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.
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.
The author, now with Thrissur Bar can also be reached at firstname.lastname@example.org