2025 (6) TMI 93 - HC - GST

Seeking grant of regular bail - bribing of public servant - offence punishable under Section 61 (2) of the Bhartiya Nyaya Sanhita 2023 as well as Sections 7 and 7A of Prevention of Corruption Act 1988 - HELD THAT - Section 7 of the P.C. Act speaks of the attempt to obtain a bribe as being in itself an offence. Mere demand or solicitation therefore by a public servant amounts to commission of an offence under Section 7 of the P.C. Act. The word attempt is to imply no more than a mere solicitation which again may be made as effectually in implicit or in explicit terms. Actual exchange of a bribe is not an essential requirement to be prosecuted under this law. Further those public servants who do not take a bribe directly but through middlemen or touts and those who take valuable things from a person with whom they have or are likely to have official dealings are also punishable as per Sections 10 and 11 of the P.C. Act respectively. It is apparent that there is an active participation of applicant Bharat Singh who was instrumental in the commission of the present crime and further considering that applicant Vinay Rai has been caught red-handed while he was receiving bribe amount of Rs. 5, 00, 000/- from the complainant and upon seizure of his mobile phone voice recordings have also been found thereby substantiating the allegation of bribe demanded by him from the complainant along with applicant Bharat Singh for settling the tax liability of his business firm M/s The World of Beauty as well as in the light of the dictum rendered by Hon ble Apex Court in the matter of DEVINDER KUMAR BANSAL VERSUS THE STATE OF PUNJAB 2025 (3) TMI 1489 - SUPREME COURT this Court is of the view that the accused Bharat Singh the then superintendent (DGARM Cell) entered into criminal conspiracy with co-accused Vinay Rai and Mr. Mishra who has been identified as Anil Kumar Gupta have committed the offences punishable under Section 61 (2) of BNS 2023 as well as Section 7 7A of P.C. Act (as amended in 2018) and as such it is not a fit case for grant of bail to the applicants. The instant bail application filed by the applicants - Bharat Singh and Vinay Rai for offence punishable under Section 61 (2) of the Bhartiya Nyaya Sanhita 2023 and Sections 7 and 7A of Prevention of Corruption Act 1988 stands rejected.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this matter are:

• Whether the applicants, accused of offences under Section 61(2) of the Bhartiya Nyaya Sanhita, 2023 (BNS, 2023) and Sections 7 and 7A of the Prevention of Corruption Act, 1988 (P.C. Act), are entitled to regular bail under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023).
• Whether there exists sufficient evidence connecting the applicants to the alleged criminal conspiracy and demand/acceptance of bribe in the raid conducted at the complainant's premises.
• Whether the applicants' role in the alleged offence amounts to active participation warranting denial of bail.
• The applicability and interpretation of Sections 7 and 7A of the Prevention of Corruption Act, 1988, particularly in relation to the offence of accepting or attempting to obtain an undue advantage by a public servant.
• The impact of the investigation status, including filing of charge-sheet and sanction for prosecution, on the bail application.
• The relevance of the applicants' cooperation during investigation and potential for tampering with evidence or influencing witnesses.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Bail under Section 483 of BNSS, 2023

Relevant legal framework and precedents: Section 483 of BNSS, 2023 governs bail applications in criminal cases. The Court also referred to the Supreme Court's decision in Sanjay Chandra v. CBI (2012) 1 SCC 40, which provides guidance on bail in corruption cases, emphasizing the gravity of offences and the evidence on record.

Court's interpretation and reasoning: The Court noted that the offence involved serious allegations of corruption by public servants, including demand and acceptance of bribe. The Court emphasized the gravity and nature of the offence under the P.C. Act and BNS, 2023, which are stringent laws aimed at curbing corruption.

Key evidence and findings: The Court observed that the charge-sheet has been filed and the sanction for prosecution against applicant Bharat Singh has been granted. Furthermore, applicant Vinay Rai was caught red-handed accepting a bribe of Rs. 5,00,000. The investigation revealed voice recordings and CCTV footage corroborating the prosecution's case.

Application of law to facts: Given the prima facie evidence and the serious nature of the offences, the Court found that the applicants were not entitled to bail as the offences attract stringent punishment and involve active participation in corruption.

Treatment of competing arguments: The applicants contended that there was no direct evidence against them, that they cooperated with the investigation, and that the charge-sheet was filed without sanction. The Court noted that the sanction for prosecution had been granted and that the evidence, including trap proceedings and identification of accused persons, was sufficient to deny bail.

Conclusion: Bail was denied considering the gravity of the offence, the evidence on record, and the risk of interference with the investigation or trial.

Issue 2: Evidence Connecting Applicants to the Alleged Offence and Criminal Conspiracy

Relevant legal framework and precedents: Sections 7 and 7A of the P.C. Act define offences relating to public servants accepting or attempting to obtain undue advantage and taking undue advantage to influence public servants, respectively. The Court referred to the explanation and illustrations under Section 7, clarifying that mere attempt or solicitation constitutes an offence.

Court's interpretation and reasoning: The Court emphasized that the offence under Section 7 of the P.C. Act does not require actual acceptance of bribe; mere attempt or solicitation suffices. The Court also noted that conspiracy under Section 120B of the Indian Penal Code (read with relevant provisions of BNS, 2023) was established through evidence of coordination between the accused persons.

Key evidence and findings: The prosecution produced evidence of a raid conducted by the CGST team including applicant Bharat Singh, the complainant's written complaint alleging demand of Rs. 34,00,000 bribe (later reduced), trap proceedings where Vinay Rai was caught accepting Rs. 5,00,000, seizure of mobile phones with incriminating voice recordings, CCTV footage identifying accused persons, and witness identifications. It was also revealed that applicant Bharat Singh removed a hard disk containing CCTV recordings from the premises, which was suspicious.

Application of law to facts: The Court applied the legal principle that "attempt" to obtain bribe is punishable and found that the evidence indicated active participation of applicant Bharat Singh in the conspiracy to demand and obtain bribe. The presence of corroborative evidence from trap and identification memos strengthened the prosecution's case.

Treatment of competing arguments: The applicants argued that the raid was conducted by another officer, that they were only assisting officers, and that there was no direct evidence of their involvement or communication with co-accused. The Court rejected these contentions on the basis of the evidence that showed their active role and involvement in the conspiracy and bribe demand.

Conclusion: The Court concluded that there was sufficient prima facie evidence to connect the applicants with the offences under Sections 7 and 7A of the P.C. Act and Section 61(2) of BNS, 2023, including criminal conspiracy.

Issue 3: Applicability and Interpretation of Sections 7 and 7A of the Prevention of Corruption Act, 1988

Relevant legal framework and precedents: Sections 7 and 7A of the P.C. Act criminalize acceptance or attempt to accept undue advantage by public servants, and accepting undue advantage to influence public servants by corrupt or illegal means. The Court referred to explanations and illustrations under Section 7 and to authoritative Supreme Court judgments elucidating the scope of these provisions.

Court's interpretation and reasoning: The Court reiterated that the offence under Section 7 includes the attempt to obtain bribe and that the offence is complete upon solicitation or attempt, regardless of whether the public duty was performed improperly. The Court emphasized that the law penalizes not only actual acceptance but also attempts and solicitations.

Key evidence and findings: The evidence of demand and acceptance of bribe, trap proceedings, and voice recordings were held to satisfy the elements required under Sections 7 and 7A. The Court also noted that the accused's actions such as removal of CCTV hard disk raised suspicion of intent to conceal evidence.

Application of law to facts: The Court applied the statutory provisions to the facts, finding that the applicants' conduct fell squarely within the ambit of Sections 7 and 7A, as they attempted to obtain and accepted undue advantage corruptly.

Treatment of competing arguments: The applicants argued absence of direct evidence and no improper performance of public duty. The Court held that improper performance is not an essential element and that attempt or solicitation suffices for offence under Section 7.

Conclusion: The Court confirmed the applicability of Sections 7 and 7A to the facts and held that the applicants committed offences punishable under these provisions.

Issue 4: Impact of Investigation Status, Charge-sheet Filing, and Sanction for Prosecution on Bail

Relevant legal framework and precedents: The Court considered the procedural requirements under the P.C. Act and BNSS, 2023, including the necessity of sanction for prosecution. The Court also referred to principles governing bail in cases where investigation is complete and charge-sheet filed.

Court's interpretation and reasoning: The Court observed that the charge-sheet had been filed and the sanction for prosecution against applicant Bharat Singh had been obtained, which is a significant factor militating against grant of bail. The Court noted that the applicants had been in custody since 01.02.2025 and that the trial was yet to conclude.

Key evidence and findings: The sanction order dated 11.04.2025 was produced, authorizing prosecution and removal of accused from office. The charge-sheet was filed as Special Case No. 04/25. The investigation was ongoing under Section 193(9) of BNSS, 2023.

Application of law to facts: The Court held that the completion of investigation and sanction for prosecution indicated a strong prima facie case, reducing the likelihood of bail being granted.

Treatment of competing arguments: The applicants argued that cooperation with investigation and absence of possibility to tamper with evidence justified bail. The Court found that the seriousness of the offence and the evidence outweighed these considerations.

Conclusion: The Court concluded that the status of investigation and sanction for prosecution weighed against granting bail.

Issue 5: Applicants' Cooperation with Investigation and Risk of Tampering with Evidence or Influencing Witnesses

Relevant legal framework and precedents: The Court considered the principle that cooperation with investigation may be a relevant factor in bail consideration but is not determinative.

Court's interpretation and reasoning: The Court acknowledged the applicants' cooperation in attending summons and assisting in search and seizure but noted that the removal of CCTV hard disk by applicant Bharat Singh raised suspicion. The Court also noted the gravity of the offence and the evidence of active participation in the conspiracy.

Key evidence and findings: The removal of CCTV hard disk without instruction from the search team leader was a suspicious act. Trap proceedings and voice recordings indicated ongoing criminal conduct.

Application of law to facts: The Court found that despite cooperation, the risk of tampering or influencing witnesses cannot be ruled out given the nature of the offence and conduct of the accused.

Treatment of competing arguments: The Court balanced the applicants' cooperation against incriminating acts and concluded that cooperation did not outweigh the seriousness of the offence.

Conclusion: The Court held that cooperation was insufficient to justify bail in light of the evidence and offence gravity.

3. SIGNIFICANT HOLDINGS

"The offence under Section 7 of the P.C. Act is complete upon mere solicitation or attempt to obtain an undue advantage, and actual acceptance or improper performance of public duty is not an essential requirement."

"The applicants, particularly Bharat Singh, were instrumental in the commission of the offence and entered into criminal conspiracy with co-accused persons, as evidenced by trap proceedings, voice recordings, and identification memos."

"The sanction for prosecution having been granted and charge-sheet filed, coupled with the gravity of the offence and incriminating evidence, bail cannot be granted to the applicants."

"Removal of the CCTV hard disk by the accused without authorization raises suspicion of tampering with evidence, negating the applicants' claim of bona fide cooperation."

"Considering the overall facts and circumstances, the applicants are not entitled to bail and the trial court is directed to proceed expeditiously."