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Crime

WHAT CONSTITUTES AN OFFENCE UNDER THE PREVENTION OF
CORRUPTION ACT, 1988 ?

:: 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, how much so ever 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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WHAT IS CRIMINAL MIS-CONDUCT BY PUBLIC SERVANT ?

:: Criminal misconduct by a public servant

A public servant is said to commit the offence of criminal misconduct,

     [a] if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or

     [b] if he habitually 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 him, or having any connection with the official functions or himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

    [c] if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

     [d] if he, -  

  • by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
  • by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
  • while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

     [e]   if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

     Explanation – For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

     [2]   Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

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WHEN THE OFFENCE OF CRIMINAL BREACH OF TRUST IS SAID TO HAVE BEEN COMMITTED BY PUBLIC SERVANT PUNISHABLE UNDER SECTION 13(1)(c) OF THE P.C. ACT AND SEC. 409 I.P.C. ?

Distinction of Ingredients between Sec. 13 (1)(c) of the P.C. Act and Section 409 Indian Penal Code:

Section 405 of the Indian Penal Code

Section 5(1), Prevention of Corruption Act (II of 1947)

1. Entrusting any person with property or with any dominion over property

2. The person entrusted -

[b] dishonestly using or disposing of that property or willfully suffering any other person to do so in violation-

[i] of any direction of law prescribing the mode in which such trust is to be discharged, or

[ii] of any legal contract made touching the discharge of such trust.

 

Now ‘dishonestly’ as defined in Sec.24 , Indian Penal Code, connotes the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person and Sec. 25 defines “ fraudulently”, as doing a thing with intent to defraud but not otherwise. It is, therefore, clear that Sec.5(1)(c) (new Sec.13) is wider in ambit than Sec.405, Penal Code.

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What IS MEANT BY CORRUPTION ?

8. Corruption-Meaning of .- An attempt to obtain a bribe in a single case which was not paid is no offence under clause (a), (b) or (d) of Sec.13 (old Sec. 5(1) and therefore is not corruption within the meaning of the Prevention of Corruption Act (Act 2 of 1947)

The maxim non est rea , nisi mens sit rea has undergone a modification owing to the greater precision of modern statutes.

The full definition of the crime under clause (c) of Sec. 13 (old Sec.5) sub-section (1) contains expressly a proposition as to a state of mind. The definition states that the Act, i.e., (1) misappropriation, or (2) conversion, or (3) allowing any other person so to do, must have been done ‘dishonestly” or “fraudulently”. Every ingredient of the offence is stated in definition itself.

If this mental element is proved to have been absent in any given case, the crime, as defined above, is not committed. Looked at from another aspect, the offence having been duly define, nothing amounts to that crime which does not satisfy that definition. It would indeed be anomalous to hold that it must be done either dishonestly or fraudulently, a person morally innocent of blame could be held vicariously liable for an assistant’s crime without there being a dishonest or a fraudulent mind.

However, where a public servant has accumulated assets beyond the means of his known source of income, he can be prosecuted under the Act though in such a case the question of proving dishonest intention gets diluted.

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WHAT IS THE PROTECTION GIVEN TO THE COMPLAINANT FOR OFFERING
OR GIVING BRIBE TO THE PUBLIC SERVANT?

:: Sec.24

Statement by bribe-giver not to subject him to prosecution – Not withstanding any thing contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an officer under Under Section 7 to 11 or under Section 13 or Section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the Public Servant, shall not subject such person to a prosecution under Section 12.

WHO IS A PUBLIC SERVANT?

:: Sec. 2: Definitions : In this Act, unless the context otherwise requires, --

     [a]  “election” means any election, by whatever means held, under any law for the purpose of selecting members of Parliament or of any Legislature, Local authority or other public authority.

     [b]   “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest:

:: Explanation

In this clause “State” includes a corporation established by or under Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act 1956:

     [C]  “public servant” means –

  • any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty:
  • any person in the service or pay of a local authority;
  • any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government Company as defined in Section 617 of the Companies Act, 1956. (1 of 1956 );
  • any Judge, including any person empowered by law to discharge whether by himself or as a member of any body of persons, any adjudicatory functions;
  • any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such Court.
  • any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
  • any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
  • any person who holds an office by virtue of which he is authorised or required to perform any public duty;
  • any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government Company as defined in Section 617 of the Companies Act, 1956 ( 1 of 1956);) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection of behalf of such Commission or Board;
  • any person who is a Vice-Chancellor or member of any Governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University or any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
  • any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.

     Explanation 1.—Person falling under any of the above sub-clauses are public

     Servant, whether appointed by the Government or not.

     Explanation 2.—Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in the right to hold that situation.

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WHAT IS MISUSE OR ABUSE OF OFFICIAL POSTION?

:: Excess or abuse of discretion may be inferred from the following circumstances:

     (a) Absence of power ;

     (b) Exceeding jurisdiction ;

     (c) Irrelevant considerations ;

     (d) Leaving out relevant considerations;

     (e) Mixed considerations;

     (f) Mala fide;

     (g) Improper purpose; Collateral purpose;

     (h) Colourable exercise of power;

     (i) Non-observance of natural justice;

      (j) Unreasonableness.

WHAT IS THE MEANING OF ‘HABITUALLY’?

The expression ‘habitually’ means ‘ repeatedly’ or ‘persistently’. It implies a thread of continuity stringing together similar repetitive acts. It is settled law that to prove the charge of habitual corruption there should be not less than 3 different transactions within a period of 1 or 2 years.

WHAT IS MEANT BY THE OFFENCE ‘ DISPROPORTIONATE TO THE KNOWN
SOURCES OF PUBLIC SERVANT’ ?

1) He should be a public servant.

2) During the period of his service he is or has been or any person on his behalf in possession of property or pecuniary resources.

3) The value of such pecuniary resources or property should be an excess of the total income i.e., Income minus Expenditure.

4) If the value of such property is far in excess than the savings during the period and if he fails to satisfactorily account for the said disproportion, the Public Servant is said to have committed the offence.

5) For the purpose of this section an ‘ explanation’ is added as to the definition of source of income which reads as follows:

     For the purpose of this section, ‘known sources of income’ means income

     received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

     WHETHER THE PRIVATE PERSONS WHO HOLD OR IN POSSESSION OF THE PROPERTY ON BEHALF OF THE PUBLIC SERVANT CAN ALSO BE CHARGED AND PROSECUTED ALONG WITH THE PUBLIC SERVANT FOR THE OFFENCE COMMITTED BY THE PUBLIC SERVANT FOR POSSESSING ASSETS DISPROPORTIONATE TO HIS KNOWN SOURCES OF INCOME.

This issue has been recently settled by the Supreme Court of India that private persons can also be charged and prosecuted along with the Public Servant for having abetted the offence.

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