Simultaneous conviction under Section 7 and 13(1)(d) of Prevention of Corruption Act, whether legal

I have been charged in a trap case of corruption (by CBI) for the alleged demand and acceptance of a bribe, which is a false allegation. Charges have been framed against me under Section 7 of the Prevention of Corruption Act, 1988, and also under Section 13(1)(d) of the said Act. Thus, I have been charged with two offences, when the allegation against me is only for one act or transaction of demand / acceptance of bribe. Can there be two convictions against me, if the charge is proved, even though only one transaction is alleged against me?

Answer: Unfortunately for you, this issue is already settled by the decision of the Supreme Court. In the case of State v. A. Parthiban, (2006) 11 SCC 473 at pp. 477-78 : 2006 Cri LJ 4772, the contention that the accused public servant cannot simultaneously be convicted for the offences relatable to S. 7 and S. 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, was held to be unacceptable by the Supreme Court. The Supreme Court referred to Section 71 of Indian Penal Code (IPC) which provides as under:

“71. Limit of punishment of offence made up of several offences.—Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences.”

This section shows that one act may be an offence under two or more separate definitions of any law in force (though the punishment in such a case is limited to the maximum punishment that can be awarded for any one of such offences).

Further, the Supreme Court also referred to Section 220 of Criminal Procedure Code (Cr.P.C.), which lays down as under:

“220. Trial for more than one offence.—(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.

(5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860).”

After quoting the above two provisions, the Supreme Court held as under:

“Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year.”

Thus, the Supreme Court held that one act of accepting illegal gratification (i.e., bribe) can fall under two different offences under Section 7 and also under Section 13(1)(d) of the PC Act, 1988.

In this regard, the decision of the Calcutta High Court in the case of Sambhu Nath Samaddar v. State of W.B., 2008 (1) Crimes 426 at p. 435 (Cal), may also be seen.

Similarly, in the case of V. Kasi v. State of T.N., 2003 Cri LJ 3592 (Mad), Madras High Court held that when S. 7 of the PC Act of 1988 bars the demand and S. 13 of the said Act prohibits obtaining of pecuniary advantage, both are distinct offences. In such a case, though the same set of facts constitute distinct offences, there cannot be a bar to try or convict and punish the offender for both the offences. It was also held that a plain reading of S. 26 of the General Clauses Act shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, when demand of bribe and prohibition to accept the bribe are considered as two distinct offences under the Act, the offender may be prosecuted and punished for both the offences even on the same set of facts and the same is not barred in law, because what was barred under Section 26 of the General Clauses Act is punishing the accused twice for the same offence. It was held that since the demand and acceptance of bribe constitute two different offences, the prosecution of the accused for the said offences for independent charges and convicting and punishing him for both the offences independently cannot be questioned as double jeopardy.

I may also point out that every year, hundreds (rather thousands) of trap cases are registered all over India and in all such cases both sections 7 and 13(1)(d) of the PC Act are applied. The courts (including the Supreme Court) also hear many such cases every year. Simultaneous convictions under both these offences take place in most of such cases and such simultaneous convictions are upheld by high courts and Supreme Court. Thus, now it has become a routine to apply both these sections for a single transaction of bribe taken by a public servant. Therefore, what you have mentioned is considered to be a normal thing now.

[Note: Dr. Ashok Dhamija is the author of a comprehensive 2250-page book on Prevention of Corruption Act, Second Edition (2009), published by LexisNexis Butterworths (ISBN: 978-81-8038-592-6).]