested in India legal acceptance thereof by our legal system is yet to be answered". This, I'm afraid, is blatantly incorrect. The Police have engaged in these measures for the longest time, and Courts have been unequivocal in expressing their disapproval of such practices. In 1954, the Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322] condemned the police for supplying bribe money and a magistrate for participating as a witness for a trap. Subsequently, in 1956 the same Court decided Ramnajam Singh v. State of Bihar [AIR 1956 SC 643] and its observations warrant reproduction in full: 

"However regrettable the necessity of employing agents provocateurs may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.

The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve : not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside."

This issue of the Agent Provocateur being a State agent also bears importance for the next post, where we discuss the position of Eve, the tempted.