CHAPTER - 2

OFFENCES BY AND AGAINST PBLIC

SERVANTS UNDER I.P.C.
INTRODUCTION
Yet sections 161 to 165 A (both in collusive) have been omitted by Section 31 of
the Prevention of Corruption Act, 1988 (Act no 49 of 1988). Still it is necessary to know
the contents and commentary of these sections for proper knowledge of the Research
topic in hand. The contents of these sections are also have much importance being having
reflection on historical background of the topic in hand.
By The Criminal Law Amendment Act, 2013, new sections 166 A and 166 B
have been inserted in Indian Penal Code w.e.f. 2nd April, 2013 which are also discussed
in the end of this chapter.
167. Public servant framing an incorrect document with intent to cause
200
injury -Whoever, being a public servant, and being, as [such public servant, charged
with the preparation or translation of any document record, frames, or electronic prepares
or translates that document or electronic record] in a manner which he knows or believes
to he incorrect intending thereby to cause or knowing it to he likely that he may thereby
cause injury to any person, shall be punished with imprisonment of either description for
a term which may extend to three years, or with fine, or with both.
1. Principle - Public records owe their sanctity to the presumption that arises as to
their correctness, and as representing the true record, of proceedings of the Courts and the
public servants concerned. The tampering of such records by the very persons charged
with the duty of preparing them correctly is, therefore, regarded as an egregious offence
and as such punishable under this section, if the record was prepared to cause injury to
any person. Otherwise, there being no motive to falsely the record, the misconduct, it
any, is left for departmental punishments.
2. Distinction between Sec. 167 and Sec. 193 – The distinction between Sec. 167
and Sec. 193, Indian Penal Code, seems to be that, whereas the former section relates to

200
Subs. for “Such Public Servant, Charged with the Preparation or Translation of Any Document, Frames
or Translates that Document” By the Information Technology Act, 2000 (Act. No. 21 of 2000), Sec. 91 and
SCH. 1

56
the incorrect preparation of a public record as such, the latter Section applies when the
record forms part of he record of a judicial proceeding.201
3. Meaning of words -”Preparation or translation of any document” Does
“preparation” or “framing” include also copying? According to one view it does,202
according to ‘another it does not,203 but the latter appears to be the correct view, as the
copying of a document cannot be said to be preparing or framing it, and the collocation of
the word “translation” excludes its figurative extension.
“Intending thereby to cause’ Such intention and knowledge must necessarily be a
matter of inference But facts justifying that inference must be established by the
prosecution.
4. Preparation of incorrect panchnama by Public servant - In the instant case,
panchnamas were made by A-I in his capacity as the Circle Officer, A-2 attested the
thumb-impressions of the allottees on those panchnamas and assisted A-I in preparing
those panchnamas. The panchnamas prepared by A-I and A-2 were incorrectly made and
the price of the trees therein set out was undervalued They knew that by giving such low
number of trees and low valuation, the Government would wrongfully suffer a loss as
ownership in those trees was to be transferred to the allottees on their paying the value
thereof. Held that A-I only could be convicted of the substantive offence under Sec. 167,
and, A-2 could be convicted under See. 167, read with Sec. 109 of the Penal Code so far
as those panchnamas were concerned.204
5. Making false endorsements - In the instant case, an assistant gram sevak
made endorsements underneath the allottees’ applications for permission to cut the trees.
These endorsements were falsely made. He was all throughout privy to the illegal cutting
of the excess trees. Held that he was rightly convicted by the High Court under Sec. 167
in respect of the false endorsements made by him which mislead the Grant Officer to
issue the permission to cut the said trees. These very acts on the part of gram sevak would
a fortiori constitute misconduct within the meaning of See. 5(1)(d).205
6. Preparation of false record by public servant - The public servants affected by

201
Section 160.
202
Per Lindsay, J., in Hira Singh (1872), P.R. No. 32.
203
Per Barkley, J., in Deva Singh (1879), P.R. No. 15.
204
Krishna Govid Patil v. State of Maharashtra, A.I.R. 1973 S.C. 1389 at pp. 1393-1395.
205
Ibid.

57
this rule are not only those who are ordinarily employed to prepare or translate documents,
but it includes also those, who may have been at any time ordered to prepare to translate
documents, though that work may not fall within the ordinary sphere of their official duty It
must, however, be a work entrusted to them in their capacity as public servants, for they are
not otherwise so liable.
7. Section when attracted - This section is attracted when a public servant is
charged with the duty of preparation of a document and he frames an incorrect
document.206
8. “Farming” and “copying” - Again the section speaks of the framing or
translating of a document, with the preparation and translation of which the public
servant was charged. The word “framing” would thus appear to convey the same sense as
the word “preparation”. And since the word “translation” has been expressly mentioned,
it would seem that the terms “preparation” and “framing” were not intended to include a
mere translation. If so, they would certainly not include copying. And it has been so held
in a case in Punjab.207 On the other hand, the contrary was laid down in another case of
the same Court.208 The words “preparation” and “framing” are etymologically
different;209 but they both suggest the making of something original, and not a mere
translation or a copy And the fact that the word “translation” has been advisedly used in
the section, would seem to confirm this view. The falsification of the document must be
made in a manner which the public servant knows or believes to be incorrect and which
excludes mistakes and mistranslation due to mere ignorance or negligence.
9. Recording statement incorrectly - The section is intended to punish official
perversity, and not mere incompetence. It penalises those who from base or corrupt
motives, prostitute their office whether by doing a wrong act or by preparing an incorrect
document.210
10. Making false report - So where an amin who was entrusted with the

206
People Patriotic Front, New Delhi v. K.K. Birla, 1984, Cr. L.J. 545 at p. 548 (Delhi): AYYAPPAN V.
KRISHANAPILLAI, 1997 (3) CRIMES 261 AT P. 264 (MAD).
207
Deva Singh, (1897) P.R. No. 15.
208
Hira Singh, (1872) P.R. No. 32.
209
Prepare from Lat. pore before and paro to get ready – to fit, adopt or qualify for a particular purpose; to
put into such a state as to be fit for use or application, to make ready. “Frame” from A.S. fremmon or form-
to construct by fitting and uniting together the several parts.
210
Pasupuleti, 12 I.C. (Mad.) 222.

58
prosecution of a warrant for the attachment of moveable property, submitted a report to
the Court with a certificate falsely stating in them that certain persons had forcibly
rescued the attached property, while, as a matter of fact, it had been released by an
amicable settlement with the consent of the attaching creditor, it was held that he was a
public servant charged with the preparation of a document, and had, as such, framed an
incorrect document, and that he was, therefore liable to punishment under this section.211
The very nature of offence under the section indicates that the framing of the
document by the accused alleged to be false have a nexus with his official duly as a
public servant. It has to be established that the accused were acting in course of their
official duty in preparing the document alleged to be false.212
11. Intention and knowledge - Of course, where a document is want - only
framed incorrect, it will be presumed that it could not have been done so innocently, and
it may then be presumed. That the person who so made it must have known that it was
likely to cause injury to the person affected thereby. Where this is not the case some
evidence on the point would be necessary.
12. Double conviction - An offence under this section may be included in those
punishable under Sees. 467 and 471 in which a dual conviction would be illegal.213
13. Sanction - Sanction of prosecution is necessary under Sec. 197 Criminal Procedure
Code.
14. False return of execution warrant - Where an amin intentionally makes a
false return on an execution process entrusted to him. This brings him within the scope of
Sec. 191 I.P.C. and as the execution warrant or process arose in the course of a judicial
proceeding and forms part of the record of those execution proceedings, the offence
committed by the amin comes under Sec 193, I.P.C. The offence also appears to come
under Sec 167, I.P.C., which does not require the complaint of the Court under Sec. 195
(l)(b). Cr. P C., but a complainant cannot avoid the provisions of Sec. 195 of the Code, by
making his complaint for a lesser offence for which a complaint by the Court is not

211
Muthalgiri Raju, (1892) I Weir 74: Dalip Singh v. Emperor. A.I.R. 1930 Lah. 92(2); People Partiotic
Front New Delhi v. K.K. Birla. 1984 Cr. L.J. 545; N. Shiva Kumar, I.P.S. v. N. Ramanna Adyanthaya,
1997 (4) Crimes 461 at p. 464 (Knt.).
212
Girish Chandra Patra v. Pinakee Enterprises Pvt. Ltd., 1989 Cr. L.J. 527 at p. 530 (Orissa); A. Varghese
v. Chellappan, 1998(1) Crimes 154 at p. 155 (Mad.).
213
Gulzari Lal v. King-Emperor, A.I.R. 1926 Oudh 615 at p. 615: 3 O.W.N. 760.

59
necessary. Hence complaint at the instance of a party is not maintainable.214
15. Proof – The points requiring proofs are:
(1) That the accused knows a public servant.
(2) That he was charged with the preparation or translation of any docoment.
(3) That he framed or translated it in an incorrect manner.
(4) That he did so knowingly.
(5) That he did so with intent or with knowledge that it was likely that he would
thereby cause injury.
16. Sentence – Any official, however humble, who deliberately tempers with
official records and issues false copies, whatever his motives, deserves serve punishment,
not merely for his own conduct, but as a deterrent to others who may be tempted to
follow his example.215
168. Public servant unlawfully engaging in trade - Whoever, being a public servant,
and being legally bound as such public servant not to engage in trade, engages in trade,
shall be punished with simple imprisonment for a term which may extend to one year or
with fine, or with both.
1. Principle - There are two reasons why public servants should not engage in
trade. In the first place they are employed by the State, and it is their duty to devote all
their time to its service. And secondly, if public servants were permitted to engage in
trade, they will not only neglect their legitimate duties for the purpose of trade but will
moreover secure an unfair advantage over rival traders not so favourably circumstanced.
Public servants are, therefore universally restrained from engaging in trade during the
period of their service.216
2. Scope - But they are only debarred from trading and are not otherwise
prohibited from laying out their savings to advantage. They may, for instance, lend
money on interest, which is not “unlawfully engaging in Trade” within the meaning of
the rule.217 They may buy and sell stock, take shares in a public company though they

214
G. Srinivasa Ayyangar v. Ramasami Ayyangar. A.I.R. 1945 Mad. 9 at p. 9: 1944 M.W.N. 684: (1944) 2
M.L.J. 156.
215
Sukhnandan Lal v. King-Emperor, A.I.R. 1926 All. 719 at p. 720 : 28 Cr. L.J. 31: 991 I.C. 63.
216
A.B. v. Emperor (1911), 7 N.L.R. 53: 12 Cr. L.J. 28: 10 I.C. 577.
217
Nek Muhammad, (1903) P.R. No. 22; In re Narayan, 6 N.L.R. 114: A.B. 7 N.L.R. 53; contra held on the
authority of Sec. 146(1) of the Berar Municipal Law which rendered a number “directly or indirectly

60
cannot act as its director. They may build and rent houses, own and manage landed
property. All they must not do is to engage in trade which means that they must not
habitually buy and sell with a view to profit e.g. keep a shop218 either in their own name
or as a partner or benami in the name of another.
3. “Trade” - The word “trade” in its ordinary sense means “exchange of goods
for money or goods for goods with the object of making a profit”. The secondary
meaning of the term is “any business carried on with a view to profit”. The word is one of
very general application, and must always be considered with the context with which it is
used. In the context it is used in this section, it must be construed in its wider sense so as
to include the work of preparing plans and estimates by an Engineer or Firm of
Engineers.219
The word ‘trade” in its narrow popular sense means “exchange of goods for goods
or for money with the object of making profit”. In its widest sense, it includes any
business carried on with a view to earn profit.220 Further the word takes its meaning from
the context.
In State of Gujarat v. Mahesh kumar Dhirajial Thakkar,221 the respondent had
entered into an agreement with the Railway Administration not for the purpose of engaging
in trade, business or profession, but for the sole purpose of receiving training, so that on
completion of the training, he could be employed by the Railway Administration. The mere
fact that he was paid a stipend during the training period, as an apprentice, did not make him
an employee of the Railway Administration. Indeed, C. 17 of the agreement slated in clear
terms that the Railway Administration did not bind itself to employ him on the completion of
the training. It was held that the act of the accused respondent did not amount to engaging in
trade. Even if the wider interpretation were to be put on the word “trade” in Sec. 168, Penal
Code, the engagement of the respondent as an apprentice-trainee would not bring him within

interested in any contract” guilty under this section. Held that a Vice-Chairman who lent money to a
municipal contractor to whom he gave contracts and made payments was guilty under this section as
ordained by Sec. 146(1) of the Berar Municipal Law.
218
Sagar Singh, 43 I.C. (Cal.) 440.
219
Mul Shankar Maganlal Vyas v. Government of Bombay, A.I.R. 1951 Bom. 233 at pp. 238, 239: I.L.R.
(1950) Bom. 706: 52 Bom, L.R. 648.
220
See Halsbury’s Laws of England Vol. 32, para, 487.
221
1980 S.C. Cr. R. 169 at p. 170: 1980 Cr. L.J. 919: A.I.R. 1980 S.C. 1167; State of Maharashtra v.
Chandrakant Solanki, 1995 Cr. L.J. 51 All. 377.

61
the purview of the expression “trade”.
4. Double penalty - A public servant who engages himself in trade may be dealt
with departmentally under the service rules and may also be convicted and punished
under the present section.222
5. Sentence - Where a public servant engages himself in trade in gross abuse of
his official position for a fairly long time, a sentence of fine of Rs. 1,000 or in default a
sentence of three months’ simple imprisonment is grossly inadequate.223
169. Public servant unlawfully buying or bidding for property - Whoever, being a
public servant, and being legally bound as such public servant, not to purchase or bid for
certain property, purchases or bids for that property, either in his own name or in the
name of another, or jointly, or in shares with others, shall be punished with simple
imprisonment for a term which may extend to two years, or with fine, or with both; and
the property, if purchased, shall be confiscated.
1. Principle - The prohibition here contemplated must be in respect of property
with which the public servant was connected in his official capacity. Being thus placed in
a position of advantage, he could not be permitted to purchase property of which he is in
effect a trustee. So where a Sub Inspector of Police in charge of a station house was
charged with having purchased a pony which had been impounded at that station, and it
appeared that he had, in fact held no sale but falsely reported that a sale had been held
and the pony sold to another party, from whom he alleged to have subsequently
purchased it. It was held that the accused should have hen convicted under this section,
and not of breach of trust of which he was convicted.224
2. Proof – The points requiring proof are :
(1) That the accused was a public servant.
(2) That, as such, he was legally bound not to purchase or bid for the property in
question.
(3) That he had purchased or bid for that property either in his own name or in the
name of another, or jointly or in shares with others.

222
Mul Shankar Manganlal Vyas v. Government of Bombay, A.I.R. 1951 Bom. 233 at 240: I.L.R. (1951)
Bom. 706: 52 Bom. L.R. 648.
223
Ibid., at p. 242.
224
Rajkristo Biswas, 16 W.R. 52.

62
170. Personating a public servant - Whoever pretends to hold any particular office as
a public servant, knowing that he does not hold such office or falsely personates any
other person holding such office, and in such assumed character does or attempts to do
any act under colour of such office, shall he punished with imprisonment of either
description, for a term which may extend to two years, or with fine, or with both.
1. Principle – This section punishes fraudulent acts done in the guise of a public
servant.
2. Meaning of words – “Pretends to hold any particular office”, that is, whoever
falsely holds himself out, or alleges that he is a public servant. What is meant by “any
particular office” is “any specified office” regardless of whether such an office exists or
not.225
“Knowing that he does not hold such office;” If a person “pretends” to be a public
servant, he must of necessity know that he does not hold such office.
“And in such assumed character” that is, the false personation must have been
used to gain some advantage or in that capacity some act should have been done.
“Under colour of such office,” that is, making use of such office. The act done “under
colour” of an office is an act having some relation to the office which the accused pretends to
hold.226
3. Fraudulent Personation of Public Servant - Section 170 punishes a person
who pretends to hold any public office as a public servant-and does any act in the
assumed character of a public servant. The act of pretending to hold a particular office as
a public servant alone does not make a person punishable unless that person in such an
assumed character does or attempts to do some act under colour of such office. The act or
acts done by the person who personates a public servant merely gives a clear indication
that the person has misused his position. i.e. he has done some overt act in exercise of the
authority of the assumed public servant. It seems that it is wholly immaterial whether
such a person indulges in one act only or in a series of acts. The gist of the offence
consists in the false assumption of the role of a public servant. Further, when a person
“falsely personates” any other person he does not necessarily act fraudulently or with any

225
Amjad Hussain v. State A.I.R. 1953, All. 549 at p. 549: 1953 Cr. L.J. 1279: 1953 A.L.J. 260.
226
Lakshminarayan Tripathy v. Emperor. A.I.R. 1943 Pat. 378 at p. 379: 45 Cr. L.J. 211: 210 I.C. 78.

63
dishonest intention. Whether or not he makes any gain out of his activities while he poses
as a public servant is wholly immaterial. It follows, therefore, that the number of acts
done by such a person is also wholly immaterial. It cannot be said that in doing various
acts successively the person personating is successively committing distinct offences.227
Cheating by personation (Sec. 419, l.P.C) is an offence of a general character
under which a person may pretend to be any one other than what he really is. But
cheating by pretending to be a public servant (Sec. 170, l.P.C) is a specific offence where
one pretends to be a public servant. It has all ingredients of cheating by personation under
Sec. 419 of the Indian Penal Code but when the personation is that of a public servant and
tile pretender does some act, then the offence becomes one under Sec. 170, I.P.C.228
4. “Any particular Office” - The pretension or personation must relate to any
“particular office”, such as a police constable, a municipal secretary, a revenue peon or
the like. It means that the office pretended must be of a particular rank, for it is only then
that the personator can defraud others, so as to commit an offence under this section.
Of course, fraud is otherwise equally possible, as a person pretending to be
servent of Government may travel through a district and obtain money and supplies,
though he may not pretend to hold any particular office. But in such a case the offence he
would be guilty of is cheating, and not of false personation here described.229 But where a
person falsely personated a head constable of police, and under colour of such pretended
office went to some of the villagers of Jaypore and extorted from them a small fee
reprimanding them on the state of their roads, it was held that the accused having
practised imposition on the villagers who expected a visit from the police officers for a
similar purpose was guilty of an offence under this section. The pretended office must be
used as a means to facilitate the commission of the act. Where a person had posed as a
C.I.D Officer and by doing so had obtained the services of the kamdar mahar, services
which he would not have otherwise obtained, anti which the kamdar mahar, was bound
to give on demand by a Government officer, it was held that he was guilty under the

227
Satyapal Thaper v. State, A.I.R. 1951 All. 481 at 482; Nga. Pye. (1892-1896) U.B.R. 198.
228
Sarwansingh Gajjan Singh Jat v. State
229
Sukhdeo, 43 I.C. (Pat.) 785.

64
section.230
5. Under colour of such office - A person pretended to be an octroi patrol and as
such intercepted the complainant while passing to a city and charged him with smuggling
oil without payment of duty. The complaint showed the pass he had received in proof of
payment, but nevertheless the accused extorted Re. 1 by threats of imprisonment. He was
held guilty both of extortion and of an offence under this section.231 In another case the
accused, pretending to be a head constable, was caught demanding one anna’s worth of
fruit from a fruit-seller for one piece, on the ground that he was a head constable, and his
conviction under this section was upheld.232 In all such cases the accused did an act, and
that act a fraudulent one tinder colour of an office. But, if a person acts in good faith, he
cannot be convicted under this section, though he may otherwise do an act wholly illegal
under colour of an office which he has no right to hold So, where a village revenue
officer exercised the powers of a village Magistrate in the absence of the regular
incumbent, and it was found that he believed that he was so empowered, it was held that
having acted in good faith he could not be convicted under this section.233 Where the
accused representing himself to be a C.I.D. police officer although he was not so in fact
had written a letter of, a person promising him to appoint as constable and whether
something unintelligible and nonsensical purporting to be an order to that effect on a
piece of paper, it was held that the question is whether the promise to appoint as a
constable or writing out the paper constitutes an act “under colour” of the office of a
C.1.D. Police Officer. A mere promise to appoint as a constable does not amount to any
such act. In the first place, a mere promise cannot be regarded as an act. In the second
place, the promise imported nothing more than the accused would recommendation might
be made not necessarily by a C.I.D. officer only. The act done “under colour” of an office
is an act having some relation to the office which the accused pretends to hold. The
writing on the paper being unintelligible and nonsense, how this writing can be regarded
as an act done under colour of the office of a C.I.D. officer. For these reasons a

230
Bashirullah Khan Waisullakhan v. Empreror, A.I.R. 1941 Nag. 321 at p. 322; I.L.R. (1942) Nag. 484 :
43 Cr. L.J. 79: 196 I.C. 759: 1941 Cr. L.J. 222; Karuna Krishna Biswas v. State of West Bengal. 1996 Cr.
L.J. 2823 at p. 2824 (Cal.).
231
Wazir Jan, I.L.R. 10 All. 58 at pp. 69-70, followed in Azizuddin, I.L.R. 27 All. 294.
232
Azizuddin, I.L.R. 27 All. 294.
233
1 Weir 74.

65
conviction under Sec. 170 cannot be maintained.234

235166-A Public servant disobeying direction under law.–Whoever, being a

public servant –
(a) knowingly disobeys any direction of the law which prohibits him from requiring
the attendance at any place of any person for the purpose of investigation into an
offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law
regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub- section
(1) of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to
cognizable offence punishable under section 326A, section 326B, section 354,
section 354B, section 370, section 370A, section 376, section 376A, section
376B, section 376C, section 376D, section 376E or section 509,
shall be punished with rigorous imprisonment for a term which shall not be less
than six months but which may extend to two years, and shall also be liable to fined.
COMMENT
Section 166-A of the Code deals with duties of a public servant conducting an
investigation. There are three clauses in section 166-A. Clause (a) provides that a public
servant who knowingly disobeys any direction of law which prohibits him from requiring
the attendance at any place of any person for the purpose of investigation into an offence
or other matter shall be punished.
Clause (b) provides that when a public servant knowingly disobeys to the
prejudice of any person any other direction of the law regulating the manner in which he
shall conduct such investigation shall also be punishable. Similarly clause (c) provides
that a public servant who fails to record any information given to him under sub-section
(1) of section 154 of the Criminal Procedure Code in relation to cognizable offence is
punishable under sections 326-A, 326-B, sections 354, 354-B, sections 370, 370-A, 376,

234
Lakshminarayanan Tripathy v. Emperor, A.I.R., 1943 Pat. 378 at pp. 379: 210 I.C. 78.
235
Inserted by the Criminal Law (Amendment) Act, 2013, Sec. 3 (w.e.f. 3-2-2013).

66
376-A, 376-B, 376-C, 376-D, 376-B or section 509, shall also be liable to be punished.
Any person found guilty under any of the clause (a), (b) or (c) of section 166-A shall be
punished with rigorous imprisonment for a term which shall not be less than six months
and which may in suitable cases extend up to two years and shall also be liable to fine.
236[166-B. Punishment for non-treatment of victim.–Whoever, being in
charge of a hospital, public or private, whether run by the Central Government, the
State Government, local bodies or any other person, contravenes the provisions of
section 357C of the Code of Criminal Procedure, 1973 (2 of 1974), shall be punished
with imprisonment for a term which may extend to one year or with fine or with
both.]
COMMENT
The newly added section 166-B of the Indian Penal Code deals with punishment
for non-treatment of a victim. It punishes any person in charge of a hospital whether the
hospital is public or private and whether it is run by Central or State Government. Even
hospitals run by local bodies or any person is covered by this section. Any person of the
above category is punishable under this section. The punishment may extend to one year
imprisonment or with fine or with both fine and imprisonment.
“161. 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 than legal remuneration, as a motive
or reward for doing or forbearing to do any official act or for showing 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 237 the
Central or any State Government or Parliament or the Legislature of any State]238 for with
any local authority, corporation or Government company referred to in Sec. 21] or with
any public servant, as such, shall be punished with imprisonment of either description for

236
Inserted by the Criminal Law (Amendment) Act, 2013, Sec. 3 (w.e.f. 3-2-2013).
237
Subs. by the A.O. 1950, for “the Central or any Provincial Government or Legislature”.
238
Ins. By Act No. 40 of 1964. Sec. 2.

67
a term which may extend to three years or with fine, or with both.239
Explanation – “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.
“Gratification.” The word “gratification” is not restricted to pecuniary
gratifications, or to gratifications estimable in money.
“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, which he serves, to accept.
“A motive or reward for doing.” A person who receives a gratification as a
motive for doing what he does not intend to do, or as a reward for doing what he has not
done, comes within these words.
1486
(a) A, a Munsif, obtains from Z, a banker, a situation in Z’s bank for A's brother, as a
reward to A for deciding a cause in favour of Z. A has committed the offence
defined in this section.
240
(b) A, holding the office of (Consul in a Foreign State), accepts a lakh of rupees
from the Minister of 2(that State). It does not appear that A accepted this sum as a
motive or reward for doing or forbearing to do any particular official act, or for
rendering or attempting to render any particular service to [that State] with the241
(Government of India). But it does appear that A accepted the sum as a motive or
reward for generally showing favour in the exercise of his official functions to
242
(that State). A has committed the offence defined in this section.
(c) A, a public servant, induces Z erroneously to believe that A's influence with the
Government has obtained a title for Z and thus induces Z to give A money as a

239
Giver of bribe–Sec. 109. III (a) and Sec. 165.A. Public Servant–Sec. 21. Receiver of bribe–Secs. 162
and 163; Official abetted–Sec. 164; Official receiving valuables–Sec. 165; Official’s conduct–Sec. 166;
Official's false preparation of record–Sec. 167; Official trading –Sec. 168; Official unlawfully buying and
selling–Sec. 169: Personating an official–Sec. 170: Wearing the garb of an official Sec. 171.
240
Subs. by the A.O. 1950. for “resident at the Court of a subsidiary power”.
241
Subs. Old.. for “ power”.
242
Subs Ibid.. for “British Government”.

68
 reward for this service. A has committed the offence defined in this section.”
STATE AMENDMENT
Kerala - In Sec.161 after the Explanation relating to “A motive or reward for
doing” insert the following Explanation, namely:
1. “Public Servant” – For purpose of this section and Secs. 162, 163, 164, 165 and
165-A the words “public servant” shall denote, besides those who are public servants
under Sec. 21 or who are deemed to be “public servants” within the meaning of that
section under any law for the time being in force, persons falling under any of the
descriptions hereinafter following namely:
(i) every officer in the service or pay of the Travancore Devaswom Board or the
Cochin Devasworn Board;
(ii) every officer in the service or pay and every member of the Wakfs Board
constituted under the Wakfs Act,1954 (Central Act 29 of 1954);
(iii) the president and every member of a Village Court or Village Panchayat Court;
(iv) every member of the Board of Directors or of the executive or managing
committee and every of or servant of a co-operative society registered or deemed
to be registered under the law relating to co-operative societies for the time being
in force;
(v) every member of the governing body and every officer or servant in the service or
pay of a society registered under the Travancore-Cochin Literary, Scientific and
Charitable Societies Registration Act, 1955 or the Societies Registration Act,
1860, and receiving aid or grant from the Government;
(vi) every teacher or other officer or servant of University of Kerala;
(vii) every examiner of a University Examination or a Government Examination;
(vii) every Manager or teacher or servant of an educational institution which receives
or has received old or grant from the Government or the University of Kerala.
[Vide Kerala Act, XXVII of 1962, Sec. 2, dated the 8th January, 1963]
2. American law – Bribery is a common law offence and indictable as such, but
where the crime of bribery is purely statutory, accused may demand that he be prosecuted
under a statute which clearly defines the offence charged. Bribery is not a joint offence of
the giver and receiver although physical acts of at least two persons must concur to

69
render one guilty of receiving a bribe; the failure to convict one as the giver of a bribe
does not preclude prosecution of the officer for receiving a bribe.243
The offer or solicitation of a bribe need not be stated in express language as such,
it is sufficient that the words used carried the import of a bribe and were evidently
intended to bear that meaning. Under a statute making it a crime for any official to
promise to sell an appointment to office, to constitute a violation thereof, the promise
must at least be sufficiently explicit to be susceptible of acceptance.244
Where a statute defines the offence of bribery by an officer to be the act of
agreeing to receive a bribe, a mere offer by an official to accept a bribe from another,
unaccompanied by the agreement of the person solicited is not criminal, likewise, by
construction of the statute involved, it has been considered essential in a prosecution for
the offering or giving of a bribe, that there be an agreement or understanding between the
bribe-giver and bribe-taker that the latter would thereby be influenced.245
The offence of bribery is complete without the tender or production of the money
offered, and hence, in a prosecution of an officer for agreeing to accept a bribe, it is
unnecessary to prove the ultimate receipt of the bribe. Personal participation of accused
in the act of bribery is not necessary, and it is sufficient that the act is accomplished
through the agency of others. In a prosecution of an officer for accepting a bribe, the
identity of the person offering the bribe need not be proved; it is sufficient if the
agreement to accept a bribe is proved with some person, no matter whom.
Except where bribery is made indictable irrespective of guilty knowledge,
essential to the offence that the offer, promise, or gift be made or accepted with the
corrupt intent to influence the action of the officer in the discharge of his official duties.
So, the acceptance by an officer of a gift after an official act is consummated, without any
prior corrupt understanding does not constitute bribery.246
As an element of the scienter, it is necessary that one charged with offering a
bribe have knowledge of the official character of the person to whom it is offered.
In order to constitute the offence there must be the promise, gift, or acceptance of

243
People v. Frye., 227 N.W. 748: 248 Mich. 678.
244
Faulkner v. Commonwealth. 76 S.W. 2d. 634: 256 Ky. 563.
245
Commonwealth v. Murray, 135 Mass. 530.
246
People v. Coffey. 119 p. 901: 161 Cal. 433: 39 L.RA.N.S. 704.

70
money or other thing of value, not necessarily of pecuniary or intrinsic value, but value in
the sense of a personal advantage of some sort to be derived by the recipient.247
It is not necessary to a completion of the crime of offering to give a bribe that the
thing offered as a bribe shall have a present existence of or a definite and ascertained
value.248
It is generally held that a charge of receiving property or anything of value cannot
be supported by proof of receiving a mere promise to give or to do something in the
future which is illegal, and therefore void and of no value. Accordingly, an officer
receiving a promissory note cannot be convicted of receiving a bribe since such a note
could not be enforced. Likewise, it is held that the giving of a personal cheque does not
constitute the giving of a bribe since such an instrument is void, and not an “obligation
for the payment of money,” which, within the terms of a statute might be the subject-
matter of a bribe.249
On the other hand, 'there is authority that a promise acted on by an officer in
expectation of receiving the promised benefit at a future time is sufficient to support his
conviction. Further, under a statute providing for bribery by means of a promise or an
offer to give something of value, as well as by means of actual giving the worthlessness
of the bribe given or received is no defence in a prosecution therefore. So, an officer who
receives a bribe of a promissory note is guilty under a Statute which condemns any
officer who asks, receives, or agrees to receive a bribe, or any promise or agreement
therefore. not with standing that such note is void.250
3. Amendments – The words “Legislative or Executive Government of India or
with the Government of any Presidency or with any Lieutenant Governor” were
substituted by the words “Central or any Provincial Government or Legislature” by the
Government of India (Adaptation of Laws) Order, 1937. Again, in 1950, the words “the
Central or any Provincial Government or Legislature” in their turn were substituted by
the words “the Central or any State Government or Parliament or the Legislature of any
State” by the Adaptation of Laws Order, 1950. By that very order in Illustration (b) the

247
Scott v. State, 141 N.E. 19 : 107 Ohio St. 475.
248
Peo. v. Vincilione. 120 p. 438: 17 Cal. App. 513.
249
Green v. MacDougall. 26 S.T.C. 748: 199 U.S. 601.
250
Corpus Juris Secundum, Vol. II, pp. 841. 946 .
71
words “Resident at the Court of a subsidiary power” have been substituted by the words
“Consul in a Foreign State”; the words “that power” have been substituted by the words
“that State” and the words “British Government” by the words “Government of India”.
4. Principle – The giving and taking of bribes, as a crime, is an outcome of refined
jurisprudence.
5. Applicability – If an accused is not a public servant within the meaning of this
expression in Sec. 161, I.P.C.. with reference to the work in respect of which he has
accepted a bribe, Sec. 161, I.P.C., cannot be attracted.251
6. Scope – This section provides for punishment of a public servant taking a bribe
and not of the giver of the bribe. The bribe-giver's case is met by Sec. 109 under which
he is liable for abetment. Now Sec. 165-A provides for his punishment.
An aggravated form of this offence is made punishable by Sec. 214. and, if the facts
stated in that section are proved, the proper procedure is to proceed under that, and not this
section.
In a case falling under Sec. 161 of the Penal Code or under Sec. 5 (1) (d) of the
Prevention of Corruption Act, an offence hereunder is complete when an illegal
gratification is accepted by an accused person.252
The function allotting beds is that of the nurse; of course, it has to be done with
the approval of the medical officer. That being the case the public are likely to be misled
into thinking that allotment of beds is one of the normal duties of the nurse and so
thinking if they have offered any bribe, Sec. 161 I.P.C. would certainly be attracted.253
When accused is charged and tried for actual receipt of gratification he cannot be
convicted for the offence of attempting to obtain a bribe.254
7. Meaning of words – “Being a public servant”: A public servant remains a public
servant, so long as he can legally exercise the power.255 A police constable is a public

251
Manshanker Prabhashanker Dwivedi v. State of Gujarat. A.I.R. 1970 Guj. 97 at p. 103.
252
Veli Bhai Marji v. State, A.I.R. 1963 Guj. 145 at p. 146; (1963) 4 Guj. L.R. 5: Rabindra Nath Prusty v.
State of Orissa. 1984 Cr. L.J. 1392; State of Uttar Pradesh v. Dr. G.K. Ghosh, 1984 (I) Cri. L.C. 290 at p.
298 (S.C.): 1984 S.C.C. (Cr.) 46: 1984 (I) S.C.C. 254.
253
Cherian Luckose v. State of Kerala. A.I.R. 1968 Ker 60 at p. 64; Rabindra Nath Prusty v. State of Orissa
1984 Cr. L.J. 1392; People Patriotic Front New Delhi v. K.K. Birla. 1984 Cr. L.J. 545.
254
State of M.P. v. Ranjit Singh 1961 M.P.C. 778: 1961 M.P.L.J. 721; Chander Daryani v. State of Madhya
Pradesh 1984(1) Crimes, 300.
255
Ajudhia Prased, A.I.R. 1928 All. 752 at p. 753.

72
servant within the meaning of the section.256 Held that such leave counts as duty and so
long as a person is on duty, he must be deemed to be a public servant.257 A person who de
facto' discharges the duties of a public servant is liable under the section.258 “Expecting to
be a public servant”: A mere hope not ending in fruition will not do.259 The expectation
must be realized, and in practice the recipient must have acted officially in the corrupt
manner. previously promised,260 though this is not necessary to complete the crime.
“For doing forbearing to do”: A public servant arrogating to himself a power
which he does not possess, for the exercise of which he receives bribes, is liable to
conviction under this section, since the language of the section is wide enough to cover
such a case as is clear from Illustration (c) appended to this section.261
Or attempts to obtain”: A mere asking is sufficient to constitute such an
attempt.262
“A motive or reward for doing official act”: These words must be interpreted as
meaning that a particular desired official act will be done or will be forborne and favour
or disfavour will be shown.263 This does not mean that, if bribe-taker receives a bribe
from a person, not as a motive or reward for judging in his favour, but for judging rightly,
he would not be guilty. But it would seem that a thanks offering is not a bribe,264 though
it would be punishable under Sec. 165. But a reward by the patient to a doctor for
keeping him longer in the hospital, after the latter had decided to discharge him, is a
bribe.265
“Gratification estimable in money”: Such may be the case where two officials
exchange favours, or where one has sexual intercourse in return for an official favour.
8. Section if repealed by Sec. 5 of the Prevention of Corruption Act – Under
Secs. 161 and 165, I.P.C., a prosecution can be laid down in the case of a single act by

256
Superintendent and Remembrancer of Legal Affairs v. Tarapada Biswas. A. I. R. 1946 Cal. 270 at p.
271:47 Cr. L.J. 316.
257
Venkatasubbiah, In re. A.I.R. 1948 Mad. 63 at p. 64: 60 M.L.W. 488
258
Ram Kristo Das. (1871) 16 W.R. 27 (Cr.) ; 7 B.L.R. 446.
259
See Explanation.
260
2nd Rep.. Sec. 66.
261
Ajudhia Prasad, A.I.R 1928 All. 752 at p.753.
262
Ma Ka. (1892-1896) C.B.R. 158.
263
lnduer Dayadaas, 53 Born. L.R 699; M.S. Mihiddin. In reA.I.R 1952 Mad. 561: 1952 Cr. L.J. 1245.
264
Amlruddin, 67 I.C. 818 (Born.).
265
Barham Sahib. A.I.R. 1930 Mad. 671 at p. 672.

73
which a public servant has accepted an illegal gratification, .but in order to attract Secs. 5
(1) (a) and 5 (1) (b), there must be habitual commission of the crime. Any stray or a
single instance would not suffice as to bring within the ambit of the section, the offence
as contemplated in Secs. 5 (1) (a) and 5 (1) (b) The result is that the offences under Secs.
5 (1) (a) and 5 (1) (b) are an aggravated form of the offence under Secs. 161 and 165,
I.P.C.266
9. Does Sec. 26, General Clauses Act, 1897, bar conviction of accused under the
Prevention of Corruption Act as well as under Sec. 161, I.P.C., for same acts or
omissions – The only fair and proper construction of Sec. 26 of the General Clauses Act
is that an accused person should not be made to suffer punishment more than once for the
same acts or omissions merely because they may constitute offences under two or more
enactments. The concluding part of the section clearly enacts that an accused is not to be
punished twice for the same offence. The said section does not, as was laid down by the
Division Bench in State v. Gulab Singh,267 prevent an accused person from being charged
with and tried for the same acts under different provisions of law. The said section does
not even prevent an accused person from being convicted in respect of each of those
offences, or from being sentenced separately in respect of each of those offences so long
as he is not made to suffer punishment twice for the same act or series of acts. So long as
the Court trying an accused and convicting and sentencing him separately under each of
the provisions of the law in question, makes the punishment run concurrently, it does not
violate the provisions of Sec. 26 of the General Clauses Act, 1897.
There is little doubt that sub-section (1) (d) of Sec. 5 of the Prevention of
Corruption Act, 1947. has created a new offence of criminal misconduct by a public
servant quite distinct from and not a repetition of the offence of a public servant taking
gratification other than legal remuneration in respect of an official act under Sec. 161 of
the Indian Penal Code. A public servant can be tried together of both these offences and

266
Om Prakash Gupta v. State of Uttar Pradesh, A.I.R. 1957 S.C. 458 at p. 461: 1957 A.L.J. ;585 State v.
Varadarajan. 1985 Cr. L.J. 1567; Rabindranath Prusty v. State of Orissa. 1984 Cr. L.J. 1392; State through
Anti-Corruption Bureau v. K.K. Jagtiani, J.T. 1996 (4) S.C. 495 at pp. 501, 502: 1996(2) Crimes 228 at p.
233 (S.C.).
267
(1961) 64 Born. L.R 274: 1962 Nag. L.J. 345: A.1.R. 1962 Born. 263.

74
be convicted and punished separately for each of them.268
It has been held by the Mysore High Court in the case of M.M. Gandhi v. State of
Mysore,269 that the offences under Sec. 161 of the Indian Penal Code and Sec. 5 (2) of the
Prevention of Corruption Act are different offences, though some of the ingredients of
those two offences are common, and that Sec. 26 of the General Clauses Act has
therefore no application to the same.270
10. What amounts to a bribe ?.–Three things are requisite to constitute the offence
of bribery here described: (i) the receiver must be a present or prospective public servant,
in he must solicit or receive an illegal gratification, and (iii) it must have been received as
a motive or reward for doing any official act which he was empowered to do, otherwise,
it is extortion.271 The section deals only with persons who are or expect to be public
servants. It has no reference to any other person, whatever may have been their inequity
in selling their favours to persons similarly circumstanced.
11. Public servant.–The question as to who is a public servant must be answered
with reference to what has been said under Sec. 21. As, according to that definition, not
only persons properly designated public servants, but also persons, who are to all
appearance public servants, are entitled to the rights and are subject to the liabilities of
public servants, persons who are de facto public servants may be convicted under this
section, whatever defect there may have been in their appointment. In other words,
whenever a person has received a bribe professing to act as a public servant, he could not
afterwards turn round and plead the illegality of his appointment as a defence to his
criminality.272 A goods clerk employed by a railway administration is a railway servant,
within the meaning of Sec. 3 (6) of the Railways Act, 1890, and he is under Sec. 137 of
the said Act also a public servant for the purposes of offences under this Chapter.
Railway servants, as long as they do not cease to be such, continue to be “public
servants” for the purposes of this Chapter, whatever functions they may be temporarily

268
Madan Lal v. State of Rajasthan, 1976 Cr. L.J. 1485 at p. 1487 (Raj.) : STATE OF ORISSA V.
MRUTUNJAYA PANDA, II (1998) S.L.T. 241 ATP. 243: 1998 (1) EAST. CRC. 409 (S.C.): 1998 (1)
J.C.C. (S.C.) 69 : 1998 S.C.C. (CR) 644: 1998 (1) ALL. CR.R 614 (S.C.): RANJIT SAHAY V. STATE OF
BIHAR. 1998 (1) EAST. CRC. 952 AT P. 956 (PAT.).
269
A.I.R. 1960 Mys. 111.
270
Hari Rachu Kanadi v. State of Maharashtra, 1972 Mah. L.J. 191 at pp 196-97.
271
Nga Kan Tha, 20 I.C. (Bur.) 237.
272
Ram Kristo Das. 16 W.R. 27.

75
discharging at the time when the offence by, or In respect of them is committed.273
In the instant case, the accused was charged with commission of offence under
Sec. 161, I.P.C., Sec. 5 (2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act,
1947. Although he was a senior Lecturer in a Government College the bribe was sought
to be obtained not in connexion with any official act or in connexion with the exercise of
his official functions as a public servant but in connexion with his work as an Examiner
of the Gujarat University. Held that a University Examiner cannot be held to be an
officer. Once that conclusion is reached, he cannot be covered by the Ninth Clause of
Sec. 21 of the Indian Penal Code. As he was not a public servant when he was acting as
an examiner, it could not be said that there had been any abuse by him of his position as a
public servant and was not guilty.274
There is nothing in the terms of Sec. 161 requiring that the public servant
contemplated therein must be a specified public servant.275
The enlarged definition of the expression “public servant” as contained in the
Explanation added to Sec. 161 of the Code by Sec. 2 of the Kerala Act governs all the
provisions of the 1947 Act. A member of an executive committee or a servant of a
registered society is a public servant within the meaning of that enlarged definition by
reason of the language employed in CI. (4) of the Explanation.276
When accused cannot be considered to be a public servant within the meaning of
Sec. 161 of the Indian Penal Code, it is unnecessary to examine the evidence led by the
prosecution and the accused to consider whether the facts alleged by the prosecution were
fully established or not.277
12. “Expecting to be” – What is meant by a person expecting to be a public servant?
Now, a person may “expect” to be a public servant, and in the hope of that expectation
coming true, he may ask or receive a bribe. Now, his expectation may have been well
founded though it may or may not be realized; or it may be merely a fraud to inveigle

273
Zaharia, (1898) P.RNo.9.
274
State of Gujarat v. Manshanker Prabhashanker Dwivedi. (1972) 12 Cr. L.J. 738 at pp. 740. 741, 746,
751; Nanji Rachoddas Tawadia v. State of Maharashtra, 1994 (I) Crimes 67 at p. 74 (Born.) : STATE OF'
MAHARASHTRA V. BHARAT KRISHNARAO BANDLIK. 1998 (1) BOM. CRC. 109 AT P. 114.
275
Mahesh Prasad v. State of U.P.. A.I.R. 1955 S.C. 70 at p. 72: 1955 S.C.J. 153:(1955) 1 M.L.J. (S.C.) 83:
(1955) 1 Andh. W.R. (S.C.) 83.
276
M.A. Kochu Devasey v. State of Kerala 1979 Cr. L.J. 147 at p. 151 (S.C).
277
Yeshwant Gunaji Sorte v. State of Maharashtra. 1981 Born. C.R. 752 at p 758.

76
another. If it is realized and the person becomes a public servant, he may or may not
bestow the favour, which he had promised and was paid for. It is clear from the
Explanation appended to the section that if he did not himself believe that he was to be a
public servant, but led others to believe that he was to be so appointed, who thereupon
paid him money, he could not be convicted under this section, though he may then be,
probably will be, guilty of cheating under Sec. 420. Eliminating then this case from
consideration, there still remain two cases in which a person bona fide expects to be
public servant, but in which he is disappointed, or becoming a public servant he
disappoints the briber by not doing what he had promised to do. In either case it seems to
be clear that he is liable under this section, in the former case because, as the Law
Commissioners explained it, if “a person expecting to be appointed to a public office
obtains money from another as the price of favour to be shown to that other, in the
exercise of his functions in that office, he is surely as corrupt as one who does the same,
being actually in office. It must be proved, of course, that he gave the other party reason
to believe that he was about to obtain the office: it must be proved, also, as appears by the
first ‘Explanation’, that he himself expected to obtain it. In practice, the provision would
probably be brought into action only against persons who, after having obtained the
expected office, are found guilty of the previous corrupt transaction, and generally only
against persons, who, having obtained the expected office, have acted officially in the
corrupt manner previously promised.”278 But as a matter of law, it is clear that not only a
person who is but also one who expected to be a public servant may be guilty of an
offence under this section.
13. What is gratification? – Secondly, the person must have received “any
gratification” as a “motive or reward” for doing any official act. The word “gratification”
is not defined in the section or the Code but its sense is extended by the Explanation
which says that the words “is not restricted to 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. Money is, of course, one source of affording pleasure, in as much as
it implies command over things which afford pleasure but there are various other objects

278
2nd Rep., Sec. 66. Reprint, p. 359.

77
which afford gratification. The satisfaction of one's desires, whether of body or of mind,
is a gratification in the true sense of the term. The craving for an honorary distinction, or
for sexual intercourse is an example of mental and bodily desires, the satisfaction of
which is gratification not estimable in money. A person may desire to many his son to
another's daughter, who may consent to the match on condition of his doing him some
official favour. It is bribery. A person may be taken into a cast on his promising to do an
official act as a motive or reward for his re-admission. It is bribery. In short, gratification
is any benefit or reward given to influence one in one’s behaviour in office, and incline
one to act contrary to the rules of honesty and integrity. Anything, whether a sum of
money, an object which appeals to one's senses, a dinner, a plateful of fruit, a medicinal
pill, is gratification within the meaning of the term, though the recipient may not be
punishable on that account. The expression “gratification” is used in this section in the
sense of anything which gives satisfaction to the recipient.279
It is manifest that to constitute an offence under Sec. 161 it is enough if the public
servant who receives the money takes it by holding out that he will render assistance to
the giver with any other public servant and the giver gives the money under that belief. In
the instant case, the receipt of Rs. 32 by the appellant was under circumstances which
clearly warrant that he had assured the complainant that in case he parted with Rs. 32 his
interest would be fully watched and he would be marked present even when absent. Thus
receipt of illegal gratification by the appellant as a public servant stands amply proved. 280
14. Motive or reward – It is not the receipt of “any gratification” alone that
constitutes the offence. It must have been given as a “motive or reward” to do any official
act.281 The word “motive” evidently refers to a future act, while the word “reward” is
manifestly intended to apply to “past service”. What is forbidden, speaking generally, is
the receiving of any gratification “as a motive” to do or a “reward” for having done any
such thing as is described in the definition. It is explained that “a person may receive a

279
Pramod Chand Shekher v. Rex. A.I.R. 1951 All. 546: I.L.R. (1950) All. 382: 1949 A.L.J. 441: State v.
Pundlik, A.I.R. 1959 Bom. 543 at p. 547 (D.B.) : 61 Born. L.R. 837: MAHMOOD KHAN MAHBOOB
KHAN PATHAN V. STATE OF MAHARASHTRA. 1997 S.C.C. (CR.) 894 AT P. 897 : J.T. 1997 (2)
S.C. 232 AT P. 237.
280
Ramesh v.State. 1986 Cr. L.J.1101 at p. 1106 (Delhi): Mohd. Nazeeruddin v. State of A.P. 1994 Cr.L.J.
2304 at p. 2306 (A.P.):'K. Nachimuthu v. State. 1994 Cr.L.J. 2760 at p. 2763 (Mad.).
281
Becehy Lal, 1950 A.L.J. 57 : Bisharnber Prasad. 1950 A.L.J. 708.

78
gratification as a motive for doing what he does not intend to do, or as a reward for doing
what he has not done”. This Explanation appears to be intended to guard against such a
plea as, to refer again to that well-known case, was set up as an excuse for Lord Bacon.
“Its pretended”, says Hume in his history, “that Bacon had still in the seat of justice,
preserved the integrity of Judge, and had given just decree against those very persons
from whom he had received the wages of iniquity.”282 The payment of sum to a public
servant by a party would be a bribe whether paid before the doing of an official act or
after the official act has been done or some official favour has been shown.283 The
contention that any amount received as reward for the past services rendered by a public
servant would not come within the mischief of Sec. 161, I.P.C., is not sustainable. The
term “reward” in Sec. 161, I.P.C., is intended to apply to a past service. The construction
that what is so referred to is only for doing or forbearing to do any official act in future
would lead to an absurdity, namely, whenever a public servant stipulates to receive
money for doing service, after service is rendered it will not be an offence under Sec.
161, I.P.C. This can never be the intention of the Legislature. 284 If the victim has not the
slightest notion that the money or other illegal gratification which passes from him is not
taken as a motive or reward for doing or forbearing to do any official act or for showing
or forbearing to show favour or disfavour to the victim, then it is difficult to hold that
such transaction will amount to an offence described in Sec. 161, I.P.C.285
To constitute an offence under this section it is enough if the public servant who
receives the money takes it by holding out that he will render assistance to the giver “with
any other public servant” and the giver gives that money under that belief. It may be that
the receiver of the money is in fact not in a position to render such assistance and is even
aware of it. He may not even have intended to do what he holds himself out as capable of
doing. He may accordingly be guilty of cheating. None the less he is guilty of the offence

282
2nd Rep.; Sec. 67. Reprint, p. 359.
283
Venkatsubbia, In re, A.1.R 1948 Mad. 63 a pp. 63, 64 : 48 Cr. L.J. 1008.
284
P. Celladurai, In re. (1969) 1 M.L.J. 508 at p. 511
285
Rabindranath Mukherji v. State, A.1.R 1956 Cal. 116 at pp. 117. 118: 1956 Cr. L.J. 522: State of Uttar
Pradesh v. Dr. G.K. Ghosh, 1984 S.C.0 (Cr.) 46 : (1984) 1 S.C.C. 254 : 1984 (1) Cr. L.C. 290 at p. 298: M.
Selvarajan v. State. 1996 (1) Crimes 590 at p. 597 (Mad.): Sat Pal Negi v. State of Haryana. 1996 (1)
Crimes 408 at p. 411 (P.& H.).

79
under Sec. 161 of the Indian Penal Code.286
Where a public servant who receives illegal gratification as a motive for doing or
procuring an official act whether or not he is capable of doing it or whether or not he
intends to do it he is quite clearly within the ambit of Sec. 161, I.P.C.287
Thus where a public servant who receives illegal gratification as a motive for
doing or procuring an official act whether or not he is capable of doing it or whether or
not he intends to do it he is quite clearly within the ambit of Sec. 161 of the Indian Penal
Code.288
Though lack of motive does not necessarily take the case out of the mischief of
the penal provisions. yet it is an important factor bearing on the question as to whether
the appellant has received the gratification as a motive or reward for doing an official act
or for showing any favour or disfavour in the exercise of his official functions.289
For sustaining the conviction against the accused it has to be proved beyond
reasonable doubt that the reward was received by the accused as a motive or reward for
appointing P.W. 1 as a teacher and not as a voluntary contribution towards the initial
expenses connected with the starting of the school.290
Bribes are paid not only to get unlawful things done but to get lawful things done
promptly since time means money. In case gate-passes and proformas have to be signed
by the Excise Inspector, and signatures can carry a price, the modus operandi of corrupt
officials may take the course of accepting money for doing what is lawful more
quickly.291
15. Form immaterial – A motive or reward may be received in any form and it may
be called by name, but it is a bribe if it is received under the promise or on the

286
Mahesh Prasad v. State of U.P., A.I.R. 1955 S.C. 70 at p. 71 : 1955 S.C.J. 153: (1955) 1 M.L.J. (S.C.) 83
: (1955) Andh. W.R. (S.C.) 83; Karsanbhai Manchubhai v. State of Gujrat. 1992 Cr. L.J. 3824 at p. 3834
(Guj.); Yashwant v. State of Maharashtra, 1996 (2) Crimes 323 at p. 331 (Bom.).
287
JWALA PRASAD V. STATE OF U.P., 1997 CR.L.J. 1103 AT P. 1112 (ALL.) ; MAHENDRA SINGH
CHOTELAL BI-IARGAD V. STATE OF MAHARASHTRA. I (1998) S.L.T. 401 AT P. 403: 1998 (1)
L.W. (CR.) 70 (S.C.) : 1998 (1) EAST. CR.C. 372 (S.C.) : 1998 S.C.C. (CR.) 639 AT P. 640: 1998 (1)
0.L.R 420 AT P. 421.
288
Mahesh Prasad v. State of U.P., (1955) I S.C.R. 965 at pp. 967-68.
289
R Venkatesan u. State, 1980 Cr. L.J. 41 at p. 45.
290
Chempan Varkey v. State of Kerala, 1971 Ker. L.J. 595 at p. 597.
291
Som Prakash v. State of Delhi, A.I.R. 1974 S.C. 989 at p. 993.

80
understanding of an official favour or ‘disfavour.292 A person may receive a bribe to do
what is his duty, and still it is a bribe if it is not a legal remuneration. Such is the demand
of a dasturi or a customary due by a Civil Court peon from the complainant if he wished
him to serve the summons even without identifier.293
16. Need not be corrupt or oppressive – In order to constitute a bribe, it is not
necessary that the motive should be corrupt or oppressive, or that the money received
should have been appropriated by the receiver.294
It is equally a bribe if the money is promised to a deserving institution in return
for the favour received from the officer. The mere fact that there is the show of
consideration would not take the offence out of the rule. But the payment of money to an
officer as a donation to a public institution, in which the officer is interested, would
amount to illegal gratification only if the payment is made either as a motive for the
officer showing a favour to the accused or as a reward for having already shown the
favour. The sine qua non is the establishment of a connection between the performance of
the official duty and the demand or payment of the gratification before it can be said that
the gratification, offered is a motive or reward for any of the purposes mentioned in the
section.295 Where no such connection is established and it is shown that the payment was
offered as donation independently of the doing of the official duty, no offence under Sec.
161 read with Sec. 114 can be said to have been established.296 In a Patna case,297 it was
held that the demand of an investment of Rs. 100 in war loan by the Arms Act clerk for
forwarding an application of a licensee for renewal of a licenee amounted to an offence
under this section. In another case, the accused, a Kulkarny of a village, obtained 12
annas from a tenant who had received Rs. 8 as a taqavi (or agricultural loan) in
consideration of his having written out the necessary papers and given the necessary
evidence to enable him to obtain the loan, which was a part of his routine duty. It
appeared that the accused had given out that he had worked for the tenant for eight days

292
Nga Kan Tha, 20 I.C. (Bom.) 237.
293
M.S. Mohiddin, In re, 1952 Cr. L.J. 1245: (1952) 2 M.L.J. 11 : 1952 M.W.N. 200: Mohan Lal
Moolchand v. Emperor. A.I.R. 1947 Nag. 109 : 47 Cr. L.J. 873: 226 I.C. 276: 1946 N.L.J. 586.
294
Appaji, I.L.R. 21 Bom. 517.
295
Crown Prosecutor v. R.K. Pillai, A.I.R. 1948 Mad. 281 at pp. 286. 287 : 49 Cr. L.J. 265 : 1943 M.L.J.
142: 1948 M.W.N. 86 : 61 M.L.W. 140.
296
Ibid.
297
B.K. Sen v. Babu Rajeshwari Prasad. A.I.R. 1945 Pat. 258 at p. 260: 1.L.R 24 Pat. 138: 2201.C. 416.

81
and that they must pay him 12 annas each, failing which he would get them into trouble.
The Court held that the accused was either guilty of bribery or extortion, and his
conviction for the former offence was affirmed, the Court holding that the accused made
use of his official position and claimed and obtained the money as a reward for rendering
services which he had not rendered in that position.298
17. Cases – Where a constable and others entered a house and apprehended certain
persons and gamblers, and afterwards released them on payment of a sum of money by
the latter, the offence committed is not house-trespass and extortion, but taking a bribe as
regards the constable, and abetment of that offence as regards the others.299 The taking of
a gratification by the reader of a Judge, to influence him is clearly an offence under this
section, it being wholly immaterial whether as a fact he did or did not influence him.300
The question in such cases is not what the receiver did, but what he professed to do, and
what the payer believed he could do, upon which he made the payment.301 Indeed, the
receipt of a valuable thing by a public servant, apart from motive, without consideration,
is in itself an offence, apart from the motive of the giver or the recipient,302 but if the
receiver was in a position of authority over the giver, the presumption will rather be that
the property was given and received as a motive for the conferment of some official
favour. So, where a patwari took grain from the ryots of his village, presumably for
showing favour to the giver in the discharge of his functions as patwari the Court
considered it an offence under this section rather than under Sec. 165.303
Where the two panch witnesses have not only turned hostile but have disclosed
facts which support the defence version of the incident and the decoy witness has stated
facts which probabilise the defence stand and the place and the manner in which the bribe
is said to have been offered and received make the prosecution story totally opposed to
ordinary human conduct and there is no acceptable evidence that the constable had given
search of his person before he started searching the person of the accused and the defence
of the appellant has all throughout been that he never received any bribe and there is

298
Mahomed Hossein, 5 W.R 49
299
Krishanji Ganesh, (1898) B.U.C. 955.
300
Kaleechurn, 3 W.R 10
301
Kishanlal, (1904) A.L.J. R. 207.
302
Section 165
303
Mudsooddeen, 2 N.W.P.H.C.R. 148.

82
evidence to show that there were many people moving around and the area was crowded,
it was held that in such surroundings a police man in uniform could ordinarily not accept
a bribe.304
To what extent a public servant determined on getting a bribe will go can never be
the subject of inflexible standards. It all depends upon the individual and in the instant case
the appellant has shown himself to be free of scruples. Not only did he extract his pound of
flesh in the shape of Rs. 1000 as consideration for the favourable judgment, but what is
more reprehensible made Murlidhar pay for his bottle of whisky, snacks as also the
evening's glass of milk.305
The question as to the handing over of any bribe and recovery of the same from
the accused should be considered along with other material circumstances one of which is
the question whether any demand was at all made by the appellant for the bribe. When it
is found that no such demand was made by the accused and the prosecution has given a
false story in that regard, the Court will view the allegation of payment of the bribe to and
recovery of the same from the accused with suspicion.
In the instant case, the prosecution has not been able to prove the guilt of the
appellant beyond all doubts. The appellant was found by the Special Judge to be honest
and his service record shows that he was an officer of integrity throughout his career.
The learned Special Judge seems to have accepted the statement of the appellant
that he has no immovable or movable property. His wife and children have no Bank
Account nor have they any property in their names.306 His insurance is also not more than
Rs. 30,000 and his Bank balance is less than 1000. For the defence of the case he had
borrowed Rs. 6000 from his GPF Account. He has a wife and three minor children to
support and there is no other source of income for the subsistence of the family. The
above statement of the appellant has been recorded by the Special Judge in considering
the sentence to be imposed on the appellant.
In the instant case, there was no independent witness excepting the two trapping
officers to show that the money had been actually accepted. Even the evidence did not

304
Khilli Ram v. State of Rajasthan. 1985 S.C. Cr. R. 157 at pp. 158, 160.
305
Sukhram Gangaram Thakre v. State of Maharashtra, 1990, (2) Cr. L.C. 375 at pp. 382, 383.
306
G.V. NanJundiah v. State (Delhi Administration) 1988 East Cr. C. 1 at pp. 7-8 (S.C.).

83
show that the accused did ask for money or explicitly accepted it.307 The statement of
P.W. 3 Jagdamba Singh, the veracity of which was not challenged shows that he in fact
himself put the money in the pocket of the accused, are pieces of evidence and circum-
stances which would show that this was not a fit case in which the accused could be
convicted for having committed an offence punishable under Sec. 161, I.P.C.
18. Official act – In order to make out a case under Sec. 161, I.P.C., the prosecution
has, apart from showing that the accused who was a public servant accepted some
gratification, also to prove that the gratification had been received for doing his official
act.308
Whenever a public servant receives an illegal gratification from persons over
whom he is set in authority, the Court may naturally connect the receipt of gratification
with the abuse of office. But it is not conclusive, for the facts disclosed may point to
another inference. Where, for example, two chowkidars discovered an amour between a
widow and a goldsmith at whose shop she was seen by them at night, and who thereupon
gave them bribe to hold their tongues and thereby to save him from the disgrace that
might attach to a person detected in a clandestine intrigue, it was held that, as the receipt
of money was unconnected with the performance of any official act, they could not be
convicted of bribery, as the hush-money received was received in a private matter in no
way connected with the performance of their official duties.309 The same view was taken
in another case in which a vaccinator had received a sum of money from the parents of
children whom he had previously vaccinated, and whom he otherwise threatened to lance
to take out a lymph. It was held that, since he could not legally do this without the
consent of parents his threat to cause pain to the children with a view to obtain money
constitute extortion, and that the offence was not one of bribery as his abstention from
lancing their arms could scarely be said to have been forbearing to do any official act, for
whether he was so ordered or not, he had no legal power to lance children for the
purpose.310 A public servant, who is a doctor with a right of private practice does not
necessarily perform an official act when he accepted a sum of money from an injured

307
Ram Naresh Misra v. State of U.P. 1992 U.P. Cr. R. 514 at p. 516 An.
308
State of Uttar Pradesh v. Kanhaiya Lal. 1976 Cr. L.J. 1230 at p. 1237 (All.).
309
Per Tyrrel, J., in Abdul Aziz. 1883 A.W.N. 179.
310
Harihar, 1 C.P.L.R 24.

84
person for showing one of his injuries as grievous in the injury report. He could not,
therefore, be convicted under this section.311
Private composition of official grievances against receipt of gratification is within
the mischief of the section. It is only when there is overlapping of private doing or
forbearing to do or official is possessed of private option an exceptional defence is made
out. Otherwise accepting money for forbearing to take legal action which the official is
obliged or duty bound to take as a part of his duty is clearly culpable. When duty arises to
take action and to proceed with it, its imminence is clearly an official act. With a view to
forbear from it, if gratification is accepted, may be under the colour of composition or
cover of compromise, it would still be corrupt. The question that the Court should ask in
such matter is whether but for the gratification, the official would have or would not have
proceeded to take action as is enjoined upon him because of the holding the public
office? It is the answer to such query that would eventually indicate the involvement of
the public official accepting the gratification into the culpability. No doubt, the provisions
of corrupt misconduct as defined by Sec. 5 (2) of the Prevention of Corruption Act as
well as the acceptance of gratification commonly called accepting the bribes. as
contemplated by Sec. 161 of the Indian Penal Code, being the matters of Penal law,
considerations of mens rea of the accused would necessarily be relevant and in that the
bonafide settlement by the accused under some misguided and mistaken beliefs may go
to furnish a valid defence to an accused public official charged with corruption, but like
any other matter that is all required to be determined under the background of the facts
and circumstances available in a particular case and that surround the commission of the
offence. Only because such a defence is available that itself does not affect the
ingredients of the offence. Compromise or composition by itself involves taking
gratifications and if its nexus is with the official act, that is, its doing or forbearing it to
do, the offence is clearly spelled out.312
19. Act of receiving illegal gratification is not an act done under colour of office –
311
Dr. K.L. Anand v. State, A.I.R. 1956 All. 673 at p. 675 (D.B.) : 1956 A.L.J. 466: 1956 A.W.R. (H.C.)
330: 1956 Cr. L.J. 1276: MANILAL NAGARDAS PARMAR V. STATE OF GUJARAT, 1998 (2)
CRIMES 157 AT P. 160 (GUJ.).
312
State of Maharashtra v. Jaywant Ramchandra Kamble, 1980 Cr. L.R. (Mah.) 325 at pp. 328, 329 ;
STATE OF U.P. V. ZAKAULLAH, 1998 (1) EAST. CRC. 619 AT P. 622 (S.C.): I (1998) S.L.T. 366:
1998 S.C.C. (CR.) 456: 1998 (1) CRIMES 58 (S.C.) : 1998 CRL.J. 863 (S.C.) : 1998 (1) EAST. CR.C. 619
(S.C.); SONELAL TIWARI V. STATE OF M.P., 1998 S.C.C. (CR.) 657 AT P. 659.

85
Acceptance of bribe cannot be described as an act done under colour of office or under
colour of duty because it is wholly unconnected with the rights and duties attaching to the
office. It is an act which is entirely extraneous to the nature of duties which the office
imposes on the incumbents. The only connection if at all, between the office and the
acceptance of bribe by the officer, is that the office affords an opportunity to the officer
to demand and accept the bribe. That, however, is not relevant consideration because
what law requires is not that the act must be done by virtue of office, but that it must be
done under colour of office, As stated in Wharton's Law Lexicon, 14th Ed., at p. 214, an
act is said to be done under colour of office when it–
“is unjustly done by the countenance of an office, being
grounded upon corruption, to which the office is as a shadow
and colour”; or as stated in Stroud’s Judicial Dictionary, 3rd
Ed., p. 421,
“Colour of office…… signifies an act, evil done by the
countenance of an office and it bears a dissembling fact of the
right of the office, whereas the office, is but a veil to the
falsehood, and the thing is grounded upon vice, and the office
is as a shadow to it.”
A public servant who accepts an illegal gratification cannot, either in justification
or in explanation point to the rights and duties of his office if he is challenged in the act
of taking the bribe, that is to say, he cannot ever use the office “as a veil to his
falsehood”, though, of course, he exploits his office to extort the bribe.313
20. Legal remuneration – There can be, of course, no offence unless the gratification
solicited or accepted was illegal. It would be illegal if it was forbidden by law, or by the
rules of Government. For example, medical men, though public servants, are permitted
by Government to charge their fee for medical attendance. A grateful patient may pay
them a douceur for their skilful cure, but it is not a bribe, unless its acceptance was
prohibited. So again, the pay received by a public servant is a legal remuneration, though
it is a motive for doing an official act, namely, their duties. So, again, public servants are
entitled to receive any reward given or sanctioned by Government, in which case it

313
Gorakh Fulaji Mahal v. State. A.I.R 1965 Bom. 124 at p. 126 : 66 Bom. L.R. 799.

86
ceases to be a gratification, but becomes a legal remuneration. The Government Architect
may be permitted to charge a fee for designing buildings for private persons; and an
engineer may be permitted to charge for his services in supervising their constructions. In
short, the sole test of legality is the order of Government. It is not a case of mala in se but
of mala que prohibita.
Section 161 is not confined to cases in which the gratification is taken for doing
an official act. The wording of the section is clumsy but does not appear to be so
restricted. It is an offence if a public servant accepts any gratification other than legal
remuneration as a motive or reward for rendering or attempting to render any service to
anyone with any public service as such.314
The accused cannot escape from the criminal liability if it is found that he had
collected any contribution towards the flag fund as and by way of consideration for
discharging his official duties. One of the important requirements of Sec. 161, I.P.C., is
the acceptance of any gratification whatsoever other than the legal remuneration as
motive for doing or forbearing to do any official act. Therefore, the moment it is found
that a particular amount was received for doing or forbearing to do an official act and if
that amount is not the legal remuneration for doing or forbearing to do that act, the
offence contemplated by that section would be complete, even though it is proved that the
amount was received for a laudable cause. The principle underlying this rule is that every
public servant is expected to perform his duties and to discharge his functions
irrespective of any consideration which does not amount to a legal remuneration.
Therefore, if a public servant insists upon a particular payment, which does not amount to
a legal remuneration as consideration for the discharge of his duties, he does commit an
act which amounts to an offence under Sec. 161, I.P,C., even though it is found that he
received that amount not for his personal purpose, but for a charitable purpose or for the
purpose of his employer. Even the employer is not entitled to refuse to discharge his
duties, which are of public nature and make it a condition precedent upon any payment
for any cause, however, laudable the said cause may be:315
The words “other than” occurring in the phrase “any gratification whatever other

314
Vana Ramchandiah, In re, A.I.R. 1927 Mad. 1011 at p. 1012 1.L.R. 51 Mad. 86 : 28 C.L.J. 1005.
315
Sumanlal Shival Gheewala v. State of Gujarat, 1977 Cr. L.J. 626 at p. 629 (Guj.) (1976) 17 Guj. L.R.
659: Manahar Srinivasrao Kshirsagar v. State of Maharashtra, 75 Bom. L.R. 490.

87
than legal remuneration” in Sec. 161. I.P.C., cannot be understood to mean “that is not”
but have to be understood to mean “apart from”. That is clear from not only the
intendment of Sec. 161, I.P.C., but also the context in which the words are used. When it
is so understood, the meaning of the phrase any gratification whatever other than legal
remuneration” would be “any gratification whatever apart from legal remuneration” and
that shows that there is no scope to understand that any gratification received should be
illegal one and, therefore, not a legal one and hence must have been prohibited by law.316
21. Government – The word “Government” in the definition of “legs remuneration”
includes,–
(a) Court of Wards, for the purposes of Sec. 19 (2) of the Centres Provinces Court
of Wards Act, 1899–see Act XXIV of 1899, Sec. 12; the United Provinces Court of
Wards Act, 1899 (United Provinces Act III of 1899); the Ajmer Government Wards
Regulations, 1888 (I of 1888), Sec. 11 (2); United Provinces Municipalities Act, 1900
(United Provinces Act I of 1900), Sec. 51: Bombay Court of Wards Act. 1905 (Bombay
Act I of 1905), Sec. 21 (2); the Punjab Court of Wards Act, 1903 (Punjab Act II of 1903),
Sec. 42 (3).
(b) The Senate of the Allahabad University, for the purpose of Sec. 18(1) of the
Allahabad University Act, 1887—see Act XVIII of 1887, Sec. 18 (2). (c) An employer of
a railway servant, as such, for the purposes of Sec. 137 (1) of the Indian Railways Act,
1890 (IX of 1890), Sec. 137 (2).
22. Attempt to obtain a bribe – The section speaks of the “attempt” to obtain a bribe
as being in itself an offence. Mere demand or solicitation by a public servant amounts to
the commission of an offence under Sec. 161 of the Indian Penal Code.317 The word
“attempt” has been held to imply no more than a mere solicitation, which again may be
made as effectually in implicit as in explicit term.318 Moreover, in order to constitute an
attempt it is not necessary that a specific sum be asked for or that any definite promise of
return service be made. It is enough that the giver is led to believe that this money was
likely to be profitably spent. A clerk in the Pension Department met an applicant for
pension, and told him that he had succeeded in securing increased pensions in two cases,

316
Subramanya v. State, (1976) 1 Knt. L.J. 178 at p 191
317
Mubarakali v. State, A.I.R. 1958 M.P. 157 at p. 160: 1958 M.P.C. 72.
318
Baldeo Sahai, I.L.R. 2 All. 253.

88
that much authority was vested in him, and that the complainant might be similarly
benefited by a similar karrawai or procedure. The candidate refused to adopt the
suggestion and the clerk was prosecuted for “attempting to obtain illegal gratification,”
and he was convicted by Spankie and Pearson, J.J., the latter observing that “to ask for a
bribe is an attempt to obtain one; and a bribe may be asked for as effectually in implicit
as in explicit terms.”319 Indeed., it is seldom that a person is so incautious as to call a
bribe a bribe, He calls it by some euphemistic ambiguous name, dasturi, inam, or
baksheesh but a bribe is a bribe by whatever name it may be called, and how muchsoever
customary its payment may have become. The baksheesh paid to peons of Government
officials, by persons, having anything to do with them, is a bribe, pure and simple, though
its payment has passed into a tradition. But some mamool such as Pongal, Deepawali,
Dassehra and Christmas mamools paid to peons as baksheesh is not illegal gratification
or bribe as they are not paid for showing or of forbearing to show favour or disfavour in
the exercise of official functions.320 So, again, some degree of circumlocution is
inevitable when an offer of a bribe is made to a comparative stranger. Some times the
offer is made in a language which leaves much to be understood. For instance, where the
prosecutor in a nose-cutting case fearing an adverse verdict offered some money to a
juryman’s. brother which he refused, and he then approached the juryman, who was also
the foreman, direct and said: “The nose-cutting case is a true one. There is something to
be had in it. Please see your brother before going to Court. I can spend as much as Rs.
1,000 in this matter,” the conversation was rightly construed to be the offer of a bribe and
the accused was thereupon convicted under Sec. 116 read with this section.321
The words “obtaining” or “attempting to obtain” in Sec. 161 include threat, by
putting the complainant in fear of injury and of implication in a criminal case. The illegal
gratification may be obtained by threat and if that is so done, even then it would come
under this section.322
Acceptance or obtaining, or agreeing to accept or attempting to obtain is a
voluntary act. Where in the statement of the accused, this element of voluntary

319
Ibid.
320
M.S. Mohiddin, In re. A.I.R. 1952 Mad. 561 at p. 563: 1952 Cr. L.J. 1245: 1952 M.W.N. 220: (1952) 2
M.L.J. 11.
321
Bawool Chander Biswas. 1 W.R 36, followed In Ratan Mont Dey, I.L.R. 32 Cal. 292.
322
K.P. Sinha v. Aftabuddin, A.I.R 1955 Pat. 453 at p. 456; 1955 B.L.J.R. 183: 1955 Cr. L.J. 1382.

89
acceptance is missing the statement of the accused by itself cannot provide the necessary
factual basis or fact situation which must exist before presumption can be raised.323
Both the words “accept” and “obtain”, signify an active conduct on the part of the
person in accepting or obtaining a thing. Accept and obtain. Thus if something is thrust
into the pocket of a person without his consent and without a request from his side it
would not be an acceptance or obtainment of the said thing on the part of the person in
whose pocket the same is inserted or thrust within the meaning of Sec. 7 of the
Prevention of Corruption Act, 1988.324 It was held in Apex Court case ‘Shanti Lal Meena
vs. State of N.C.T. of Delhi, C.B.I.’, S.L.P. (Criminal Appeal No. 585/2015). Accused a
sub Inspector of Police – convicted in a corruption cases and sentenced to 2 year R.I. –
Request for reduction of sentence rejected : The keeper had become poacher.
Prevention of Corruption Act 1988, Section 13 & 7 sentencing policy under
prevention of corruption act.
 As far as punishment for offences under the P.C. Act is concerned there is hardly
any serious scope for reformation the convicted public servant – The moment he
is convicted, he loses his job – hence there is no significance to the Theory of
reformation of his conduct in public services – The only relevant object of
punishment in such cases is denunciation and deterrence.
 Unless the court award appropriately deterrent punishment taking note of the
nature of the offence under the PC Act and the status of the public servant at the
relevant time, people will lose faith in the justice delivery system and the very
object of the legislation on prevention of corruption will be defeated.
 The judgement on sentence shall not shock the common man – it should reflect
the public abhorrence of the crime.
 While awarding sentence in cases under the PC Act, the Court should bear in
mind the expectation of the people of its paramount duty to prevent corruption in
society by providing prompt conviction and stem sentence.
23. Service in consideration for a bribe.–The section specifies a number of acts

323
Banshi Lal Yadav v. State of Mar. 1981 U.P.C.C. 111 at p. 113.
324
L.K. ADVANI V. CENTRAL BUREAU OF INVESTIGATION. 1997 (4) CRIMES 1 AT P. 26
(DELHI); C.K. DAMODARAN NAIR V. GOVERNMENT OF INDIA. 1997 (1) BOM. CR.C. 364 AT P.
369 (S.C.).

90
which form, as it were, the consideration for a bribe. They are all instances of the abuse
of official position, either by favouring the giver of the bribe, or by confounding his
enemies. The offence being directed against maladministration, a public servant receiving
a gratification, whether for himself or for another, is equally guilty. And as there is
nothing against the briber being a public servant, it may be that both the giver and the
receiver of a bribe are public servants, e.g. where a person offers a bribe to his superior
officer to obtain his promotion. Further, as one public servant may solicit a bribe for
another, it may be that a number of public servants may become involved in the same
case. Again, since the receiver may render or “attempt” to render service with
Government or any public servant, as such it follows that the receiver need not
necessarily be himself serviceable to the briber; for it is enough if he procures him some
advantage from another, in which case the law presumes that he must have exerted his
influence on behalf of the person promising or paying him the bribe.
Where a vaccinator, an employee under Nagar Palika accepts, illegal gratification
on behalf of the Sanitary and Food Inspector, he is guilty of offences under Sec. 161,
I.P.C., and of criminal misconduct under Sec. 5 (1) (d) of the Prevention of Corruption
Act.325
24. “For doing or forbearing to do” – That influence must, how-ever, have been
exerted in the definite channel stated in the section, that is to say, it must either amount to
the doing or forbearing to do an official act or favour or service with any public servant.
As an instance of such service may be mentioned in the following case: A railway goods
clerk suspected certain frauds in the goods office of which he made a report to his
superior. The matter was referred to the District Magistrate who referred it to the police
for enquiry, and the goods clerk was deputed to assist them in the discovery and
prosecution of the culprits. While he was on such duty. the accused offered him Rs. 500
if he closed the enquiry and returned his account-books unchecked. He was prosecuted
and the question was whether the offence fell under this section. It was held that the
goods clerk was a public servant, but inasmuch as he had not then any official functions
in the discharge of which he could do any act or show any favour, the offence was not

325
Surender Pal Singh v. State, 1981 A.L.J. 1153 at p. 1159: State of Gujarat v. Pravinbhai Veljibhai Jadav,
1994 Cr. L.R. (Guj.) 30 at p. 39.

91
covered by the first and second clauses, but it was covered by the third clause of this
section, inasmuch as the accused thought that the clerk alone possessed the technical
knowledge necessary to bring home the suspected fraud to them from the records of the
goods office, and that if he represented to the police that there was nothing disclosed in
the accused’s books on comparison with the railway records to prove anything against
them he could probably succeed in persuading the Police Inspector in charge of the
enquiry who was public servant, acting as such, to make a report to that effect to the
District Magistrate and to get the case dismissed, and the books returned.326
The essence of Sec. 161 is that a public servant should do an act or omit to do an
act which he is expected to do in connection with his official functions. In the discharge
of his official functions, a public servant is expected to do acts recognised by law. The
law does not recognise acts of a public servant which are not legal. If a public servant
does illegal acts, the said acts cannot be said to have been done in the exercise of his
official functions.327
25. Facts constituting another offence – An offence committed under such
circumstances may conceivably fall under the graver, though in some respects, more
general provisions of Sec. 214. If, suppose in the case noted in synopsis no. 24 above, the
accused, instead of approaching the clerk had approached the Police Inspector and made
him a similar offer, his offence would then be one under Sec. 214, and not under this
section. Indeed, it was so held in a case in which the accused had offered a bribe to a
public servant in consideration of his not proceeding against him whose papers and books
he had seized for the purpose of bringing him to legal punishment.328
The fact that an offence committed is principally one under Sec. 384, Penal Code,
is no bar to a conviction under the present section if the offence comes within the
definition of it. If the public servant receives a portion of the agreed sum as a
consideration for giving a job and after the job is given obtains the balance by threatening
dismissal, the offence is essentially one of bribery.329
26. Power to do or not immaterial – The question whether a public servant who had

326
Zaharia, (1898) P.R. No. 9.
327
Raj Bahadur v. State, 1980 A.L.J. 670 at 672: (1980) 6 A.L.R 613 at pp. 614-15.
328
Magraj, (1881) P.R. No. 13.
329
K.H. Bhattacharjee v. Emperor, A.I.R. 1944 Cal. 374 at p. 376 : 48 C.W.N. 632; Chutkannoo Singh v.
Rex. A.I.R 1949 Oudh 84 : 51 Cr. L.J. 219.

92
discharged the duty entrusted to him and had become functus officio could not in the
exercise of his official actions show any favour or render any service, has been answered
differently by different Courts. It was raised before the Supreme Court in Mahadev
Dhanappa v. State of Bombay,330 but was not decided. Their Lordships, however,
expressed their approval of the majority view of the Allahabad, Lahore, Bombay, Nagpur
and Orissa High Courts331 against this contention in preference to the view of the Calcutta
and Madras High Courts.332 The stress in the section is not so much on the performance
of the official act itself or on its being capable of performance but on the nature of the act
as being official.333
In the case of Pritam Singh v. State334 it was held that “in a case under Sec. 161 of
the Indian Penal Code the state of mind of the person who offers ‘gratification’ has
nothing to do with the question whether the public servant to whom illegal gratification is
offered is or is not in a position to do the act for doing or for not doing which the amount
is offered to him.”
When a public servant is charged under Sec. 161, I.P.C., and it is alleged that the
illegal gratification was-taken by him for doing or procuring an official act, it is not
necessary for the Court to consider whether or not the accused public servant was capable
of doing or intended to do such an act.335 Even if the public servant is not capable of

330
A.I.R 1953 S.C. 179: 1953 Cr. L.J. 902: 55 Bom. L.R. 513.
331
Emperor u. Phul Singh. A.I.R 1941 Lah. 276 : 42 Cr. L.J. 636: 195 I.C. 229 : 43 P.L.R. 273; Gopeshwar
Mandal v. Emperor. I.L.R (1947) Nag. 611 : 49 Cr. L.J. 124: A.I.R 1948 Nag. 82 : 1947 N.L.J. 393: Ram
Sewak v. Emperor, I.L.R (1947) All. 444 : 48 Cr. L.J. 467: A.I.R. 1948 All. 17; Ram Swamp v. The
Crown, A.I.R. 1949 Ajmer 12 : 50 Cr. L.J. 400; Indur Dayal Das Advani v. State of Bombay, A.I.R. 1952
Bom. 58 : 53 Bom. L.R. 699; Rajlal Data v. State, A.I.R 1952 H.P. 1 : 1952 Cr. L.J. 107; State v. Sadhu
Charan, A.I.R. 1952 Orissa 73 : 1952 Cr. L.J. 367; Mahadeo Daunappa Gunaki v. State, I.L.R. (1952)
Born. 900: A.I.R. 1952 Born. 435: 1952 Cr. L.J. 1572 : 45 Bom. L.R. 153; State v. Mehta Basilal
Baldevdas, A.I.R. 1954 Sau. 62: Pritam Singh v. State A.I.R. 1954 Punj. 223; Kishan Lal, 1940 AL.J. 297
(n); Ajudhia Prasad v. Emperor I.L.R. 51 All. 467: AI.R. 1928 All. 752; 30 Cr. L.J. 67; Sindhi Nyalchand
Kevalram v. State, I.L.R 8 Sau. L.R. 306: 1955 Cr. L.J. 1633 : A.I.R 1955 Sau. 117 (D.B.); Bhimsingh v.
State, A.I.R. 1955 Raj. 108: 1955 Cr. L.J. 992.
332
Shamsul Haq v. King-Emperor. A.I.R. 1921 Cal. 343 : 23 Cr. L.J. 1 (Cal.); Bazgul Khan & Co. v. Abdul
Latif, A.I.R. 1935 Pesh. 25 : 154 I.C. 874; Qazi Rahimullah v. Emperor, A.I.R 1935 Pesh. 266 : 36 Cr. L.J.
626: Pulipati Venlcia, In re, AI.R. 1924 Mad. 851 : 26 Cr. L.J. 396: 1947 M.L.J. 662; Venkatrama Naidu V.
Emperor, A.I.R. 1929 Mad. 756 : 30 Cr. L.J. 1055: Venkatnathan, A.I.R 1947 Mad. 306 (2) : (1947) 1
M.L.J. 179 : 60 L.W. 149: 1947 M.W.N. 158.
333
State v. Sadhu Charan Panigrahi, A.I.R 1952 Orissa 73 at p. 74 : 1952 Cr. L.J. 367.
334
A.I.R. 1954 Punj. 228 at p. 230; State of Rajasthan v. Mohd. Habib, 1973 Cr. L.J. 703 at p. 709.
335
Shiv Raj Singh v. Delhi Administration, 1968 S.C.D. 1005 at p. 1009 : A.I.R. 1968 S.C. 1419; Mahesh
Prasad v. State of Uttar Pradesh, (1955) S.C.R 165; Ramesh Kumar Gupta v. State of M.P., 1995 S.C.C.

93
rendering any service to the complainant, yet the fact remains that according to the
allegations of the prosecution he demanded money with the object of showing favour to
the complainant. It is also not denied that till 25th July, 1971, the appellant was in charge
of the Pawar Circle, Maisi, where the complainant resides. According to the statement of
the complainant he had been going to the Patwari to give him the possession of the land
but the Patwari, that is, the accused, used to put him off. It was on the 20th day of July,
1971 that the accused demanded Rs. 100 from him for doing the job. So on that date he
was admittedly the Patwari of that circle and according to the statement of the witness the
accused wanted the money to be paid to him on 28th July at village Jawar. Therefore, in
these circumstances this contention of the counsel for the appellant that he was not the
Patwari of that circle on that date and was not in a position to show any favour to the
complainant has got no force if it is proved that the money was actually given and
recovered from him.336
Indeed, when a public servant, being a police officer, is charged under Sec. 161 of
the Indian Penal Code, and it is alleged that the illegal gratification was taken by him for
doing or procuring an official act, the question whether there was any offence against the
giver of the gratification which the accused could have investigated or not, is not material
for that purpose. If he has used his official position to extract illegal gratification, the
requirement of the law is satisfied. It is not necessary in such a case for the Court to
consider whether or not the public servant was capable of doing or intended to do any
official act of favour or disfavour. 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 the public servant, who accepts the gratification, takes it by inducing a belief or
by holding out that he would render assistance to the giver “with any other public
servant” and 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. This is clear from the last
Explanation appended to Sec. 161. Thus, even if it is assumed in a case that the

(Cr.) 909 at p. 912; M.O. Shamshuddin v. State of Kerala, (1995) 3 S.C.C. 351 : 1995 S.C.C. (Cr.) 509 :
J.T. 1995 (3) S.C. 367.
336
Gurbax Singh v. State of Himachal Pradesh, 1977 Cr. L.J. 1676 at p. 1679 (H.P.).

94
representation made by the accused regarding the charge of abduction against
complainant was, in fact, false, this will not enable him to get out of the tentacles of Sec.
161, although the same act of the accused may amount to the offence of cheating also.337
27. Abetment of bribery – This section deals only with the criminal liability of
public servants. Section 165-A provides for the punishment of the giver of bribes. Such a
person is also liable under Sec. 109 of the Indian Penal Code. A person offering a bribe,
whether received or rejected, is under the provisions of that section guilty of abetment.
But in order to make that section applicable, the conditions therein stated must be strictly
fulfilled. If, therefore, the offence was more in the nature of extortion than bribery, the
briber would hardly be proceeded against as an abettor, whatever may be the strict view
of that section.
28. Giving bribe on demand – But the mere fact that the briber paid the bribe
because the public servant concerned had directly or indirectly solicited it, does not
exempt the briber from his liability as an abettor, for to pay a bribe, on demand, is an
abetment of the offence.338 Though it may then be a question whether the demand was a
mere demand or anything more. Dealing with the question of the liability of a person
giving a bribe on demand made by a public servant, a Division Bench of the Allahabad
High Court observed in Emperor v. Dinkar Rao.339
“It is interesting to note the authors of the Code did not contemplate the punishment
of a person who complies with a demand made by public servant for a bribe, but it appears
that their views were not accepted by the Legislature.”The Code does not give effect to
their views. We are bound to give effect to the language of the statute and cannot give
effect to draftsmen’s views which were probably intentionally rejected by the Legislature.”
A Full Bench of the Bombay High Court held per Curiam in Queen-Emperor v.
Maganlal,340 that the limits of the application of the doctrine of necessity as an excuse for an
act otherwise criminal are those prescribed in Sec. 94, Indian Penal Code, and that witnesses

337
Chaturdas Bhagwandas Patel v. State of Gujarat, 1976 Cr. L.J. 1180 at pp. 1185-86 (S.C.).
338
Ma Ka, (1892. 1895) U.B.R. 158 at p. 163; Emperor u. Nga Hnin 38 LC. (LB.) 439 followed in Emperor
v. Chaube Dinker Rao, A.I.R 1933 All. 513 at p. 516 : I.L.R. 55 All. 654. But even such a person is less of
an abettor than one who pays unsaked; Deonandan Pershad, I.L.R. 33 Cal. 659; or pays to one who merely
received it as evidence against the giver; Nga Hnin, 38I.C. (L.B.) 439: Pandita, I.L.R. (1950) Nag. 229:
1950 N.L.J. 435 (complying with demand of public servant to avoid pecuniary injury or personal loss).
339
I.L.R 55 All 654 : A.I.R 1933 All. 513: 34 Cr. L.J. 623 :1933 A.L.J. 1481.
340
I.L.R 14 Bom. 115 (F.B.).

95
who in order to avoid pecuniary injury or personal molestation had offered or given bribes to
a public servant were abettors of the offence of taking an illegal gratification.341
29. Demand implicit in the entire affair –The evidence required to be led by the
prosecution for proving the demand, if the acceptance is proved, would be a very slight
character. Quite often than not, the acceptance spells “demand” because no public officer
can dream of accepting any moneys from a stranger without there being some pre-
existing cause for the same and such cause would amount to demand.342 Mere demand or
solicitation by a public servant amounts to the commission of an offence under Sec. 161,
I.P.C.343
In the recent case of Supreme Court it has been observed that once the demand
and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by
the evidence, then conviction must follow under Sec. 7 of Prevention Corruption Act
against the accused.
30. Requisites of abetment – In order to make a person liable for abetment there
must be evidence to show that the abetment was of an offence falling under any section
of the Code. So, in order to render a person liable for abetment of an offence described in
this section, it must be shown that the offer was made for any of the purposes here
mentioned. If such an offer be made, the offence of abetment is complete, it being
immaterial whether the offer was or was not accepted; the only difference it then makes
is in the degree of abetment, an offer rejected being punishable under the milder
provisions of Sec. 116, an offer accepted being punishable under Sec. 109.344
To constitute an abetment of the doing of a thing, therefore, there should be, as
required under Sec. 107, an instigation to do that thing or conspiracy for the doing of it
followed by an act or illegal omission in pursuance of that conspiracy, or intentional aid
in doing the same by any act or illegal omission. To bring home to the accused the guilt
under Sec. 161 read with Sec. 114, Penal Code, it would be necessary for the prosecution
to prove conclusively with regard to the payments made to the officers that, while making
341
Pandita Gangaram v. Crown. A.I.R. 1950 Nag. 1 at p.
342
51 Cr. L.J. 235 : 1.L.R (1950) Nagpur 229: 1950 N.L.J. 435; K. Nachimuthu v. State 1994 Cr.L.J.2760
at p. 2762 (Mad.). 5. Manik Shirang Gaikwad v. State of Maharashtra. 1989 Cr. L.J. 2268 at p. 2275
(Bom.).
343
KMK vs. State of Karnataka, 2015(2) LH (SC) 1232.
344
Jagat Chandra Sarma, 5 C.W.N. 332; Balkrishna v. Emperor, A.I.R. 1948 Nag. 245 at p. 249: 49 Cr. L.J.
331 : 1947 N.L.J. 310.

96
the payments, they instigated or intentionally aided those officers to accept an illegal
gratification for one or other of the purposes mentioned in Sec. 161.345
31. Accomplices – Although a bribe-giver is not always an accomplice of the
persons, who receive it, because if one gives bribe for the purpose of becoming
instrumental only in the detection of the crime and the offender without having an
intention to do the crime, he cannot be considered to be a guilty associate of the bribe-
taker and in law his evidence can be acted upon and a conviction can be based thereon
without corroboration by other evidence but as a rule of caution and prudence, his
testimony must be subjected to close and careful scrutiny, before it can be made a basis
for a conviction. The reason is that he is undoubtedly a decoy witness, who is highly
interested in the success the tria1.346
It has been, sometimes, said that, not only he who offers, but they who are present
at the time of the offer or the payment, are guilty of abetment. 347 But this is by no means
the case, for a person may be present as a spectator haud particeps.348 Such a person is, of
course, to be distinguished from those, who actually contribute to or negotiate for its
payment.349 But failing to be an abettor, such a person may be regarded as an accomplice,
as one upon whose testimony the courts regard it as unsafe to convict a person of bribery.
32. Spectator accomplices. – Now the question whether a person who is merely
present, but does nothing to prevent or disclose the commission of an offence committed
in his presence, is or is not an accomplice, depends upon the nature of the offence
committed and the duty cast upon him for preventing or disclosing it. The question,
however, is not a question of the competency, but of the credit of such a witness. The true
rule appears to be that a person who was present at the commission of a crime, cannot be
regarded as an accomplice merely because he did nothing to prevent or disclose it, unless
he was under an obligation to do so. The cases in which spectators have been treated as
accomplices are cases of murder350 or theft,351 committed under circumstances in which
the Court could justifiably suspect the non-disclosure as being due to some degree of
345
Crown Prosecutor u. RK. Pillai, A.I.R 1948 Mad. 281 at p. 285: 49 Cr. L.J. 265 : 61 M.L.W. 140.
346
State of Rajasthan v. Ved Prakash, 1980 Raj. Cr. C. 108 at pp. 110-11.
347
Mahomed Hossein. 5 W.R. 49.
348
“Spectator and not a participant.”
349
Deodhar Singh. I.L.R. 27 Cal. 144: Deonandan Prasad, I.L.R. 33 Cal. 649.
350
Chando Chundaline, 24 W.R. 55.
351
Ishan Chander, I.L.R. 21 Cal. 323.

97
participation in the crime. Such participation may be inferred in the case of persons who
had subscribed to the payment of bribe.352 Even in such a case, they cannot be treated as
accomplices if they paid the money under threats, in which case the offence is rather one
of extortion than of bribery.353
33. No offer – A somewhat curious case arose in Bombay in which the Judges were
not quite agreed on the subject of the accused’s guilt though he was acquitted. The
accused’s cousin had applied for sanction to erect a building. He had himself tendered for
the supply of sleepers to the municipality. The objection to building was waived by the
Commissioner. The accused came to see the Commissioner, thanked him for the waiver
and reminded him of his outstanding tender for sleepers. He also enquired if it was any
good putting in a tender for cement for which the municipality had invited tenders. He
said that it needed influence to secure the contract. He then said that he wanted to see the
Commissioner, as his cousin wished to give him Rs. 5,000. The Commissioner became
indignant whereupon the accused apologised. The accused was acquitted, and on appeal
by Government it was held that the words “my cousin wishes to give you Rs. 5,000 did
not amount to an offer, but that the accused wished merely to sound the Commissioner,
and that, therefore, the accused’s acquittal was right.354
34. Gratification – For finding out whether a particular promise or act amounts to
gratification, within the meaning of the Act, two tests have to be satisfied. First, that the
gratification must be something which is calculated to satisfy a person’s aim, object or
desire and secondly, such a gratification must be of some value, though it need not be
something estimable in terms of money.355
35 Jurisdiction cannot depend on incorrect legal description of the offence -
Where the facts make out an offence under Sec. 161, I.P.C., as well as Sec. 5(2) of the
Prevention of Corruption Act and, therefore, held that the bar of Sec. 7(1), Criminal Law
Amendment Act against the Magistrate taking cognizance of the offence operates even
though these two particular offences were not mentioned by the complainant in his

352
Changan. I.L.R. 41 Bom. 331: Manganlal, I.L.R. 14 Bom. 115.
353
Akhoy Kumar v. Jagat Chander, I.L.R 27 Cal. 927.
354
Amiruddin. 67 I.C. 818 (Bom.); Emperor v. Chaube Dinker Rao, A.I.R. 1933 All. 512 : 1933 A.L.J.
1481; Khilli v. State of Rajasthan, 1985 Cr. L.J. 504 (S.C.) : A.I.R. 1985 S.C. 79 : Moti Ram Jai Singh
Pawar v. State of Maharashtra, 1985 (2) Crimes, 18.
355
Tirlochan Singh v. Karnali Singh, A.I.R. 1968 Punj. 416 at p. 425 : I.L.R. (1968) Punj. 496.

98
complaint. Jurisdiction cannot depend on the incorrect legal description of the offence
made out by the facts in the complaint.356
36 Investigation by police officer below rank of Deputy Superintendent of
Police, effect of, on trial – As a result of the amendment of the Prevention of Corruption
Act, 1947, by Act 59 of 1952 the new Sec. 5-A provides that “notwithstanding anything
contained in the Code of Criminal Procedure, no police officer, below the rank of a
Deputy Superintendent of Police (elsewhere than in the Presidency towns of Calcutta,
Madras and Bombay) shall investigate any offence punishable under Secs. 161,165 or
165-A of the Indian Penal Code or under Sec. 5(2) of this Act without the order of a
Magistrate of the first class.” What is the effect of a breach of this mandatory provision
on a trial for any of the offences specified as aforesaid? It is settled law that an illegality
committed in the course of investigation does not effect the competence and jurisdiction
of the Court for trial.357 The granting of permission under Sec. 5-A of the Prevention of
Corruption Act is not to be treated by a Magistrate as a mere matter of routine but it is an
exercise of his judicial discretion having regard to the policy underlying it. When a
breach is brought to the notice of the Court at an early stage of the trial the Court will
have to consider the nature and extent of the violation and pass appropriate orders for
such re-investigation as may be called for, wholly or partly, and by such officer as it
considers appropriate with reference to the requirements of Sec. 5-A of the Act.358 The
foregoing principles were applied in Mubarak All v. State.359
In Mubarak Ali v. State,360 ten days after the investigation had started, sub-
inspector presented an application to the City Magistrate saying that he had been deputed
to investigate the case and that under Sec. 5-A (c) he sought permission for necessary
investigation. The Magistrate without giving a moment’s thought to this application
wrote on it “permission given”. Following the decision of the Supreme Court in H.N.

356
Sheo Narain Singh v. State of Uttar Pradesh. 1981 Cr. L.J. 635 at p. 636 (All.): Indubhusan Das Gupta v.
State by Inspector of Police. 1995 Cr.L.J. 1180 at p. 1184 (Cal.): NAR BAHADUR BHANDARI V.
STATE OF SIKKIM. V (1998) S.L.T. 79 AT PP. 85. 86.
357
H.N. Rishbud v. State of Delhi A.I.R 1955 S.C. 196 at p. 200: 1955 S.C.J. 283: Parbhu v. Emperor.
A.I.R 1944 P.C. 73 : 46 B.L.R 838; Lumbhardar Zutshi v. King, A.I.R. 1950 P.C. 26: 63 M.L.W. 197: 52
Bom. L.R. 480.
358
H.N. Rishbud v. State of Delhi, A.I.R 1955 S.C. 196 at p. 205.
359
A.I.R 1958 M.P. 157 at p. 159: Sailendra Nath Bose v. State of Bihar, A.I.R 1968 S.C. 1292: Vishnu
Kondaji Jadhav v. State of Maharashtra, 1994 S.C.C. (Cr.) 1415 at p. 1418
360
A.I.R 1958 M.P. 157 at p. 158.

99
Rishbud v. State of Delhi,361 their Lordships of the Madhya Pradesh observed:
“The granting of such permission is not to be treated by a Magistrate as a mere
matter of routine but it is an exercise of his judicial discretion having regard to the policy
underlying it.
“Therefore, when such breach is brought to the notice of the Court at an early
stage of the trial the Court will have to consider the nature and extent of the violation and
pass appropriate orders for such investigation as may be called for, wholly or partly, and
by such officer as it considers appropriate with reference to the requirements of Sec. 5-A
of the Act. It is in the light of the above considerations that the validity or otherwise of
the objection as to the violation of Sec. 5 (4) of the Act has to be decided and the course
to be adopted in these proceedings, determined.”362
In the Madhya Bharat case the question of jurisdiction was raised as a
preliminary point and the High Court therefore ordered re-investigation of the matter by
competent authority. Under Sec. 5- A of the Prevention of Corruption Act, 1947, before
an officer below the rank of a Deputy Superintendent of Police can investigate an offence
under Sec. 161, Sec. 165 or Sec. 165-A of the Indian Penal Code, or under sub-section
(2) of Sec. 5 of the Act, he must obtain the order of a Presidency Magistrate or a
Magistrate of the first class, as the case may be. The Magistrate must, before granting
permission, satisfy himself that there is a prima facie case, as for instance, perusal of the
First Information Report.363
If no attempt had been made to bring it to the notice of the Court at an early stage
before the trial commenced that the investigation was vitiated for non-compliance of the
requirements of Sec. 5-A, Prevention of Corruption Act, the investigation made by the
Sub-Inspector, even though it is an infraction of the provisions of Sec. 5-A, will not
vitiate the trial when no prejudice appears to have been caused to the appellant for the
violation of the mandatory provisions of this section.364
The accused can be said to have been prejudiced by a defective investigation only

361
A.I.R 1955 S.C. 196 at p. 205.
362
Mubarak Ali v. State. A.I.R 1958 M.P. 157 at pp. 158, 159.
363
Union of India u. Mahesh Chandra Sharma, A.I.R. 1957 M.B. 43 at pp. 46-47 : Madh B.L.R. 1956 (Cr.)
395: 1957 Cr. L.J. 184.
364
Gurbax Singh v. State of Himachal Pradesh, 1977 Cr. L.J. 1676 at p. 1680 (H.P.): State through Anti-
Corruption Bureau v. K.K. Jagtiani, J.T. 1996 (4) S.C. 495 at p. 501, 502.

100
if it can be shown that because of it he did not get fair trial. The question whether the
accused had a fair trial or not will depend upon the facts of each case. Merely because
there was some irregularity in the investigation or that the investigating officer had some
animus against the accused or that the investigation was being supervised by a person
who was interested cannot, by itself, lead to an inference that the accused had necessarily
been denied a fair trial. Before an accused can, in such circumstances, claim that he has
been prejudiced, he has to indicate precisely the manner in which a fair trial has been
denied to him in a case where investigation by an officer below the rank of Deputy
Superintendent of Police, was permitted.365
It is clear from the provisions of Sec. 5-A (1)(d), Prevention of Corruption Act,
that any officer below the rank of a Deputy Superintendent of Police is not entitled to
investigate into the case of an offence under Sec. 161, I. P.C. , or under Sec. 5 of the Act
without the order of a Presidency Magistrate or a Magistrate of the first class. Where the
Magistrate did not realize the significance of his order giving permission, but only
mechanically issued the order on the basis of the application which did not disclose any
reason, presumably because he thought that what was required was only a formal
compliance with the provisions of the section, it must be said that the order passed by the
Magistrate does not strictly comply with the provisions of Sec. 5-A of the Act, but if the
defence has not been able to show that the invalidity of the preceding investigation has
brought about any miscarriage of justice though there is failure to strictly comply with the
provisions of Sec. 5-A of the Act, the trial of the accused has not been vitiated.366
37. Sanction – There was at one time considerable difference of opinion, as to
whether for a prosecution in respect of an offence under Sec. 161 of the Indian Penal
Code, sanction either under Sec. 270 of the Government of India Act, 1935, or under Sec.
197 of the Criminal Procedure Code was necessary. This question was finally determined
by the Privy Council in the decision in H.H.B, Gill v. The King367 and Phanindra
Chandra Neogy v. The King,368 where in their Lordships held that in respect of the

365
State of Uttar Pradesh v. Kanhaiya Lal, 1976 Cr. L.J. 1230 at pp. 1234-35 (All.).
366
K.B. Mulla v. State of Karnataka, 1977 Cr. L.J. 925 at. pp. 929, 930 (Knt.).
367
A.I.R 1948 P.C. 128 : 75 I.A. 41 : 49 Cr. L.J. 503: 1948 A.L.J. 256.
368
AI.R. 1949 P.C. 117: 76 I.A. 10 : 50 Cr. L.J. 395: 1949 A.L.J. 59: 51 B.L.R 440: both the cases were
recently followed by the Supreme Court in Ronald Wood Mathews v. State of West Bengal, A.I.R 1954

101
prosecution of a public servant for an offence of bribe-taking under Sec. 161 of the Indian
Penal Code, no sanction under either of the above statutory provisions was necessary.
Meanwhile, to remove the doubts in the legal position before the final decision of
the Privy Council was given and to afford a greater measure of protection to public
servants as regards prosecution, the Legislature enacted by Sec. 6 of the Prevention of
Corruption Act, II of 1947, as follows:
“6. (1) No Court shall take cognizance of an offence punishable under Sec. 161
[or Sec. 164] or Sec. 165 of the Indian Penal Code (45 of 1860) or under sub-section (2)
[or sub-section (3-A)] of Sec. 5 of this Act, alleged to have been committed by a public
servant, except with the previous sanction –
(a) in the case of a person who is employed in connection with the affairs of the
[Union] and is not removable from his office, save by or with the sanction of the
Central Government ……. [of the] Central Government;
(b) in the case of a person who is employed in connection with the affairs of a State
and is not removable from his office, save by or with the sanction of the State
Government ……. [of the] State Government;
(c) in the case of' any other person, of the authority competent to remove him from
his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction
as required under sub-section (1) should be given by the Central or State Government or
any other authority, such sanction shall be given by that Government or authority which
would have been competent to remove the public servant from his office at the time when
the offence was alleged to have been committed.’
Thus, sanction of the authorities mentioned in the above section is a prerequisite
for a prosecution for an offence under Sec. 161, I.P.C.369
In Gulab Singh v. State,370 it was observed:

S.C. 455: 1955 S.C.R 216: 1954 M.W.N. 738, case arising before the passing of the prevention of
Corruption Act 1947.
369
State v. Bishwanath Naik, A.I.R 1952 Orissa 220 atp. 221; Nayyar Abbas, I.L.R. (1950) All. 670;
Devanugraham, lnre, A.I.R 1951 Mad. 255: (1950) 2 M.L.J. 333: 63 M.L.W. 816; State. v. Himat Lal Moti
Lal, A.I.R 1953 Sau. 130; Md. Walt Alarn v. State of West Bengal 1994 Cal. Cr. L.R. (Cal.) 155 at pp. 160,
161.
370
A.I.R 1962 Bom. 263 at pp. 265, 266 : I.L.R. (1962) Bom. 483; Mohan Mallu Rathod v. State of
Maharashtra, 1986 (1) Cri. L.C. 127 at p. 139 (Bom.).

102
 “Under Sec. 161, Indian Penal Code, demand by itself is made an offence; but
where that demand has been effectively carried out by compelling payment and
acceptance of money, the whole series of transactions form one offence, demand being
the beginning and acceptance the end. It is impossible to contend that at the stage when
sanction was asked for in this case, i.e. immediately after the demand, in fact there was
no offence in respect of acceptance and, therefore, no sanction could be given and that
sanction should have been obtained only after the payment was made, and the
investigation commenced thereafter. We agree, therefore, with the learned Special Judge
when he says that the sanction is not anticipatory in fact. It seems to us that this is for the
first time that such a point has been taken. Hundreds of cases are decided under Sec. 161
of the Penal Code and Sec. 5(2) of the Prevention of Corruption Act, and in every case
that we have come across sanction has always been obtained after demand is made and
complaint is made to a police officer, and thereafter investigation is completed. No
second sanction has ever been asked for nor required by any Court, after moneys are
accepted in pursuance of the demand. Even otherwise, we do not see any reason to
construe Sec. 155 of the Criminal Procedure Code and Sec. 5-A of the Prevention of
Corruption Act in this restricted manner. The duty of the police is not only to detect
offences but to prevent their commission. In order to effectuate the intention of the
Legislature for fuller and proper investigation of offences, we think the words of the
sections must be held to include an intended offence or offence imminently likely to take
place.” 371
It is well known that the grant of sanction is not an idle formality or an
acrimonious exercise but a solemn and sacrosanct act which affords protection to
Government servants against frivolous prosecution and must, therefore, be strictly
complied with before any prosecution can be launched against the public servant
concerned.372
38. Want of sanction – Section 6 of the Prevention of Corruption Act prohibits the
Court from taking cognizance of an offence punishable under Sec. 161, I.P.C., except

371
Sailendra Nath Bose v. State of Bihar, A.I.R. 1968 S.C. 1292.
372
Mohd. lqbal Ahmed v. State of Andhra Pradesh, A.I.R. 1979 S.C. 677; Niranjan Khatua v. State of
Orissa, 1990 (2) Cr. L.C. 547 Orissa; Mohammed Rustam Qureshi v. State of Madhya Pradesh. 1986 (1)
Cr. L.C. 469 at p. 474 (M.P.) : Ashok Rangashahi v. State of Madhya Pradesh, 1996 (2) Crimes 39 at p. 40
(M.P.) ; Sat Paul v. Inspector of Police. 1995 Cr.L.J. 2898 at p. 2901 (Cal.).

103
with the previous sanction of the authorities mentioned in that section. If in spite of this
prohibition, the Court takes cognizance of the offence in the absence of the sanction and
if the proper sanction is subsequently obtained, while the proceedings are not yet over:
the irregularity may be cured under Sec. 465 (1), Cr. P.C. But if the whole trial is
completed in the absence of a proper sanction then the trial is vitiated as having taken
place in contravention of Sec. 6 of the Act.373
It is difficult to appreciate how any Court can try the petitioners of these cases in
the absence of a sanction in view of the mandatory provisions of Sec. 6 of the Prevention
of Corruption Act, 1947. If no Court can take cognizance of the offences in question
without a legal sanction, it is obvious that no Court can be said to be a Court of
competent jurisdiction to try those offences and that any trial in the absence of such
sanction must be null and void. Section 300, Cr. P.C., applies to cases where the acquittal
order has been made by a Court of competent jurisdiction but it does not bar a re-trial of
the accused in cases where such an order has been made by a Court which had no
jurisdiction to take cognizance of the case. The whole basis of Sec. 300 (1) was that the
first trial should have been before a Court competent to hear and determine the case and
to record a verdict of conviction or acquittal, if the Court was not so competent, as for
example, where the required sanction for the prosecution was not obtained, it was
irrelevant that it was competent to try other cases of the same class or indeed the case
against the particular accused in different circumstances, for example, if a sanction had
been obtained. It is clear beyond any doubt that Cl. (2) of Art. 20 of the Constitution has
application in these two cases.374
Sanction held to be defective and an invalid sanction cannot confer jurisdiction
upon the Court to try the case.375
The sanction to prosecute is an important matter; it constitutes a condition

373
State v. Himatlal Moti Lal, A.I.R. 1953 Sau. 130 at p. 132; State v. Vipra Chhaganlal Kali Das A.I.R.
1953 Sau. 139; R.S. Nayak v. A.R Antulay. 1984 (1) Crimes, 568 (S.C.) ; K.K. KUMARAN V. NABIN
CHANDRA THAKKAR, 1998 CAL. CR.L.R. (CAL.). 36 AT P. 39.
374
Ball Nath Prasad Tripathi v. State of Bhopal. A.I.R 1957 S.C. 494 at p. 496: 1957 A.L.J. 569; Yusofalli
Mulla Noorbhoy v. King, 50 Cr. L.J. 889: A.I.R. 1949 P.C. 264 : 62 M.L.W. 677: Basdeo Aggrawala v.
King-Emperor, 1945 F.C.R. 93 : 47 B.L.R. 392: A.I.R. 1945 F.C. 16; unreported decision of the Supreme
Court in Budha Mal v. State of Delhi, Cr. Appeal No. 17 of 1952, dated 3rd October, 1952.
375
Madan Mohan Singh v. State of Uttar Pradesh. 1954 Cr. L.J. 1656 at p. 1660: A.I.R. 1954 S.C. 637;
Bishamber Dayal Srivastava v. State of U.P. 1994 (1) Crimes 712 at p. 713 (All.).

104
precedent to the institution of the prosecution and the Government have an absolute
discretion to grant or withhold their sanction. The giving of sanction confers jurisdiction
on the Court to try the case and the Judge or Magistrate having jurisdiction must try the
case in the ordinary way under the Code of Criminal Procedure. The charge need not
follow the exact terms of the sanction, though it must not relate to an offence essentially
different from that to which the sanction relates. Section 216 (5), Cr. P.C., provides that if
the offence stated in a new added or altered charge is one for the prosecution of which
previous sanction is necessary the case shall not be proceeded with until such sanction is
obtained “unless sanction has been already obtained for a prosecution on the same facts
as those on which the law or altered charge is founded”: The latter words indicate that the
Legislature contemplated that sanctions under the Code would be given in respect of the
facts constituting the offence charged.376
When a sanction is given, it confers jurisdiction on a competent court to try the
offender for an offence meaning thereby the alleged illegal act or omission and not
merely to try him under that particular label which is given to it by the sanctioning
authority. It is obvious that the rule of sanction does not restrict the rights of any Criminal
Court conferred upon it by the Criminal Procedure Code once the brake is removed and
the criminal proceedings are initiated.
Sanction to prosecute is required only for the purpose of taking cognizance of an
offence; once the cognizance is taken, its utility is exhausted and it is no longer needed,
either during the enquiry into the guilt of the accused or for the purpose of convicting
him. It is the duty of the Court to try the offender under that section which most
appropriately covers the illegal act or omission of the offender. Sanction to prosecute is
given on facts and not under any particular section of any Penal law.377
It is manifest that before proceeding against the applicants a sanction much less a
valid sanction exists. Before proceeding with the case it was incumbent on the
prosecution to prove that a valid sanction had been granted by the sanctioning authority

376
Gokulchand Dwarkadas Morarka v. King, A.I.R. 1948 P.C. 82 at pp. 84, 85 : 1948 A.L.J. 170 ;
MANSUKHLAL VITHALDAS CHAUHAN V. STATE OF GUJARAT, 1997 (3) CRIMES 301 AT P. 308
(S.C.) : 1998 (1) ALL. CRR 530 (S.C.).
377
Laurie E. Jacobs v. Union of India, A.I.R 1958 All., 481 at pp. 487-88, differing from Dharam Swarup
v. State, A.I.R. 1953 All. 37 : 1952 A.L.J. 451; Ram Pukar Singh v. State. A.I.R. 1954 All. 223: 1953
A.L.J. 660.

105
on being satisfied that a case has been made out constituting an offence. The grant of a
sanction is not an idle formality but a solemn and sacrosanct act as it affords the umbrella
of protection to public servants against frivolous prosecutions. It has to be strictly
complied with before any prosecution could be launched against the concerned public
servant. It requires strict compliance. It is thus radiantly revealing that the policy
underlying the provisions for grant of sanction is that there should be on unnecessary
harassment of a public servant. It is also well settled that the existence of a valid sanction
is a pre-requisite for taking cognizance by Courts. It is incumbent on the Courts before
taking cognizance that they enquire whether there is a valid sanction to prosecute the
public servant for the offences alleged to have been committed by him as public servant
while discharging his duties.378
In R.W. Mathams v. State of West Benga1,379 it was argued before the Supreme
Court that the conviction of the accused, a public servant, under Sec. 161 was bad
because sanction under Sec. 197 of the Code of Criminal Procedure was not obtained
before instituting the prosecution. Venkatarama Ayyar. J., who spoke for the Court,
rejected this contention by observing that–
“The question whether sanction under Sec. 197 was necessary for instituting
proceedings against the appellant on charges of conspiracy and of bribery is now
concluded by the decisions of the Judicial Committee in H.H.B. Gill v. The King 380 and
Phanindra Chandra Neogy v. The King381 and must be answered in the negative.”
A somewhat similar question arose before the Supreme Court in a subsequent
case in Shreekantiah Ramayya Munipalli v. State of Bombay.382
39 Nature and proof of sanction – As the Privy Council pointed out in Gokul
Chand Dwarka Das v. The King,383 the burden of proving that the requisite sanction has
been obtained rests on the prosecution, and such burden includes proof that the
sanctioning authority had given the sanction in reference to the facts on which the
proposed prosecution was to be based. These facts might appear on the face of the
378
Rangesh Sharma v. State of U.P., 1989 All L.J. 485 at pp. 490. 491.
379
A.I.R. 1954 S.C. 455.
380
50 Born. L.R. 487 : A.I.R. 1948 P.C. 128.
381
A.I.R 1949 P.C. 117: 51 Born. L.R. 440.
382
A.I.R. 1955 S.C. 287; State v. Gorakh Fulaji Mahale, A.I.R. 1965 Born. 124 at p. 128; 66 Born. L.R.
799; T.S. Ramaswamy v. State of Tamilnadu, 1994 Cr. L.J. 545 at p. 550 (Mad.).
383
A.I.R. 1948 P.C. 82 at p. 84 : 75 I.A. 30 : 49 Cr. L.J. 251

106
sanction or might be proved by extraneous evidence.384 It has been held by Desai, J., in
Ram Pukar Singh, Watchman v. State,385 the sanction was required only for the purpose
of taking cognizance of the offence.
There is a presumption in favour of regularity of official acts. The learned
Magistrate could presume that the sanction was given by the Superintendent as it
purported to be that the police report was placed before, and considered by him and that it
was he who signed the sanction. It was open to the applicant to rebut the presumption.
But not only did he not lead any evidence to prove that the signature on the sanction was
not that of the Superintendent but also he did not question the genuineness of the
signature.
The sanction in the instant case referred only to Sec. 197 of the Criminal
Procedure Code, and not to Sec. 6 of the Prevention of Corruption Act, 1947 (II of 1947).
Held that no sanction for a prosecution of an offence under Sec. 161 is required so far as
Sec. 197, Criminal Procedure Code, is concerned. Hence a sanction purporting to have
been given under Sec. 197, Criminal Procedure Code, is no sanction at all. The sanction
finder the Prevention of Corruption Act must be given with full realization of the
responsibility that the sanction is a pre-requisite for the Court taking cognizance.386 As it
is the duty of the Judges and Magistrates to consider the question of sanction whenever
public servants are charged before them, it is also the duty of the lawyers to take the point
about sanction at the earliest stage and invite the Judge or the Magistrate to decide it
before proceeding to deal with the merits of the prosecution case.387
It is incumbent on the prosecution to prove that a valid sanction has been granted
by the sanctioning authority after it was satisfied that a case for sanction has been made
out constituting the offence. This should be done in two ways either: (1) by producing the
original sanction which itself contains the facts constituting the offence and the ground of
satisfaction, and (2) by adducing evidence aliunde to show that the facts placed before the
sanctioning authority and the satisfaction arrived at by it. It is well settled that any case
384
Madan Mohan Singh v. State of U.P., AI.R. 1954 S.C. 637 at p. 641; Devanugraham. In re, A.I.R. 1951
Mad. 255: (1950) 2 M.L.J. 333: 63 M.L.W. 618; State v. Himat Lal Moti Lal. A.I.R. 1953 Sau. 130 and
State v. Biswanath, A.I.R 1952 Orissa 220.
385
A.I.R 1954 All. 223 at p. 224: 1953 A.L.J, 660.
386
State v. Biswanath Naik, A.I.R. 1952 Orissa 221 at p. 222.
387
Gadhia Bhanuchandra Vallabhadas v. State, A.I.R. 1954 Sau. 132 at pp. 138-39; State v. Laldas, A.I.R.
1953 Born. 177: 1953 Cr. L.J. 306.

107
instituted without a proper sanction must fail because this being a manifest defect in the
prosecution, the entire proceedings are rendered void ab initio.388
The provisions as laid down under Sec. 6 of the Prevention of Corruption Act,
1947, put a bar in taking cognizance of the offence punishable under Sec. 161 of the
Indian Penal Code for prosecution under this charge. It requires an order of sanction.
Grant of sanction is a condition precedent.389
The relevant date with reference to which a valid sanction is sine qua non for
taking cognizance of an offence committed by a public servant as required by Sec. 6 (old)
of the Prevention of Corruption Act is the date on which the Court is called upon to take
cognizance of the offence of which he is accused.390
The document authorizing sanction should reveal, on the face of it, the facts of the
case to which the sanctioning authority applied its mind. If such is not the case it is open to
the prosecution to adduce extraneous evidence to show that the facts of the case had been
placed before the sanctioning authority, and if there is infirmity in the sanction, the
prosecution must fail.391
There should be evidence either from the order granting the sanction or other
documentary evidence placed before the Court or even oral evidence that the facts were
placed before the officer from whom sanction was sought. Where the sanction refers to
the particular offences for which sanction is being accorded, and also the name of the
person; but apart from these two matters, there is nothing to indicate that the facts which
are said to have given rise to the offence were placed before the officer. The mere
heading in the sanction that it was with reference to the “acceptance of illegal
gratification” is not sufficient compliance with the requirements of the law.392
In the instant case “sanction was not signed by the Excise Commissioner but
purported to have been signed by his Personal Assistant, later he was examined to prove
the draft of the letter which constituted the original order of Excise Commissioner and

388
Mohd. Iqbal Ahmed v. State of Andhra Pradesh, 1980 S.C. Cr. R. 21 at p. 22
389
Nagendra Prasad Gupta v. Jagannath Prasad Gupta, 1980 B.L.J. 216 at p. 217.
390
R.S.Nayak v. AR. Antulay, 1984 (1) Crimes 568 at p. 578 (S.C.): Mohd. Iqbal Ahmad v. State of A.P.,
(1979) 2 S.C.R. 1007 ; S.A. Venkataraman v. State, (1958) S.C.R. 1040: K.S. Dharmadatan v. Central
Government, (1979) 2 S.C.R. 832. : MANSUKHLAL VITHALDAS CHAUHAN V. STATE OF
GUJARAT, 1997 (3) CRIMES 301 AT P. 309 (S.C.).
391
K.B. Mulla v. State of Karnataka, 1977 Cr. L.J. 925 at pp. 931, 932 (Knt.).
392
Devanugraham, In re, A.I.R. 1951 Mad. 255 at p. 256 : 63 M.L.W. 816.

108
contained his signature, below the word ‘approved’.” Held that the sanction was in fact
given by the Excise Commissioner though it was not sure that this was quite the proper
way of according sanction.393
40 Proof – A charge under Sec. 161, Indian Penal Code, is one which is easily and
may often be lightly made, but is in the very nature of things difficult to establish, as
direct evidence must in most cases be meagre and of a tainted nature. Those
considerations cannot however be suffered to receive the prosecution of any part of the
burden which rests upon it to establish the charge beyond reasonable doubt. If after
everything that can legitimately be considered has been given its due weight, room still
exists for taking the view that however strong the suspicion raised against the accused
every reasonable possibility of innocence has not been excluded, he is entitled to an
acquittal.394 Cases of bribery, like all other criminal cases, are subject to the rule that the
accused cannot be convicted unless the Court is satisfied concerning his guilt beyond
reasonable doubt. Where the accused person in a bribery case pleads and produces
evidence of good character which the Court regards as satisfactory, and if it appears to
the Court that a person possessing such a character would not be likely to act, in the
circumstances proved to have existed at the time, in the manner alleged by the
prosecution, such improbability must be taken into account in determining the question
whether or not there is reasonable doubt as to the guilt of such accused person.395 In
Shivakali Goswami v. Emperor,396 it was argued that the Tribunal had acted on two kinds
of inadmissible evidence, namely evidence, that the accused had taken bribes on previous
occasions and evidence that the persons who paid the bribe had complained in letters
written at the time that bribes were being demanded from him. The former type of
evidence would seem to be admissible under the rule, embodied in Sec. 14, Evidence Act,
that similar facts are relevant to an issue of intention or other state of mind although, they
cannot be used to prove the commission of physical acts, the latter would seem to be
admissible as corroboration of the statement of the witnesses subsequently made in
393
Madan Mohan Singh v. State of U.P., 1954 Cr. L.J. 1656 at p. 1659.
394
Lieutenant Hector Thomas Huntley v. Emperor. A.I.R. 1944 F.C. 66 at p. 68 : 45 Cr. L.J. 755 : 214 I.C.
199: 1944 F.L.J. 167 : I .L.R. 23 Pat. 517: Balkrishna Murlidhar Madap v. Emperor, A.I.R. 1948 Nag. 245 :
49 Cr. L .J. 331: 1947 N.L.J. 310: Minaketan Patnaik. I.L.R. (1952) Cut. 364 : A.I.R. 1952 Orissa 267:
1952 Cr. L.J. 1393.
395
Emperor v. Khurshid Hussain. A.I.R 1947 Lah. 410 at p. 412 : 48 Cr. L.J. 882.
396
A.I.R. 1944 All. 257 at p. 260: 1944 A.L.J. 419 (F.B.).

109
Court.
Although a charge under Sec. 161, Indian Penal Code, is difficult to establish, that
would not relieve the prosecution of the burden which rests upon it to establish the charge
beyond reasonable doubt and that if after everything that can legitimately be considered
has been given its due weight, room still exists for taking the view that however strong
the suspicion raised against the accused, every reasonable possibility of innocence has
not been excluded, he is entitled to an acquittal.397

Evidence hit by Sec. 162, Cr.P.C. is to be left out as inadmissible.

In the Supreme Court decision of Ramkishan Mithanlal Sharma v. State of
Bombay,398 it was found that certain evidence was inadmissible because of the bar of Sec.
162 of the Code of Criminal Procedure. In such a situation, their Lordships of the
Supreme Court ruled that “the Appellate Court has to see whether the reception of
inadmissible evidence influenced the mind of the jury so seriously as to lead them to a
conclusion which might have been different but for its reception.” In other words, only
evidence which is hit by Sec. 162 of the Code of Criminal Procedure, can be left out of
being inadmissible. Thus where at best, the evidence with regard to acceptance of bribe
by the appellant on 2nd of July, 1963, was inadmissible and nothing more it was held that
the events which led up to the arrest of the appellant were the subject-matter of the
charges under which he had been tried and that evidence clearly could not be rejected on
ground of inadmissibility under Sec. 162 of the Code of Criminal Procedure. In the result,
the conviction of the appellant was held to be based on reliable and admissible
evidence.399
The recovery of the notes from the person of the accused is an important link in
proving the case and if the recovery becomes doubtful no conviction can be

397
Ganpat Singh v. State, A.I.R. 1967 Raj. 10 at p. 14; Lt. Hector Thomas Huntley v. Emperor, A.I.R 1944
F.C. 66; Damodar Krishna Kamie v. State, A.I.R. 1955 Born. 61 at p. 64 (0.13.): 56 Born. L.R 1021: 1955
Cr. L.J. 181; Chakradhar Singh v. State of Madhya Pradesh, 1984 (1) Crimes 122 at p. 128; Khilli Ram v.
State of Rajasthan, 1984 (2) Crimes 909 (S.C.); Bairam Singh v. Bhikam Chand Jain, 1985 (2) Crimes 731;
State of M.P. v. Jagdish Prasad, 1994 (1) Crimes 421 at p. 422 (M.P.) Manoj Misra v. State of Maharashtra.
1996 Cr.L.J. 797 at p. 799 (Born.).
398
(1955) 1 S.C.R 908
399
Sri Kishan Jhingan v. State, Vol. LXVI, 1964 Punj. L.R 877 at p. 881.

110
maintained.400
Where some of the prosecution witnesses have, contradicted their earlier
statements under Sec. 164 of the Code of Criminal Procedure, and the contradictions
suggest that the defence version might be true and there is no evidence that any scientific
test was applied to prove that the accused had handled the currency notes it was held that
these infirmities cast a legitimate doubt on the truth of the prosecution story. Therefore, it
is not possible to maintain the conviction.401
In the instant case, the recovery of notes from his pocket was not disputed by the
appellant. He offered an explanation there for but it was not accepted by the Special
Judge and the High Court. It was pointed out that there was no material discrepancy in
the statements of witnesses. Held that since the appellant has admitted recovery of the
amount from his pocket it was incumbent on him to explain that circumstance.402
Where the illegal gratification is paid to the wife of the accused as desired by him
and she tried to destroy the currency notes, the Supreme Court held that the accused
himself accepted the illegal gratification.403
In the instant case, having disbelieved the story that the appellant had asked for a
bribe of Rs. 100 of which Rs. 20 paid in advance, the Supreme Court held that the High
Court could not reasonably proceed on what was left of the prosecution case to affirm the
order of conviction passed by the Trial Court. The prosecution case was one integrated
story which the Trial Court had accepted. If the High Court did not find it possible to
accept a vital part of the story, it is difficult to see how the other part which did not stand
by itself could be accepted. Undoubtedly, there are circumstances in this case which are
highly suspicious against the appellant, but the High Court having disbelieved an
essential part of the prosecution case on which the other part was dependent, the Supreme
Court did not consider it safe to sustain the conviction of the appellant.404

400
State v. Har Prasad Sharma, A.I.R. 1958 All. 334 at p. 335: 1957 A.L.J. 934.
401
Bhajan Singh v. State of Punjab, 1977 Cr. L.J. 439 at pp. 441, 442 (S.C.).
402
Jainarain v. State of U.P.. (1974) 1 Cr. L.J. 312 at p. 313 ; C.K. DAMODARAN NAIR V.
GOVERNMENT OF INDIA, 1997 S.C. CR R 765 AT P. 770 ; 1997 (1) CRIMES 75 AT P. 80 ; J.T. 1997
(2) S.C. 485 AT P. 500: 1997 CR. L.J. 739 AT P. 742 (S.C.) : 1997 S.C. CRR 765: 1997 S.C.C. (CR.) 654
AT P. 660: 1997 (1) BOM. CR C. 364 AT P. 369 (S.C.).
403
Dadamiya v. State of Maharashtra, A.I.R 1980 S.C. 1737 at p. 1737: 1980 Cr. L.J. 1256 at p. 1256.
404
Han Dev Shanna v. State (Delhi Administration), 1976 Cr. L.J. 1176 at pp. 1179-80 (S.C.): A.I.R. 1976
S.C. 1489; MAHMOOD KHAN MAHBOOB KHAN PATHAN V. STATE OF MAHARASHTRA, 1997
S.C.CRR. 782 AT P. 786: 1997 S.C.C. (CR) 894 AT P. 898

111
 Indeed, for weighing evidence there can be no specific canon. No generalisation
is possible in such matters. Each case has its own features and each witness his own
peculiarities. The undernoted case was against a police officer with an unblemished
record, rather an outstanding record, of 19 years’ service. Such an officer would be least
disposed to countenance pimping within his territorial jurisdiction. He must, therefore,
have been an eyesore to the witness who were pimps. It could not, therefore, be said that
these witnesses had no motive whatever to falsely implicate the police officer.405
The case set up by prosecution was that B attempted to obtain illegal gratification
from N through the instrumentality of R. Held that, in view of the acquittal of R, it is not
possible to maintain the conviction of B. The acquittal of R would necessarily lead to the
conclusion that the prosecution allegation about R having made a demand of illegal
gratification from N for B has not been proved. The case, in the circumstances, against B
for asking for bribe through R must consequently fail. It would indeed be incongruous
and inconsistent to acquit R for offences under Secs. 165-A and 120-B, I.P.C., and, at the
same time, to convict B for the offence under Sec. 161, I.P.C., for asking for bribe from
N through the instrumentality of R406
In Bhuneshwar Prasad Singh v. State of Bihar,407 a trap was laid by the Vigilance
Department. There was no sanction order as required by law. In other circumstance of
importance was the non-user of phenolphthalein powder. Witnesses connected with the
recovery of C.C. Notes from the accused were not examined. There were different
endorsements on the seizure list with regard to the place from where the notes were
actually seized. It was held that the prosecution failed to prove the demand and payment
of the bribe to the accused and the entire prosecution was vitiated due to absence of legal
sanction.
The prosecution has seriously slipped-up on certain material aspects, one of which
is the fact that the presence of anthracene powder is a clinching circumstance. The
powder which emits a glow when exposed to ultraviolet light, if found on the person of
the accused or on his clothing or on the currency notes, is a considerably incriminating

405
Sat Paul v. Delhi Administration, A.I.R 1976 S.C. 294 at p. 302, disapproving Ram Sarup Singh v. State
A.I.R 1967 Delhi 26.
406
Bhagat Rain v. State of Rajasthan. (1972) 1 S.C.W.R 468 at p. 472 : A.I.R. 1972 S.C. 1502.
407
1981 Cr. L.J. 142; Suresh Kumar v. State of M.P., 1994 M.P.L.J. 31 at pp. 33, 35; S.K. Patel v. State of
Gujrat, 1993 (1) Cri. L.C. 1 at pp. 4, 5.

112
circumstance. It is quite elementary when the A.C.B. plans a trap, that they take along
with them ultra-violet light. A persual of the present record shows that this was not done
and there are some recitals in the panchnama to the effect that anthracene powder was
detected on certain places on the basis of a torch which the police Inspector had with him.
This is a criminal case in which the consequences to the appellant are grave and under
this circumstance, the duty cast on the shoulders of the prosecution is an equally serious
one. There can be no laxity or compromise permissible in such cases, and having regard
to the infirmities that have been demonstrated in the present proceeding, it would be
hazarduous to base a conviction on such material.408
41. Evidence – For a charge of bribery against a public servant the evidence should,
it is said, be conclusive but the evidence of the bribe-giver corroborated by that of one
from whom he had raised money for the purpose was held to be sufficient. 409 And in one
case the Court accepted the uncorroborated testimony of two accomplices as sufficient, as
they were shown to bear no animus against the accused. 410 The giver completes his
abetment so soon as the bribe offered by him is accepted though the public servant did
not accept it as a bribe but merely as evidence of giver’s guilt.411 The fact that the
complaint is lodged under this section, does not prevent the Court from convicting under
another section, e.g. Sec. 171-E, provided that the accused is not misled by the charge.412
The points requiring proof are:
(1) That the accused at the time of the offence was, or expected to be a public
servant.413
(2) That he accepted or obtained or agreed to accept, or attempted to obtain from
some person a gratification.
(3) That such gratification was not a legal remuneration due to him.
(4) That he accepted such gratification as a motive or reward, proof of which is

408
Popat Shankar Sonvane v. State of Maharashtra. 1993 (1) Cri.L.C. 295 at pp. 298, 299; N.V. Kumaran v.
State by Inspector of Police, 1995 Cr.L.J. 1928 at p. 1934 (Mad.).
409
Harsukh Rai, (1919) P.W.R. 3
410
Ghulam Mohammed, (1917) P.R. No. 9 : 39 I.C. 680; State of U.P. v. Dr. G.K. Ghosh, 1984 (1) Cr. L.C.
230 (S.C.); Ashok Sadashiv Astikar v. State of Maharashtra, 1989 Mah. L.R. 117 at pp. 119-120 (Born.)
1989 (1) Cr. L.C. 443 at pp. 445, 446 (Born.).
411
Raghudutt, (1892-96) 1 U.B.R. 154; Nga 38 I.C. (LB.) 439.
412
Ponnuswami Thevar v. Emperor, A.I.R. 1922 Mad. 62 at p. 62.
413
Qazi Rahmullah v. Emperor, A.I.R. 1935 Pesh. 26 at p. 29.

113
 essential,414 for–
(a) doing or forbearing to do an official act, or
(b) showing or forbearing to show favour or disfavour to someone in the exercise
of his official functions, or
(c) rendering or attempting to render any service415 or disservice to someone, with
the Legislative or Executive Government, or with any public servant.
The recovery of the currency notes from the person of the accused is an important
link in proving the case of the prosecution of the offence under Sec. 161, I.P.C., and Sec.
5(2) of the Prevention of Corruption Act.416 Mere recovery of money by itself cannot
prove the charge of the prosecution against the accused in the absence of any evidence to
prove payment of bribe or to show that the accused voluntarily accepted the money417
42. Recovery – Material discrepancies and contradiction in the statement of PWS as
to where the almira was laying from which recovery was affected – whether it was
laying in the office of the accused, whether it was laying in the visitor room for whether it
was laying in the retiring room of the accused – Accused Acquitted.418
The appellant was already nearing the age of superannuation as found by the High
Court and had been more than 30 years in service. The High Court obviously lost sight of
the fact that the appellant may have lost his agility in the peculiar circumstances, notes
could have been inserted without the appellant knowing it. Very clever people who are
young and agile are often victimised by pick-pockets and only when their valuables have
been lost the fact is noticed by them. The process here is the reverse one. Instead of
pocket being picked, currency notes have been inserted into it. That evidence which had
been accepted probabilises the defence plea that the currency notes had not been received
by the appellant in his left hand and, therefore, the insertion of the notes into the pocket
of the appellant by some other person was more probable. This is the defence plea which
had been accepted by the Trial Court. Thus the reversal by the High Court was not

414
Chinna Swami, 8 I.C. (Mad.), 668: Upendra Nath, 39 I.C. (Cal.) 805.
415
Emperor v. Allauddin Ahmed Fakhruddin Ahmed. I.L.R. (1935) Sind 7 at p. 9.
416
R. Venkatsan v. State, 1980 Cr. L.J. 41 at p. 49; Shri R.J. Singh Ahluwalia v. State (Delhi
Administration), 1984 (2) Crimes 875.
417
Suraj Mal v. State (Delhi Administration), 1980 M.L.J. (Cr.) 73 at p. 74 : A.I.R 1979 S.C. 1408 at pp.
1409, 1410.
418
Parmal Singh vs. State of Pubjab, 2015(4) LH (P&H) 3702.

114
warranted.419
43 Evidence of motive – No doubt a public servant has no right to demand any
bribe; but when he is hauled up before a Criminal Court to answer a charge of having
taken illegal gratification, the question whether any motive for payment or acceptance of
bribe at all existed is certainly a relevant and a material fact for consideration.420
44 Presumption – Whereas under Sec. 114 of the Evidence Act it is open to the
Court to draw or not to draw a presumption as to the existence of one fact from the proof
of another fact and it is not obligatory upon the Court to draw such presumption, under
sub-section (1) of Sec. 4, Prevention of Corruption Act, however, if a certain fact is
proved, that is, where any gratification (other than legal gratification) or any valuable
thing is proved to have been received by an accused person the Court is required to draw
a presumption that the person received that thing as a motive or reward such as is
mentioned in Sec. 161, I.P.C.421
Section 4 of the Prevention of Corruption Act, 1947, says that, where in any trial
of offences punishable under Sec. 161, it is proved that an accused person has accepted or
obtained for himself any gratification other than legal remuneration or any valuable thing
from any person, it shall be presumed unless the contrary is proved that he accepted or
obtained it as a motive or reward as is mentioned in Sec. 161. The use of the words “shall
be presumed” shows that the presumption is one of law and not of fact as Sec. 4 of the
Prevention of Corruption Act, 1947, is in parimateria with the Indian Evidence Act, 1872,
and the words “shall be presumed” must bear the same meaning as in the latter Act. As it
is a presumption of law, it is obligatory for the Court to raise this presumption in every
offence under Sec. 161 because, unlike presumptions of fact, presumptions of law
constitute a branch of jurisprudence.422
This presumption is raised on proof of voluntary acceptance by a public servant of

419
Salimkhan Sardar Khan v. State of Gujrat, 1986 L.W. (Cr.) 4 at p. 6, (S.C.) ; Moliram Jail Singh Parwar
v. State of Maharashtra, 1985 Mah. L.R. 588 at p. 596.
420
Madan Mohan Singh v. State of U.P., 1954 Cr. L.J. 1656 at p. 1661; A.I.R. 1954 S.C. 63.
421
Dhanwant Rai Balwant Rai Desai v. State of Maharashtra, A.I.R. 1964 S.C. 575 at p. 580: (1964) 1
S.C.J. 133 : 65 Bom. L.R. 332: (1963) 2 Lab. L.J. 415: 1963 A.W.R. (H.C.) 348: 1964 M.L.J. (Cr.) 65:
Narain Lal Nirala v. State of Rajasthan, 1984 Cr. L.J. 1495
422
State of Madras v. A. Vaidyanath lyer. A.I.R. 1958 S.C. 61 at p. 65 : 1958 S.C.R. 580: 1958 M.L.J. (Cr.)
299, followed in State v. Pundlik Bbikaji. A.I.R. 1959 Bom. 543 at pp. 546. 547 (D.B.) : 261 Bom. L.R
837.

115
a valuable or other thing which satisfied his desire or appetite but it is not a presumption
on which is required to be rebutted by evidence establishing the defence of the accused
beyond reasonable doubt. The burden of the accused is discharged if he shows a
reasonable preponderance of probability enough to support a verdict in a civil action that
the gratification was not a motive or reward for doing or for bearing to do an official
act.423
Where in a case the work was already done and there was no occasion to accept
the amount by way of motive or reward for doing the work. But on the contrary, the
probability seems to be that the accused had kept the money on the table which he had
accepted for small savings and thereafter he was to take out the form and give a receipt to
the complainant and the accused has satisfactorily discharged the burden by offering a
reasonable and probable explanation. It was held that the benefit of doubt could be given
to accused.424
From a reading of Sec. 4 (1) of the Prevention of Corruption Act, it is clear that its
operation, in terms, is confined to a trial of an offence punishable under Sec. 161 or Sec.
165, Indian Penal Code, or under Cl. (a) or (b) of Sec. 5 (1), read with sub-section (2) of
that section of the Act. If at such a trial, the prosecution proves that the accused has
accepted or obtained gratification other than legal remuneration, the Court has to presume
the existence of the further fact in support of the prosecution case, viz. that the
gratification was accepted or obtained by the accused as a motive or reward such as is
mentioned in Sec. 161, Indian Penal Code. The presumption, however, is not absolute. It
is rebuttable. The accused can prove the contrary. The quantum and the nature of proof
required to displace this presumption may vary according to the circumstances of each
case. Such proof may partake the shape of defence evidence led by the accused, or it may
consist of circumstances appearing in the prosecution evidence itself, as a result of cross-
examination or otherwise.
Another aspect of the matter which has to be borne in mind is that the sole purpose
of the presumption under Sec. 4(1) is to relieve the prosecution of the burden of proving a

423
State v. Pundlik Bhikaji, A.I.R. 1959 Bom. 543 at p. 547 (D.B.) 261 Born. L.R 837.
424
Sardarkhan Rahim Khan Pathanshri v. State of Maharashtra, (1983) 1 Crimes, 105 at pp. 114, 115 Bom.;
Laxmi Narain Mahton v. State of Bihar 1983 B.L.J. 519 at pp. 524-25. Chakradhar Singh v. State of M.P.
1981 (1) Crimes 122 at p. 128 (M.P.).

116
fact which is an essential ingredient of the offences under Sec. 5 (1) (2) of the Prevention of
Corruption Act and Sec. 161 of the Indian Penal Code. The presumption therefore can be
used in furtherance of the prosecution case and not in derogation of it. If the story set up by
the prosecution inherently militates against or is inconsistent with the fact presumed, the
presumption will be rendered sterile from its very inception, if out of judicial courtesy it
cannot be rejected out of hand as still-born.425
But the pleas of alibi will have to be proved by the accused with absolute
certainly. It is not sufficient that the plea is established with preponderance of probability
as in the case of proving general exceptions or other circumstances.426
On proof of receipt of gratification, the statutory presumption under Sec. 4(1) of
the Prevention of Corruption Act is attracted in full force and the burden shifts on to the
accused to show that he had not accepted this money as a motive or' reward such as is
mentioned in Sec. 161 of the Indian Penal Code. It is clear that the accused has to rebut
the presumption arising against him under Sec. 4 (1) of the Prevention of Corruption Act.
It is true that the burden which rests on an accused to displace this presumption is not as
onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the
accused is to be discharged by bringing on record evidence, circumstantial or direct,
which establishes with reasonable probability, that the money was accepted by the
accused other than as a motive nr reward such as is referred to in Sec. 161.427
45 Burden of proof – The Supreme Court in case of Salvraj vs. State of Karnataka
it has been observed at illegal gratification has to be proved like any criminal trial.
Offence and when the evidence produced by the prosecution has neither quality nor
credibility. It would be unsafe to rest the conviction on such evidence.428 In another case
of Man Singhv. Delhi Administration429 the Supreme Court had said that it was sufficient
if the accused offers a probable explanation of defence and strict standard of proof about
such a defence was not necessary. It may be noted that an accused is not required to
prove his case with the same rigor as is required of the prosecution. So far as accused
425
Tri Lok Chand Jain v. State of Delhi, 1977 Cr. L.J. 254 at p. 257 (S.C.); Suryabhan v. State of
Maharashtra. 1995 Cr.L.J. 107 at p. 113 (Bom).
426
M.K. Harshan v. State of Kerala, 1989 (2) Crimes 572 at p. 579 (Ker.).
427
Chaturdas Bhagwandas Patel v. State of Gujrat, 1976 Cr. L.J. 1180 at pp. 1183-84. 1186 (S.C.) : A.I.R.
1976 S.C. 1497.
428
Salavraj vs. State of Karnataka, 2015(4) LH (SC) 3129.
429
A.I.R. 1979 S.C. 1455.

117
Chandrakant is concerned, the Trial Court is of the view, that since he was brought to the
table of Vijay Kumar the likelihood of his coming into the contract with the powder
could not be ruled out. The notes were placed on the table, it was neither naturally nor
impossible, he could have come in such a contact. The fact that no such powder particles
found in his pocket, as alleged by the prosecution, supports his defence.430
Where the witnesses were independent witnesses and the omissions were of trival
details and have hardly any bearing on the main part of the prosecution case and the fact
remains that the solution did turn pink when the hands of the appellant were dipped in it
and the evidence of appellant himself does not raise a plausible defence, it was held that
the case had been proved beyond a shadow of reasonable doubt.?431
Where the unimpeachable evidence of the two independent witnesses
conclusively proves the transaction, that necessarily means that the accused accepted the
money and the defence story that the complainant trusted the money in his pocket is
patently untrue. Consequent upon such proof, the presumption under Sec. 4 (1) of the
Prevention of Corruption Act, 1947 would operate and since the accused did not rebut
that presumption the conviction of the accused under Sec. 161, I.P.C. has got to be
upheld.432
In cases where the investigating agency which lays a trap, which trap, according
to the prosecution, has succeeded, carries out the demonstration or experiment with the
aid of phenolphthalein powder which is applied to the marked currency notes and, as a
result of the said experiment, after the trap, the fingers or the clothes of the accused or
any part of his body are dipped in a solution of sodim bicarbonate and the result found in
the turning of the solution which was white into pink, that solution, which has turned
pink, must be preserved by the investigating agency so as to enable its production before
the Court trying the accused. It is necessary for the investigating agency to preserve the
solution used for the experiment as regards detection of phenolphthalein powder on the
person of the accused or on his clothes or on anything that he has touched. In case of
430
State of M.P. v. Vijay Kumar, 1989 C. Cr. J. 89 at p. 93 (M.P.).
431
Kishan Chand Mangal v. State of Rajasthan, 1983 (1) Crimes 20 at pp. 27, 28 (S.C.) : A.I.R. 1982 S.C.
1511 at p. 1513; Harikhan Bandewan, Dr. v. State of Maharashtra. 1983 Cr. L.R. 264 at pp. 269, 274, 275
(Born.), State of Gujrat v. Sri Raghunath Vamanrao Bazi, 1985 C.A.R. 213 (S.C.).
432
C.K. DAMODARAN NAIR V. GOVERNMENT OF INDIA. 1997 CRL.J. 739 AT P. 742 (S.C.): 1997
S.C.CR.R. 765: 1997 S.C.C. (CR.) 654 AT P. 660: J.T. 1997 (2) S.C. 495 AT P. 500: 1997 (1) CRIMES 75
AT P. 80: 1997 (1) BOM.C.CRC. 164 AT P. 169 (S.C.).

118
failure or omission of the investigating agency to preserve such solution, it is open to the
Court to raise an inference adverse to the prosecution at the trial, depending upon the
facts and circumstances of each case, and to determine upon the impact of that
interference on the other evidence before it.433
Where a trap is laid for a public servant, it is desirable that the marked currency
notes which are used for the purpose of trap, are treated with phenolphthalein powder so
that handling of such marked currency notes by the public servant can be detected by
chemical process and the Court does not have to depend on oral evidence which is
sometimes of a dubious character for the purpose on deciding the fate of the public
servant. Where no attempt was made to use chemical for detection of currency notes and
the witness had previous enmity with the accused, it was held that the prosecution had
failed to establish the charge against the accused.434
Non-treatment of the currency notes used in the trap with phenolphthalein powder
casts doubt about the trap itself. In this connection contention on behalf of State in this
case was that hundred rupee note in question was not treated with phenolphthalein
powder as it was not available to the authorities in Jhansi. If that was the case, then this
explanation should have come in the recovery memo itself and not in the evidence of the
witnesses at the tria1.435
Where the handing over of the notes by the complainant to the accused has not
been corroborated by any independent witnesses and it was proved that the notes were
seized from the sofa and not from the accused and the wash of his hands slightly turned
pinkish and it has come in evidence that the hands of Dy. Collector was washed first and
the glass was kept in a bag containing phenolphthalein powder and further the trap was
arranged after 2 months it was held that the conclusion of acquittal could be justified on
the basis of the evidence on record.436

433
Rameshchandra Tukaram Taleker v. State of Gujrat. A.I.R 1980 Guj. 1 at pp. 2, 6; Rajinder Kumar Sood
v. State of Punjab, 1983 Cr. L.J. 1338 at p. 1345 (P & H); Bharat Kumar Jaymani Shanker Mehta v. State
of Gujrat, 1982 Cr. L.J. 1314 at pp. 1313, 1317 (Guj.).
434
P. Vasudeva Rao v. State of Orissa, 1978, Cr. L.J. 1396 at p. 1402 (Orissa) ; Ganesh Prasad Singh v.
State of Bihar, 1996 (2) Crimes 541 at p. 543 (Pat.).
435
S.B. Sharma v. State of U.P., 1992 U.P. Cr. R. 334 at p. 339; Prakash Chand v. State (Delhi
Administration) (1979) 2 S.C.R 330: A.I.R 1979 S.C. 400; Kishan Chand Mangal v. State of Rajasthan
(1982) 3 S.C.C. 466 : A.I.R. 1982 S.C. 1511.
436
State of Madhya Pradesh v. Ramdas Rai, (1983) 1 Crimes 599 at p. 602 (M.P.).

119
 If in a case under this section the prosecution wants to rely on the finding of the
anthracene powder on the fingers of the left hand of the accused immediately after the
alleged bribe was taken. In order to enable a Court to draw the inference that what was
found on a person was anthracene powder the prosecution must be established that the
tests for the detection of anthracene powder had been properly made and had yielded
positive results. The main test is the emission of light blue fluorescent light under the
influence of ultra-violet ray. It is, therefore, essential for the prosecution to prove that
there was light blue emission of light under the influence of ultra-violet light. It is not
sufficient for the prosecution to prove that under the ultra-violet light witnesses saw
stains of white powder or even that under the ultra-violet light they saw some sparkling
or some shimmering. Anthracene powder cannot be detected by the naked eye but only
under the influence of ultra-violet lamp. The two tests required to be satisfied by the
prosecution to prove the presence of anthracene powder are, therefore: (1) that no powder
was detected with the naked eye; and (2) that when ultra-violet light was focused, there
was emission of light blue fluorescent light. If evidence proved positive results for both
these tests, then it would be right to infer that anthracene powder was present.437
The main ingredients of the charge under Sec. 161, I.P.C., are these:
(1) That the accused was a public servant.
(2) That he must be shown to have obtained from any person any gratification.
(3) The gratification should be other than legal renumeration as a motive or
reward for doing or forbearing to do any official act or for showing or forbearing
to show, in the exercise of his official function favour or disfavour to any person.
When the first two ingredients are proved by evidence then a rebuttable
presumption arises in respect of the third ingredient. In absence of the proof of the first
two facts, the presumption does not arise. On mere recovery of certain money from the
person of an accused without the proof of the first two facts, the presumption does not
arise. On mere recovery of certain money from the person of an accused without the
proof of its payment by or on behalf of some person to whom official favour was to be
shown the presumption cannot arise. In the instant case, it was only the first ingredient
that was satisfied. As such no legal presumption, as engrafted in Sec. 4 (1) of the

437
Ambalal Motibhai Patel u. State, A.I.R 1961 Guj. 1 at p. 2.

120
Prevention of Corruption Act, was available to the prosecution and to that extent, the
judgment of the Lower Court was held to be erroneous.438
46 Benefit of doubt – In the case of Tej Bahadur Singh v. State of U.P.439 the
circumstances of significance is about the happening of the incident in the house of the
complainant itself. Now when the accused had entered the house an hour earlier before
his scheduled visit, it cannot be expected that the members of trap party which were said
to be sitting in the adjoining back room had become instantly stone still so as to conceal
their presence from the accused. The dimensions of those two rooms 8 ft. × 8 ft. and 8 ft.
× 12 ft. separated merely by a window and a door on which curtains were hanging are
suggestive of the fact that if the happenings in one room could be known to the inmates
of the other, the converse would also be true. Relatively, if the members of the trap party
could see and hear what was happening in the drawing room through the curtains, the
inmates of drawing room could also see the presence of others in the connecting room,
huddled as they were in that small space. The accused in these circumstances could not
be expected to throw caution to winds and either ignore or become indifferent of the
presence of the inmates of the adjoining room especially when both rooms were lit by
electric tube lights and there was just a curtain intervening. Additionally, in such a
situation, there awakes the sixth sense in every human being so as to detect the presence
of another in such close surrounding. The accused could not have been so foolhardy to
accept bribe in circumstances which were obviously suspicious, and that too in the house
of the complainant, running the risk of being entrapped. Disbelieving the case of
prosecution the Supreme Court held as under:
“The totality of the aforesaid circumstances thus makes us to come to the
conclusion that it would not be safe to sustain the conviction of the appellant on the
charges framed. We may, however, hasten to add that we should not be taken to have
accepted the defence of the appellant about his being present at the Railway Station on
the evening of the day of the incident wherefrom he claims to have been arrested by Shri
Srivastava, Deputy Superintendent of Police. The dust of doubt thus raised must
inevitably fall on the prosecution leading to the acquittal of the appellant, and this is done

438
Padmalochan Misra v. State, 1977 Cr. L.J. 700 at p. 705 (Orissa) : 1976 Cut. L.J. 1035.
439
A.I.R 1990 S.C. 431 at p. 434: 1990 (2) Cr. L.C. 199 (S.C.); Bal Krishan Sayal v. State of Punjab, 1987
(2) S.C.J: 43 at p. 44 ; State of H.P. v. Gurcharan Singh, 1995 (3) Crimes 779 at p. 781 (H.P.).

121
by acceptance of the appeal.”
If two view are possible that you should be adopted which is favaourable to the
accused the prosecution is also established its case beyond shadow of reasonable
doubt.440
When the basis of the charge under Sec. 161 is entirely different from what is
sought to be made out by the prosecution, it cannot be said that the accused was not
prejudiced by the frame of the charge. It would be open to the prosecution to rely on the
presumption under Sec. 4 (a) of the Prevention of Corruption Act if the charge was
properly framed and the accused was given an opportunity to meet the charge which the
prosecution was trying to make out against the accused.441
On mere recovery of certain money from the person of an accused without the
proof of its payment by or on behalf of some person to whom official favour was to be
shown the presumption cannot arise. Where not only the story of demand of bribe by
appellant from the complainant is not proved but even the story of payment of the money
by the complainant is not established beyond reasonable doubt, it was held that that being
so the rule of presumption engrafted in Sec. 4 (1) could not be made use of for convicting
the appellant.442
The Supreme Court in C.L Emden v. State of U.P. :443 has laid down the view
which is fully binding on us:
“Paragraph 3 of Sec. 161 of the Code provides that the word 'gratification' is not
restricted to pecuniary gratification or to gratifications estimable in money. Therefore,
‘gratification’ mentioned in Sec. 4 (1) cannot be confined only to payment of money.
What the prosecution has to prove before asking the Court to raise a presumption against
an accused person is that the accused person has received a ‘gratification other than legal
remuneration’; if it is shown... that the accused received the stated amount and that the
said amount was not legal remuneration then the condition prescribed by the section is
satisfied.”
Later, as respects the question as to what should be the quantum of proof which

440
Dhyan Singh vs. State of Haryana, 2015(4), LH (P&H), 2942.
441
Bhupesh Deb Gupta v. State of Tripura, A.I.R. 1978 S.C. 1672 at p. 1675.
442
Sitaram v. State of Rajasthan A.I.R. 1975 S.C. 1432 at p. 1436; Maheshwer Vishamber Sahai v. State of
M.P. 1985 (2) Cr. L.C. 229
443
A.I.R 1960 S.C. 548 at pp. 551-552; Shailendra Nath Bose v. State of Bihar, A.I.R 1968 S.C. 1292.

122
the accused would be expected to give where a presumption has been raised against him
under Sec. 4 (1), their Lordships left the point undecided.
Where it was proved that the accused had received four ten-rupee currency notes
amounting to Rs.40 from P.Ws. It was held that it is and can be nobody’s case that this
money was part of accused’s legal remuneration. Consequently, a presumption under Sec.
4 of the Act undoubtedly arises against him.444
Where a person is charged with criminal misconduct and it is seen that he is in
possession of property or income which could not have been amased or earned by the
official remuneration which he had obtained then the Court is entitled to come to the
conclusion that the amassing of such wealth was due to bribery or corruption and the
person is guilty of an offence of criminal misconduct. Such a presumption cannot be
drawn in the case of a prosecution under sec. 161, 165 and 409, Indian Penal Code. 445
Where the accused, a clerical supervisor of Control Office, Return Stores Dept,
Alamadhi, was in the eyes of illiterate coolies, a man of great influence with Let. C.J.
Winece, the master of the Depot, accepted Rs. 100 and a ring from the coolies promising
them to recommend their cases to the officer despite of retrenchment discharge notice for
their retention in service.
It is well know that modern law attaches little weight to euphemistic terms used,
or to the free will of the bribe-giver.
When the accused promised to recommend them, and when they gave the money
and the ring, there was an implied bargain for, and fulfillment of an illegal gratification,
transaction despite the euphemistic term “mariyada” used.446
47 Accused person to be competent witness–Under Sec. 7, Prevention of
Corruption Act, 1947, any person chargeable with an offence under Sec. 161 or Sec. 165
or Sec. 165-A is a competent witness for the defence and may give evidence on oath in
disproof of the charges made against him or any person charged with him at the same
trial. The same benevolent provision making an accused person a competent witness is
contained in Sec. 315 of the code of Criminal Procedure, 1973.

444
State v. Jagdishram, 1962 Raj. L.W. 421 at p. 425.
445
Om Prakash Gupta v. State of U.P. , A.I.R. 1957 S.C. 458 at p. 462 : 1957 S.C.A. 337 : 1957 S.C.J. 289
: 1957 A.L.J. 585 B.L.J 502 : 1957 M.P.C. 483 : 1957 Mad. L.J. (Cr.) 237 : 1957 Cr. L.J. 575.
446
Varadadesika Chariar. In re. A.I.R. 1950 Mad. 93 at p. 94 : 1949 M.W.N. 649.

123
49 Testimony of accomplices – According to the practice of the Court a varying
degree of credibility attaches to a person who was present at the giving of a bribe. It is a
rule of evidence that an accomplice is unworthy of credit, unless he is corroborated in
material particulars.447 It is also a rule of evidence that a conviction on the
uncorroborated testimony of an accomplice is not illegal448 purpose of this rule.449 His
evidence, consequently, requires corroboration, but the degree of corroboration
forthcoming must necessarily vary in each case. Therefore, the Courts have consider the
degree of corroboration required to justify a conviction under this Chapter. For this
purpose the Courts concicier whether the payer was or was not a free agent in offering the
bribe and it has been held that the degree of corroboration required is not in each case the
same. In other words, a person coerced into the payment requires less corroboration to his
testimony than one who was entirely voluntary accomplice. 450 The question, therefore, is,
what are the rules under which the Court may give effect to these two seemingly
contradictory rules in cases falling under this Chapter? Now it is a rule established by the
practice of the Courts, that, through a conviction on the uncorroborated testimony of an
accomplice is not illegal, it is nevertheless improper.451 This rule then necessitates some
degree of corroboration of the testimony of an accomplice to warrant a conviction for an
offence under this section. The payer of a bribe may or may not be an abettor; but he is in
every case an accomplice for the
49 Testimony of the bribe giver – It depends on the circumstances of each case as
to whether the bribe-giver, that is the complainant was willing to give bribe or that he
was compelled and reluctantly he agreed to give bribe. If he was not willing to give bribe
but under the circumstances was compelled to agree to give bribe then he can not be
treated as an abettor and his evidence cannot be treated as evidence of an accomplice and

447
Section 114, Evidence Act (1 of 1877)
448
Section 114. Evidence Act
449
Maganlal, I.L.R 14 Bom. 115; Chhagan, I.L.R. 4 Born. 331; Malhar Martand, I.L.R. 26 Bom. 193;
Deodhar Singh, I.L.R. 27 Cal. 144; M.S. Mohiddin, In re, A.I.R. 1952 Mad. 561 at p. 563: 1952 Cr. L.J.
1245; (1952) 2 M.L.J. 11 : 1952 M.W.N. 220.
450
Deonandan Prasad, I.L.R 33 Cal. 649; Malhar Martand, I.L.R. 26 Born. 193; Papa Kamal Khan v.
Emperor, A.I.R. 1935 Born. 230 at p. 232.
451
The leading case on the subject is still the Full Bench ruling in Elahee Baksh. (1866) 5 W.R. 80 (F.B.).
in which Sir Barnes Peacock enunciates the rule since embodied in the Indian Evidence Act; see per Fulton.
J. in Malhar Martant. I.L.R. 26 Bom. 193;Emperor v. Anwar Ali, A.I.R. 1948 Lah. 27 at p. 29 : 48 Cr. L.J.
964 : S.N. Singh, I.L.R. (1949) Cut. 585:Venkataro, 5D.L.R. (Cut.) 23:4 A.I.Cr.D.363

124
if the Court feels it safe to rely on the evidence of that witness after due caution, the order
of conviction can be passed on the evidence of that witness and there is no need of
independent corroboration of his evidence like that of an accomplice. However, if the
Court feels it not safe to implicitly rely on the evidence of that witness, the Court may
seek corroboration from other evidence.452 But in either case some corroboration is
nonetheless indispensable. Whether it is or is not sufficient to warrant a conviction is a
question of fact which must be left to the jury, it being then competent to them to reject
the corroboration and convict the accused on the uncorroborated testimony of the
accomplice.453 So, where the accused, a police officer, was charged with receiving a bribe
from the complainant, and it appeared that the former had demanded it from the latter
before commencing the inquiry into his complaint, of the theft of lac from his forest, and
the latter at first refused but eventually paid it, it was held that the case was one to which
the payment was involuntary and a much slighter degree of corroboration was needed to
support a conviction of the receiver, and the Court, therefore, accepted the testimony of
persons, who had lent the money to the complainant and who were present when it was
paid as sufficient corroboration.454
It has been sometimes said that persons who are present at the commission of a
crime, but who do nothing to prevent or disclose it, are no better than an accomplice.455
50 Trap or decoy witness – The question whether a conviction under this section
may be based on the uncorroborated testimony of a decoy or trap witness and, if not what
amount of independent corroboration is needed is not free from difficulty and the trend of
decisions is not uniform. In some cases it has been held that in bribery cases it is not
necessary that there should be independent corroboration of the decoy witness that the
money was received by the accused person for an illegal purpose. Informers, that is,
persons who have joined or even provoked the crime, as police spies, have not been
regarded as accomplices and the rule requiring corroboration of accomplices does not

452
Praful Chandra Somalal Vasani v. State of Gujarat, 1986 Cr. L.R. (Guj.) 286 at p. 290.
453
Atwood. 1 Leach. 464, cited per Peacoak, C.J., in Elahee Baksh, 5 W.R. 80 at p. 81; Ghulam
Mohammed, (1917) P.R No. 9 : 39 I.C. 680.
454
Deonandan Parshad, I.L.R. 33 Cal. 649; Brij Nandan Parshad Yajurvedi v. State, 1985 (2) Crimes 845
(Delhi); Ganga Prasad v. State of U.P.. 1996 Cr.L.J. 3029 at p. 3033 (All.); CHANDER BRAN V. STATE
(C.B.I.), 73 (1998) D.L.T. 318 AT P. 323.
455
Ishan Chunder, I.L.R. 21 Cal. 328.

125
apply to this class of accomplices.456 In the other cases it has been held in cases of this
kind there should be independent corroboration of the statement of the decoy witness,
that the money received by the accused person was for an illegal purpose. 457 While it is
generally impossible to detect this class of offence in any other way except by police
traps, that should not lighten the onus which lies on the prosecution under the general
principles of criminal law that the accused’s guilt must be established beyond all
reasonable doubt. Anybody may be easily taken unawares by a police trap or decoy
witness who is no better than an accomplice, whose tainted evidence cannot in law be
held sufficient to bring home the offence to the accused.458
If, in a case under Sec. 161, I.P.C. read with Sec. 5 (2) of the Prevention of
Corruption Act, the appellant has admitted recovery of the amount from his pocket it is
incumbent on him to explain that circumstance. Where on account of the infirmities, his
explanation was rightly disbelieved the Court may not look for independent corroboration
before convicting the accused person on the evidence of the witness who have
participated in the trap.459
There is no general rule to assess the evidence of the trap witnesses and each case
has to be judged on its own merits. Where the D.S.P. sent a requisition to the S.D.O,
Telephones to send two of his assistants to act as witnesses, and they were members of
the raiding party not voluntarily but as directed, if nothing is shown against them there is
no reason why their evidence should be discarded merely because they helped the raiding
Party.460
In a case under this section the complainant's evidence will have to be considered
with great caution and it will not be ordinarily safe to accept his interested testimony
unless there is material corroboration found in the other evidence adduced by the

456
Mahabir Prasad v. State, A.I.R. 1951 Punj. 424 at p. 425 : 52 Cr. L.J. 944: 6 D.Lit. (Simla) 166 : 5 A.I.
Cr. D. 485; State v. Bishamber Dayal, I.L.R. (1952) Patiala 512: 1953 Pepsu 82.
457
Emperor v. Anwar ali, A.I.R. 1948 Lah. 27 at p. 29 : 48 Cr. L.J.964 : 2 D.L.R. (Simla) 44: 49 P.L.R.
253; S.N. Singh, I.L.R. (1949) Cut. 585; Venkatrao, 5 D.L.R (Cut.) 23 : 4 A.I. Cr. D. 363.
458
Venkatrao, 5 D.L.R. (Cut.) 23 : 4 A.I. Cr. D. 363; Lt. Hector Thomas Huntley v. Emperor. A.I.R. 1944
F.C. 66 at p. 68 : (48 Cr. L.J. 964 relied); M.K. HARSHAN V. STATE OF KERALA, 1997 S.C.C. (CR.)
283 AT P. 287; STATE OF GUJARAT V. KUMUDCHANDRA PRANJIVAN SHAH, 1997 S.C.C. (CR)
750 AT P. 752.
459
Jainarain v. State of U.P., A.I.R. 1974 S.C. 226 at p. 227.
460
T. Narayana Rao v. Republic of India, 1977 Cr. L.J. 1586 at pp. 1589. 1590 (Orissa).

126
prosecution.461
As the complainant is interested witness in a case under this section, his evidence
has to be considered with great caution and it would not be ordinarily safe to accept his
interested testimony unless there is material corroboration found in the other evidence
adduced by the prosecution.462 The evidence of a complainant and other witnesses in a trap
case is a word of interest and of partisan witnesses, who are concerned in the success of the
trap. It must, however, be tested in the same way as that of any other interested witness.
But, however, in a proper case the Court may look for independent corroboration before
convicting the accused person. The witnesses accompanying the police on request of police
cannot be said to be partisan witnesses.463
There is no rule of prudence which has crystallised into a rule of law, nor indeed
into any rule of prudence, requires that the evidence of such officer who laid the trap
should be treated on the same footing as evidence of accomplice and there should be
insistence on corroboration. The testimony of these officers who had laid the trap would
have to be judged on their merits and they will not be treated as interested witnesses
merely because they are interested in the successful prosecution of the case.464
Reliance cannot be placed on the testimony of arresting officer whose antecedents
were doubtful.465
After introduction of Sec. 165-A of the Indian Penal Code making the person who
offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better
footing than that of an accomplice and corroboration in material particulars connecting
the accused with the crime has to be insisted upon. Where the version of the complainant

461
Jaswant Singh v. State of Punjab, A.I.R. 1973 S.C. 707 at p. 709; Paunalal Damodar Rathi v. State of
Maharashtra, A.I.R. 1979 S.C. 1191 at p. 1192; State of Maharashtra v. Jagannath Dattatraya Mahajan,
(1982) 2 Born. C.R. 98 at p. 107.
462
Jaswant Singh v. State of Punjab, A.I.R. 1973 S.C. 707 at p. 709; Darshan Lal v. Delhi Administration.
A.I.R. 1974 S.C. 218 : (1974) Cr. L.J. 307; Ismail Ibrahim Sayed v. State (1975) 2 Cr. L.J. 1335 at p. 1336;
Ram Kishan v. State of Punjab. 1995 Cr.L.J. 2892 at p. 2896 (P.& H.); Sudershan Kumar v. State of
Haryana, 1995 Cr.L.J. 2013 at p. 2014 (P.&H.).
463
State of Maharashtra v. Jagannath Dattatraya Mahajan, (1982) 2 Bom. C.R. 98 at pp. 106-107.
464
Surendra Pal Singh v. State. 1981 A.L.J. 1153 at p. 1157; R.J. Ahluwalia v. State (Delhi Administration)
1984 (2) Crimes 875 at p. 878 (Bom.) ; SURENDRA SAHAI V. STATE OF U.P. 1997 CR.L.J. 1670 AT
P. 1672 (ALL.) ; Raosaheb v. State of Maharashtra. 1996 (2) Crimes 79 at p. 85 (Born.) ; K. Narasaiah v.
State. 1995 Cr.L.J. 2512 at p. 2516 (Mad.) : Ramesh Kumar Gupta v. State of M.P., 1995 (3) Crimes 263 at
p. 266 (S.C.).
465
D.D. Singh v. State of U.P., 1981 A.L.J. 1203 at p. 1206.

127
is not corroborated, the evidence of the complainant cannot be relied on.466
In a trap case, the trap-witness admitted in cross-examination that any person who
had access to the room of accused could put anything in the drawer of the accused.
Therefore it is difficult to place implicit reliance on the evidence of the trap-witness to
hold that accused obtained illegal gratification in the manner spoken to by him and that at
his instance trap-witness placed money in the drawer of the table.467
In a Madras case,468 a distinction has been drawn between a legitimate and an
illegitimate trap. It has been held in that case that, where the bribe has already been
demanded from a man, and the man goes out offering to bring the money but goes to the
police and the Magistrate and brings them to witness the payment, it will be a legitimate
trap, wholly laudable and admirable. But where a man has not demanded a bribe, and he
is only suspected to be in the habit of taking bribes, and he is tempted with a bribe, just to
see whether he would accept it or not and to trap him, if he accepts it, it will be an
illegitimate trap and, unless authorized by an Act of Parliament, it will be an offence on
the part of the persons taking part in the trap who will all be “accomplices” whose
evidence will have to be corroborated by untainted evidence to a smaller or larger extent,
as the case may be, before a conviction can be had under a rule of Court which has
ripened almost into a rule of law. But, in the case of a legitimate trap, however, the
officers taking part in the trap and the witnesses to the trap would in no sense be
“accomplices” and their evidence will not require, under the law, to be corroborated as a
condition precedent for conviction though the usual rule of prudence will require the
evidence to be scrutinised carefully and accepted as true before a conviction can be had.
A similar distinction has been made by Panigrahi, J. in State v. Minaketan Patnaik.469 In
another case,470 their Lordships of the Supreme Court held that the evidence of witnesses
who were not willing parties to the giving of the bribe and were only actuated with the
motive of trapping the accused could not be treated as the evidence of accomplices, but
their evidence was nevertheless the evidence of partisan witnesses who were out to trap
466
Pannalal Damodar Rathi v. State of Maharashtra. 1980 S.C. Cr. 138 at pp. 140-41.
467
M.K. Harshan v. State of Kerala, A.I.R. 1995 S.C. 2178 at p. 2181.
468
M.S. Mohiddin, in re. A.I.R. 1952 Mad. 561 at p.. 563: 1952 Cr. L.J. 1245: (1952) 2 M.L.J. 11 : 1952
M.W.N. 220.
469
A.I.R. 1952 Orissa 267 at p. 270.
470
Rao Shiv Bahadur Singh v. State of Vinhbya Pradesh. 1954 Cr. L.J. 910 at pp. 916, 923: A.I.R. 1954
S.C. 322: 1954 S.C.R. 1098: 55 Cr. L.J. 910.

128
the accused and could not be relied upon for implicating the accused without independent
corroboration.
They also strongly deprecated the practice of sending Magistrates as witnesses of
police traps and endorsed the observations made in this connection by Mukerji, J., in
M.C. Mitra v. State.471 Unfortunately it is often inevitable that agents provocateurs should
be employed for detecting corruption and stamping. But as Bose, J., pointed out in
delivering the judgment of the Supreme Court in Ranyanam singh v. State of Bihar, 472 It
is iniquitous to push this practice to the length of deliberately tempting a weak man to the
point of breaking the law; Ramyartam Singh’s case was not a case of laying a trap, in the
usual way, for a man who was demanding a bribe but of deliberately tempting a man to
his own undoing after his suggestion about breaking the law had been finally and
conclusively rejected with consider-able emphasis and decision.473
Where it is said that although there was a definite allegation of the alleged offer of
bribe made by the appellants to the two police officers on 24th/25th January, 1949 and
although the two police officers informed their superior officers and the latter advised the
trapping of the appellants nothing was done for two months and it is concluded from such
inaction that no bribe had in fact been offered and that this story was, therefore, false.
Held, there is no force in this argument, because the police authorities had per force to
wait until the appellants made a further move in the matter.
It is not reasonable to suggest that the police authorities should go out of their
way and actively invite bribes in order to trap the appellants.”474 The question whether a
trap-witness is guilty of offering a bribe has been answered in the negative. It has been
held by the Orissa High Court that mere offer of money or illegal gratification to a public
servant would not amount to an offence of abetment of bribery unless that offer is made
“as a reward for showing that person some favour in the exercise of the official functions
of the public servant”. That is to say, there must be the necessary criminal intention on
the part of the officer. In the case of a trap-witness engaged for the purpose of decoying a

471
A.I.R. 1951 Cal. 524 at p. 528: 52 Cr. L.J. 1116: Rahas Behari Palley v. State, A.I.R 1955 All. 75 at p.
77 : 1955 Cr. L.J. 246.
472
A.I.R. 1956 S.C. 643 at p. 651 : 57 Cr. L.J. 1254.
473
K.N.N. Ayyangar v. State, A.I.R. 1954 M.B. 101 : 1954 M.B. L.J. 474: 55 Cr. L.J. 966, relied on Ratias
Behari Pandey v. State, A.I.R 1955 AIL 75 at p. 78 : 1955 Cr. L.J. 246.
474
Mahadev Dhannappa Gunaki v. State of Bombay. A.I.R 1953 S.C. 179 at p. 181 : 55 B.L.R 513.

129
public official by offering him marked currency notes this essential criminal intention is
wanting.475
The evidence of trap-witnesses must be scrutinised with great care before a
conviction can be based on it. It is difficult to lay down what evidence should be or could
be regarded as corroboration. Its nature and extent will always vary with the facts and
circumstances of each case and no hard and fast rule can be laid down.476 In a prosecution
for an offence under this section a trap was laid at the instance of the complainant. It was
held that the complainant himself is a partisan witness in cases and it is well settled that it
is not safe to rely upon the uncorroborated orated testimony of such a witness.477 But if
from the record it appears that the payment by the trap-witness could not on any other
reasonable hypothesis be in satisfaction of some liability of the witness to the accused an
inference would inevitably arise that the amount was paid to the accused by way of
bribe.478 The degree of corroboration, however, in the case of tainted evidence of an
accomplice would be higher than that in case of a partisan witness.479
From the evidence of the decoy Radhey Shyam and his brother Ram Khilari it is
clear that they had been paying penalty for the last 10 years. The prosecution itself
produced the receipt Ex. P. 11 showing the deposit of penalty amount for the earlier
years. From this receipt it is established that they have been paying penalty regularly.
From Ex. D. 4 and Ex. P. 15 it is clear that the penalty amount was due against them and
the accused at the time of trap-replied that he had accepted the amount against the penalty
amount. Thus the accused has not only probabilised his defence rather proved beyond
doubt. From the record, it is also not proved that Ex. P. 1 was given by the decoy to the
accused because on this point also there is no corroboration to his statement. In this case
the possibility of false implication cannot be ruled out. The reason is that the decoy
wanted the mutation done on the basis of forged patta and they had been paying penalty

475
State v. Minaketan Patnaik, A.I.R 1952 Orissa 267 at p. 275 : I.L.R. (1952) Cut. 364 : 1952 Cr. L.J.
1393; K.M. Narayanaswami v. Kerala State, A.I.R. 1957 Ker. 134 at pp. 137, 138: I.L.R. (1957) Ker. 559:
1957 Ker. L.J. 476: 1957 Ker. L.T. 784: 1957 M.L.J. (Cr.) 443: 1957 Cr. L.J. 1127.
476
Ram Chet Shukla v. State, 1957 A.W.R (H.C.) 167; Ram Narain Yadav v. State of U.P.. 1989 All. L.J.
747 at pp. 754.
477
Pandurang Laxrnan Parab v. State of Bombay, A.I.R. 1959 Bom. 30 at p. 32 60 Bom. L.R. 811; Mahipal
Singh v. State, 1994(31) All. Cr.C. 545 at p. 547 (All.): Raosaheb v. State of Maharashtra. 1996 (2) Crimes
79 at p. 85 (Bom.).
478
State v. Pundlik Bhikaji, A.I.R. 1959 Bom. 543 at p. 546 (D.B.) : 61 Bom. L.R. 837.
479
Ramchand Tolaram Khatri u. State. A.I.R 1956 Bom. 287 at pp. 293-94 : 58 Bom. L.R. 96.

130
regularly. The accused sent notice for fresh recovery of penalty. Under these
circumstances it is possible that the decoy might have grudge against the accused and this
possibility cannot be ruled out that because of the said grudge the accused has been
falsely trapped at the instance of Radhey Shyam.480
The police take the panchas with themselves so that they should watch what
happens. They are not interested in what happens nor are they parties to the trap. The law
of the land requires that certain things should be done by the police in the presence of
independent, respectable persons so that the presence of the said persons may put the
particular transaction beyond the pale of suspicion. In these circumstances to construe the
conduct of independent and respectable people, who accompany the police at the asking
of the police to serve as panchas, as being the conduct or partisan persons would be
grossly unfair to these people.481
Panchas whom the police take with themselves before going for a raid cannot be
called members of a raiding party. The panchas have nothing to do with the raid or the
operations of the raid. They are not participators in the act of raiding. The decision to
effect a raid is the decision of the police. The panchas are not parties to that decision nor
do they subsequently become parties to it at any stage of the raid. The raid is decided
upon the information supplied by the informant who is generally the earn rant and the
panchas have nothing to do with that decision or the result of it, viz., the actual raid. It
cannot be said that the evidence of every panch witness who takes part in the laying of a
trap in cases of bribery can be regarded as evidence of partisan witness.482
In trap cases at least some panchas overhear the conversation or see something to
which they can depose.483
Where vigilance officers had laid the trap, they are bound to state that the accused
had accepted the illegal gratification. When their testimony is not supported by any piece
of evidence the conviction of the accused cannot be sustained merely on the testimony of

480
Shiv Dayal v. State of Rajasthan 1992, Raj. Cr. C. 63 at p. 70.
481
Ramchand Totaram Khatri v. State, A.I.R. 1956 Bom. 287 at p. 294; State of Gujarat v. Maganbhai
Jethabhai Veghela, 1982 Cr. L.J. 1317 at pp. 1322, 1324; Jhandunath Khatua v. State 1982 Cr. L.J. 954 at
pp. 959, 960 (Orissa).
482
Ambalal Motibhai Patel v. State, A.I.R 1961 Guj. 1 at pp. 3, 4.
483
Lachman Dass v. State of Punjab, 1970 S.C.D. 85 at p. 91 : A.I.R. 1970 S.C. 450.

131
the officers of the vigilance department.484
The police officials cannot be discredited in a trap case merely because they are
police officials, nor can other witnesses be rejected because on some ether occasion, they
have been witnesses for the prosecution in the past. Basically, the Court has to view the
evidence in the light of the probabilities and the intrinsic credibility of those who testify.485
Where the witnesses were kept in readyness and offered for cross-examination, it
cannot be said that the prosecution withheld material witness.
51 Charge.–The charge under this section should specify the nature of the office
held by the accused by virtue of which he was a public servant, and the name of the
person from whom the bribe was taken,486 and of the public servant who had to be
influenced in the exercise of his official functions487 In State of Ajmer v. Shinji La1488 the
Supreme Court laid down that Sec. 161 requires that the person accepting the
gratification should be: (1) a public servant, (2) he should accept gratification for himself,
and (3) the gratification should be as a motive or reward for rendering or attempting to
render any service or disservice to any person with any other public servant. The charge
under Sec. 161 of the Indian Penal Code which was framed in this case stated that the
accused being a public servant accepted on 6th October, 1954, a sum of Rs. 50 from
Prem Singh “as illegal gratification as a motive for securing a job for him in the railway
running shed”. Now the first two ingredients set out above are clearly established in this
case but the third ingredient (namely, that the gratification should have been taken as a
motive or reward for rendering or attempting to render any service with any public
servant) is not even charged against the accused. The charge merely says that he took the
money as a motive for securing a job for Prem Singh in the Railway Running Shed, Abu
Road. It does not disclose who was the public servant whom the accused would have
approached for rendering or attempting to render service to Prem Singh in securing a job
for him.
There can be no question of making a presumption that the payment was as a
484
Raj Bahadur v. State. 1980 A.L.J. 670 at p. 670.
485
Gian Singh v. State of Punjab, A.I.R, 1974 S.C. 1024 at p. 1026; STATE OF PUNJAB V
KUMUDCHANDRA PRANJIVAN SHAH. 1997 S.C.C. (CR) 750 AT P. 752; Uma Shankar v. State of
U.P.. 1996 (4) Crimes 456 at pp. 459, 460 (M.P.).
486
5 W.R (Cr. L.) 8: Narain Lal Nirala v. State of Rajasthan, 1984 Cr. L.J. 1495.
487
Setul Chander Baghehee, 3 W.R (Cr.) 69.
488
A.I.R 1959 S.C. 847 at pp. 850. 851.

132
motive or reward for rendering service with any public servant. In this view of the matter
the offence under Sec. 161 of the Indian Penal Code is not made out against the accused
for one of its essential ingredients is missing and no presumption can be drawn in the
circumstances in that connection.489 The dictum in George Anthony Monterio v. State490
that the name of the authority to be influenced need not be mentioned, is erroneous.
A duty has been cast on the shoulders of the prosecution, for framing of a charge
under Sec. 7 of the Prevention of Corruption Act, to prima-facie show that a public
servant accepted or obtained any gratification other than legal remuneration as a motive
or reward for doing or forbearing to do any official act by way of favour or disfavour to
any person in the discharge of his official duties.491
Where a person is a public servant in the very office where the appointment is to
be made and takes money in order to get the appointment made, there is no further
question of the charge or evidence indicating who was the other public servant with
whom the service would be rendered.492
52 Joinder of charges – An accused person cannot be tried at one trial for more than
three offences committed within the space of one year. Consequently, where a bribe was
collected from certain inhabitants of a village by subscription, and handed over to the
recipient in a lump sum, the latter could not be charged under this section with the receipt
of the whole sum so collected, but only in respect of any three separate items forming
part of the total collection.493 But where in pursuance of the same purpose the bribe is
paid in two installments on two different days, the offence committed is one, and there
cannot be two convictions on account of two separate payments.494 In this case sums of
money were collected by lambardars and others from the landholders of the various chaks
and were paid in each case by them in a lump sum with the object of inducing the
petitioner to show favour in his official capacity to those chaks as a whole. The actual
charge against him was of having received a certain sum of money from the abadkars of
the chak so and so. Held that in the circum-stances the charges as framed were legal and
489
State of Ajmer v. Shivji Lai, A.I.R 1959 S.C. 847 at pp. 850, 851.
490
A.I.R 1955 Ajmer 18 (1) at p. 18 : 56 Cr. L.J. 608.
491
L.K. ADVANI V. CENTRAL BUREAU OF INVESTIGATION. 1997 (4) CRIMES 1 AT P. 26
(DELHI).
492
State of Maharashtra v. Jagatsing Charansing Arora, A.I.R. 1964 S.C. 492 at p. 495.
493
Nand Lal, (1904) 24 A.W.N. 223.
494
Jagat Chand Sharma, 5 C.W.N. 332.

133
correct.495 Where the offences charged against the accused are an offence under Sec. 161,
I.P.C. and See. 5 (1) (d), Prevention of Corruption Act, in respect of Rs. 1,150, offences
under Secs. 471 and 426, I.P.C., offences regarding Rs. 5,700 under Sec. 161, I.P.C. and
Sec. 5 (1) (d) and offences of habitual bribe taking under Sec. 5 (1) (a) of the Act so that
the trial has been in respect of five offences. These are distinct offences and under the
general law stated in Sec. 218, Cr. P.C., the charge and the trial should be separate for
each offence unless any of the exceptions applies.
It was held that the joinder of charges under Sec. 5 (1) (a), Prevention of
Corruption Act, and Secs. 161 and 5 (1) (d) of the Act in respect of Rs. 1,150 was illegal
and constitute misjoinder of charges.496
While a course of conduct can be proved when a person is arraigned under Secs. 5
(1) (a) and 5 (1) (b), such a course of conduct is impermissible to be let in evidence when
an offence under Secs. 161 and 162 is being enquired into or tried. Evidence in regard to
previous incidents not mentioned in the charge, has the danger of creating prejudice
against the accused, while it is no proof of the particular offence which is the subject-
matter of the charge. The evidence relating to previous incidents does not form the
foundation for the subsequent incident, nor they are relevant for showing that the
acceptance of bribe has developed through various stages. It is impermissible to let in
such a course of conduct when an accused is tried for offences under Secs. 161, 162,
I.P.C., and Sec. 5 (1) (d) of the Act, especially when the previous incidents are not
mentioned in the charge although it is permissible when the accused is tried for offences
under Sec. 5 (1)(b)(c) of the Act. Therefore, the accused cannot be punished for a case
which was not set out in the charge and which was projected at the stage of the tria1.497
In the instant case, although in the charge only Sec. 161, read with Sec. 34 of the
Indian Penal Code, was mentioned, the language of the charge, could leave the appellant
in no doubt that in addition to the vicarious charge under Sec. 161, read with Sec. 34, he
was being charged with the commission of an offence under Sec. 161, simpliciter also.
All the material circumstances appearing in evidence constituting an offence under Sec.

495
Girdhari Lal v. Emperor, 12 Cr. L.J. 217 at pp. 222, 224: P.R. No. 11 of 1911. But see Nand Lal, 24
A.W.N. 223.
496
Gadhia Bhanuchandra Vallabhdas v. State, A.I.R. 1954 Sau. 132 at pp. 137, 138.
497
K.B. Mulla v. State of Karnataka, 1977 Cr. L.J. 925 at pp. 932-34 (lint.): NATHA BHAU DABHADE
V. STATE OF MAHARASHTRA, 1998 CR.L.J. 1354 AT P. 1356 (BOM.).

134
161 of the Indian Penal Code, simpliciter were put to him during his examination. This
objection was not raised in any of the Courts below at any stage. The Supreme Court held
that no prejudice has, therefore, been caused to the appellant by this technical defect in
the charge. In any case this irregularity stood cured under Sec. 537, [Sec. 465 (1), new]
Cr. P.C.498
53 Alteration of charge under Sec. 165-A to one under this section read with
Sec. 109 and conviction thereon – There is no doubt that the appellant was not charged
under Sec. 161, read with Sec. 109, I.P.C., but for the offence punishable under Sec. 165-
A of the Code: but, in view of the provisions of Sec. 465 (1), Cr. P.C, there would be no
ground for setting aside the conviction of the appellant merely on the ground of this
irregularity in the charge unless the irregularity has in fact occasioned a failure of justice.
Furthermore, the Special Judge had the jurisdiction under Sec. 6 of the Anti-
Corruption Act to try and punish the appellant for the offence under Sec. 101, and
therefore of that offence read with Sec.109, I.P.C., as well. In these circumstances, it
could not be said that the mention of Sec. 165-A instead of Sec. 161/109, I.P.C., in the
charge had occasioned a failure of justice in the present case.499
The offence under Sec. 5 (1) (a) of the Prevention of Corruption Act, 1947, is an
aggravated form of the offence under Sec. 161.500 The particulars mentioned in charge-
sheet were such as to constitute nine separate offences punishable under Sec. 161 of the
Penal Code, the combined effect of all these particulars being the commission of an
aggravated form of such smaller offences. If the repetition of these smaller offences as
specified in the charge had been proved against the accused he could have been convicted
of the aggravated offence under Sec. 5 (1) (a) of the Prevention of Corruption Act.
Since the particulars relating to one only of the several instances specified in the
charge have been clearly and conclusively proved against the accused and since those
particulars by themselves are sufficient to constitute the smaller offence punishable under
Sec. 161 of the Indian Penal Code the conviction of the accused for that smaller offence is

498
Chaturdas Bhagwandas Patel v. State of Gujarat, 1976 Cr. L.J. 1180 at p. 1186 (S.C.).
499
Om Prakash v. State, A.1.R. 1957 All. 388 at pp. 389. 390.
500
Om Prakash Gupta v. State of U.P., A.I.R. 1957 S.C. 458 at p. 461: 1957 S.C.A. 337 : 1957 S.C.J. 289:
1957 A.L.J. 585: 1957 B.L.J.R. 502: 1957 M.P.C. 433: 1957 M.L.J. (Cr.) 237: 1957 Cr. L.J. 575: RJ. Singh
Ahluwalia v. State (Delhi Administration); 1984 (2) Crimes 875 at p. 878 (Delhi).

135
legal and is warranted by Sec. 238 (now Sec. 222) of the Code of Criminal Procedure.501
The charge should be thus worded:
“I (name and office of Magistrate, etc.) hereby charge you (name of the accused),
as follows :
“That you .... being a public servant in the—Department directly accepted
from—(state the name of the giver) if received for another add for another party,
namely… a gratification other than legal remuneration, as a motive for doing or
forbearing do an official act, and thereby committed an offence punishable under
Sec. 161 of the Indian Penal Code and within the cognizance of this Court.
“And I hereby direct that you be tried (in a case of committal by the said Court)
on the said charge.”502
54 Sentence – Once a public servant is found to be guilty of accepting or obtaining
illegal gratification, he deserves no soft corner or indulgence from Courts of law.503
There seems to be no justification for treating an abettor leniently, especially when the
abettor is not a simple-minded villager but a Marwari merchant of Cuttack Town who
wanted to take advantage of his previous acquaintanceship with the Sub-Inspector. For
such an offender a sentence of fine is merely a flea-bite and a substantive sentence of
imprisonment alone would serve as a real deterrent.504 A sentence of mere fine for an
offence of accepting illegal gratification is ridiculous. The accused should be made to
undergo a sentence of rigorous imprisonment.505 Where the same act constituted an
offence under Sec. 161, Indian Penal Code, and also under Sec. 5 (2) of the Prevention of
Corruption Act, 1947, it is illegal to pass separate sentences for the conviction under the
two sections.506
In Moolraj v. State of Himachal Pradesh,507 it was observed: “As a result of his

501
K.M. Narayanaswami v. Kerala State, A.I.R 1957 Ker. 134 at p. 139: 1957 Ker. L.T. 784; P.S.
Aravamudha lyenger, In re, A.I.R. 1960 Mad. 27 : 1959 M.L.J. (Cr.) 606.
502
Cr. P.C., Sch. II. Form XXXII (I) (3).
503
Kishan Dayal v. State, 1958 Raj. L.W. 596.
504
State of Orissa v. Siba Prasad Moda, A.I.R. 1952 Orissa 180 at p. 181: Emperor v. Dinker Rao, A.I.R.
1933 All. 513 and Ram Pukar Singh v. State. A.I.R. 1954 All. 223: 1953 A.L.J. 660.
505
State v. Mehta Rasiklal Baldevdas, A.I.R. 1954 Sau. 62 at p. 64.
506
Lohna Kantilal v. State, A.I.R. 1954 Sau. 121 at p. 123: P.S. Aravanudha lyenger. In re. A.I.R. 1960
Mad. 27 at p. 32 : 1959 M.L.J. (Cr.) 606: C.S. Raman Mannadiar v. Dy. Supdt. of Police, 1985 (2) Crimes
911.
507
A.I.R. 1955 H.P. 51 at p. 54.

136
conviction, he has been dismissed from the service. He also forfeited his right to pension.
The learned Judge considered that a severe punishment was not called for as, in his
opinion, the appellant had been trapped into the commission of this offence. I do not
quite agree with the view taken by the trial Judge on this point but, considering that the
appellant has been dismissed and has forfeited his right to pension and bearing in mind
his long record of service, I would reduce the fine to Rs. 50 and maintain he sentence of
imprisonment till the rising of the Court.”
It was held that in the undernoted case the investigation was completed in
December, 1957, the accused persons were brought to trial before the Special Judge only
in December, 1958, one year later. Having regard to the mental agony which the accused
persons had thus to suffer while they were kept in suspense about the charges against
them, they are entitled to have a reduction of the sentence passed against them by the
Special Judge.508
In view of the fact that about six years have passed from the date of the incident
and this is the first time the accused has committed an offence, sentence was reduced to
the period already undergone by the accused.509 In the undernoted case looking to the fact
that the incident occurred some 13 years back, as an act of mercy, the Court reduced the
substantive sentence of rigorous imprisonment for 1 and 1/2 years to rigorous
imprisonment for a period of one year on each count.510
Where from the evidence of the witnesses it is clear that a sum of Rs. 12,500 was
paid to and received by the accused as a bribe, and the learned Sessions Judge was clearly
right in convicting the accused and the High Court was wrong in acquitting the accused.
It could not be said that this was where two views were reasonably possible and the only
possible view was that the accused was guilty of both the offences under Sec. 161, I.P.C.
and Sec. 5 (2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act, 1947. It was
further held that Courts cannot possibly take a lenient view of the conduct of an Income-
tax Officer, who accepts a large amount as a bribe for causing loss to public revenue. The
sentence imposed by the learned Sessions Judge were the right sentences to be imposed

508
Promode Ranjan Saha v. State, A.I.R. 1960 Tripura 8 at p. 12.
509
Sarupchand v. State of Punjab, 1987 Cr. L.J. 1180 at p. 1182 (S.C.) : A.I.R. 1987 S.C. 1441: TEKA
RAM V. STATE, 72 (1998) D.L.T. 581 AT P. 585.
510
Shoukat. Beg v. State of M.P. 1988 (25) All Cr. C. 72 at p. 73 (S.C.): PRADIP SINGH V. STATE OF
RAJASI'HAN, 1997 RAJ. CR.C. 732 AT P. 735.

137
on the accused.511
When accused has been convicted under Sec. 161, I.P.C., and Sec. 5 of the
Prevention of Corruption Act and has been awarded a sentence of one year it is not
necessary to impose a sentence of fine.512
In Narayandas Bahurani v. State of Madhya Pradesh,513 the appellant was
convicted under Sec. 161, I.P.C., and Sec. 5(2) read with Sec. 5 (1) (d) of the Prevention
of Corruption Act and sentenced to two years under Sec. 161 and two years and a fine of
Rs. 250 under the latter section. Sentences were directed to run concurrently. In the
appeal by special leave, the Supreme Court while holding the conviction on each count
reduced the sentence to the period already served and maintained the fine.
55 Appeal – In Lakshmi Shanker Srivastava v. State (Delhi Administration),514 the
appellant preferred an appeal against his conviction and sentence of imprisonment as also
sentence of fine under Sec. 5 (1) (d) of Prevention of Corruption Act, 1947 and Sec. 161
of the Indian Penal Code.
After his death his near relations as contemplated in the Explanations to sub-
section (2) of Sec. 394, Cr. P.C., applied to continue the appeal and the High Court
granted substitution of such near relations by its order and thereby granted leave to
continue the appeal.
There seems to be no doubt that offences of bribery or abetment of bribery rarely
come to light and further that where such an offence is proved beyond all reasonable
doubt, the perpetrators thereof must be visited with deterrent punishment. The bribe-giver
is not entitled to any lenient consideration in a case like the present.515
1. Principal – This and the next section deal with the offence of improperly
influencing a public servant in return for consideration paid or promised by a third
person. In this respect the two sections516 are identical, the only difference between them

511
State of Gujarat v. Raghunath Vamanrao Baxi, A.I.R. 1985 S.C. 1092 at pp. 1095-1096 : 1985 S.C.C.
(Cr.) 304: (1985) 31 S.C.C. 45 : 1983 (2) Cr. L.C. 424: 1985 C.A.R (S.C.) 213.
512
Dadamiya v. State of Maharashtra, 1980 Cr. L.J. 1256 at p. 1256
513
1980 S.C. Cr. R. 148 at p.149: V.K. CHAKRAVARTHI V. INSPECTOR OF POLICE, MADRAS,
1997 S.C.C. (CR.) 208 AT P. 209.
514
1979 Cr. L.J. 207 at p. 209 (S.C.).
515
Tajkhan v. State A.I.R. 1957, Raj. 1 at p. 5: R.J. Singh Ahluwalia v. State (Delhi Administration). 1984
(2) Crimes 875.
516
Seetul Chunder Bagchee, 3 W.R. 69.

138
being the means by which the public servant is influenced. Under this section he is
influenced by corrupt or illegal means, while the inducement in the next section is by the
exercise of personal influence.
There is no reason why a gratuitous seducer should not be held guilty, but in such
a case, the seducer may have acted from the best of motives, and in this respect, the law
judges criminality from the motive. Now, as the motive in the two sections is palpably
corrupt, it excludes the presence of nobler sentiments as prompting the interference. The
sections generally agree with the English law.517
2 Gratification to influence another – 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.518 One public servant acting as a bribe-agent
of another, should preferably be punished under the last section, though there is no
difference in the gravity of the offences under the two 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.519
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 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

517
English law Commissioner’s 5th Rep., p. 15; Digest, Chap. IV. Sec. 4. Art. 2, 2nd Rep.. Secs. 68 and 69.
518
Chinnaswami, 8 I.C. (Mad.). 668.
519
Obhoy Churn Chuckerburty, 3 W.R 19.

139
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.
The gist of the offence consists in receiving a gratification in order to influence a
public servant “by corrupt or illegal means”. Ordinarily, such will be the case where the
public servant concerned employs an intermediary as his tout or bribe agent. But, where
he is no more than a conduit-pipe between the giver and the receiver of the bribe,
conveying what he receives, retaining nothing for himself, the section is inapplicable, for
then he receives nothing “for inducing by corrupt or illegal means,” the public servant,
which is the gist of the crime (see synopsis no. 3, supra). The section requires that the
payment must be in promise of the inducement and the inducement must be by “corrupt
or illegal means”. If then a person induces a public servant without a gratification, he
commits no offence under this section, though if the means he employs be “corrupt”, he
may be guilty of abetment of an offence under the last section, and if the means
employed be “illegal”, he may conceivably be guilty of some other offence depending
upon the nature of the illegality practiced.
If, for instance, it consisted in suppressing a part of the record of a case or
substituting therein some forged documents for the genuine documents originally filed,
the offence committed by a person would be not only an offence here described, but also
an offence made punishable by Sec. 466. A person who falsely certifies another as fit for
an office may fall within the provisions of the section if he did so for a consideration
received from a third person, as a motive for inducing a public servant to appoint his
nominee.520 Again, if the means employed were “corrupt”, it would be a question whether
the corrupter is liable under this section, or as an abettor under the last. A person is said
to “corrupt” another, when the former draws the latter aside from the path of rectitude
and duty by a bribe. The employment of “corrupt” means implies the payment or promise
of a bribe. In such a case the public servant would almost invariably be an abettor of this
offence. For one is not likely to receive a bribe to share it with another unless the latter is
privy to it. In any other case, the receiver may be guilty of cheating, but he could scarcely
be convicted under this section. Of course, a person may bona fide believe that he may be

520
2dn Rep. Sec. 70

140
able to induce a public servant by “corrupt means” without having previously consulted
him. His attempt to corrupt him may fail, and still he may be guilty of an offence under
this section. In such a case the accused has the option of choosing his own section for his
condemnation.
163. 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 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 with521 [the Central or any State Government or
Parliament or the Legislature of any State],522 [or with any local authority, corporation or
Government company referred to in Sec. 21], or with any public servant, as such, shall be
punished with simple imprisonment for a term which may extend to one year, or with
fine, or with both.
Illustration
An advocate who receives a fee for arguing a case before a Judge; a person who receives
pay for arranging and correcting a memorial addressed to Government, setting forth the
services and claims of the memorialists; a paid agent for a condemned criminal, who lays
before the Government statements tending to show that the condemnation was unjust,–are
not within this section inasmuch as they do not exercise or profess to exercise personal
influence.
1546
1. Validity – Section 163 of the Indian Penal Code has not ceased to be enforceable
after the enactment of Sec. 124 of the Government of India Act, 1915.523
2. Exercise of personal influence – The exertion of personal influence upon a
public servant, how much so ever to be deprecated 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

521
Subs. By the A.O. 1950, for “the Central or any Provincial Government or Legislature”.
522
Ins. By Act No. 40 of 1964, Sec.2
523
Ibid. 1981 Cr.L.J. 1754 at p. 1755.

141
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 accepted because he
does not exercise or profess to exercise personal influence.
3. 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,524 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 the mischief of the offence here described.
164. Punishment for abetment by public servant of offences defined in Sec. 162 or
163 –Whoever, being a public servant, in respect of whom either of the offences defined
in the last two preceding sections is committed abets the offence, shall be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both.”
Illustration
A is a public servant. B. A’s wife, receives a present as a motive for soliciting A to give
an office to a particular person. A abets her doing so. B is punishable with imprisonment
for a term not exceeding one year, or with fine, or with both. A is punishable with
imprisonment for a term which may extend to three years or with fine or with both.”
1. Analogous law – This is one of the “express provisions” made by the Code for
the punishment of abetment, which are referred to and excluded by Sec. 109, and other
sections of Chapter V. This section only provides an enhanced punishment for an offence
which would have been otherwise punishable under the general provisions of that
Chapter.
2 Procedure – An offence under this section is cognizable, non-bail-able and not
compoundable, and is triable by a Magistrate of the first class. Sanction for prosecution is
necessary under Sec. 197, Cr. P.C. under Sec. 7 of the Criminal Law Amendment Act,

524
Section 16, Indian Contract Act (IX of 1872).

142
1952 (XLVI of 1952) an offence under this section is triable by a Special Judge only
where a Special Judge has been appointed.
3. Proof – The points required to be proved are:
(1) That the accused was a public servant;
(2) that as such he abetted an offence punishable under Sec. 162 or 163;
(3) that such offence was committed in respect of the accused.
165. 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
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 having any connection with the official
functions of 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; shall be
525
punished with [imprisonment of either description for a term which may extend to
three years, [or with fine, or with both.
Illustrations
(a) A, a Collector, hires a house of Z, who has a settlement case pending before him.
It is agreed that A shall pay fifty rupees a month, the house being such that, if the
bargain were made in good faith. A would be required to pay two hundred rupees
a month. A has obtained a valuable thing from Z without adequate consideration.
(b) A, a Judge, buys of Z who has a cause pending in A’s Court, Government
promissory notes at a discount, when they are selling in the market at a premium.
A has obtained a valuable thing from Z without adequate consideration.
(c) Zs brother is apprehended and taken before A, a Magistrate on a charge of
perjury. A sells to Z shares in a bank at a premium, when they are selling in the
market at a discount. Z pays A for the shares accordingly. The money so obtained
by A is a valuable thing obtained by him without adequate consideration.
1. Amendment – The words “simple imprisonment for a term which may extend to

525
Subs. By Criminal Law (Amendment) Act. 46 of 1952.

143
two years” were replaced by the words “imprisonment of either description for a term
which may extend to three years,” by Sec. 2 of Act XLVI of 1952.
2. Principle – The principle underlying it is obvious. If public servants were
suffered to accept presents, when they were prohibited under a penalty from accepting
bribes, they will easily circumvent the prohibition by accepting a bribe in the shape of a
present. The difference between the acceptance of a bribe made punishable by Sec. 161
and this section is this: Under the former section the present is taken as a motive or
reward for abuse of office; under this section the question of motive or reward is wholly
immaterial and the acceptance of a present is forbidden, because, though ostensibly taken
for no consideration, it is in reality a bid for an official favour the refusal of which after
acceptance of the present, may not be always possible.
3. Meaning of words – “Any valuable thing without consideration”: A valuable
thing is a thing of value. In one sense every thing has some value. But as the authors
observe, the section does not include things which are given and received by the rules of
hospitality, such as pan and garlands, fruit or the like.
“Concerned in any proceeding,” i.e. as a party and not merely as a pleader’s agent
or witness. The same sense is conveyed by the words “to be interested in... the person so
concerned” which means personally and not merely professionally interested in him.
4. Applicability – In the instant case, one of the admitted features is that the
appellant had nothing to do with the export licence in question, its cancellation, or the
reversal of that decision in appeal.
No doubt, the Joint Chief Controller had everything to do with the matter, and the
appellant is admittedly his subordinate. The argument of the learned Public Prosecutor is
that, in this sense, the ingredient is complete and fulfilled upon the facts. The argument of
the appellant is that it is not enough that the appellant ‘should be a general administrative
subordinate of the Chief Controller. He must be a subordinate in respect of the matter in
question, in the sense that the matter must belong to that sphere of duties which is
common to both the subordinate and superior officer.
The point is bare of authority and, had the Legislature intended such a restricted
“meaning, there is no reason why words, to that effect should not have been used in the
section. Undoubtedly, if we were to apply Sec. I.P.C., present facts would not be enough,

144
for there is no evidence that the appellant said that he would use his influence with the.
Joint Chief Controller or his own colleague, or with any designated public servant. The
evidence is that the appellant merely stated that he would use his influence to see that the
export permit was finally issued. But the facts do appear to be sufficient to establish the
ingredients under Sec. 165, I.P.C., in the strict sense of the language employed.526
5. Acceptance of presents by public servants – This section discourages the
acceptance by the public servants of presents of all kinds, by penalising acceptance of
those of value, from persons concerned in any proceeding before them, that is to say, only
presents from persons with whom they are officially connected are here prohibited. There
is no general prohibition against the taking of all presents from whomsoever. Absolutely
to prohibit all public functionaries from taking presents would be to prohibit a son from
contributing to the support of a father, a father from giving to a daughter, a brother from
extricating a brother from pecuniary difficulties. Where no such close connection exists,
the receiving of large presents by a public functionary is generally a very suspicious
proceeding; but a lime, a wreath of flowers, slice of betel nut, a drop of attar of roses
poured on his handkerchief, are presents which would, in this country, be held churlish to
refuse, and which cannot corrupt the most mercenary mankind. Other presents of more
value than these may, on account of their peculiar nature be accepted, without affording
any ground for suspicion. Luxuries socially consumed, according to the usages of
hospitality, are presents of this description; it would be unreasonable to treat a man in
office as a criminal for drinking many rupees worth of champagne in a year at the table of
an acquaintance; though if he were to suffer one of his subordinates to accept even a
single rupee in specie he might deserve exemplary punishment.527
Under Sec. 165, I.P.C., it is an offence for a public servant to accept or obtain
any valuable thing from any person whom he knows to have been or to be likely to be
concerned in any proceeding or business transacted or about to be transacted by such
public servant or having any connection with the official functions of himself or of any
public servant to whom he is subordinate.528
6. Corrupt motive, necessity of – An author of a costly book may present a copy to

526
R.G. Jacob. In re. A.I.R. 1961 Mad. 482 at pp. 483, 484.
527
Note E.
528
V.K. Dorairajan, In re, 1982 L.W. 36 at p. 39 (Cr.).

145
a Judge, and the latter commits no offence in accepting it. Indeed, it would be churlish in
him to refuse such a present. So, relations and friends may make and exchange presents,
however costly, and the recipient would commit no offence, though he be a public
servant. What the section prohibits is the acceptance of a valuable present by a public
servant from a present or prospective litigant or applicant, with whom he has no other
connection. In other words, the acceptance of a present when traceable to a corrupt
motive is what is intended to be made punishable here.529
7. “Any valuable thing” – The question whether a thing was or was not of “value”
does not depend upon its market price. It may be an article of vertu which may be
priceless. The question is one of fact which the Court will have to decide in each case,
having regard to the intrinsic value and price of the thing and the occasion which led to
its being presented. In such a case the question of motive is material, not because it is a
necessary ingredient of the crime but because it tends to explain the reason for the
acceptance. For the same reason, the question of consideration is also material, for it also
tends to rebut the suspicion that otherwise attaches to a transaction, which may be
inexplicable, otherwise than as a veiled gratification. A thing how much so ever valuable,
may be purchased for its full value by a public servant no less than by anybody else.
8. “Likely to be concerned” – In the case of judicial officers the clause would
include all litigants present and prospective, but not those who may have occasion to sue
or be sued in their Courts at any time, however remote. The wards “likely to be
concerned” mean such likelihood as may have influenced the donor in taking that fact
into his calculation in offering the present. This may not be always apparent, and in the
case of officials receiving presents and Court peons receiving them in the form of
bakseesh or dasturi from persons who have to resort to Courts, the payment is more in the
nature of extortion than a voluntary payment for favours to come. Take, for instance, the
case of the police-clerk who was employed in the Court of a Magistrate for reading case-
diaries to him. One Chattra has a case of theft before that Magistrate, and he got
convicted the two persons whom he had prosecuted and on the conclusion of whose case
he received back his Rs. 3, the proceeds of the theft. As he left the court-room the police-
clerk followed him and demanded from him Re. 1 as dasturi, which the latter paid. He

529
Note E. p. 124.

146
was prosecuted and convicted under Sec. 161 which was, of course, obviously wrong, as
the payment was made on the conclusion of the case and there was no evidence that it
was a reward for any service rendered by the accused. His conviction was, however,
altered to one under this section, the wide terms of which amply justified it,530 for Chattra
was certainly a person who was concerned in the criminal proceeding, with which the
accused had connection in the discharge of his official functions, namely, to read the
case-diaries to the Magistrate. He had received a rupee without any consideration. His
case, therefore, satisfied all the requirements of this section. Rewards paid to Court
clerks, moharrir and peons fall into the same category. They are either bribes or criminal
presents, and as such punishable either under Sec. 161 or this section. It will be observed
that in the last-cited case, the complain-ant had no more to do with the accused or the
Court with which he was connected. If he had, his case would have then been one like
that of the patwari, who received grain from tenants in his circle and whose case was held
to fail under Sec. 161, rather than under this section,531 because the grain' was given
presumably for future favours.
9. Sanction – The Supreme Court is clearly of opinion that the offences under Sec.
165 of the Indian Penal Code and Sec. 5 of the Prevention of Corruption Act are
cognizable offences and there is no question of their being cognizable if investigated by a
Deputy Superintendent of Police and non-cognizable when investigated by an Inspector
of Police. Nor can there be any question of those offences being cognizable if they are
investigated under Sec. 156 of the Criminal Procedure Code but not when investigated in
accordance with the provis-ions of Sec. 5-A of the Prevention of Corruption Act. The
question, therefore, of the need for a sanction under Sec. 196-A does not arise.532
[165-A Punishment for abetment of offences defined in Sec. 161 or Sec. 165 –
Whoever abets any offence punishable under Sec. 161 or Sec. 165, whether or not that
offence, is committed in consequence of the abetment shall be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both]”
1. Section 165 - A continues as a provision of that Code in spite of the repeal of Sec.

530
Kamta Prasad, I.L.R I All. 530 (giving as dasturi).
531
Mudsoodden, 2 N.W.P.H.C.R. 148.
532
Union of India v. I.C. Lala, A.I.R 1973 S.C. 2204 at p. 2209.

147
3 of Act 46 of 1952.–Section 165-A came on the Statute Book by Sec. 3 of Criminal Law
(Amendment) Act No. XLVI of 1952. Sections 2, 3, 4 and 5 of the 1952 Act were
repealed by the Repealing and Amending Act No. XXXVI of 1957 but it contains a
savings clause in Sec.4.
The opening paragraph of the savings clause makes it clear that repeal by the
1952 Act will not affect those enactments in which the provisions introduced by Act
XLVI of 1952 had already been incorporated. Section 165-A had already been introduced
in the Indian Penal Code. Therefore, by virtue of the saving clause, it continues as a
provision of that Code in spite of Sec. 2 of the Act No. XXXVI of 1957. The same view
has recently been taken by a Division Bench of the Allahabad High Court in the case of
Bhagwati Prasad v. State of Uttar Pradesh.533
2. Distinct and Separate Offence – Section 165-A created a distinct and separate
offence and therefore abetment of an offence under Sec. 161 was no longer an offence
under Sec. 161 read with Sec. 116 of the Penal Code. Section 165-A is not merely a
restatement of the offence of abetment under Sec. 116 of the Code. It also comprises
abetment under Sec. 109 of the Code and provides an enhanced penalty of three years'
imprisonment instead of one-fourth of three years imposable under Sec. 116.534
3. Offer of Bribe – Section 165-A is a restatement of the offence of abetment of
bribery under Sec. 161, I.P.C. Illustration (a) of Sec. 116 shows that the offer of bribe
would amount to an abetment under Sec. 146 and thus constitutes an offence under Sec.
165-A even without actual payment.535
In a case reported in State of Maharashtra v. Jagat Singh,536 it was held that where
a person is a public servant in the very office where the appointment of the person giving
the bribe is to be made and takes the money in order to get the appointment made, there is
no further question of the charge of evidence indicating who was the other public servant
with whom the services would be rendered. It is not necessary to show whether there was
any other public servant who was to be approached here the public servant taking the

533
Criminal Appeal No. 344 of 1976, decided on 30th October, 1980. Kripa Ram v. State of Uttar Pradesh,
1981 A.L.J. 699 at p. 701.
534
Bhajahari Mondal v. State of West Bengal, A.I.R 1959 S.C. 8 at pp. 11, 12: 1959 S.C.J. 191: 1959
Cr.L.J. 98.
535
Damodar v. State, A.I.R 1955 Born. 61: Adikando Satpathy v. State. A.I.R. 1967 Orissa 31 at p. 35.
536
A.I.R 1964 S.C. 492.

148
money is in the very office by which the appointment should be made. In such a case. the
person would be taking money for himself or for any other person in his office in order to
do any official act or get it done. It is enough if it is shown that money was paid to a
public servant in a particular department by which an order would be made and if it was
taken for doing any official act in that department.537
All that is required is to show that the bribe giver wanted the particular public
servant to show him a favour. It is the mens rea of the bribe giver that has to be taken into
consideration and not whether the particular public servant was in fact in a position to do
a favour to him. Where the Deputy Superintendent made an inspection and sent an
adverse report against the interests of the petitioner and the matter pending before the
Superintendent of Police, a superior officer of Deputy Superintendent is likely to be
referred to him for his view and, in such a case undoubtedly Deputy Superintendent
would be in a position to review the matter and recommend the case of the petitioner, it
was held that in such circum-stances Deputy Superintendent of Police had accepted the
gratification and the conviction of the petitioner for an offence under Sec. 165-A, I.P.C.,
by the Courts below was correct.538
Section 165-A provides for the punishment of an abetment of an offence
punishable under Sec. 161 or Sec. 165 whether or not that offence is committed, in
consequence of the abetment. If a person who offers to pay the amount makes his
proposal, that constitutes an offence under Sec. 165-A. Section 116 deals with an
abetment of the offence where the offence abetted is not ultimately committed.
A person offering bribe can be prosecuted under this section as it is a distinct
offence. The section provides for the punishment for abetment of an offence punishable
under Sec. 161 or 165, I.P.C., whether or not that offence is committed in consequence of
the abetment. The prosecution should prove the abetment of an offence under Sec. 161 or
165, I.P.C.539
This section was inserted by the Criminal Law Amendment Act (XLVI of 1952).
A person offering bribe can be prosecuted under this section as it is a distinct offence.
The section provides for the punishment for the abetment of an offence punishable under

537
Adikando Satpathy v. State, A.I.R. 1967 Orissa 31 at p. 35.
538
V.K. Dorairajan, In re, 1982 L.W. 36 at p. 39 (Cr.).
539
Ibid.

149
Sec. 161 or 165, I.P.C., whether or not that offence is committed in consequence of the
abetment. The prosecution should prove the abetment of an offence under Sec. 161 or
165, I.P.C.540
It would thus be clear that the offer of the bribe would amount to an abetment
under Sec. 116 and would necessarily constitute an offence under Sec. 165-A. The
definition of the word “instigation” contained in Sec. 107 leads to the same result. Any
act committed by a person which amounts to instigation as defined in Sec. 107 would
attract the provisions of Sec. 165-A, I.P.C.541
Now, of the various ways of abetment given in Sec. 107, I.P.C., the one
applicable to the facts of the present case would be the first, namely, instigating any
person to do the thing (here, to commit the offence punish-able under Sec. 161 or Sec.
165). For this form of abetment, unlike the other two mentioned in Sec. 107, merely
instigating another to commit the offence would render the instigator liable as abettor
irrespective of whether that other committed, or even consented to commit, the offence.
For this form of abetment, therefore, the words “whether or not that offence is
committed in consequence of the abetment” occurring in Sec. 165-A are redundant. It
follows, therefore, that as soon as the appellant had instigated the Commissioner to let
them change the book of account in question by offering Rs.900 to him, the offence of
abetment of the offence under Sec. 161 was complete within the intendment of Sec. 165-
A, quite irrespective of the fact that the Commissioner did not accept, or even consent to
accept, the money.542
The Additional Munsif, by his order dated 27th March. 1954, appointed Shri
Raghubir Pershad, Vakil, Commissioner to seize plaintiff's books of account. Held that
Sri Raghubir Pershad was not a public servant and that, therefore, the appellants did not
commit any offence under Sec. 165-A of the Indian Penal Code by their offering him
money in order to have an opportunity to tamper with the books of account which were in

540
V.K. Dorairajan v. State, (1982), M.L.J. 247 at p. 249 (Cr.).
541
Damodar Krishna Kamli v. State, A.I.R 1955 Born. 61 at pp. 62-63: 56 Born. L.R 1021; Rameshwar
Singh v. King-Emperor, A.I.R 1925 Pat. 48: I.L.R. 3 Pat. 647 : 26 Cr. L.J. 119; Emperor v. Dinkar Rao,
A.I.R. 1933 All. 513; I.L.R. 55 All. 654: 34 Cr. L.J. 623; Emperor v. Amiruddin, A.I.R. 1923 Born. 44 (2):
24 Bom. L.R. 534: 23 Cr. L.J. 466, where the facts were somewhat unusual and distinguished from those in
Damodar’s case first cited.
542
Padam Sen v. State, A.I.R. 1959 All. 707 at pp. 708-709; 1959 A.W.R. (H.C.) 27; reversed by the
Supreme Court see infra.

150
his custody.543
4. Public Servant may not be in a Position to Show any Favour – Even if the
public servant had no power to assist the accused, the question is not what the public
servant would have been able to do, but the question is what the accused wanted him to
do. In a charge under Sec. 165-A it is immaterial whether the public servant was not in
fact in a position to do or to show any favour.544
5. Abetment of offence – Explanation 4 to Sec. 108 of the Code provides that the
abetment of an offence being an offence, the abetment of such an abetment is also an
offence, punishable under Sec. 165-A of the Code.545
The appellant paid Rs. 10 to P.W.1. the Food Inspector as a motive or reward for
giving certificates in respect of 10 ration cards produced before him by P.W.1. was
authorised to issue such certificates as part of his official duty. It was the prosecution case
that issue of ration on all ration cards in Ward Nos. 5 and 7 of the town of the Agartala
had been stopped unless the ration cards were certified by the Food Inspector. Thus for
doing the official act of certifying P.W. 1 was given this gratification of Rs. 10 as a
motive or reward. The question whether the ration cards were true or false ration cards
did not enter into the picture.
Thus, the question of the truth or falsity of the cards has nothing to do with the
case and all the elaborate evidence let in and the further investigation into the case were
totally, unnecessary. The simple facts to be proved were : Did the appellant produce the
cards before P. W.1 (2) Did he pay Rs. 10 to P.W. 1.1 (3) Was the amount paid to P.W. 1
for certifying the cards in his capacity as Food Inspector? If these facts are established the
offence of the abetment under Sec. 165-A is proved against the appellant.546
The charge framed against the accused ran thus: 'That you, on or about the 16th
day of December, 1958, at Prem Hotel Cabin, Purnea, abetted Sri Girijanand Mishra, who
was a public servant in the commission of an offence, punishable under Sec. 165-A of the
Indian Penal Code by offering three G.C. notes of rupees ten each for obtaining blank
refugee registration card forms, and thereby committed an offence punishable under Sec.

543
Padam Sen v. State of Uttar Pradesh, A.I.R 1961 S.C. 218 at pp. 218. 221.
544
Padam Sen v. State, A.I.R. 1959 All. 707; Adikando Satpathy v. State, A.I.R. 1967 Orissa 31 at p. 35;
Dorairajan.
545
Pritam Singh v. State. A.I.R. 1954 Punjab 228 at p. 230.
546
Gopal Chandra Pal v. Tripura Administration. A.I.R. 1961 Tripura 8 at p. 11.

151
165-A of the Indian Penal Code, and within my cognizance and I hereby direct that you
be tried by me (of) the said charge.”
It was held if Girijanand Mishra had agreed to supply blank registration cards to
the appellant, while Girijanand Mishra was acting as a typist and a clerk in charge of the
refugee registration cards, it cannot be said that he had agreed to do an official act or to
show favour to the appellant in exercise of his official function. The employment of
Girijanand Mishra as a clerk in this particular office, may have given him an opportunity
to supply blank cards to the appellant, but the agreement to supply blank cards was
certainly not to do an official act. It must follow, therefore, that the appellant had not
abetted any offence punishable under Sec. 161 of the Indian Penal Code and as such, he
was wrongly prosecuted under Sec. 165- A of the Code.547
It is evident that two basic principles of appreciation of evidence in cases of
denial were not in the mind of the special Judge. First principle is that evidence of
interested and partisan witnesses who are concerned in success of the trap must be tested
in the same way as that of any other interested witness. In a proper case the Court may
look for independent corroboration before convicting the accused persons. In this
connection reference can be made to the case of Ram Prakash Arora v. State of Punjab.548
The second principle of appreciation of evidence in such cases is that there can be
no doubt that evidence in such cases should be corroborated in material particulars. After
introduction of Sec. 165-A, I.P.C., making the person who offers bribe guilty of abetment
of bribery. The complainant cannot be placed on any better footing than that of
accomplices and corroboration in material particulars connecting the accused with the
crime has to be insisted upon.549
In the undernoted case the learned Courts below so far as accused No. 1 is
concerned have drawn an inference from the subsequent conduct of the accused after the
trap was laid. Apparently such an inference could not be drawn because if the accused
was really involved in the matter after the trap was laid and money was recovered from
accused No. 2, it will be nothing but failure of the trap against accused No. 1. To take the

547
Sailendra Nath Gangully v. State of Bihar, A.I.R. 1962 Pat. 8 at pp. 8, 11.
548
A.I.R. 1973 S.C. 498.
549
Pana Lal Damodar Rathi v. State of Maharashtra, 1979 (4) S.C.C. 526; Dinesh Chandra Sinha v. State,
1989 S.C.Cr.R. 290 at p. 293.

152
application or the statement made by the complainant afterwards may be nothing but
curiosity and the inference drawn could not be justified. Admittedly there is no evidence
at all against accused No.1 except the story given, out by complainant Pandurang on 29th
November, 1975. The evidence about the incident of 2nd December, 1975, only indicates
that this accused avoided the complainant whenever he approached him. On this evidence
the conviction of the appellant could not be sustained as this does not establish any of the
ingredients of the offence.
6. Sanction – An offence under Sec. 165-A of the Indian Penal Code has to be
deemed to be a cognizable offence for the purpose of the Code of Criminal Procedure. It
is only because the Legislature enacted Sec. 5-A of the Prevention of Corruption Act that
so far as the Presidency-town of Bombay was concerned, no police officer below the rank
of a Superintendent of Police could in the case of an offence under Sec. 165-A of the
Indian Penal Code, investigate it without the order of a Presidency Magistrate. There is
nothing in the language of Sec. 5-A which would suggest that an offence under Sec. 165-
A of the Indian Penal Code is not to be treated as a cognizable offence.550
Where the entire case of the prosecution rests solely on the testimony of Head
Constable and four other police constables and there is not a single independent witness
to depose to the offer of bribe by the appellant and the time when the seizure was made
was such that independent witnesses could be called, it was held that no conviction could
be justified.551 Uncorroborated statement of a complainant cannot found a conviction for
an offence under Sec. 161 or the allied offence under Sec. 165-A, I.P.C.552
7. Proof – The points requiring proof are:
(1) That the accused abetted an offence :
(2) that the offence abetted was one under Sec. 161 or Sec. 165.
It is not necessary to establish that the offence abetted was actually committed. “A
mere offer to pay an illegal gratification to a public servant, although no money or other

550
Union of India v. I.C. Lala, A.I.R. 1973. S.C. 2204 at p. 2206: Mohan Mallu Rathor v. State of
Maharashtra, 1985 Cr. L.R. 369.
551
Bhagwan Singh v. State of Rajasthan, A.I.R. 1976 S.C. 985 at pp. 987, 988.
552
Ismail Ibrahim Sayad v. State (1975), 2 Cr.L.J. 1335 at p. 1336; People Patriotic Front. New Delhi v.
K.K. Birla, 1984 Cr.L.J.545.

153
consideration is actually produced, amounts an attempt to bribe.553 By inserting Sec. 165-
A in I.P.C., the Legislature has clearly and expressly made provisions for punishment and
abetment in bribery cases and such abetment has been made a substantive offence. It,
therefore, becomes clear that one who offers illegal gratification can only be prosecuted
under Sec. 165-A and not under the old provisions as laid down in Secs. 161 and 116,
I.P.C., for even if two sets of provisions be deemed to be co-existing and the result of this
co-existence would be destructive of the object for which the new law was passed, the
earlier would be repealed by the latter.554 Under Sec. 7 of the Criminal Law Amendment
Act, 1952 (XLVI of 1952) an offence under this section is triable by a special Judge only,
where such a Judge has been appointed.
8. Accused person to be competent witness – See Commentary under the same
heading under Sec. 161. Sentence. It is the gravity of the offence committed and not the
nature of size of the instrument employed for committing that offence that should be the
criterion for determining the sentence to be awarded to the offender.555
The accused in Mehmood Beg v. State of Rajasthan556 made a daring attempt to
corrupt a judicial officer like Additional Sessions Judge by inducing him to go out of his
way to render illegal help to him by, acquitting him in a murder case. It was held that an
offence of this type has to be viewed as a grave crime calling for a deterrent sentence.
The sentence of six months' rigorous imprisonment awarded to the accused by the Special
Judge can be characterised ridicuoulsy meagre.
Even if the appellant paid the bribe only in order to avoid harassment. The
imprisonment should not be reduced below six months.557 The appellant in his rustic
simplicity did not know the full consequences and implications of his act. This is clear
from the fact that he asked the Magistrate to accept something publicly in open Court. It
would, therefore, not be proper to treat him in the matter of punishment in the same way
as is necessary in the case of those bribe-givers, who deliberately want to corrupt public

553
Rameshwar Singh v. King-Emperor, A.I.R 1925 Pat. 48 at p. 49 : I.L.R. 3 Pat. 647: 26 Cr.L.J. 119 ;
Damodar Krishna Kamli v. State, A.I.R. 1955 Born. 61 at p. 64 (D.B.): 56 Born. L.R. 1021 : 1955 Cr.L.J.
181.
554
Ukakhasia Uchai Khasia v. Manipur State, 1956 Manipur 9 at p. 10.
555
Ouseph Varkey v. State, A.I.R. 1954 T.C. 492 at p. 495.
556
1973 Cr. L.J. 806 at p. 811.
557
Kishan Narain v. State of Maharashtra, A.I.R. 1973 S.C. 2751 at p. 2758.

154
official in order to gain their ends.558
Alteration of charge under this section to one under Sec. 161 read with Sec.
109 and conviction thereon – See Commentary under the same heading under Sec. 151,
ante.
166. Public servant disobeying law, with intent to cause injury to any person
–Whoever, being a public servant knowingly disobeys any direction of the law as to the
way in which he is to conduct himself as such public servant intending to cause, or
knowing it to be likely that he will, by such disobedience, cause injury to any person,
shall be punished with simple imprisonment for a term which may extend to one year, or
with fine, or with both.
Illustration
A, being an officer directed by law to take property in execution, in order to
satisfy a decree pronounced in Z s favour by a Court of Justice, knowingly disobeys that
direction of law, with the knowledge that he is likely thereby to cause injury to Z A has
committed the offence defined in this section.
1. Scope – In the words of Law Commissioners this section is very
comprehensive and includes several offences respecting the abuse of official authority,
and regarding officers omitting to arrest offenders and suffering prisoners to escape, so
far as the offence is voluntary, and in general, any breach of official duty, by which it is
intended, or which is known to be likely to injure any party or to save any person from
legal punishments.559
For the application of Sec. 166, Indian Penal Code it has to be shown that a public
servant knowingly disobeys any direction of the law as to the way in which he is to
conduct himself as such public servant intending to cause, or rowing it to be likely that he
will by such disobedience, cause injury to any person. Therefore, the disobedience must
be of a direction of law and not an order of a Court. Further this direction must be with
respect to the conduct of such public servant and the disobedience must be with the
intention to cause injury to any person or the disobedience must be with the knowledge

558
Bhim Singh v. State, A.I.R. 1955 Raj. 108 at p. 112.
559
2nd Rep. Sec. 383, p. 365

155
that it is likely to cause injury to any person.560
2. “Direction of the law” – The offence made punishable by the section consists
in the willful disobedience of an express direction of law; a disobedience to an order is
not sufficient, even though that order may be one that was given under a provision of
law.561 So the mere breach of departmental rules and regulations not having the force of
law cannot be visited with punishment under this section, which contemplates only the
breach of some statutory duty, not merely through inadvertence or negligence, but of
purpose to cause injury to any person. It is an abuse of office in which law presumes that
the injury was caused from some ulterior corrupt motive. A mere dereliction of duty
unconnected with injury to any one is not an offence under this section though it may be
under some other Act. For example, a postal official absenting himself from his station
without leave may be punished under the Post Office Act. He could not be punished
under this section, though his absence may have occasioned inconvenience and injury to
the public.562
But a bailiff who refuses to seize property in execution with the knowledge that it
is likely to cause injury to the decree-holder offends under this section because there is in
his case a wilful disobedience of law resulting in injury to a person. Such injury need not
result in permanent deprivation of property. For it is an “in-jury” that the decree-holder is
delayed in the recovery of his debt. Indeed, the term “injury” is comprehensive enough to
include any harm illegally caused to any person in body, mind, reputation, or property. 563
So it has been held in England that if an under-sheriff obtains his fees by refusing to
execute process till they are paid,564 or to take a bond for his fee before execution issued
out, it is extortion,565 for the sheriffs fee is not due until execution. The accused, a peon
of a Civil Court, was given a notice for service on the complainant. He misrepresented it
to be a warrant and actually arrested the complainant, under colour of the alleged warrant,
presumably with the object of extorting money. He was convicted for this offence, and

560
Jeewa Ram v. Madan Lal; 1985 (2) Crimes 808 at p. 810
561
Appaji Narain (1895), B.U.C. 764; Suriya Shekhar Prasad Singh, 5 D.L.R. (Pat). 265: 4 A.I. Cr.D. 729.
562
Virasami Naick (1876), Weir 72; Jeewa Ram v. Madan Lal, 1985 (2) Crimes 808.
563
Section 44.
564
Hescott's cases, 1 Salk, 30.
565
Emperor v. Bathurat. Hutt, 52.

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the High Court naturally upheld his conviction.566 The word “person” has been described
in Sec. 11. It bears that sense in this definition. Consequently a disobedience of law
resulting in injury to the public could not be punished under this section.
In cases falling under this section and those under Sec. 342 of the Code against
police officers or other public servants, the most important though by no means the only
test is whether allegations against the police officer or any other public servant concerned
are placed before proper authority at the very earliest opportunity.
A delay in making this allegation before the Magistrate or other competent
authority is almost fatal to a prosecution of this nature.567
The Police Regulations are a volume of orders by the Local Government and
there is no paragraph in the Criminal Procedure Code giving the Local Government
power to issue orders for carrying out the provisions of the Criminal Procedure Code.
The Criminal Procedure Code therefore cannot be modified by any orders of the Local
Government in a departmental Code. Now there is nothing in the Criminal Procedure
Code which suggested that orders of release passed by a Magistrate must be
communicated through a Superintendent of Police. In the case of an investigation by a
Sub-Inspector, Sec. 167 of the Code lays down that if the investigation cannot be
completed within 24 hours fixed by Sec. 57 the accused must be produced before the
nearest Magistrate for orders. Such a Magistrate may order the detention of the accused
and if he does not pass such an order then the accused would have to be released under
Sec. 57. Now there is nothing in Sec. 167 which indicates that the order either of
detention or of release should be communicated through the Superintendent of Police. In
many cases it will be impossible to do this: for example the Magistrate might be in camp
and then an accused is brought before him by a Sub-Inspector under Sec. 167, naturally
the order is communicated directly to the Sub-Inspector of the Police having custody of
the accused. In the present case the application for bail was made to the Magistrate on a
Sunday when the office of the Superintendent of Police was closed. It would not have
been possible therefore, for the Magistrate to send his order to the office of the
Superintendent of Police to be forwarded. He adopted the method of giving his order for

566
Rangaswami Naidu, 16 I.C. 773 (Mad.).
567
Ram Charan Surdas v. Gaya Prasad, A.I.R. 1952 V.P. 57 at p. 58.

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release directly to the sureties and there is nothing in the Code which indicates that the
Magistrate was incorrect in taking this course. Under Sec. 436 (1), Cr. P.C., where a
person is accused of a non-bailable offence the Court may grant bail and there is nothing
in that section which provides that the order for release shall be communicated through
the Superintendent of Police.
The Criminal Procedure Code gives a Magistrate authority to order release on bail
and it is certainly not for a Sub-Inspector to refuse to carry out such an order on the mere
technical quibble that he thought that such an order should be communicated to him
through the Superintendent of Police.568
3. Disobedience of the temporary injunction–Whether any offence is made out –
The disobedience of the temporary injunction is not contemplated as an offence under
Sec. 166, I.P.C. and for that recourse could have been taken to Order XXXIX, rule 2,
C.P.C., or for proceedings for contempt of court as has already been done by the
complainant.
5. Sanction – Sanction for prosecution- is necessary under Sec. 197, Cr.P.C.
It is clear that the Act constituting the offence cannot be the actual duty that the
public servant is performing, but something independent of that duty for the doing the act
of duty cannot both be legal and illegal. Yet it must arise out of the performance of duty:
moreover, it can never mean that a single act of duty must be regarded as the
performance of duty out of which the offence must arise. Duty must be taken as the
general duty which an officer has to perform. If in the course of such performance of duty
he does something which is an offence, Sec. 197, Cr. P.C., must apply. Section 4(1) (o)
and Sec. 4 (2) (now Sec. 2 (n) and Sec. 2 (y), make it clear that words referring to acts
done include illegal omissions.
The prosecution was incompetent in the absence of a sanction from an appropriate
authority under Sec. 197 of the Criminal Procedure Code.569 It is settled view that without
obtaining sanction under Sec. 197, Cr. P.C., no prosecution for the offence under Sec.
166, I.P.C., could be launched. In the present case, the alleged diversion of the funds

568
Mohammad Yakub v. Emperor, A.I.R. 1938 All. 534 at pp. 535-36.
569
Shankarrao Mohite v. Burjor D. Engineer, A.I.R. 1962 Born. 198 at pp. 199. 200. 201: (1962) 2 Cr.L.J.
320: 94 Bom. L.R. 130: 1962 Nag. L.J. 196 ; R.L. Sangh Administrator. Manmad Muhicipal Council v.
Vasantrao Sampatro Ahir, (1985) 1 Born. C.R 355; N. SHIVA KUMAR, I.P.S. V. N. RAMANNA
ADYANTHAYA. 1997 (4) CRIMES 461 AT P. 464 (KNT.).

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received as a grant to be made over to the School Board by the petitioner-accused for the
other purposes of the Municipal Council was clearly an act of the petitioner in the
discharge of his duties, and as such for prosecuting the petitioner for the offence under
Sec. 166, I.P.C., sanction under Sec. 197. Cr. P.C., was necessary.570
The ingredients are: (i) that the accused should be a public servant, (ii) that he
should conduct himself in disobedience of a direction of law, (iii) that he should disobey
the direction of law knowingly; and (iv) that in such deliberate disobedience, his intention
should be or his knowledge should be that he was likely there to cause an injury to the
person complaining. Disobedience of the direction of law is not by itself punishable
unless the injury is intended to someone or unless the injury is likely and the public
servant has the intention or knowledge of it.571
In case of grave irregularities against a Government pleader the Law Secretary of
the Government is competent to refuse sanction to prosecute.572
The mere assumption of false character without any attempt to do any official act
is not sufficient to bring the offender within the meaning of Sec. 170. The section not
only provides that the act shall be done in such assumed character, but also under colour
of such office.573
171. Wearing garb or carrying token used by public servant with fraudulent intent.–
Whoever, not belonging to a certain class of public servants, wears any garb or carries
any token resembling any garb or token used by that class of public servants, with the
intention that it may be believed, or with the knowledge that it is likely to be believed,
that he belongs to that class of public servants, shall be punished with imprisonment of
either description for a term which may extend to three months, or with fine which may
extend to two hundred rupees, or with both.
Fraudulent disguise – The mere carrying of a garb or token of a public servant
without the intention of practicing deception upon others is not an offence. It becomes an
offence only if there was that intention, the law regarding such an act as preparatory to
the commission of a crime by making use of that disguise, which must, however, be at

570
R.L. Sangale, Administrator, Manmad Cotincil v. Vasantrao Sampatrao Ahire. (1985) 1 Bom. C.R. 355
at pp. 356, 357; Bhitraj v. K. Muniyandi. 1995 (2) Crimes 194 at p. 195 (Mad.).
571
C.G. Sangamnerkar v. Suresh Chandra Modi. 1979 M.P.L.J. 682 at pp. 685, 686.
572
V. Raman Kutty Henon v. State of Kerala, 1986 (1) Crimes 254 at p. 258 (Ker.).
573
P.R. Gopala Pillai v. State of Kerala, 1974 M.L.J. (Cr.) 308 at p. 310 (Ker).

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least as complete as is contemplated by the section. For instance, if it is a garb, he must
wear it and not merely carry it under his arm; if it is a token he must carry it so as to
exhibit it, and not merely have it in his possession. So it was held in a case that where the
accused was carrying a police jacket under his arm intending thereby to pose himself off
as a police constable, he could not be convicted of an offence under this section.574
Sentence – A person may both wear the garb of a public servant and use it for the
purpose of fraud. In that case the wearing of the garb being subservient to the
commission of the greater offence under the last section he could only be convicted of
that offence, and not of both the offences made punishable by this and the last section.575
Offences by and Against Public Servants in I.P.C.
The primary function of National Human Rights Commission (N.H.R.C.) is to
receive complaints and initiate investigations into violations of human rights by the
Public Servants or their abatement thereof It is no wonder that N.H.R.C. is empowered to
receive the complaints (that have been flied within one year of the perpetration of the
alleged human rights violation) or investigate on its own “negligence in the prevention of
human rights violations by public servants.” In accepting these complaints, the
Commission is mandated to confine its substantive consideration to those complaints that
have been filed within a period of one year of the perpetration of the alleged human rights
violation. Indian Penal Code has laid down following offences by and against public
servant.
183. Resistance to the taking of property by the lawful authority of a public
servant - Whoever intentionally obstructs any sale of property offered for sale by the
lawful authority of any public servant as such, shall be punished with imprisonment of
either description for a term which may extend to one month, or with fine which may
extend to five hundred rupees, or with both.
185. Illegal purchase or bid for property offered for sale by authority of public
servant - Whoever, at any sale of property held by the lawful authority of a public
servant, as such, purchases or bids for any property on account of any person, whether
himself or any other, whom he knows to be under a legal incapacity to purchase that

574
Nga Po Kyaw, (1904) U.B.R 3. (P.C.).
575
Tukaram, (1888) B.U.C. 405.

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property at that sale, or bids for such property not intending to perform the obligations
under which he lays himself by such bidding shall be punished with imprisonment of
either description for a term which may extend to one month, or with which may extend
to two hundred rupees, or with both.
Whoever voluntarily obstructs any public servant in the discharge of his public
functions, shall he punished with imprisonment for a term which may extend to one
month, or with fine which may extend to two hundred rupees, or with both;
187. Omission to assist public servant when bound by law to give assistance -
Whoever, being bound by law to render or furnish assistance to ant public servant in the
execution of his public duty, intentionally omits to give such assistance, shall be punished
with simple imprisonment for a term which may extend to one month, or with fine which
may extend to two hundred rupees, or with both; and if such assistance be demanded of
him by a public servant legally competent to make such demand for the purposes of
executing any process lawfully issued by a Court of justice, or of apprehending a person
charged with or guilty of an offence, or of having escaped from lawful custody, shall he
punished with simple imprisonment for a term which may extend to six months, or with
may which may extend to five hundred rupees, or with both.
188. Disobedience to order duly promulgated by public servant – Whoever
knowing that, by an order promulgated by an order promulgated by a public servant
lawfully whoever, knowing that, by an order promulgated by a public servant lawfully
empowered to promulgate such order, he is directed to abstain from a certain act, or to
take certain order with certain property in his possession or under his management,
disobeys such direction, shall, if such disobedience cause to tender to cause obstruction,
annoyance or injury, or risk or obstruction, annoyance or injury, to any person lawfully
employed, be punished with simple imprisonment for a term which may extend to one
month or with fine which may extend to one month or with fine which may extend to two
hundred rupees, or with both; and if such disobedience cause or trends to cause dangers
to human life, health or safety, or cause or tends to cause a riot or affray, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both. It is not
necessary that the offender should intend to produce harm, or contemplate his

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disobedience as likely to produce harm. It is sufficient that he knows of the under which
he disobeys, and that his disobedience produces, or is likely to produce, do.
Comment
An order is promulgated by a public servant lawfully empowered to promulgate
such order, directing that a religious procession shall not pall down a certain street. A
knowingly disobeys the order and thereby causes danger or riot. A has committed the
offence defined in this section.
189. Threat of injury to public servant - Whoever holds out any threat of injury to
any public servant, or to any person in whom he believes that public servant to be
interested, for the purpose of inducing that exercise of the public factions of such public
servant, shall be punished with imprisonment of either description for a term which may
extend to two year, or with fine, or with both.
190. Threat of injury to induce person to refrain from applying for protection to
public servant - Whoever holds out any threat of injury to any person for the purpose of
inducing that person to refrain or desist from making a legal application for protection
against any injury to any public servant legally empowered as such to give such
protection, or to curse such protection to be given shall be punished with imprisonment of
either description for a term which may extend to one, or with fine, or with both, of either
description for a term which may extend to one year, or with fine, or with both.
213. Taking gift, etc., to screen an offender from punishment - Whoever accepts or
attempts to obtain, or agrees to accept, any gratification for himself or any other person,
or any restitution of property to himself or any other person, in consideration of his
concealing an offence or of his screening any person for the purpose of bringing him to
legal punishment. if the offence is punishable with imprisonment of either description for
a term which may extend to seven years, and shall also be liable to fine; and if the
576
offence is punishable with [imprisonment for life], or with imprisonment which may
extend to three years, and shall also he liable to fine: and if the offence is punishable with
[imprisonment not ‘extending to ten], or with years, shall be punished with imprisonment
of the description provided for the offence for a term which may extend to one-forth part

576
The provisions of sections 213 and 214 do not extend to any case in which the offence may lawfully be
compounded.

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of the longest term of /imprisonment provided for the offence, or with fine, or with both.
Section 214 - Offering gift or restoration of property in consideration of screening
offender - Whoever gives or causes, or offers or agrees to give or cause, any gratification
to any person, or restores or causes the restoration of any property to any person, in
consideration of that person’ concealing an offence, or of his screening any person from
legal punishment for any offence, or of his not proceeding against any person for the
purpose of bringing him to legal punishment, if the offence is punishable with death, be
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine; and if the offence is punishable with imprisonment
for life or with imprisonment which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine; and if the offence is punishable with imprisonment not extending to
ten years, shall be punished with imprisonment of the description provided for the
offence for a term which may extend to one-fourth part of the longest term of
imprisonment provided for the offence, or with fine, or with both.
Section 215 – Taking gift to help to recover stolen property, etc – Whoever takes or
agrees or consents to take any gratification under pretence or on account of helping any
person to recover any movable property of which he shall have been deprived by any
offence punishable under this Code, shall, unless he uses all means in his power to cause
the offender to be apprehended and convicted of the offence, be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
Section 217:- Public servant disobeying direction of law with intent to save person
from punishment or property from forfeiture – Whoever, being a public servant,
knowingly disobeys any direction of the law as to the way in which he is to conduct
himself as such public servant, intending thereby to save, or knowing it to he likely that
he will thereby save, any person from legal punishment, or subject him to a less
punishment than that to which he is liable, or with intent to save, or knowing that he is
likely thereby to save, any property from forfeiture or any charge to which it is liable by
law, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

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Section 218:- Public servant framing incorrect record or writing with intent to save
person from punishment or property from forfeiture - Whoever, being a public
servant, and being as such public servant, charged with the preparation of any record or
other writing, frames that record or writing in a manner which he knows to be incorrect,
with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to
the public or to any person, or with intent thereby to save, or knowing it to be likely that
he will thereby save, any person from legal punishment, or with intent to save, or
knowing that he is likely thereby to save, any property from forfeiture or other charge to
which it is liable by law, shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
Section 219:- Public servant in judicial proceeding corruptly making report, etc.,
contrary to law - Whoever, being a public servant, corruptly or maliciously makes or
pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision
which he knows to be contrary to law, shall he punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both.
Section 220:- Commitment for trial or confinement by person having authority who
knows that he is acting contrary to law - Whoever, being in any office which gives him
legal authority to commit persons for trial or to confinement, or to keep persons in
confinement, corruptly or maliciously commits any person for trial or to confinement, or
keeps any person in confinement, in the exercise of that authority, knowing that in so
doing he is acting contrary to law, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both.
Section 221:- Intentional omission to apprehend on the part of public servant bound
to apprehend - Whoever, being a pubic servant, legally bound as such public servant to
apprehend or to keep in confinement any person charged with or liable to be apprehended
for an offence, intentionally omits to apprehend such person, or intentionally suffers such
person to escape, or intentionally aids such person in escaping or attempting to escape
from such confinement, shall be punished as follows, that is to say:-
with imprisonment of either description for a term which may extend to seven
years, with or without fine, if the person in confinement, or who ought to have
been apprehended, was charged with, or liable to be apprehended for, an offence

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 punishable with death; or
with imprisonment of either description for a term which may extend to three
years, with or without fine, if the person in confinement, or who ought to have
been apprehended, was charged with, or liable to he apprehended for, an offence
punishable with imprisonment for life or imprisonment for a term which may
extend to ten years; or
with imprisonment of either description for a term which may extend to two
years, with or without fine, if the person in confinement, or who ought to have
been apprehended, was charged with, or liable to be apprehended for, an offence
punishable with imprisonment for a term less than ten years.
Section 222:- Intentional omission to apprehend on the part of public servant bound
to apprehend person under sentence or lawfully committed - Whoever, being a public
servant, legally bound as such public servant to apprehend or to keep in confinement any
person under sentence of a Court of Justice for any offence or lawfully committed to
custody, intentionally omits to apprehend such person, or intentionally suffers such
person to escape or intentionally aids such person in escaping or attempting to escape
from such confinement, shall he punished as follows, that is to say:-
with imprisonment for life or with imprisonment of either description for a term
which may extend to fourteen years, with or without fine, if the person in
confinement, or who ought to have been apprehended, is under sentence of death;
or
with imprisonment of either description for a term which may extend to seven
years, with or without fine, if the person in confinement, or who, ought to have
been apprehended, is subject, by a sentence of a Court of Justice, or by virtue of a
commutation of such sentence, to imprisonment for life or imprisonment for a
term often years or upwards; or
with imprisonment of either description for a term which may extend to three
years, or with fine, or with both, if the person in confinement, or who ought to
have been apprehended is subject, by a sentence of a Court of Justice, to
imprisonment for a term not extending to ten years or if the person was lawfully
committed to custody.

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Section 223:- Escape from confinement or custody negligently suffered by public
servant - Whoever, being a public servant legally bound as such public servant to keep in
confinement any person charged with or convicted of any offence or lawfully committed
to custody, negligently suffers such person to escape from confinement, shall be punished
with simple imprisonment for a term which may extend to two years, or with fine, or with
both.
Section 225A:- Omission to apprehend, or sufferance of escape, on part of public
servant, in cases not otherwise, provided for - Whoever, being a public servant legally
bound as such public servant to apprehend, or to keep in confinement, any person in any
case not provided for in section 221, section 222 or section 223, or in any other law for
the time being in force, omits to apprehend that person or suffers him to escape from
confinement, shall be punished:
1. if he does so intentionally, with imprisonment of either description for a term
which may extend to three years, or with fine or with both; and
2. if he does so negligently, with simple imprisonment for a term which may extend
to two years, or with fine, or with both.
Section 228 – Intentional insult or interruption to public servant sitting in judicial
proceeding – Whoever intentionally offers any insult, or causes any interruption to any
public servant, while such public servant in sitting in any stage of a judicial proceeding,
shall be punished with simple imprisonment for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.
Section 409 of IPC
“Criminal breach of trust by Public Servant, or by Banker, Merchant or Agent-
Whoever being in any manner entrusted with property, or with any domain over property
in his capacity of a public servant or in the way of his business as a banker, merchant,
factor, broker, attorney or agent, commits criminal breach of trust in respect of that
property, shall be punished with, imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.”
Criminal breach of trust can be practised by other fiduciary agents like banker,
mercantile agent, factor, broker etc. in addition to public servants. The punishment under

166
Section 409 of IPC is more severe, as compared to the punishment under section 13 of
the P.C. Act, 1988, which “shall be not less than one year but which may extend to seven
years and shall also be liable to fine When the offence is committed by anyone, who is
not a public servant, the prosecution will be only under IPC, but in respect of public
servants the prosecution for this offence will be under both the acts”.
CVC Manual further explains as under:
The offence mentioned in this clause is analogous to that mentioned in Section
409 of Indian Penal Code. However, whereas under Section 409 of the Indian Penal
Code, a public servant is guilty only if he commits the criminal breach of trust himself,
under clause 13(1)(c) of the Prevention of Corruption Act, he is guilty, whether he
himself misappropriates or allows any other person to misappropriate property entrusted
to him in his official capacity. Another difference between the two sections is that while
under Section 409 of the Indian Penal Code, no minimum punishment is prescribed and
the maximum punishment may be imprisonment for life or imprisonment which may
extend to 10 years, the minimum punishment under Section 13 of the Prevention of
Corruption Act is one year and the maximum seven years.
“In cases which fall both under Section 409 of Indian Penal Code and under
clause (c) of Section 13(1) of Prevention of Corruption Act, prosecuting agency may
charge the public servant under the Indian Penal Code or under the Prevention of
Corruption Act as it may consider appropriate in each case. The gravity of the offence
and other relevant matters will need to be taken into consideration in exercising the
discretion. If the facts disclose the commission of a serious offence for which the
maximum punishment provided for under the Prevention of Corruption Act is not
sufficient, the accused may be charged under Section 409 of Indian Penal Code which
provides for severe punishment for the same kind of offence. The public servant may also
be charged simultaneously both under Section 409 of the Indian Penal Code and Section
13(1)(c) of the Prevention of Corruption Act 1988. The advantage of such combination
will he that in the event of conviction, the punishment to be awarded by the Court will be
subject to a minimum of one year as prescribed in the Prevention of Corruption Act and
the maximum may go up to on a term of imprisonment up to ten years as prescribed in
the Indian Penal Code.”

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 In cases in which the alleged offence falls both under Section 409 of the Indian
Penal Code and under Section 13(1) (c) of the Prevention of Corruption Act and in which
a public servant is charged under the Prevention of Corruption Act only, the question
may arise whether on his acquittal of that charge the public servant could be tried again
under Section 409 of the Indian Penal Code. The Supreme Court (State of Madhya
Pradesh Vs. Veerashwar Rao) has held that there can be no objection to a trial and
conviction under Section 409 of Indian Penal Code even if the accused has been acquitted
of an offence under Section 5(1) (c) of the Prevention of Corruption Act, 1947
(analogous to Section 13(1)(c) of the PC Act, 1988)”.
Recent Amendments Relating to Public Servants –
The Criminal Law (Amendment) Act 2013 – Amendment in I.P.C. –
Insertion of new sections 166A and 166B – After section 166 of the Penal Code, the
following sections shall be inserted, namely –
“166A. Public Servant disobeying direction under law”: - Whoever, being a
public servant,
(a) knowingly disobeys any direction of the law which prohibits him from requiring
the attendance at any place of any person for the purpose of investigation into an
offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law
regulating the manner in which he shall conduct such investigation, or
(c) tails to record any information given to him under sub-section (1) of section 154
of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable
offence punishable under section 326A, section 326B, section 354, section 354B,
section 370, section 370A, section 376, section 376A, section 376B, section
376C, section 376D, section 376E or section 509.
shall be punished with rigorous imprisonment for a term which shall not be less
than six months but which may extend to two years, and shall also be liable to fine.
166B, Punishment for non-treatment of victim – Whoever, being in charge of a
hospital, public or private, whether run by the Central Government, the State
Government, local bodies or any other person, contravenes the provisions of section
375C of the Code of Criminal Procedure, 1973 (2 of 1974), shall be punished with

168
imprisonment for a term which may extend to one year or with fine or with both”.
Section 370 (Sub Clause 7 of I.P.C.)
When a public servant or a police office is involved in the trafficking of any
person then, such public servant or police officer shall be punished with imprisonment for
life, which shall mean imprisonment for the remainder of that person’s natural life, and
shall also be liable to fine.
Section 376 of I.P.C.
376C, Sexual intercourse by a person in authority – Whoever, being –
(a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other place of custody
established by or under any law for the time being in force, or a women’s or
children’s institution; or
(d) on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any woman
either in his custody or under his charge or present in the premises to have sexual
intercourse with him, such sexual intercourse not amounting to the offence of rape, shall
be punished with rigorous imprisonment of either description for a term which shall not
be less than five years, but which may extend to ten years, and shall also be liable to fine.
Explanation 1 – In this section, “sexual intercourse” shall mean any of the acts
mentioned in clauses (a) to (b) of section 375.
Explanation 2 – For the purposes of this section, Explanation 1 to section 375
shall also be applicable.
Explanation 3 – “Superintendent”, in relation to a jail, remand home or other
place of custody or a women’s or children’s institution, includes a person holding any
other office in such jail, remand home, place or institution by virtue of which such person
can exercise any authority or control over its inmates.
Explanation 4 - The expression “hospital” and “women’s or children’s institution” shall
respectively have the same meaning as in Explanation to sub-section (2) of section 376.
Section 197 of Cr. Procedure Code, 1973
Amendment of Section 197 – In section 197 of the Code of Criminal Procedure,

169
after sub-section (1), the following Explanation shall be inserted, namely :-
“Explanation – For the removal of doubts it is hereby declared that no sanction
shall be required in case of a public servant accused of any offence alleged to have been
committed under section 166A, section 166B, section 354, section 354A, section 354B,
section 354C, section 354D, section 370, section 375, section 376, section 376A, section
376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).”

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