Section 8: The Bribe Giver

Before 2018 the Act punished the person who took a bribe and reached the person who gave one only through abetment, and it protected him when he gave evidence. Section 8 as substituted makes giving a substantive offence: any person who gives or promises to give an undue advantage to another person, intending to induce a public servant to perform a public duty improperly or to reward him for having done so, is punishable with imprisonment which may extend to seven years, or fine, or both. The section carries one protection, for the person compelled to give who reports within seven days, and that proviso is the most discussed feature of the amendment.

1. The Offence

1. Any person. The giver need not be a public servant, though a public servant who pays another official is equally within the section.
2. Gives or promises to give. The offence is complete on the promise; nothing need pass, and an offer accompanied by an intention to induce is enough.
3. To another person or persons. The advantage need not be given to the public servant himself. Payment to a middleman, a relative or a nominee is within the section, which is what makes the ordinary arrangement, where the money never reaches the official directly, prosecutable.
4. With the intention to induce or to reward. The mental element is the link to the improper or dishonest performance of a public duty, or to forbearance from performing it.
5. Punishment. Imprisonment which may extend to seven years, or fine, or both. Unlike Section 7, no minimum sentence is prescribed, and a sentence of fine alone is available.

2. The Protection for the Compelled Giver

The section does not apply where a person is compelled to give an undue advantage, provided that the person so compelled reports the matter to the law enforcement authority or investigating agency within seven days from the date of giving. The proviso is narrow and every word of it does work.

• Compulsion. The protection is for the victim of extortive corruption, the person who pays for what he is already entitled to. It does not assist the collusive payer who buys an advantage he could not obtain lawfully.
• Seven days. A short and fixed period, running from the date of giving rather than from the date of the demand or from the date the payer learns of the protection.
• To a law enforcement authority or investigating agency. A complaint to the official's superior, to a minister or to the press does not satisfy the requirement.
• The burden. Where the protection is claimed, the facts constituting compulsion and the fact of the report must be established, and a report made after the payer is caught carries little weight.

3. The Trap Complainant

A person who reports a demand and then pays under the supervision of an investigating agency occupies a different position from the ordinary giver. He does not pay with the intention of inducing improper performance; he pays in order to establish the demand already made, at the instance of the authorities and under their control. The trap is a recognised investigative technique in Indian law and there is no defence of entrapment such as exists in some other systems, the reasoning being that the offence lies in the official's demand, which preceded the involvement of the agency, rather than in the payment that proves it.

• The accomplice question. Under the older law a trap complainant was often treated as an interested witness whose evidence required careful scrutiny, and sometimes as an accomplice requiring corroboration. The practical answer has always been the same: corroborate him through the shadow witness, the recovery and the washes.
• Where the complainant is himself a collusive payer, having offered the bribe in order to obtain something he was not entitled to, he is an offender under Section 8 and his evidence is that of a participant in the crime.
• Where he paid under compulsion and reported before paying, the protection in the proviso and his role as a trap complainant coincide, and no question of his liability arises.

4. Section 8 and Abetment

The overlap is deliberate and the two are commonly charged together, along with criminal conspiracy under the general penal law where several persons were involved. The practical difference is that Section 12 carries a minimum sentence of three years while Section 8 does not, so the characterisation of the accused's role affects the sentence available.

5. Before and After 2018

1. The old position. There was no offence of giving. A giver was liable as an abettor under the old Section 12, which was confined to abetment of the offences under Sections 7 and 11, and the old Section 24 provided that a statement by him in a prosecution of the public servant would not subject him to prosecution for abetment.
2. The new position. Section 8 creates the offence; the old Section 24 is omitted; and the only protection is the proviso for the compelled giver who reports within seven days.
3. The reason for the change. The Convention against Corruption requires the criminalisation of the promise, offering and giving of an undue advantage to a public official, and a law which punishes only the recipient leaves the payer free to repeat the conduct with the next official.
4. The cost. The evidence in most trap cases comes from the payer, and his changed legal position is the principal difficulty the amendment created for enforcement.

6. Related Topics and Provisions