Punishment for the Bribe Giver

In 1952 based on the recommendation of the Committee of Members of Parliament to deal firmly and vigorously with corruption, Section 165A was introduced in the IPC to make bribe giving a substantive offence. This Section now stands incorporated in the P.C. Act, 1988 under Section 12 titled "Punishment for abetment of offences defined in Section 7 or 11. This Section reads as under:

Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, 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.

As the bribe giver and bribe taker operate at different ends, as inter-action and not as co-action, both are in fact committing different and distinct crimes. The bribe giver may be a helpless individual acting under compulsion of the circumstances, that he had to give bribe to obtain only for what is due to him legally or he may be the real inducer, offering bribe to get illegally a substantial benefit for himself. In the latter case the Public Servant may refuse to accommodate and prefer a complaint against the person who offered bribe. Bribe giving in such case is a substantive and serious offence and the bribe giver (actually offerer) is prosecuted under Section 12 of the ACT.

The bribe giver has offered the bribe only for securing a bonafide benefit that is legally due to him, and is compelled to provide the bribe, there is no Mens era (criminal motive) in the bribe giver. For example if your telephone service is faulted, and for getting the same repaired promptly, a bribe of Rs.50/- is offered, the persons acts because he is helpless. But can he lodge a complaint after paying the bribe? Yes. Section 24 of the P.C. Act, 1988 provides the necessary indemnity for him. The Section is titled "Statement of bribe giver not subject to prosecution" and reads as under:

Notwithstanding anything 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 offence under Sections 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.

These are covered under Section Nos. 7 to 16 in Chapter III of the ACT. Section 7 to 12 comprise erstwhile Sections 161 to 165 and 165 A of Indian Penal Code since repealed with the incorporation of these crimes in this Statute. Section 13 to 15 defines new offences not included in the Indian Penal Code. Section 13 and 14 are in fact, contained in the earlier Act, P.C.Act 1947 (under Sec.5). But Sec.15 is a new offence now included. Section 16 deals with " Matters to be taken into consideration for fixing fine" All these are considered individually one after the other.

Section 7 deals with the offence of acceptance of bribe by a public servant as indicated by the title to the Section. It also provides for the punishment for the same. This Section refers to the following, 'acts' on the part of the public servant:

1. Acceptance of illegal gratification
   The illegal gratification was offered to the public servant and he accepted it.

2. Obtaining illegal gratification.
   Here the public servant demands or asks for illegal gratification and the same is paid to him and accepted by him.

3. Attempting to obtain illegal gratification.
   The public servant demands and asks for illegal gratification and the same is not granted.

4. Agreeing to accept illegal gratification.
   This means that the illegal gratification was offered and the public servant and the public servant agrees to receive the same but the same has not yet been paid or received.

The act or omission to act for which illegal gratification was obtained or attempted to be obtained must relate to performance of the official functions of a public servant. This Section also does not stipulate that the public servant should possess the power personally by himself or that he must be in a position to perform the act or to show favour or disfavour for which the bribe has been paid. A public servant will be guilty of the offence under this Section even independently of the exercise of his official functions in case he obtains a reward for rendering or attempting to render any service to the person with another public servant.

Further the Section also includes those who are expecting to become public servants. The term used in this Section is 'illegal gratification', though the title of the Section is 'acceptance of bribe'. The scope of the word gratification is much wider and will cover any return, which pleases. As per the explanation given to the Section, the word 'gratification' is not restricted to pecuniary gratifications or to gratification estimable in money. Gratification would therefore include all kinds of favour intended to please or satisfy the public servant.

Punishment prescribed by the Section for the offence is "imprisonment of either description for a term, which may extend to three years or with fine or both". The following paragraphs are extracted from CVC Manual explaining the salient provisions of this Section.

"It is not necessary that the public servant must himself have the power or must himself be in a position to perform the act, or show favour or disfavour, for, doing or showing, which the bribe has been given to him nor is it necessary that the act for doing which the bribe is given should actually be performed. It is sufficient if a representation is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation renders himself guilty under this Section even if he had or has no intention to perform and has not performed or does not actually perform that act. It is not necessary that favour was in fact shown to the person who offered the bribe. It is sufficient if the person giving the gratification is led to believe that the matter would go against him if he did not give the gratification [Bhimrao, A.I.R. (1925) Bombay 261].

A public servant arrogating to himself a power which he does not possess, for the exercise of which he receives a bribe is liable to conviction under this Section (Ajudhia Prasad, I.L.R./51 Allahabad 467).

A public servant accepting a donation for a public purpose such as a donation to a public institution or donation for any charitable or religious purpose in which he is interested would amount to an offence under this Section if the motive for such payment was for showing favour to the donor in his official acts or if the donation was made as a reward for a favour shown in the past. Where, however, such donation is made to public servant independently of his doing any official act, no offence is committed. [Emperor Vs. Tyabjee, A.I.R. (1923) Bombay 44]. Rule 12 of the CCS (Conduct) Rules, 1964, however, prohibits Government servants from asking for or accepting contributions or collections in cash or in kind in pursuance of any object, whatsoever, except with the previous sanction of the Government or the prescribed authority.

A public servant cannot justify his acceptance of gift or a bribe by urging that the order passed by him was nevertheless a just one and against the very person the bribe is given is a just and proper one. [A. W. Chandekar, A.I.R. (1925) Nagpur 313].

The word 'motive' refers to a future act while the word 'reward' to a past favour.

The word 'gratification' is not defined but its sense is extended by the explanation, which says that the word 'is not restricted to any pecuniary gratification, or to gratification estimable in money'. The word 'gratification' is thus used in its larger sense as connoting anything which affords gratification or satisfaction or pleasure to the taste appetite or the mind"

These two sections are intended to deal firmly with the menace of unscrupulous middlemen or contact agents, also called 'touts', who deal with the public, claiming to have influence with highly placed corrupt public servants. They promise to get things done for the public with these high placed and other public servants and in lieu thereof demand and accept gratification. They act to spread the virus of corruption as the marketing agents or carriers of corruption far and wide. As they practice this as a regular or full time business or trade, they are basically responsible for spreading the cancer of corruption in our society and among public servants.

These sections are complementary to Section 7. These sections deal with contact agents, i.e. persons other than public servants. It is superfluous for them to cover Public Servants, because similar offences of public servants are already covered by Section 7 of the Act. However the public servants, who make it possible for these contact agents to carry on their trade, are abettors for the crimes under these two sections and punishment for such public servants in provided under Section 10.

The two Sections have similar premises and differ only with reference to the tool employed for inducement of the public servant. The features common to both the sections are as follows:

1. That the accused (normally the contact person or influence peddler) accepted or obtained or agreed to accept, or attempted to obtain from some one;

2. For himself or some other person

3. Any gratification or reward for induced any public servant to do or forbear to do any official act or to show favour or render any service to any of the different persons specified in detail in the Section-

   1. by corrupt of illegal means in respect of Section 8, and

   2. by exercise of personal influence in respect of Section 9

The respective sections uniformly prescribe a punishment for the accused who "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."

By way of illustration certain bonafide actions like that of an advocate who charges a fee to a client to argue a case before a judge is pointed. This is are not covered by Section 9 of the ACT as there is no exercise of personal influence by the advocate and judge is bound to decide the case on purely legal merits.

Punishment for habitual committal of offences under Sections of the ACT is prescribed in this section, which reads as under:

1. an offence punishable under Section 8 or Section 9; or

2. an offence punishable under Section 12, shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to seven years and shall also be liable to fine.

The Section thus provides the legal basis for a more harsh punishment to be inflicted on habitual offenders of this of the offences under sections 8,9 & 12.

This is a new Section introduced in P.C. Act, 1988 not covered in the P.C. Act, 1947 butcovered by the IPC under Section 511

Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-Section (1) of Section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine

Normally for a person to be guilty of a crime, the act must result in injury to another person. Thus the elements necessary for committing a crime are:

• A person must do an act which is illegal

• The Act must be done with a guilty intention

• The act must result in an injury to a person.

When a mere attempt is made and no injury is caused to the victim, the offender normally cannot be charged with having committed a crime. But there are exceptions to this rule in respect of most heinous crimes, the crime if it has been committed would have attracted imprisonment for life or other form of imprisonment. The corresponding Section 511 of IPC reads as under:

511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment: - Whoever attempts to commit an offence punishable by this code with imprisonment for life or other imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this code for the punishment of this offence, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life, or as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

The Section provides the guidelines for fixing the quantum of fine, where it is imposed as a penalty. This is a new provision introduced in P.C. Act, 1988.

Where a sentence of fine is imposed under sub-Section (2) of Section 13 or Section 14, the court in fixing the amount of the fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub-Section (1) of Section 13, the pecuniary resources or property referred to in that clause for which the accused person is unable to account satisfactorily.