INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Puneet Dhanoa and Utkarsh Routh, AZB & Partners
tia v the State (NCT of Delhi) , 2025 SCC OnLine SC 1013, the Supreme Court held that, without evidence of demand for illegal gratification, it cannot be said that the public servant used corrupt or illegal means, or abused his position, to obtain any valuable thing or pecuniary advantage. As such, a Constitution Bench of the Supreme Court in Neeraj Dutta v the State (NCT of Delhi) , reported at (2023) 4 SCC 731, held and clarified that, in order to prove the offence of taking of undue advantage by a public servant, there are two elements to prove: • demand for undue advantage; and • acceptance of the undue advantage by the public servant. At stated above, the term “undue advantage” has been given a comprehensive definition. Therefore, hospitality expenditures (travel expenses, meals), gifts and promotional expenditures, facilitation payments, etc, will fall under the purview of “undue advantage”. “Public official” has been widely defined under the PCA to include: • any person who holds an office by virtue of which that person performs a public duty; and • a person who performs their duties under authori - sation of courts for the administration of justice. Section 2 (c) of the PCA provides at least 12 broad types of persons, indicating the legislature’s intent to keep the term as wide as possible. The Supreme Court in Aman Bhatia v the State (NCT of Delhi) , 2025 SCC OnLine SC 1013 has held that the definition of “public servant” as defined under the PCA should be given a purposive and wide interpretation so as to advance the object underlying the statute. Further, the courts have held as follows. • In CBI, Bank Securities & Fraud Cell v Ramesh Gelli & Others , reported at (2016) 3 SCC 788, it was held that even the chairperson of a private bank will be a public servant for the purpose of the PCA. • In Sanjay Kumar Agarwal v CBI , reported at 2023 SCC OnLine Jhar 394, the Jharkhand High Court interpreted the above pronouncements and
expanded the definition of public servant to include resolution professionals appointed under the Insol - vency and Bankruptcy Code, 2016 and governed by the Insolvency and Bankruptcy Board of India. The pronouncement has been challenged before the Supreme Court and is presently sub judice. • In Aman Bhatia v the State (NCT of Delhi) , 2025 SCC OnLine SC 1013, the Supreme Court held that stamp vendors, by virtue of performing an impor - tant public duty and receiving remuneration from the government for the discharge of such duty, are public servants. Employees of state-controlled companies stand cov - ered under the definition of public servant, which includes any person in service of a corporation estab - lished under a central or state-controlled government or even aided by the government or a government company. There is no provision or legislation under Indian anti- bribery laws that criminalises bribery of foreign public officials. While India did attempt to legislate on this issue by introducing a bill titled “The Prevention of Bribery of Foreign Public Officials and Officials of Pub - lic International Organisations Bill, 2011”, this lapsed and was never enacted. Bribery by and between private parties is not a punish - able offence under the PCA. However, India’s general law enumerating offences and prescribing punishment (the IPC) makes it punishable if, on the facts of a par - ticular case, a company has entrusted certain prop - erty to an employee, who, in exchange for a bribe, misappropriated that property – here, an offence of criminal breach of trust will be established. Further, if an employee accepted a bribe and knowingly induced a company to enter into a loss-causing transaction, such act would fall within the purview of cheating. 2.2 Influence-Peddling For the first time, the Amendment Act expanded the scope of the PCA to target bribe-givers, both directly and indirectly. This is provided under Section 7A of the PCA. Therefore, any person who is otherwise permitted to liaise with any government authority can be liable for punishment under the PCA if such per - son has been found offering, or attempting to offer,
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