I do not have any connection or relationship, monetary or otherwise, with the complainant-minister or with the television channel. I do not personally benefit and I would not be personally deprived in the event of any outcome in this case.
When a tv reporter would offer a bribe to a minister with an express indication that the minister should, in consideration for the bribe, favour a certain company which the tv reporter knows to be fictitious and not even in existence except on paper, the tv reporter has committed no offence under the Prevention of Corruption Act, 1988. On examination of the foundational principles of criminal law and of criminal jurisprudence, it is evident that a person cannot be charged under the Prevention of Corruption Act, 1988 on the ground that he had offered a bribe to a public servant if only the transaction sought to be corrupted had no real existence at all. Therefore, the very arrest of the two journalists was wrongful. They are therefore, entitled to bail as a matter of right in view of the fact that their very arrest was wrongful in the first place.
To illustrate, say there is a 75 year old man. He was never married and never had any children. He would proceed to a police station and would hand over a bunch of notes totalling Rs.1 lakh to the sub-inspector and he would plead with the sub-inspector: “My son has committed a very heinous crime. Please do not arrest him. Here is your money to not arrest him”. Has this man committed an offence of ‘bribery’ for the purpose of the Prevention of Corruption Act, 1988? Not at all. That man was never married, never had any children and there was no person that he knew who had committed any heinous offence and so, nobody who was liable to be arrested and therefore, there simply was nobody to be corruptly shielded from arrest. So, all that could be said of this old man’s act is that he did commit a ‘mischief’. And if there is any statute that expressly makes any mischief directed at a public servant, a punishable offence, the old man in this illustration could be charged thereunder and prosecuted for it. I am not aware of any such statute, however.
As such, resort to various judgments of the High Courts or of the Hon’ble Supreme Court would not even be warranted when it is first seen that the act in question cannot even be qualified as ‘an act of bribe giving’. Several judgments that have appreciated acts of ‘sting operation’ by the media and have thereby quashed the criminal prosecution against the journalists might become relevant only when the the act in question would technically qualify as a ‘offence’ for the purpose of the Prevention of Corruption Act, 1988. That is, I humbly submit that I understand the several judgments that have applauded ‘sting operations’ as applying only to those circumstances when, technically, an offence was indeed committed by the journalist under the Prevention of Corruption Act, 1988 but that the public interest that had motivated such a ‘sting operation’ would justify the Court to quash the criminal proceedings against the journalist-accused.
In the illustration given earlier, it would be irrelevant to ask whether that old man was a journalist or not in order to say that he never did commit any offence under the Prevention of Corruption Act, 1988 though what he did pay would readily become a ‘bribe’ in the hands of that sub-inspector. It would also be unnecessary to even take into account, the fact of whether the journalists in the case before this Court had a laudable motive or not or even whether, the law should treat journalists differently from common folks. So, on the facts of this very case, the two journalists who went on to sting the minister simply committed no offence under the Prevention of Corruption Act, 1988. Again, the fact that they were journalists is simply immaterial and the basic principles of criminal jurisprudence alone are the guiding factor to hold that they did not commit any offence under the Prevention of Corruption Act, 1988.
Further, it may become necessary to address the concern here that in the illustration given above, the old man should be let off scot-free whereas the sub-inspector should be jailed although it could be forcefully argued for the sub-inspector that the same consideration that there was nobody to corruptly shield should also equally apply to the sub-inspector and he too should be held to have committed no offence under the Prevention of Corruption Act, 1988. To address this argument, I would respectfully submit, by resorting to foundational principles of our criminal jurisprudence that:
a) The culpability of a bribe taker has very little to do with whether or not there is a corresponding charge that has been brought against the bribe-giver. So, the act of bribe-taking primarily begins with a state of mind in the bribe-taker that he has a certain power to exercise as a public servant which he has shown a willingness to corrupt by the act of bribe-taking. Again, the test is ‘not whether there is an occasion for the power to be abused’. The test is merely whether ‘the public servant possessed a certain power that is open to abuse by it’s very nature – not whether, in the specific facts of the case, the power was liable to be abused’. So, a person who has just been designated as a ‘public servant’ of a certain rank and who hasn’t even been assigned any specific task yet would still run the risk of being charged with ‘bribe-taking’ should be accept money from any person who expects that this public servant would come to hold a certain portfolio though the public servant himself would hold no such certainty. As such, it is the mere receipt of bribe that is of relevance to charge a ‘bribe-taker’ and not whether the bribe was taken to abuse his office under any specific circumstance or condition or even whether, the act to be corrupted was even capable of performance or execution. Therefore, given this state of the established law in relation to a ‘bribe-taker’, the sub-inspector in the aforesaid illustration could be readily charged for the offence of ‘bribe-taking’ though the giver, the old man, would be let off for his act of mischief which would not constitute an act of ‘bribe-giving’.
b) To finally amplify the aforesaid a), we may consider another illustration. A politician who has a devout and massive following is charged with rioting or some such offence and arrested on that charge. Investigation ensues and the politician applies for bail. Unknown to others, just before the crucial bail hearing, the public-prosecutor in this case would receive en envelope that is stashed with currency notes totaling Rs.10000. The prosecutor is of course, a ‘public servant’ for the purpose of the ‘Prevention of Corruption Act, 1988’. Nobody knows who sent this envelope. The prosecutor tells nobody of this fact – of the envelope. He simply takes that money into his custody for his own use, without informing any person of it. He goes on to argue and his superiors come to entertain a feeling that he did not do well in Court. Eventually, the judge would reject the arguments of the prosecutor and would grant bail to that politician. The superiors of the prosecutor would later come to know of the envelope and that the prosecutor had come to receive Rs.10000 through that envelope. The superiors then charge the prosecutor of having receive a ‘bribe’ to show favour to that politician by not arguing well in the Court. In this very charge, there are two aspects – first, that the prosecutor did knowingly and clandestinely receive a bribe and secondly, in exchange for that bribe, he went on to deliberately ruin the case of the prosecution. The prosecution would be under no duty to identify the person who had sent the envelope or to even prove that the prosecutor had any special communication or instruction from the person who had sent the envelope. It is further, not necessary, for the prosecution to succeed on the first aspect of bribe-taking that the public-prosecutor had in fact, deliberately not argued efficiently. The offence of ‘bribe-taking’ is complete at the point of receipt of the bribe. At this juncture, let us say that the person who had indeed sent the envelope would come forward to say that “he was in no way related to that politician and that he in fact, had believed that the politician in question was a menace to the society and that, moved by the plight of the poor circumstances under which the public prosecutors work, he had sent in that money to the public prosecutor with a view to helping him to spend, if necessary on books or judgments and to argue the bail hearing effectively. However, he had left no instruction whatsoever on how the money was to be spent”. Let’s also assume that this person could prove his act of sending and his sentiment and motive to a legal certainty. Is this motive of the person who sent in the envelope relevant at all to the trial of the public prosecutor who has been charged with having received a ‘bribe’? The answer would strictly be in the negative. The motive of the person who did send in that envelope containing the money is relevant, if only, he himself is charged during the trial. Otherwise, the act of payment of money and the act of receiving that money as a ‘bribe’ are often, conceptually, two separate transactions in the eyes of law and are to be separately analysed and examined.
K.V.DHANANJAY, Advocate
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