Section 7: The Public Servant Being Bribed

Section 7 is the principal offence of the Act and the provision under which most prosecutions are brought. As substituted in 2018 it punishes a public servant who obtains, accepts or attempts to obtain an undue advantage with the intention of performing a public duty improperly or dishonestly, or as a reward for such performance, or who performs improperly in anticipation of or in consequence of such an advantage. Two rules govern every case under it. Demand and acceptance must be proved as facts in issue. And recovery of tainted money, without that proof, establishes nothing.

1. The Three Limbs

1. Obtaining, accepting or attempting to obtain an undue advantage with the intention to perform or cause performance of a public duty improperly or dishonestly, or to forbear or cause forbearance to perform such duty, whether by himself or by another public servant. This is the forward-looking limb, the advantage preceding the act.
2. Obtaining, accepting or attempting to obtain an undue advantage as a reward for improper or dishonest performance, or for forbearance. This is the backward-looking limb, the advantage following the act.
3. Performing or inducing another public servant to perform improperly or dishonestly, or to forbear, in anticipation of or in consequence of accepting an undue advantage. This limb is new in 2018 and reaches the case in which the improper act is established first and the advantage is traced afterwards.

2. The Ingredients

• A public servant, within Section 2(c).
• An undue advantage, within Section 2(d), being any gratification whatever other than legal remuneration, whether or not pecuniary and whether for himself or for another.
• Demand, acceptance, obtaining or attempt, established as a fact in issue.
• The connection with improper or dishonest performance of a public duty.

3. Demand as a Fact in Issue

The section does not use the word demand, yet the courts have treated proof of a demand as indispensable, for a practical reason: without it the possession of money by a public servant is equivocal. The proposition was stated in a series of decisions holding that the mere recovery of currency notes, unaccompanied by proof of demand, does not establish the offence, and that in the absence of such proof the presumption under Section 20 cannot be invoked because its foundational fact has not been laid.

4. Prior Demand and Demand at the Trap

Two demands are usually spoken of in a trap case: the initial demand made to the complainant before he approaches the agency, and the demand repeated at the time of the trap in the presence of the shadow witness. The first explains why the complaint was made and why the trap was laid; the second is the one the prosecution can prove by an independent witness. Neither is dispensable in practice. Where the initial demand is not established, the complaint appears manufactured; where the demand at the trap is not overheard, the payment may be explained as voluntary or as thrust upon the accused. The strongest cases prove both, supported by a verification recording made before the trap.

5. Acceptance, Recovery and Possession

1. Acceptance is a mental act evidenced by conduct. Taking the notes, putting them away, counting them or directing where they should be placed all evidence it; touching them while refusing does not.
2. Recovery proves possession, not acceptance. The distinction is the foundation of the defence in most trap cases, and the prosecution must exclude the alternatives on the evidence.
3. A positive hand or pocket wash proves contact. It corroborates recovery and takes the case no further by itself.
4. Acceptance through a third person is within the section, the advantage being obtained for himself or for any other person, so payment to a clerk, a relative, a middleman or a nominee at the public servant's instance is caught. What must then be proved is the link between the recipient and the public servant, which is ordinarily done through the demand.
5. Attempt. An attempt to obtain is expressly within the section, so a demand followed by refusal to accept, or by a failed trap, remains an offence.

6. Improper or Dishonest Performance

The connecting element under the new section is no longer an official act but the improper or dishonest performance of a public duty. Performance is improper where it breaches the expectation of good faith, impartiality and trust attaching to the office, and a failure to perform may itself be improper. Three consequences follow, and they answer the defences most often raised.

• Actual performance is not necessary. The offence is complete on obtaining or accepting with the requisite intention, so it is immaterial whether the official act was ever done, whether the file moved, or whether the complainant obtained what he wanted.
• The capacity to do the act is not necessary. A public servant who takes money for something outside his own powers is within the section, since the advantage was taken with the intention that a public duty be performed improperly, whether by himself or by another public servant.
• That the act was one he was bound to do anyway is no answer. Accepting payment for performing one's duty is itself a breach of the expectation of good faith and impartiality, and is the classic case of extortive corruption.

7. The Trap and Its Witnesses

1. The complainant. The person from whom the advantage was demanded. Since 2018 he is himself exposed under Section 8 unless he was compelled and reported within seven days, which affects his willingness to support the case.
2. The shadow witness. An independent person, usually a government servant from an unconnected office, who accompanies the complainant, overhears the demand and the payment, and gives the agreed signal. His evidence is the principal independent proof of demand, and the defence concentrates on whether he was placed where he could in fact hear.
3. The recovery witness. The panch who witnesses the seizure of the notes, the comparison of numbers and the washes.
4. The investigating officer, who proves the pre-trap and post-trap panchnamas and the despatch of the sealed bottles.
5. The verification. Many agencies record the demand before the trap, by an audio recording or through a preliminary verification, which is the material that most effectively answers the defence that the complaint was fabricated.

8. Section 7 Before and After 2018

9. Related Topics and Provisions