Section 7 of PC Act, 1988 cannot be invoked in absence of ‘Demand & acceptance of illegal gratification’

It is very known dissertation that “With Great Power Comes Great Responsibility”. This article is nothing but a small attempt to draw a conclusion on the basis of various decided cases of Hon’ble Supreme Court of India in which it has been decided that without satisfying the essential ingredients of statutory provisions, case is not maintainable.

The state has been empowered to discharge the public function under the ambit of statutory provisions and law settled by courts particularly Hon’ble Apex Court of India. However, sometimes it appears that the states are misusing the power given them by lodging wrong cases against innocent persons even without prima facie against him. Any case without appreciating the statutory provisions is not sustainable in the eyes of laws and state should refrain to lodge unwarranted cases against the innocent people.

It is settled proposition of law that section 7 of the PC Act, 1988 cannot be invoked in absence of “demand and acceptance of illegal gratification”. The demand and acceptance is mandatory ingredients of section 7 of aforesaid act which cannot be overlooked at the time of lodging cases. Section 7 of the PC Act, 1988 reads as under:

Section 7. Public servant taking gratification other than legal remuneration in respect of an official act.—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 for 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, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

A bare perusal of the aforesaid section it is clear that for invoking aforesaid section demand of illegal gratification, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person is required.

The demand of illegal gratification is the gravamen and sine qua non to constitute the offence under section 7 of PC Act, 1988. Not only this, the section cannot be invoked even if currency notes were recovered as mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.

The Hon’ble Supreme Court in the matter of B. Jayraj Vs State of Andhra Pradesh [2014, (13) SCC 55] has held that for invoking section 7 demand of illegal gratification is sine qua non to constitute the offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the Act, 1988. The relevant portion of judgment as under:

“7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.”

The Hon’ble Apex Court further in the matter of P Satyanaryana Murthy Vs DI Police, State of Andhra Pradesh [2015 (10) SCC 152) has held as under:

“21. 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. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act”.

The Hon’ble Apex court in the matter of State through CBI Vs Dr Anup Kumar Srivastava [ (2017) 15 Supreme Court 560] while relying the P. Satyanaryan Murthy case (supra) has held as under:

“28. Further, what constitutes illegal gratification is a question of law; whether on the evidence that crime has been committed is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established”.

The Hon’ble Apex court in Kishan Chander Vs State of Delhi has reiterated the settled proposition of law which has been settled in long line of judgment. The relevant para of judgment is as under:

“22. In a recent enunciation by this Court to discern the imperative pre- requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act”.

That the Hon’ble Apex court further held in the aforesaid matter that as under:

“23. 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 therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act”

In view of aforesaid section and authoritative pronouncement, it is clear that the “demand and acceptance of illegal gratification” is sin quo non for attracting the provisions of section 7 of the PC Act, 1988.

Even recovery of tented money is not sufficient to sustain the charges unless and until the recovery is preceded with demand of illegal gratification and acceptance of the same.

So, filing of cases without gratifying the essential mandated ingredients of statutory provision is completely illegal and unjustified.