Public servant taking gratification other than legal remuneration in respect of an official Act

CHAPTER III- OFFENCES AND PENALTIES

Section 7 - Public servant taking gratification other than legal remuneration in respect of an official Act.-

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other 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 the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than ¹[three years] but which may extend to ¹[seven years] and shall also be liable to fine.

Explanations.—

(a)" Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) " Gratification." The word' gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) " Legal remuneration." The words" legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) " A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. 

¹[ Substituted by Lokpal and Lokayuktas Act,2013 vide Gazette Notification No 1of 2014, dated 1.1.2014]

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अध्याय  3 - अपराध और शास्तियाँ 

7. लोक सेवक द्वारा अपने पदीय कृत्य के संबंध में वैध पारिश्रमिक से भिन्न परितोषण प्रतिग्रहीत करना -

जो कोई लोक सेवक होते हुए या होने की प्रत्याशा रखते हुए, वैध पारिश्रमिक से भिन्न प्रकार का कोई भी परितोषण किसी बात करने के प्रयोजन से या ईनाम के रूप में किसी व्यक्ति से प्रतिग्रहीत या अभिप्राप्त करेगा या करने को सहमत होगा या करने का प्रयत्न करेगा कि वह लोक सेवक कोई पदीय कार्य करे या पदीय कार्य करने का लोप करे या किसी व्यक्ति को अपनी पदीय कार्यों के प्रयोग से कोई अनुग्रह करे या करने से प्रतिविरत करे अथवा केन्द्रीय सरकार या किसी राज्य सरकार या संसद या राज्य के विधान मंडल या किसी स्थानीय प्राधिकारी, निगम या धारा 2 के खंड (ग) में वर्णित शासकीय कम्पनी अथवा किसी लोक सेवक से, चाहे नामित हो या अन्यथा ऐसे कारावास से जिसकी अवधि ¹[सात वर्ष] तक की हो सकेगी किन्तु जो ¹[तीन वर्ष] से कम की नहीं होगी दंडित किया जाएगा और जुर्माने से भी दंडनीय होगा।

स्पष्टीकरण -

(क) 'लोक सेवक होने की प्रत्याशा रखते हुए' - यदि कोई व्यक्ति जो किसी पद पर होने की प्रत्याशा न रखते हुए दूसरों को प्रवंचना से विश्वास कराकर कि वह किसी पद पर पदासीन होने वाला है, और तब वह उसका अनुग्रह करेगा, उससे पारितोषण अभिप्राप्त करेगा, तो वह छल करने का दोषी हो सकेगा। किन्तु वह इस धारा में परिभाषित अपराध का दोषी नहीं है।

(ख) 'परितोषण' - 'परितोषण" शब्द धन संबंधी परितोषण तक, या उन परितोषणों तक ही जो धन में आँके जाने योग्य है, सीमित नहीं हैं।

(ग) 'वैध पारिश्रमिक' - 'वैध पारिश्रमिक' शब्द उस पारिश्रमिक तक ही सीमित नहीं है जिसकी माँग कोई लोक सेवक विधिपूर्ण रूप से कर सकता है, किन्तु उसके अन्तर्गत वह समस्त पारिश्रमिक आता है, जिसको प्रतिग्रहीत करने के लिए वह उस सरकार द्वारा या उस संगठन द्वारा, जिसकी सेवा में वह है, उसे दी गई हैं।

(घ) 'करने के लिए हेतु या इनाम' - वह व्यक्ति जो वह बात करने के लिए हेतु या इनाम के रूप में जिसे करने का उसका आशय नहीं है या वह ऐसा करने की स्थिति में नहीं है अथवा जो उसने नहीं की है; परितोषण प्राप्त करता है; इस स्पष्टीकरण के अन्तर्गत आता है।

(ड०) जहाँ कोई लोक सेवक किसी व्यक्ति को गलत विश्वास करने के लिए उत्प्रेरित करता है कि उसके प्रभाव से उसने, उस व्यक्ति के लिए अभिलाभ प्राप्त किया है और इस प्रकार उस कार्य के लिए कोई रुपया या अन्य परितोषण इनाम के रूप में प्राप्त करने के लिए उत्प्रेरित करता है तो ऐसे लोक सेवक ने इस धारा के अधीन अपराध किया है ।

¹ [लोकपाल और लोकायुक्त अधिनियम, 2013 (क्र. 1 सन् 2014) द्वारा प्रतिस्थापित ]

नवीनतम निर्णय हेतु कृपया यहाँ क्लिक करें

COMMENTARY AND CASE LAWS

1. The evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established :charges quashed without trial- [State through Central Bureau of Investigation Versus Dr. Anup Kumar Srivastava: SC Aug 04, 2017]- Supreme Court has held that "Further, what constitutes illegal gratification is a question of law; whether on the evidence that crime has been committed is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established.Hence, the proof of demand has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the PC Act which is absent in the case at hand.The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons."

2. Taking cognizance of an offence  necessitates an application of mind  but while framing of charge, the court to consider the possibility of discharging the accused of the offence charged  [State through Central Bureau of Investigation Versus Dr. Anup Kumar Srivastava: SC Aug 04, 2017]-  Supreme Court has held that "Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions."

3. The proof of demand being  indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the PC Act ,  is absent : charge cannot be framed : [State through Central Bureau of Investigation Versus Dr. Anup Kumar Srivastava: SC Aug 04, 2017]-  Supreme Court has held that "Further, what constitutes illegal gratification is a question of law; whether on the evidence that crime has been committed is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established.Hence, the proof of demand has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the PC Act which is absent in the case at hand.The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons."

4. When complainant disowned his own statement, the contents of complaint cannot be relied on-[Krishna Kant Rathod Vs Union of India, through C.B.I.,Jabalpur : MPHC Jul 18, 2017]-  High Court of Madhya Pradesh Jabalpur has held that "when complainant disowned his own statement, the contents of complaint cannot be relied on”

5. The accused not required to prove his defense beyond reasonable doubt, but  to be proved by preponderance of probability-[Krishna Kant Rathod Vs Union of India, through C.B.I.,Jabalpur : MPHC Jul 18, 2017]-  High Court of Madhya Pradesh Jabalpur has held that" Thus the accused is not required to prove his defense beyond reasonable doubt, but it is to be proved by preponderance of probability. In the present case, considering the evidence adduced by both parties it appears that the complainant had kept the amount Rs.1000/- in the diary on the direction of Bhagwan Singh. Actually the appellant has not made any demand or accepted illegal gratification. As per complainant thedemand was made by Bhagwan Singh."

6. The bald allegation of the complainant with regard to the demand and payment remained uncorroborated: demand not proved- [MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. VERSUS STATE OF PUNJAB: SC JULY 14, 2017]. -  Supreme Court has held that " In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective,the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offen ceunder Section 7 or 13 of the Act."

7. Unusual version, contradictions of the witnesses regarding location of the transaction renders the case doubtful.  [MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. VERSUS STATE OF PUNJAB: SC JULY 14, 2017]. -  Supreme Court has held that " In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses, PW-1, PW-2and PW-5 with regard to the location of the transaction relating to Rs.2,000/- also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. 

8. No recovery of bribe amount, no clear demand of bribe, evidence of telephonic discussion being only corroborative, no departure from procedure: chargesheet under Section 7 and 13(1)(d) quashed-[M.S. BADHAN Vs. CENTRAL BUREAU OF INVESTIGATION: Delhi High Court:Jul 03, 2017]-  Delhi high court has held that "As revealed from foregoing paras, it appears that offence has been committed. however, following weaknesses have been found in the case during investigation: a)There is no recovery of the bribe amount b)There is no clear demand of bribe on the part of Shri MS Badhan c) The key persons like Shri MS Badhan made  conversations in very guarded language and they were taking precaution that their conversations did not reveal any criminality d)The evidence of telephonic conversation at best is corroborative in nature. e) There is no gross irregularity in the processing of the file and granting approval Though there is departure from the previous pattern of approval given to M/s Universal Agency. there is no written procedure defining the process of granting approval for transportation of the cargo on rail route. In view of abovementioned weaknesses in the case,allegations cannot be proved beyond reasonable doubt and chargesheet has not been filed..." (underlining supplied). In the instant case the learned Trial Court instead of issuing directions for further investigation to the respondent CBI in order to fetch material evidence under Section 173(8) Cr.P.C. finds sufficient material evidence for taking cognizance qua present petitioners when the respondent CBI itself says that there is no evidence found against the petitioners herein. As per the prosecuting agency/CBI no case is made out against the petitioners. There is no occasion for the trial Court to look into additional evidences to give direction under Section 173(8) Cr.P.C. since there is no additional evidence filed on record and the prosecuting agency/CBI takes stand on their investigation and the closure report qua against the petitioners therefore, the cognizance taken against the present petitioners is bad. Even if the prosecution case taken to be gospel truth still do not constitute prima facie case qua the present petitioners in absence of any evidence against the petitioners in the charge-sheet filed by the respondent CBI. In the light of aforesaid discussions, the cognizance taken qua the present petitioners without taking recourse under Section 173(8) Cr.P.C. for further investigation is hereby set aside."

9. Conviction under Section 7 and 13(1)(d) based on misreading and drawing of uncalled for inferences of the evidence on record liable to be set aside - [ Mintu Dubey Vs Union of India through SP, CBI Jabalpur: MPHC:Jan 03, 2017]- Hon'ble High Court of Madhya Pradesh at Jabalpur has held that "Thus, after carefully analysing of the evidence on record, and applying the principles of law as laid down by the Hon’ble Apex Court in the cases cited above, we have no hesitation in arriving at the conclusion that the finding of guilt of the present appellant Mintu Dubey by the learned special judge is based on misreading and drawing of uncalledfor inferences of the evidence on record, hence liable to be set aside".

10.  Mere recovery of amount is not sufficient to convict a person if the same is not backed by demand and acceptance of bribe as an illegal gratificationIt- [ Mintu Dubey Vs Union of India through SP, CBI Jabalpur: MPHC:Jan 03, 2017]- Hon'ble High Court of Madhya Pradesh at Jabalpur has held that "it is the settled position of law that mere recovery of amount is not sufficient to convict a person under the provisions of Prevention of Corruption Act if the same is not backed by demand and acceptance of bribe as an illegal gratification".

11. Proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii)- [ Mintu Dubey Vs Union of India through SP, CBI Jabalpur: MPHC:Jan 03, 2017]- Hon'ble High Court of Madhya Pradesh at Jabalpur has held that " The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."

12. Twin requirements of demand and voluntary acceptance   of  illegal gratification knowing it to  be  the  bribe are sine qua non  for  proving  the  offence under Section 7- [MUKHTIAR SINGH Vs. STATE OF PUNJAB:SC,Jul 05, 2016]- Supreme Court has held that "It is a settled principle of law laid down by this Court in  a  number of decisions that once  the  demand  and  voluntary  acceptance  of  illegal gratification knowing it to  be  the  bribe  are  proved  by  evidence  then conviction must follow under Section 7 of the PC Act  against  the  accused. Indeed, these twin requirements are sine qua non  for  proving  the  offence under Section 7 of the PC Act.  In the light of our own re-appraisal of  the evidence and keeping in view the abovesaid principle in mind, we  have  also come to a conclusion that twin requirements  of  demand  and  acceptance  of illegal gratification were proved in the  case  on  hand  on  the  basis  of evidence adduced by the prosecution against  the  appellant  and  hence  the appellant was rightly convicted and sentenced for  the  offences  punishable under Section 7 read with Section 13(1)(d) and Section 13(2) of the Act."

13. High Court reversing the judgement of Trial Court by recording reasons and acquitting the accused under Section 7 and 13(1)(d) is not to be interfered with [STATE OF KERALA Vs. P. MUHAMMED NOUSHAD:SC,June 29, 2016] - Supreme Court held that " It is a settled principle of law that if the view taken by the High Court while reversing the judgment of the Trial Court appears to be just and reasonable and which is supported by cogent reasoning then this Court would not re-appreciate the evidence again especially when the appeal arises out of the order of acquittal." It also held that " It is only when the High Court while reversing the judgment of the Trial Court fails to record any reason or fails to appreciate the evidence or when the High Court records any material finding which is wholly perverse or against any provision of law, this Court would examine the issues arising in the case and in appropriate case may interfere. Such is not the case here."

14. Complainant turned hostile on two points -- demand and acceptance, conviction under Section 7 and 13(1)(d)  not only erroneous in law but suffers from error in law-  [KRISHAN CHANDER Vs. STATE OF DELHI:SC,January 6, 2016] -  Supreme Court has held that "   On the basis of factual and legal aspects of the case and evidence on record produced in the case, it is clear that the High Court has recorded the concurrent findings on the charges framed against the Appellant in the impugned judgment and order. It has also failed to re-appreciate the evidence on record properly and consider the law on the relevant aspect of the case. Therefore, the said findings are not only erroneous in law but also suffer from error in law. Hence, the same is liable to be set aside. However, in the instant case, from the material on record, it is amply clear that the complainant-Jai Bhagwan turned hostile on two important aspects namely, demand and acceptance of bribe by the appellant which is sine qua non for constituting the alleged offence under Sections 7 and 13(1)(d) read with 13(2) of the PC Act convicting the appellant and sentencing him for the period and fine as mentioned above."

15. The court cannot suo motu make use of statements to  police  not  proved and ask questions with reference to them which  are  inconsistent  with  the testimony of the witness in the court [KRISHAN CHANDER Vs. STATE OF DELHI: January 6, 2016] -  Supreme Court has held that " The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction. Thus, the contradiction of evidence of the complainant-Jai Bhagwan (PW-2) does not prove the factum of demand of bribe by the appellant from the complainant-Jai Bhagwan as the statement recorded under Section 161 of Cr.P.C. put to him in his cross-examination was not proved by B.S. Yadav (PW-10) by speaking to those statements in his evidence and therefore, the evidence of PW-2 is not contradicted and proved his Section 161 statement in the case."

16. The proof of demand to be  an indispensable essentiality and of permeating mandate for  an  offence  under Sections 7 and 13 of the Act [KRISHAN CHANDER Vs. STATE OF DELHI: January 6, 2016] - Supreme Court has held that " In a recent enunciation by this Court to discern the imperative pre- requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage  cannot be held to be proved. The proof of demand, thus, has  been  held  to  be  an indispensable essentiality and of permeating mandate for  an  offence  under Sections 7 and 13 of the Act. Qua Section 20 of the  Act,  which  permits  a presumption as envisaged  therein,  it  has  been  held  that  while  it  is extendable only to an offence  under  Section  7  and  not  to  those  under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the  proof of acceptance of illegal gratification for doing or  forbearing  to  do  any official act. Such proof of acceptance  of  illegal  gratification,  it  was emphasized, could follow only if there was proof of  demand.  Axiomatically, it was held that in absence of  proof  of  demand, such  legal  presumption under Section 20 of the Act would also not arise."

17. Factum of demand not proved by substantive evidence , judgment and order of the High Court  and Trial Court not only  erroneous  but  also  suffers  from error in law and therefore, set aside.[KRISHAN CHANDER Vs. STATE OF DELHI: January 6, 2016] - Supreme Court has held that" In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Bhagwan (PW-2) by the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside".

18. CD not admissible as evidence unless conditions under Section 65 B (2) satisfied (Anvar P.V.Vs P.K. Basheer and others SC: September 18, 2014) - Supreme Court has held that "The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied." It also held that " Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.  It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act....". It is also held that " We have already held that the CD is inadmissible in evidence. Since the very foundation is shaken, there is no point in discussing the evidence of those who heard the announcements". 

19. Demand of illegal gratification is sine qua non to constitute the offence  under Section 7- [B. JAYARAJ VERSUS STATE OF A.P :MARCH 28, 2014.]- Supreme Court has held that ". In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe." It held that" Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."