Breaking Down CBI’s FIR Against One of Its Own, Rakesh Asthana

The extraordinary revelation that the CBI filed an FIR against its own second-in-command, Special Director Rakesh Asthana, over allegations of bribery, has dominated the headlines – with good reason.

In addition to the obvious implications of a senior officer (allegedly) demanding and accepting bribes to influence a CBI investigation, the fallout of the FIR could have a direct impact on the conflict between Asthana and CBI Director Alok Verma.

But what exactly is this FIR all about? What are Asthana and the others named in it alleged to have done? And what would it take to prove such allegations?

Key Details of the FIR

WHEN WAS THE FIR FILED?

15 October 2018.

WHOSE COMPLAINT IS THE FIR BASED ON?

Sathish Sana, a businessman from Hyderabad.

AGAINST WHOM HAS THE FIR BEEN REGISTERED?

Special Director Rakesh Asthana, DSP Devender Kumar, Manoj Prasad, Somesh Prasad and other unknown public servants and private persons.

WHICH OFFENCES ARE ALLEGED TO HAVE BEEN COMMITTED?

• Section 7, Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 (PCA);
• Section 7A of the PCA as amended in 2018; and
• Section 120B of the Indian Penal Code 1860.

WHY IS THERE A DIFFERENCE BETWEEN THE OFFENCES UNDER THE PCA?

• The PCA was amended with effect from 26 July 2018, but the allegations in the FIR relate to events that go back to December 2017 (at least). This is why there is a split in the FIR provisions.
• Alleged offences which took place prior to July 2018 are placed under the provisions as they stood then, such as Section 13(1)(d), which deals with criminal misconduct by a public servant. After the July 2018 amendment, there is no 13(1)(d), but there have been no ‘new’ offences of criminal misconduct, so the old provisions still apply.
• On the other hand, some of the conduct since July 2018 can be covered under Section 7A, which was only added after the amendment.

Offence 1: Section 7 of the Prevention of Corruption Act

WHAT IS THIS OFFENCE ABOUT?

Section 7 of the PCA (as it used to stand) punishes a public servant who

• accepts a bribe, agrees to accept a bribe, or attempts to obtain a bribe from anyone...
• as a motive or reward...
• for doing or not doing an official act, or showing favour to someone in the exercise of his official functions.

WHY HAS THIS OFFENCE BEEN INCLUDED IN THE FIR?

• This provision presumably relates to Rakesh Asthana, who, as a public servant, allegedly agreed to accept a bribe of Rs 5 crore from Sathish Sana in exchange for favourable treatment for Sana by the CBI (more specifically, from DSP Devender Kumar).
• Sana had been summoned to the CBI headquarters multiple times by DSP Devender Kumar from October to December 2017 for questioning about Moin Qureshi, and the bribe was supposed to ensure that this stopped happening.
• The arrangement was allegedly put together by Manoj Prasad and Somesh Prasad after a meeting with Sana in Dubai in December 2017, who were to act as intermediaries.
• Rs 2.95 crore was allegedly paid by Sana to the Prasads that month, and a further Rs 25 lakh was allegedly paid by him in October 2018.

WHAT IS NEEDED TO PROVE THIS OFFENCE?

• According to the Supreme Court of India, the key thing to prove when it comes to an offence under Section 7 is the demand of the bribe (generally referred to as illegal gratification). Without evidence of such a demand, even if the money were recovered from Asthana, the offence would not be proved.
• One exception to this is if it can be shown beyond reasonable doubt, that Asthana voluntarily accepted the money while knowing it to be a bribe. In such a situation, there would be no need to provide evidence of a demand by him.
• Sana has claimed that he has Whatsapp messages and video call recordings to back up his claims. These would need to indicate that Asthana either demanded a bribe to help him out, or demonstrate that Asthana had voluntarily agreed to accept money which he knew was meant to be a bribe.
• According to the Indian Express, the CBI’s investigation has revealed some evidence to corroborate Sana’s claims, including cellphone records which confirm Asthana and Somesh Prasad were in the same place at a time when Sana claims they called him.
• It is not essential to prove that Asthana actually influenced the way in which Sana was summoned, just that the money was taken with the intention of doing so. In fact, under Section 20 of the PCA, once the public servant accepts the bribe or agrees to accept the bribe, the intention is presumed.

WHAT IS THE PUNISHMENT FOR THIS OFFENCE?

3-7 years’ imprisonment and a fine.

Offence 2: Section 13(2) r/w 13(1)(d) of the PCA

WHAT IS THIS OFFENCE ABOUT?

Section 13 of the PCA punishes “criminal misconduct” by a public servant. Under Section 13(1)(d), this covers conduct whereby a public servant:

• obtains for himself or any other person any valuable thing or pecuniary advantage...
• by corrupt or illegal means, or by abusing his position as a public servant.

WHY HAS THIS OFFENCE BEEN INCLUDED IN THE FIR?

Again, this relates to Asthana’s conduct, since he has allegedly obtained Rs 2.95 crore (a pecuniary advantage) by corrupt means, in return for abusing his position in the CBI to influence whether or not Sana gets summoned.

WHAT IS NEEDED TO PROVE THIS OFFENCE?

• Similar to Section 7, it is essential to prove a demand by the accused public servant. Again, this can be avoided if the evidence shows that Asthana received the money or agreed to receive the money knowing it was supposed to be a bribe.
• The presumption of intention that applies to Section 7, however, does not apply. To prove this offence, therefore, it needs to be proved that Asthana intended to take the money to abuse his position.

WHAT IS THE PUNISHMENT FOR THIS OFFENCE?

4-10 years’ imprisonment and a fine.

Offence 3: Section 7A of the PCA (as Amended in 2018)

WHAT IS THIS OFFENCE ABOUT?

This offence makes it a crime for any person (not just a public servant) to

• accept or obtain or attempt to obtain a bribe from anyone for themselves or anyone else...
• as a motive or reward...
• to induce a public servant to perform a public duty improperly or dishonestly...
• by corrupt or illegal means or by exercise of the public servant’s influence.

WHY HAS THIS OFFENCE BEEN INCLUDED IN THE FIR?

• This offence was added to the PCA precisely to deal with the kind of arrangement that Sana has alleged in his complaint – where the bribe is paid through an intermediary.
• Section 7A becomes a special provision to charge people like Manoj Prasad and Somesh Prasad, who could otherwise only be charged with abetment or conspiracy, which would be more closely tied to whether or not the case against Asthana is proven.
• This offence covers the Prasads’ conduct, since they accepted bribe money from Sana on behalf of Asthana, to induce Asthana to use his personal influence as Special Director, to change the way the CBI treated Sana.

WHAT IS NEEDED TO PROVE THIS OFFENCE?

• Since this is a new provision of law, there are no established standards for proving this offence per se. However, since it corresponds to Section 7, one can reasonably say that a demand for the bribe would be crucial to proving this case. Alternatively, the CBI could show that when the Prasads accepted the money from Sana, they knew this to be a bribe.
• Since there were direct interactions between Sana and the Prasads, both in person as well as on the phone and Whatsapp, it would presumably be quite straightforward to prove this offence.

WHAT IS THE PUNISHMENT FOR THIS OFFENCE?

3-7 years’ imprisonment and a fine.

~Offence 4: Section 120B of the Indian Penal Code

WHAT IS THIS OFFENCE ABOUT?

Section 120B of the IPC punishes criminal conspiracy. This doesn’t amount to a separate offence per se, but is meant to ensure that an agreement to do something illegal is punished even if the illegal act isn’t entirely completed, and that all those involved in planning the crime are also punished.

WHY HAS THIS OFFENCE BEEN INCLUDED IN THE FIR?

• This provision is important here since there appears to be evidence to show that all the persons named in the FIR had agreed to the whole arrangement of a bribe to influence a CBI investigation. However, it is not entirely clear where the money paid thus far had been reached.
• Moreover, for the arrangement to work, Devender Kumar, who had been handling Sana’s interrogation, was an essential cog and had to be on board, but he himself hadn’t accepted a bribe. Not using the conspiracy charge could have meant he walked free despite being part of the scheme.
• It could also prove crucial in establishing certain parts of the allegations against Asthana himself.

WHAT IS NEEDED TO PROVE THIS OFFENCE?

• If Sana has the Whatsapp messages and call recordings that he claims to have, this should be able to demonstrate that all the four men named in the FIR had agreed to the whole arrangement.
• Evidence to demonstrate the payment of the bribe money by Sana (Rs 3.2 lakh + Rs 11 lakh for the Prasads’ flights) would also help establish the conspiracy.

WHAT IS THE PUNISHMENT FOR THIS OFFENCE?

Given the punishments applicable to the main offences, if only conspiracy to commit them is proved, the maximum punishment for the convicts would be 6 months’ imprisonment.