Report No. 42
Offences by or Relating to Public Servants
Chapter 9 deals with offences which can be committed by public servants alone and also with those offences which relate to public servants, though not committed by them. The offences which are common between public servants and other members of the community are dealt with in the general provisions of the Code.
Section 161 and the succeeding sections relating to bribery were fully considered by us in the light of the decided cases and the provisions in the Prevention of Corruption Act, 1947 and the relevant comments made in some of the judgments. On a few matters, the law is inadequate, and we proceed to discuss them in the succeeding paragraphs.
9.2. Section 161 and the Prevention of Corruption Act.-
There is considerable overlapping between sections 161 to 165 of the Code and some of the provisions of the Prevention of Corruption Act, 1947. That Act, however, was mainly intended to punish "habitual corruption" and it contains special rules of procedure and evidence. The Indian Penal Code, which constitutes the general criminal law, should also continue to retain provisions dealing with bribery. No change is, therefore, necessary in this respect.
9.3. Section applicable whether or not public servant is capable of doing official act.-
The question whether section 161 applies where, the public servant concerned has no power to do the act promised has now been settled by the Supreme Court. In Mahesh Prasad v. State of U.P., (1955) 1 SCR 965: AIR 1955 SC 70 (71), the Court observed.-
"It is pointed out that the appellant though employed in the Railway was not himself a person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job. It is urged therefore that the offence, if any, committed by the appellant could only be one of cheating and not the receiving of a bribe. This argument is without any substance. By the terms of section 161 of the Indian Penal Code a person who is a public servant and accepts illegal gratification as a motive for rendering service, with any public servant as such, is guilty of the offence thereunder.
To constitute an offence under this section, it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver with any such public servant and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance, and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing it. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under section 161 of the Indian Penal Code. This is clear from the fourth Explanation to section 161, I.P.C. Illustration (c) to section 161, also elucidates this.
Thus, where a public servant who receives illegal gratification as a motive for doing or procuring an official act, whether or not he is capable of doing it or whether or not he intends to do it, he is quite clearly within the ambit of section 161. I.P.C."
9.4. Applicability of section where public servant is functus officio.-
An analogous question is, whether a public servant who is functus officio can be guilty of accepting a bribe. This question also arose in several cases before the High Courts. There are obiter dicta of the Supreme Court on the subject1. The question was not decided, but the following discussion in the judgment of the Supreme Court is of interest.-
"Dr. Ambedkar then submits that in this case no offence had been committed. He points out that it was Sri Gudi and not Sri Naik, who was authorised to seize the books. Sri Gudi directed Sri Naik to examine the books and make a report which the latter did on 12-3-1949, Ex. 10-A. After that date Sri Naik was functus officio, having fully performed whatever duty he had to perform, and, therefore, he was not the public servant who could, in the exercise of his official function, show any favour or render any service to the appellants. Learned counsel relied on the cases of Shamsul Huq v. Emp., AIR1921 Cal 344. In re P. Venkatia, AIR 1924 Mad 851, and Venkatarama Naidu v. Emp., AIR 1929 Mad 756, A perusal of the cases relied on by learned counsel will show that the question of law was not fully discussed, and the reasons in support of the conclusions arrived at are not clear or convincing.
On the other hand, the High Courts of Allahabad, Lahore, Nagpur, Bombay and Orissa have disapproved of the decisions relied on by Dr. Ambedkar. See Ajudhia Prasad v. Emp., AIR 1928 All 752., Emp. v. Phul Singh, AIR 1947 Lah 276., Ram Sewak v. Emp., AIR 1948 All 17., Gopeshwar Mandal v. Emp., AIR 1948 Nag 82. In re Varadadesikachariar, AIR 1950 Mad 93., Indur Devaldas Advani v. State, AIR 1952 Bom 58 and State v. Sadhucharan Panigarahi. AIR 1952 Ori 73.
The point of law appears to have been more fully discussed in these cases, and the reasonings set out therein appear to us, as at present advised, to be more convincing than those set out in the causes relied on by Dr. Ambedkar. It is, however, not necessary for the purposes of this case, to express any final opinion on this question, for we are satisfied, on the facts of this case, that Sri Gudi and Sri Naik had it in their power, in the exercise of their official functions, to show favour or render some service to the appellants."
9.5. We recommend that the conflict of decisions in the High Courts should be resolved by amending the fourth Explanation to read as follows.-
"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 these words."
9.6. Giving of bribe.-
Bribe giving is described as abetment and made punishable under section 165A. Strictly speaking, this is not appropriate. The giver is as much guilty as the receiver and the offence of bribery should really cover both the giver and the receiver in the section. Reference may be made, in this connection, to section 171B (bribery at elections), where the same section covers both the giver and the receiver of the bribe.1 As the point is not of practical importance and the punishment is the same for the substantive offence as well as for the abetment, we recommend no change in this respect.
1. See also Venkatarama Naidu, AIR 1929 Mad 757, where the need for amending section 161 in various respects was suggested.
9.7. Sections 162-165A.N.- changes are required in sections 162 to 165A.
9.8. Section 1.- punishment increased.-
Section 166 punishes a public servant disobeying a law with intent to cause injury. As the offence is grave one, we consider that the punishment should be increased to "imprisonment of either description for a term which may extend to three years, or with fine, or with both".
9.9. Wilful misconduct of public servant should be punishable.-
The Code does not take account of those types of misconduct by public servants where the misconduct does not take the shape of bribery or extortion or similar corrupt acts. There are several types of misconduct in the performance of official functions which may cause serious harm to the interests of a citizen. Inordinate delay, malicious and revengeful action, deliberate partiality and persistent harassment are examples which come readily to the mind. Such misconduct does not amount to a direct demand for gratification, though often the ultimate motive is to obtain such gratification. Section 166 is not adequate for the purpose because it is restricted to misconduct amounting to a violation of a specific direction of the law.
It is desirable to ensure that no public officer shall, in the exercise of the duties of his office or while acting under colour of his office, do any act which is wrongful in itself, or do an otherwise lawful act in a wrongful manner. We are fully aware of the practical difficulties involved in enforcing a statutory provision made to remedy this evil. For example, in public offices, it is often difficult to fix responsibility on a particular person, and it may also be difficult to prove a specific act of misconduct in the nature of oppression. There would also be difficulties of collecting the necessary evidence. Nevertheless, we consider that there ought to be a penal provision to punish acts of gross misconduct.
9.10. New section 166.-recommended.-
We, accordingly, recommend the insertion of a new section as follows.-
"166A. Public servant acting with intent to cause injury to any person.- Whoever, being a public servant, wilfully conducts himself in the performance of his functions as such public servant, intending to cause or knowing it to be likely that he will by such conduct, cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."