The Supreme Court is set to decide whether a person who voluntarily offers a bribe to a public servant, despite the refusal of the latter, should be held liable for abetment under the Prevention of Corruption Act, 1988, especially when the bribe amount is found on the officer's desk.

The bench, consisting of Justices Dipankar Datta and Prashant Kumar Mishra, was hearing a challenge to the Orissa High Court's decision, which had dismissed a criminal revision filed by the petitioner. The revision was against a trial court order that refused to discharge him from a charge under Section 12 of the Prevention of Corruption Act (PCA). The Court framed the issue as follows: "Whether an alleged voluntary offer of bribe made by the complainant without a demand by the accused public servant and the subsequent discovery of the bribe amount on the officer's desk, prior to July 26, 2018, would constitute an offence under Section 12 of the Prevention of Corruption Act, 1988 (as amended)."

Section 12 of the PCA stipulates that "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 not less than three years, but which may extend to seven years, and shall also be liable to a fine." The Court issued a notice on the matter, pointing out the differing views on this issue between the Madras High Court and the Bombay High Court.

In the case of Kishor Khachand Wadhwani And Anr vs. The State of Maharashtra, the Bombay High Court had dismissed proceedings for an offence under Section 12, citing that the crime occurred in 2007, prior to the enforcement of the amendment to Section 12 in 2018, which came into effect on July 26, 2018.

In contrast, the Madras High Court in Ghanshyam Aggarwal vs. The State held that offering a bribe was considered an offence even before the 2018 amendment, referencing Section 165A of the Indian Penal Code (IPC), which penalized the abetment of offences under Sections 161 or 165 of the IPC with imprisonment of up to three years or a fine, or both. Referring to previous Supreme Court rulings, the High Court noted that "the offer of a bribe was always treated as a substantive offence under Section 165A of IPC." Sections 161 and 165 of the IPC dealt with the illegal acceptance of bribes by public servants, whereas Section 165A criminalized the offering of bribes. Notably, Sections 161, 165, and 165A were repealed with the enactment of the PCA.

In the present case, the petitioner faces a charge under Section 12 of the PCA for allegedly offering a bribe of 2 lakh rupees to a police officer in a matter related to the illegal manufacturing of Gutkha. The trial court had rejected the petitioner's request for discharge under Section 239 of the Criminal Procedure Code (CrPC). The High Court, in its criminal revision, upheld the trial court's decision based on the prima facie evidence available on record.

The case has been directed to be listed after 4 weeks.

Cause Details: K. RABINDRA KUMAR PATRA V/S THE STATE OF ODISHA

Case No: SLP (CRIMINAL) Diary No.9315/2024

Date: December-13-2024

Bench: Justice Dipankar Datta, Justice Prashant Kumar Mishra

[Read/Download order]