INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Pranav Tomar and Puneet Dhanoa, AZB & Partners
“gratification” to being not limited to pecuniary gratification or being estimable in money. There - fore, under the PCA, it is not necessary for the undue advantage to be in money, property or something estimable in money. It includes rights in property, any preferment, privilege, etc. How - ever, it must have some value in order to qualify as an advantage. Under Section 7 of the PCA, it is an offence for a public official to obtain, accept or attempt to obtain any undue advantage with an intent to dishonestly perform their duty as a public serv - ant. The provision is again comprehensive, since the explanatory note provides that improper per - formance is not necessary to prosecute under this provision. However, to prosecute under the provision, it is necessary for the prosecution to prove that a demand for undue advantage was made by the public servant, and mere receipt of undue advantage is not enough to prove this offence. The jurisprudence on the proof of demand being sine qua non is backed by multiple pronounce - ments of various High Courts in India, and even the Supreme Court in Krishan Chander v State of Delhi, reported at AIR 2016 SC 298, held that proof of demand is an absolute necessity. This has caused issues in numerous prosecutions, since in many cases the complainant or the per - son from whom the demand was made would die, or turn hostile during trial, and therefore the prosecution would fail to prove its charges. As such, a Constitution Bench of the Supreme Court in Neeraj Dutta v State (NCT of Delhi), reported at (2023) 4 SCC 731, recently held and clarified that in the absence of direct evidence (testimony recorded in court), regarding the demand of undue advantage, the prosecution can prove the demand for the undue advantage
by way of circumstantial evidence – though the quality of evidence should be beyond reasonable doubt. Therefore, 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 expen - ditures, facilitation payments, etc, will fall under the purview of “undue advantage”. “Public official” has been defined widely 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 authorisation of courts for the administration of justice. The provision itself provides at least 12 broad types of persons along with two further explana - tions, indicating the legislature’s intent to keep the term as wide as possible; now even the constitutional courts are pronouncing decisions which indicate that the provision is subject to the widest interpretation possible. A few such instances include the following. • In CBI, Bank Securities & Fraud Cell v Ramesh Gelli & Others, reported at (2016) 3 SCC 788, it was held that even the chairper - son of a private bank will be a public servant for the purpose of the PCA.
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