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:: Section
7
Public
Servant taking gratification other than legal
remuneration in respect of an official act. Whoever,
being, or expecting to be a public servant, accepts
or obtains or agrees to accept or attempts to
obtain from any person, for himself or for any
other person, any gratification whatever, other
then legal remuneration, as a motive or reward
for doing or forbearing to show, in the exercise
of his official functions, favour or disfavour
to any person or for rendering or attempting to
render any service or disservice to any person,
with the Central Government or any State Government
or Parliament or the Legislature of any State
or with any local authority, corporation or Government
company referred to in clause (c) of Section 2,
or with any public servant, whether named or otherwise,
shall, be punishable with imprisonment which shall
be not less than six months but which may extend
to five years and shall also be liable to fine.
:: Explanations
[a] “Expecting
to be a public servant”. If a person not
expecting to be in office obtains a gratification
by deceiving others into a belief that he is about
to be in office, and that he will then serve them,
he may be guilty of cheating but he is not guilty
of the offence defined in this section;
[b] “Gratification.”-
The word “gratification” is not restricted
to pecuniary gratifications or to gratifications
estimable in money;
[c] “Legal
remuneration.”- The words “legal remuneration”
are not restricted to remuneration which a public
servant can lawfully demand, but include all remuneration
which he is permitted by the Government or the
organisation which he serves, to accept;
[d] “A
motive or reward for doing.”- A person who
receives a gratification as a motive or reward
for doing what he does not intend or is not in
a position to do, or has not done, comes within
this expression;
[e]
Where a public servant induces a person erroneously
to believe that his influence with the Government
has obtained a title for that person and thus
induces that person to give the public servant,
money or any other gratification as reward for
this service, the public servant has committed
an offence under this section.
:: Ingredients of the
offence
The main ingredients of the charge of an offence
under Section 7 {Old Sec.161, I.P.C.} of the Act
as observed by Hon’ble Justice Ranganath
Mishra in R.S.Nayak v. A.R.Antulay and another,
are
[1]
that the accused was a public servant;
[2] that
he must be shown to have obtained or attempted
to obtain from any person any gratification other
than legal remuneration and
[3]
that the gratification should be as a motive or
reward for doing or forbearing to do, in the
exercise of his official function, favour or disfavour
to any person.
It is immaterial
whether amount is received before or after the
favour is done’
The section does
not require that the public servant must; in fact.
be in a position to do the official act, favour
or service at the time of the demand or receipt
of the gratification.
To constitute an
offence under this section, it is enough if-
[a]
the public servant who accepts the gratification,
takes it by inducing a belief or hold out that
he would render assistance to the giver with any
other public servant, and
[b]
the giver gives the gratification under that belief.
It is further immaterial
if the public servant receiving the gratification
does not intend to do the official act favour
or forbearance which he holds himself out as capable
of doing.
::
Section 8
Taking gratification in order, by corrupt or illegal
means, to influence public servant.- Whoever accepts
or obtains, or agrees to accept, or attempts to
obtain, from any person, for himself or for any
other person, any gratification whatever as a
motive or reward for inducing, by corrupt or illegal
means, any public servant, whether named or otherwise,
to do or to forbear to do any official act, or
in the exercise of the official functions of such
public servant to show favour or disfavour to
any person, or to render or attempt to render
any service or disservice to any person with the
Central Government or any State Government or
Parliament or the Legislature of any State or
with any local authority, corporation or Government
company referred to in clause {c} of Section2,
or with any public servant, whether named or otherwise,
shall be punishable with imprisonment for a term
which shall be not less than six months but which
may extend to five years and shall also be liable
to fine.
::
Ingredients of the offence
Ingredients of the offence under section 8 {old
Sec.162, I.P.C.} are-
[i]
The accused should accept or agree to accept {or
even attempt to obtain} gratification from someone.
[ii]
The gratification is for himself or for someone
else.
[iii]
It is a motive or reward to induce a public servant
by corrupt or illegal means to do or to forbear
to do any official act or to show favour or disfavour
to some person, etc.
The
gravamen of the offence is acceptance of or the
obtaining or even the attempt to obtain illegal
gratification as a motive or reward for inducing
a public servant for corrupt or illegal means.
It is not necessary that the person who received
the gratification should have succeeded in inducing
the public servant. It is not even necessary that
the recipient of the gratification should, in
fact, have attempted to induce the public servant.
The receipt of gratification as a motive or reward
for the purpose of inducing the public servant
by corrupt or illegal means will complete the
offence. But it is necessary that the accused
should have had the animus or intent, at the time,
when he receives gratification that it is received
as a motive or reward for inducing a public servant
by corrupt or illegal means. Such intention can
be gathered or inferred from evidence in each
case’.
Gratification
to influence another The last section dealt with
the case of a public servant soliciting or receiving
an illegal gratification for doing an act himself,
or for rendering some service with the Government
or a public servant. This section deals with such
gratification in which the recipient need not
be a public servant; though it must be a motive
or reward for the doing of something by a public
servant. One public servant acting as bribe-agent
of another, should preferably be punished under
the last sections, as measured by the maximum
punishments provided therein. But a person so
acting who is not a public servant, is only punishable
under this section.
In order to constitute an offence under this section,
three things are essential; In the first place,
there must have been the solicitation or offer
or receipt of a gratification. Such gratification
must have been asked for, offered or paid as a
motive or reward for inducing by corrupt or illegal
means someone, and secondly that someone should
be a public servant.
And lastly, it must be for the public servant
to do an act, or confer a favour or render some
service as stated in the section. It will be observed
that while the last section speaks of a gratification,
“other than legal remuneration”, this
section speaks of “any gratification whatever”.
The difference in phraseology is intentional and
is intended to guard against a possible plea that
the gratification received was legal inasmuch
as it was a fair compensation for the favour actually
done. Suppose, for instance, a pleader is engaged
to defend a case. The remuneration paid to him
is a gratification, and is legal; but if he receives
it as a motive for inducing , not by fair argument,
but “by corrupt or illegal means” the
judge in favour of his client, he will be punishable
under this section, though but for this section,
he might have escaped unpunished, for he might
have induced him by means which though “illegal”
were still not corrupt in which case he could
not be punished as an abettor.
What is "personal influence”?- The term
“personal influence” has been nowhere
defined, but it is a phrase allied to "undue influence” of the civil law’, and it
is probably used in an allied sense as meaning
such influence as dominates the will of the public
servant, in consequence of which one party obtains
an unfair advantage over the other. In one respect
the term is even wider as implying not only the
exercise of what would be termed undue influence
in civil law, but also such influence as a wife
wields over her husband, or one friend wields
over another, which, when put to the service here
contemplated, would be within mischief of the
offence here described.
:: Section 9
Taking
gratification, for exercise of personal influence
with public servant.- Whoever accepts or obtains
or agrees to accept or attempts to obtain, from
any person, for himself or for any other person,
any gratification whatever, as a motive or reward
for inducing, by the exercise of personal influence,
any public servant whether named or otherwise
to do or to forbear to do any official act, or
in the exercise of the official functions of such
public servant to show favour or disfavour to
any person, or to render or attempt to render
or attempt to render any service or disservice
to any person with the Central Government or any
State Government or Parliament or the Legislature
of any State or with any local authority, corporation
or Government company referred to in clause{c}
of Section 2, or with any public servant, whether
named or otherwise, shall be punishable with imprisonment
for a term which shall be not less than six months
but which may extend to five years and shall also
be liable to fine..
:: Scope
This section deals with taking gratification by
a private individual for the exercise of personal
influence on a public servant. In all other respects
this section and the previous section are identical
{See also Sec.3 of Sec..8}. Where the accused
to abet the acceptance of a bribe by the wife
of a subordinate judge with a view to inducing
her husband to show favour to a person in the
exercise of his official functions, it was held
that he was guilty of the offence, punishable
under section 163/116 Penal Code {Now Sec.9/12}
Prevention of Corruption Act, 1988.
A mere lapse attributed to public servant is not
covered under this section.
:: Exercise of personal
influence
The
exertion of personal influence upon a public servant,
howmuchsoever deplorable, is not an offence under
the Code. The exertion of such influence in return
for a consideration received from a third person-
presumably the person interested-is, however,
an offence under this section. In Order to
amount to an offence, such influence must be improper;
for, without impropriety some degree of personal
influence is ordinarily exercised by one person
over another. The illustration speaks of an advocate
arguing a case before a judge as expected because
he does not exercise or profess to exercise personal
influence. It would also be correct to say that
he does not receive his fee as a motive for the
exercise of personal influence. At the same time,
human nature being what it is, some litigants
are likely to have the desire to (personal influence)
exercise on the presiding officers of the Courts,
and it is possible that some lawyers also, in
order to please their clients, might be inclined
to assist them in their efforts in that direction.
It is manifest that no personal influence of any
kind should be exercised over those who are entrusted
with the duty of administering justice. It is
the duty of the judge to decide without fear or
favour and without
being influenced by any consideration other than
that of doing absolute justice. It is this ideal
that the section aims at by punishing the mercenary
exercise of personal influence.
::
Section 11
Public Servant obtaining valuable thing, without
consideration from person concerned in proceeding
or business transacted by such public servant.-
Whoever, being a public servant accepts or obtains
or agrees to accept or attempts to obtain for
himself, or for any other person, any valuable
thing without consideration, or for a consideration
which he knows to be inadequate, from any person
whom he knows to have been, or to be, or to be
likely to be concerned in any proceeding or business
transacted or about to be transacted by such public
servant, or connection with the official functions
of himself or of any public servant to whom he
is subordinate, or from any person so concerned,
shall be punishable with imprisonment for a term
which shall be not less than six months but which
may extend to five years and shall also be liable
to fine.
Ingredients of the offence.-For the offence under
section 11 of the Act, the essential ingredients,
as observed by Hon’ble Justice Rangnath Misra
in R.S.Nayak v A.R.Antulay, are;
[1]
that the accused was a public servant.
[2] that he accepted
or obtained or agreed to accept or obtain a valuable
thing without consideration or for an inadequate
consideration knowing it to be inadequate;
[3] that the person
giving the thing must be a person concerned of
interested in or related to the person concerned
in any proceeding or business transacted or about
to be transacted by the government servant or
having any connection with the official functions
of himself or of any public servant to whom he
is subordinate; and
[4]
the accused must have knowledge that the person
giving the thing is so concerned or interested
or related”
::
Pecuniary advantage.
It is true that
misappropriation with dishonest intention or conversion
to one’s own use or obtaining any valuable
thing or pecuniary advantage by corrupt or illegal
means or by otherwise abusing position as a public
servant are covered under the section and once
entrustment is proved by prosecution with duty
to account, it is for the defense to explain the
account thereof. It is not correct to say that
clause (d) of Section 13(1) contemplates cases
where the accused takes some objects in species
or gains some pecuniary advantage and not merely
takes cash. It was urged that when the accused
was convicted under Section 161 of the Indian
Penal Code (new Sec. 7) for the acceptance of
the bribe of Rs.250/- , he cannot again be convicted
under clause (d) of sub-section (1) for the same
acceptance. In this connection, the learned counsel
for the appellant relied on Sec. 26 of the General
Clauses Act. The contention was repelled. It was
observed that the prohibition under Sec.26 of
the General Clauses Act was against a person being
punished twice for the same offence. Reference
was also made to clause (2) of Art. 20 of the
Constitution which prohibits the punishments of
a person for the same offence more than once.
The prohibition is not against punishment more
than once, for different offences.
Thus clause (d) of Sec.5 (1) (new Sec.13) covers
the case of a person who obtains money from another
as illegal gratification.
As the Act is a socially useful measure conceived
in public interest, it should be liberally construed
so as to bring about the desired object, ie.,
to prevent corruption among public servants and
to prevent harassment of the honest among them.
On a plain reading of the express words used in
clause (d) of sec.5 (1) new Sec. (13) , there
is no doubt that every benefit obtained by a public
servant for himself or for any other person by
abusing his position as a public servant falls
within the mischief of the said clause (d).
:: Obtains
The word ‘obtains’ does not eliminate
the idea of acceptance of what is given or offered
to be given , though it connotes also an element
of effort on the part of the receiver.
One may accept money that is offered or solicit
payment of a bribe or extort the bribe by threat
or coercion; in each case he obtains pecuniary
advantage by abusing the position as a public
servant. The word “obtains” is used
in Sections 161 and 165, Penal Code (new Sections
7 and 11). The other words “corrupt and illegal
means” find place in Sec. 162 (new Sec.8).
Apart from the words “corrupt and illegal
means “ find place in Sec.162 (new Sec.8), there are also the words “or
abusing his position as a public servant.”
If
a man obtains a pecuniary advantage by abuse of
his position, he will be guilty under clause (d)
of Sec.5(1) (new Sec.13). Sections 161, 162 and
163 (new Secs.7,8 and 9) refer to a motive or
a regard for doing or forbearing to do something,
showing favour or disfavour to any person , or
for inducing such conduct by the exercise of personal
influence. It is not necessary for an offence
under clause (d) to prove all this. It is enough
if by abusing his position as a public servant
a man obtains for himself any pecuniary advantage
entirely irrespective of motive or reward for
showing favour or disfavour.
If
a small sum of money is left with the accused
(a railway servant) by a man who according to
his own showing is in the habit of tipping Railway
servants in order to have his work facilitated
, the sum would not be obtained by the accused
by corrupt means. ‘Obtaining’ means
getting something as a result of effort to get
it. In order to constitute an offence this obtaining
must be by corrupt or illegal means or by otherwise
abusing his position as a public servant. If a
small tip is left with a persion, that would not
bring that person within the category of one who
would be committing the offence.
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