Lawwatch

Law relating to Bribe Giving & Bribe Taking

Everyone knows bribe taking by a public functionary is an offence but
some people do not know bribe giving is also an equally punishable
offence. There is no much clarity on how and in what manner bribe giving
becomes an offence. This article explores the architecture of the
offence of bribe giving but it cannot be explained without touching upon
the law relating to the offence of bribe taking as well.

Bribe giving is an offence

Both bribe giving and bribe taking are offences under Indian law. They
are termed offences originally by Indian Penal Code (IPC), 1860 and
later by the Prevention of Corruption Act (PCA), 1988, which now deals
with the offences. The law attracts bribe taking by the public
functionaries and bribe paying by anyone as offences punishable in equal
terms. The offences and penalties come under Chapter III of the PCA.

In practice, both the offences occur in utmost secrecy with almost no
one present to witness the event. Therefore the process of investigation
into both the offences and brining the culprits to book becomes an
extremely difficult or a near-impossible task. In many much-publicized
cases of bribery, the accused was set scot free due to lack of credible
evidence during prosecution. The preventive law on corruption therefore
remains as a law without sufficient teeth in punishing those involving
in bribery.

Offences under the law

A public servant accepting any gratification, other than legal
remuneration, as a reward for doing or not doing any official act or
functions is an offence under the PCA. A public servant is a person
remunerated by the government for the performance of any public duty - a
duty in which the state, the public or the community has an interest.

Bribe taking need not be pecuniary in nature. It may include craving for
an honorary distinction or for sexual intercourse from any person
concerned in any business with the government - such as issue of a
certificate or any other thing. Similarly, a public servant obtaining
any valuable thing from a person concerned in business with the public
servant is also an offence punishable under the law.

Any person abets (instigates to do, engages in or aids in) in any manner
in the offence of bribe taking by a public servant in receiving any
illegal gratification or obtaining any valuable thing comes within ambit
of the offence of abetting ,as per the Section 12 of the PCA. A person
who offers or provides any bribe is an abettor or accomplice in the
offence.

A public servant misappropriating any official thing illegally or
providing illegal advantages to anyone or possessing assets
disproportionate to his known sources of income are offences under the
act. If the prosecution proves that there is mismatch between the assets
and the known sources of income of the public servant, then the burden
of proving the innocence shifts from the prosecution to the public
servant under the scanner.

Offering any bribe an offence

A mere act of offering a bribe to a public servant itself is enough for
anyone to get charged with an offence of abetment under the PCA even if
the concerned public servant did not accept the bribe. So an offer of
bribe without acceptance itself is punishable.

There are two kinds of bribe givers - one who intends to pay bribe and
subvert the priority and procedures in service delivery, and the other
one who has no choice but to give bribe unwillingly to get a service
legally due to him. Both do not stand in equal footing. In the former
kind, the bribe giving is to get something he does not deserve. It is
called collusive bribe-giving. But in the latter the bribe giver
becomes the victim of an extortionist bid. The bribe giver in the latter
case pays bribe to get what they are legally entitled to get. It is
called coercive or harassment bribe giving.

Since bribe giving is illegal both kind of bribe givers are part of the
offence as per law. The former is to be punished severely but the latter
deserves due consideration. The latter has the possibility to escape
from punishment if he can prove that the bribe was given unwillingly or
under coercion.

Legal provisions on bribery & abetting

Bribe giving is a punishable act that comes under the ambit of Section
12 of the PCA. The bribe giver is an abettor of the crimes punishable
under section 7 or 11 of the act.

The Section 109 of the Indian Penal Code (IPC) provides for the
punishment of the offence of Abetment. The section 107 IPC, which
defines what is “Abetment of a thing”, applies to all central acts, as
per Section 3(i) and 4 (ii) of the General Clauses Act, 1897.

Therefore both bribe giver and bribe taker are liable for same
punishment of imprisonment from three years to seven years and fine, as
per Section 12 of the PCA.

Section 24 insulates a bribe giver

However, the section 24 of the PCA insulates a bribe giver from
punishment for any statement he makes against a public servant in regard
to the offence of bribery by the public servant punishable under Section
7 to 11 and 13 to 15 of the PCA.

The section 24 of the act says that a statement regarding payment of
bribe cannot be a subject to prosecute the bribe giver under Section 12
of the act.

When bribe giver can be proceeded against

In case of a bribe offer, both bribe giver and bribe taker are liable to
be proceeded against if the public servant accepts the bribe knowing it
as an illegal gratification. If the public servant rejects the offer of
bribe, the bribe giver alone can be proceeded against.

A mere offer to give bribe, which has neither been accepted nor rejected
by the public servant, will not invite prosecution to a bribe giver
under section 12 of the act. In such a case there is no abetment. So
offering and agreeing to offer bribe becomes a crime under section 24 of
PCA only when the public servant either accepts it or rejects it.

Demand for bribe needs to be proved

The Section 7 of the act provides for conviction of the bribe taker but
for conviction there must be evidence to prove that illegal
gratification was demanded by the public servant.

A government official cannot be convicted under corruption charges
merely on the basis of recovery of bribe money and it is essential to
prove that he had demanded money, the Supreme Court says (
P.Satyanarayana Murthy vs Dist.Insp.Of Police &
Anr
on 14 September, 2015
).
The proof of demand is an \”indispensable essentiality\” for
establishing an offence of bribe.

Earlier in State of Kerala and another vs. C.P.
Rao
( (2011) 6 SCC 450) also,
the Supreme Court held that mere recovery by itself would not prove the
charge against the accused and in absence of any evidence to prove
payment of bribe or to show that the accused had voluntarily accepted
the money knowing it to be bribe, conviction cannot be sustained. It has
been held that in the absence of any proof of demand for illegal
gratification, the use of corrupt or illegal means or abuse of position
as a public servant to obtain any valuable thing or pecuniary advantage
cannot be held to be proved. The proof of demand is an indispensable
essentiality for an offence under Sections 7 and 13 of the PCA.

Similarly in B. Jayaraj v. State of Andhra
Pradesh
, (2014) 13 SCC 55),
the Supreme Court held that demand of illegal gratification is sine qua
non
to constitute the offence of bribe taking. The recovery of currency
notes alone cannot constitute the offence under Section 7, unless it is
proved beyond all reasonable doubt that the accused voluntarily accepted
the money knowing it to be a bribe..

A private person offering an amount to a public servant without demand
of illegal gratification and the public servant cannot be prosecuted
even if he accepts the bribe when there was no demand on his part. That
means, to contribute an offence of taking bribe there should be a valid
demand from the part of public servant and subsequent acceptance of the
bribe by him. To convict him both need to be proved.

Trap Cases

The briber giver has amnesty only when he could establish that the bribe
giving was unwilling or under coercion, and the payment was made to get
the public servant punished (please see Bhupinder Singh Patel v CBI
2008
). The provision under
Section 24 of the act is thus becoming a tool for those who want to trap
a public servant.

Therefore a statement made by a bribe giver in any proceedings against a
bribe taker in regard to the payment of bribe or any valuable thing he
offered or agreed to offer shall not be subjected to a prosecution or
punishing him, as an abettor of the offence of bribery.

However the protection is available only at the stage of trial but not
at the stage of registration of FIR or the initial stage of prosecution.
In the pre-trial stage he should be proceeded with as if he is an
abettor in the offence of corruption.

Need to make coercive bribery legal

There has been a suggestion to legalise bribe-giving by citizens who pay
bribe for obtaining services that are lawfully due to them, so as to
enable them to complain against bribe takers. This may help improve the
chances of prosecuting corrupt officials. Those who pay bribe can keep
some record of the illegal transaction including video, making it much
easier for law enforcers to get crucial evidence for a trial.

Now, most corruption cases fail because investigators cannot gather
valid evidence. If bribe-giving is made legal, those who pay bribes may
help in prosecuting the bribe takers.

However this legalization need not be made applicable in high profile
cases where government functionaries allow high-value contracts in
return for bribes.

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NB: The author, now with Thrissur Bar, can also be reached at
rajankila@hotmail.com