Demand, Offer, Acceptance and Obtaining

The offences in Sections 7 and 8 are built on verbs, and a case is won or lost on which of them the evidence establishes. Section 7 covers obtaining, accepting and attempting to obtain; Section 8 covers giving and promising to give. Demand is not a word used in the section, yet it is the ingredient the courts have treated as indispensable, because without it the possession of money by a public servant proves nothing. This topic separates the four concepts and states what each requires.

1. Demand

A demand is a communication by the public servant that an undue advantage is required. It need not be in words, and the courts have accepted gestures, conduct and indirect intimation, including a demand made through another person. Three propositions govern it.

1. It is the foundation of the case. Proof that money was recovered from the public servant, without proof that he asked for it, does not establish the offence, since money may be planted, thrust upon him or paid for another reason.
2. It is also the trigger for the presumption. Section 20 operates only once acceptance of an undue advantage is proved, so a failure to prove demand and acceptance deprives the prosecution of the presumption as well as of the primary case.
3. It may be proved by circumstantial evidence. In Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 a Constitution Bench held that demand and acceptance remain indispensable but may be established by direct oral or documentary evidence or, where that is unavailable because the complainant is dead, unavailable or hostile, by circumstantial evidence drawn from the trap witnesses, the recovery and the conduct of the accused.

2. Obtaining and Accepting

• Accepting connotes receiving what is offered. It presupposes an offer from the other side and requires the public servant's assent, which may be inferred from taking possession.
• Obtaining connotes securing something by one's own effort, and ordinarily follows a demand. The distinction matters where the payer says he offered voluntarily: on those facts the case is one of acceptance, and the prosecution must still connect the acceptance with improper performance.
• For himself or for another. The section covers an advantage obtained for any other person, so payment to a relative, an associate or a nominee at the public servant's instance is within it.
• Possession is not acceptance. Recovery and a positive chemical test show that the accused handled the notes. Whether he accepted them as an undue advantage is a separate question, and explanations such as repayment of a loan, payment of a legitimate fee or money thrust upon him must be excluded on the evidence.

3. Attempt

Section 7 covers an attempt to obtain, so the offence is complete on a demand followed by nothing. That matters in two situations: where the trap fails because the public servant declines to take the money after demanding it, and where the payer reports the demand without paying at all. Section 15 separately punishes an attempt to commit an offence under Section 13, which is necessary because the criminal misconduct offences are not framed in terms of attempt.

4. Offer and Promise

On the giver's side, Section 8 covers a person who gives or promises to give an undue advantage to another person, intending to induce or reward a public servant for the improper or dishonest performance of a public duty. Two features follow. The offence is complete on the promise, so nothing need pass. And the advantage may be given to another person, which catches payment to a middleman or to a nominee of the official.

5. The Connecting Element

None of these verbs is sufficient by itself. The advantage must be connected with the improper or dishonest performance of a public duty: as an inducement for future performance, as a reward for past performance, or in the third limb of Section 7, where the public servant performs improperly in anticipation of or in consequence of the advantage. Two defences are commonly attempted at this point and both must be met on the evidence. The first is that the act the official was asked to do was one he was bound to do anyway, which is no answer, because accepting payment for doing one's duty is itself a breach of the expectation of good faith and impartiality. The second is that the payment related to something other than the official's functions, which is a question of fact and is the reason the prosecution must establish the pending work, file or application to which the demand related.

6. Related Topics and Provisions