PENAL PROVISIONS PERTAINING TO BRIBERY AND CORRUPTION AMONG PUBLIC SERVANTS
  

D1              Definition of Public Servant:  

The provisions relating to offences of bribery and corruption among public servants, which are relevant for purposes of the manual are contained section 161 to 165 of the Indian Penal Code and in section 5 of the Prevention of Corruption Act, 1947. Persons falling under the term public servant are described in section 21 of I.P.C; the text of which is reproduced below:-

“21. Public Servant.—The words “public servant” denote a person falling under any of the descriptions hereinafter following, namely”-

FIRST.- (Repealed by the Adaptation of Laws Order, 1950);  

SECOND- Every Commissioned Officer in the Military, Naval or Air Force of India ; 

THIRD- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;  

FOURTH.-Every officer of a Court of Judge (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge of dispose of any property, execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties; 

FIFTH.-Every juryman, assessor, or member of Panchayat assisting a Court of Justice or public servant;  

SIXTH.-Every arbitrator other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;  

Seventh.- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;  

EIGHTH.-Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;  

NINTH.- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;  

TENTH.- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;  

ELEVENTH.-Every person who holds any office, by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;  

TWELFTH.-Every person-

(a)      in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b)              in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in section 617 of the Companies Act, 1956.

Illustration  

A Municipal Commissioner is a public servant.  

Explanation 1. Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.  

Explanation 2.- Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.  

Explanation 3.- The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as “by election”.  

The section does not define the term “public servant”; it enumerates the functionaries who are to be treated as “public servant”; for the purpose of the Indian Penal Code. The enumeration in various clauses of the section is not mutually exclusive. Clause “Twelfth” of the Section as amended by the Anti-Corruption Law (Amendment) Act, 1964, however, brings within its, purview every person in the service or pay of the Government or remunerated by fee or commission for the performance of any public duty by the Government and every person in the service or pay of a local authority or a body corporate established by or under a Central or a State Act or a Government Company as defined in section 617 of the Companies Act, 1956. The term “local authority” has not been defined in the Indian Penal Code but according to section 3 (31) of the General Clauses Act, 1897, the  term “local authority” means “a municipal committee, district board, body of port commissioners or other authority legally entitled to or  entrusted  by the Government with the control or management of a municipal or local fund.” A Government company has been defined in section 617 of the Companies Act, 1956 as a “company in which not less than fifty-one per cent of the share capital is held by the Central Government or any State Government or Governments, or party by the Central Government and partly by one or more State Government.”  

The Prevention of Corruption Act, 1947, instead of defining the term ‘public servant’ uses the term as defined in section 21 of the I.P.C. Section 2 of the Prevention of Corruption Act, 1947, is reproduced below:-  

“For the purpose of this Act, public servant means a public servant as defined in Section 21 of the I.P.C.”  

A public servant who is under suspension or on leave does not sees to be a public servant.

 General:  

Sections 161 and 165 of the Indian Penal Code:  

Section 161, Indian Penal Code is reproduced below:-  

“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 for bearing to do any official act or for showing or for bearing to show, in the exercise of his official functions favour or disfavour to any  person with the Central or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in section 21, or with any public servant as such, shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both.

                   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 gratification, or 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 motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within the words.  

                   Illustrations  

(a)              A, a munsif, obtains from Z, a banker, a situation in Z’s banks for A’s brother as a reward to A for deciding a cause in favour of Z. A has committed the offence defined in the section.

(b)              A, holding the office of Counsel in a Foreign State , accepts a lakh of rupees from the Minister of that State. It does not appear that A accepted this sum as a motive or reward for doing or forbearing to do any particular act, or for rendering or attempting to render any particular service to that State with the Government of India. But it does appear that A accepted the sum as a motive or reward for generally showing favour to the exercise of his official functions to that State. A has committed the offence defined in this section.

(c)              A, a public servant, induces Z erroneously to behave that A’s influence with the Government has obtained a title for Z and thus induces to give A money as a reward for the same. A has committed the offence defined in this section.”  

A public servant or a person expecting to be a public servant renders himself guilty of an offence under section 161 of Indian Penal Code:-  

(i)                 if he accepts or obtains, or agrees to accept, or attempts to obtain from some person a gratification;

(ii)                if such gratification is not a legal remuneration due to him;

(iii)               if he accepts such gratification as a motive or reward for –

(a)        doing or for bearing to do, an official act; or

(b)        showing, or for bearing to show, favour or disfavour to some one in the exercise of his official functions; or

(c)        rendering or attempting to render any service or disservice to any person with the Central or any State Government or Parliament or the Legislature of any State or with any local authority,  corporation or Government company or with any public servant.  

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

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

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

A public servant can not justify his acceptance of a gift or a bribe by urging that the order passed by him was nevedrtheless a just one and against the very person from whom he had received the bribe. It is an offence even if the act, done for which the bribe is given is a just and proper one. (A. W. Chandekar A.I.R. (1925) Nagpur 313).  

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

The word “gratification” is not defined but its sense is extended by the explanation which says that the word “is not restricted to anhy6 pecuniary gratification, or to gratification estimable in money”. The word “gratification” is thus used in its larger sense as connecting anything which affords gratification or satisfaction or pleasure to the taste, appetite or the mind.  

Section 165, Indian Penal Code is reproduced below:-  

“165. Public servant obtaining valuable thing without consideration, f5romperson 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, form himself, or for any other person any valuable thing without consideration, or for a 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 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 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)              Z’s 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.”  

Under this section, it is an offence for a public servant to accept or agree to accept or to attempt to obtain for himself or for any other person any valuable thing without consideration or for a consideration which he knows to be inadequate 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 from any person he knows to be interested in or related to the persons so concerned.  

This section prohibits a public servant from taking an unconscienceable advantage out of a bargain with a person with whom he comes in contact officially. It does not prohibit a sale or a purchase by a public servant, at a fair price, to or from a person with whom the public servant may be transacting business on behalf of Government in his official capacity.  

Under section 161 the gratification is taken as a motive or reward but under section 165 the question of motive or reward is not material. The mere taking of a valuable thing without consideration or for an inadequate consideration from a person having any connection with the official functions of the public servant constitutes an offence.

Sections 162 and 163 of the Indian Penal Code:  

The text of sections 162 and 163, Indian Penal Code is given below:-  

“162.  Taking gratification, in order, by corrupt or illegal means, to influence 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 corrupt or illegal means, 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, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company referred to in section 21 or with any public servant as such, shall be punished with imprisonment of either description for a term which ,may extend to three years, or with fine, or with both.”  

“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 disvaour to any person or to render or attempt to render any service or disservice to any person with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government Company referred to in section 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 memorialist; 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.  

Under sections 162 and 163 it is an offence for a person to accept any gratification as a motive or reward favor improperly influencing a public servant by corrupt or illegal means or by the exercise of personal influence. Though these sections cover all persons, whether or not they are public servants, in effect their provisions will be made use of only when the offender is a person other than a public servant and such cases will not need to be dealt with by administrative authorities. If a person committing an offence under these sections is a public servant, the proper section to convict him will be section 161.

Section 164 of the Indian Penal Code:

Section 164, Indian Penal Code reads as follows:-

“164. Punishment for abetment by public servant of offences defined in section 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 thee 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.”  

This section is intended to punish abetment by a public servant of offences mentioned in sections 162 and 163 when committed in respect of the public servant himself. The illustration given below the section clearly explains the circumstances under which an offence under this section will arise.

Section 165-A of the Indian Penal Code:  

Section 165-A, Indian Penal Code reads as follows:-  

“165-A. Punishment for abetment of offence defined in Section 161 or Section 165.- Whoever abets any offence punishable under section 161 or section 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.”  

Under this section the offering of a bribe or a valuable thing to a public servant without consideration or for an inadequate consideration is an offence by itself and not merely an offence of abetment.  

The relevant point to consider is the state of mind of the accused when he offers a bribe or a valuable thing. As soon as there is an instigation to a public servant to commit an offence under section 161, an offence under section 165-A is complete quite irrespective of the fact whether the public servant did not accept or consent to accept the money or whether he was or he was not in a position to do the act or to show a favour or disfavour (Padam Sen vs. State, A.I..R. (1959) Allahabad 707).  

 Section 409 of the Indian Penal Code:  

Section 409 of the Indian Penal Code is reproduced below:-

“409.   Criminal breach of trust by public servant etc.-Whoever, being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of 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.”  

The essential ingredients of committing an offence by a public servant under section 409 I.P.C. are as follows:-  

1.            the accused must be a public servant;

2.            he was entrusted with the property in question or with any dominion over it in the capacity of a public servant;

3.            he committed criminal breach of trust in respect of the property in question.  

Criminal breach of trust is defined in section 405 I.P.C. which reads as follows:-  

“405.   Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or  wilfully suffers any other person so to do, ‘commits criminal breach of trust’.”  

          Illustration

(a)  A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.  

(b)  A is a warehouse-keeper. Z, going on a journey entrusts his furniture to A, under contract that it shall be returned on payment of a stipulated sum for warehouse rooms. A dishonestly sells the goods. A has committed criminal breach of trust.  

(c)  A, residing in Calcutta is agent for Z, residing at Delhi .  There is an express or implied contract between A and Z, that all sums remitted by Z, to A shall be invested by A, according to Z’s direction. Z remits a lakh of rupees to A, with directions to A, to invest the same in Company’s paper. A dishonestly disobeys the directions, and implies the money in his own business. A has committed criminal breach of trust.  

(d)  But if A, in the last illustration, not dishonestly but in good faith, believing that it will, be more for Z’s advantage to hold share in the banks of Bengal, disobeys Z’s directions, and buys shares in the bank of Bengal for Z, instead of buying company’s paper, here though, Z should suffer loss, and should be entitled to bring civil action against A on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.  

(e)  A, a revenue officer, is entrusted with public money and is either directed by Law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.  

(f)    A, a carrier is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.”  

To constitute the offence of criminal breach of trust, three factors are essential:-  

1.            there must be an entrustment of property or dominion over property;

2.            there must be misappropriation or conversion or use or disposal of the property in violation.  

(a)  of any legal direction;

(b) of any legal contract;

3.            the misappropriation or conversion or use or disposal must be with dishonest intention.  

The word public servant has the meaning as defined in 1.1. For the commission of an offence under this section, the public servant must be entrusted with the property or have dominion over the property alleged to have been mis-appropriated by the accused public servant. It is not necessary that the property should have been entrusted to the accused directly. If the accused has obtained or assumed the control of the property of another person under circumstances whereby he becomes entrusted or whereby the receipt becomes receipt for or on account of another person and fraudulently concerts it or the proceeds thereof, then he has committed an offence under this section.

Section 5 of the Prevention of Corruption Act, 1947:  

          A copy of the Prevention of Corruption Act, 1947 as amended up-to-date is given in the Appendix.  

          Section 5 (1) of the Act provides for an offence of “criminal misconduct”, in the case of a public servant,. This is a new offence which is not mentioned in the Indian Penal Code.  

Section 5 (1) (a) and (b) of the Prevention of Corruption Act, 1947:  

Clause (a) of Section 5(1) provides that if a public servant habitually accepts or attempts to obtain any illegal gratification as a motive or reward, as mentioned in section 161 of the Indian Penal Code, he is guilty of criminal misconduct. Clause (b) provides that if a public servant habitually accepts or attempts to obtain any valuable thing, without price for price which he knows to be inadequate, from any person who has or is likely to have some official business with him or with an officer to whom he is subordinate, he is guilty of criminal misconduct.  

The offences specified under clauses (a) and (b) of section 5(1) of the Prevention of Corruption Act have the same ingredients as those specified in sections 161 and 165 of Indian Penal Code. The fundamental difference between the provisions of the two Acts is that offences under the Prevention of Corruption Act are an aggravated form of those provided for in the Indian Penal Code. Whereas under sections 161 and 165 of the Indian Penal Code a prosecution can be laid even in the case of a single act of acceptance of illegal gratification, there must be habitual commission of the offence to attract clauses (a) and (b) of Section 5 (1) of the Prevention of Corruption Act. Another point of difference is that, while the Prevention of Corruption Act prescribes punishment of imprisonment from a minimum of one year and upto maximum of seven years, the Indian Penal Code lays down the maximum period of imprisonment as three years without prescribing any minimum limit.



Section 5 (1)© of the Prevention of Corruption Act, 1947:  

This clause provides that if a public servant dishonestly or fraudulently misappropriates himself or allows any person to misappropriate any property entrusted to him in his official capacity, he is guilty of criminal misconduct.  

          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 caluse 5 (1)© 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 extent to ten years, the minimum punishment under section 5 of the Prevention of Corruption Act is one year and the maximum seven years.  

          In cases which fall both under section 409, Indian Penal Code and under clause © of the Section 5 (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 disclosed 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 a sever 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 5 (1) © of the Prevention of Corruption Act, 1947. The advantage of such combination will be 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 upto a term of imprisonment upto ten years as prescribed in the Indian Penal Code.  

          In cases in which the alleged offence falls both under section 409 of the Indian Penal Code and under section 5 (1)© of the Prevention of Corruption Act only, the question may arise whether on his acquittal of that charge the public servant could be tried against 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)© of the Prevention of Corruption Act.

Section 5 (1)(d) of the Prevention of Corruption Act, 1947:  

This clause provides that if a public servant by corrupt or illegal means or by abusing his position as a public servant obtains  for himself or for any other person any valuable thing or pecuniary advantage, he is guilty of criminal misconduct. This offence of obtaining a valuable thing or pecuniary advantage, by misuse of official position is a new offence hitherto not provided for in the Indian Penal Code. ‘Motive or reward’ has no relevance for an offence under this clause. It is enough if it is proved that public servant has obtained a valuable thing or a pecuniary advantage by abusing his official position.  


Section 5 (1)(e) of the Prevention of Corruption  Act, 1947:           

          This clause has been added by the Criminal Law (amendment) Act, 1964. It provides that if a public servant of some person on his behalf is or has at any time during the period when public servant was in office, been in possession of assets disproportionate to his known source of income for which the public servant cannot satisfactorily account, he is guilty of criminal misconduct. Before clause (e) was introduced in 1964, if the prosecution was able to prove that a public servant or any other person on his behalf was in possession of pecuniary resources or property disproportionate to his known sources of income for which the accused person cannot satisfactorily account, the court was to presume that the public servant was guilty of criminal misconduct. The new clause makes possession of such assets itself a substantive offence of criminal misconduct.

Presumption of guilt of the accused:  

The normal rule of jurisprudence is that it is the duty of the prosecution to prove beyond shadow of doubt all the ingredients of the offence. The accused is not required to prove that he is not guilty.  

Section 4 of the Prevention of Corruption Act, 1947 introduces a new concept of justice in as much as it makes it obligatory for the court to make certain presumptions against the accused. When it has been proved that the accused who is charged of an offence under section 161 or 165 or 165-A of Indian Penal Code has received any gratification other than legal remuneration or any valuable thing without adequate consideration, the court is bound to presume under section 4(1) of the Prevention of Corruption Act that the gratification or the valuable thing was received with a motive or as a reward as is mentioned in section 161 of the Indian Penal Code. All that the prosecution has to prove is the mere receipt of gratification or the valuable thing by the accused, or when receipt of such gratification or valuable thing by the accused, or when receipt of such gratification or valuable thing is admitted by the accused, the prosecution is not required to prove affirmatively anything more to show that the gratification was received as a bribe or illegal gratification. If the accused wants to suggest that he had not accepted the gratification or the valuable thing with the motive or as a reward for exercising any official favour or disfavour, it would be for him to establish that.  

To raise the presumption under section 4 (1) of Prevention of Corruption Act, the prosecution has to prove that the accused has received “gratification other than legal remuneration”. When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the  condition prescribed by the section is satisfied and  the presumption must be raised.  Further the mere receipt of “money” is sufficient to raise the presumption (V.D.Jhingan vs. State of U.P. A.I.R. 1966 S.C. 1672).  

          An impression may be created in some quarters that in view of the presumption u/s 4(1) of the Prevention of Corruption Act, the task of prosecution has become very easy in as much as  whenever receipt of money is proved the authority deciding to launch a prosecution or grant sanction u/s 6 of the Prevention of Corruption Act, need not concern itself with the probable define of the accused person.  Nothing could be further from facts. The Supreme Court in Jhingan’s case has clarified that the burden of proof lying upon the accused under S.4 (4) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in Civil proceedings.  It  is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.  Consequently before launching prosecution one has to rule out a possibility of defence put up by the accused person which, if proved, may amount to preponderance of probability in his favour and it must be clearly understood that the quantum proof expected of the accused is less than that expected from the prosecution which has prove the case beyond a reasonable doubt.  The Supreme Court in Harbhajan Singh vs State of Punjab had reiterated this principle thus –  

          “There is a consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the prosecution has discharged its onus of proving the guilt of the accused.”  

          Under section 4(2) of the Prevention of Corruption Act, a similar presumption is to be made against the accused charged under section 165-A of the Indian Penal Code or under section 5 (3)(ii) of the Prevention Corruption Act, 1947, as soon as it is proved that any valuable thing had been given or attempted to be given a public servant.  

          The only exception when such presumption may not be drawn by the court is provided for in sub-section (3) of section 4 of the Prevention of Corruption Act, 1947, which lays down that the court may decline to draw the presumption if the gratification in its opinion is so tribal that no inference of corruption could fairly be drawn.

Accused to be competent witness:  

Under section 7 of the Prevention Corruption Act, 1947, a person charged under section 161 or 165 or 165-A of Indian Penal Code or under section 5 of the Prevention of Corruption Act, is a competent witness for his defence and can give evidence on oath in disproof of the charges made against him or against a co-accused.