Section 161, which embodies the law relating to illegal gratification, lays down that 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 forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for 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 referred to in Section 21 or with any public servants, 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.
The ingredients of the offence are:
(1) That the accused when the offence was committed was, or expected to be, a public servant;
(2) That he accepted, obtained, agreed to accept, or attempted to obtain from some person a gratification whether for himself or any other person;
(3) That such gratification was not a legal gratification due to him;
(4) That the gratification was accepted by him as a motive or reward—
(a) For doing, or forbearing to do an official act, or
(b) For showing or forbearing to show, favour or disfavour in the exercise of his official function, or
(c) For rendering or attempting to render any service or disservice to someone with the Central or State Government or the Legislature, or with any local authority, corporation or Government company, or with any public servant.
A, a Munsiff, obtains from Z, a banker, a situation in Z’s bank for A’s brother as a reward to A for deciding a cause in favour of Z.
A has committed the offence defined in this section. Again A, a public servant, induces Z erroneously to believe that A’s influence with Government has obtained a title for Z, and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section.
To constitute an offence under Section 161 it is not necessary that the public servant who receives the bribe must, in fact, be in a position to do the act, favour or service at the time.
Payment of money to an officer as donation to a public institution in which the officer is interested would amount to illegal gratification within Section 161, only if the payment was made either as a motive for the officer showing a favour to the accused or as a reward for having already shown the favour.
Again, for a public servant to be guilty under Section 161 it is not necessary that he should accept gratification for himself. It does not matter if he accepts gratification for “any other person”.