Sections 11 and 12 of the Prevention of Corruption Act, 1988: Undue Advantage and Abetment
Section 11 deals with a public servant accepting, obtaining or attempting to obtain an undue advantage without consideration, or for consideration known to be inadequate, from a person connected with specified proceedings, business, official functions or public duty. Section 12 prescribes punishment for abetment of any offence punishable under the Prevention of Corruption Act, 1988.
Section 11 - Public Servant Obtaining Undue Advantage Without Consideration
Section 11 targets specified acceptance or obtaining of an undue advantage by a public servant from a person whose proceeding, business, interest or relationship creates the connection described by the provision.
Section 11 - Current statutory provision
Whoever, being a public servant, accepts or obtains or attempts to obtain for himself, or for any other person, any undue advantage without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions or public duty of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Essential Elements of Section 11
The accused must be a public servant. The prohibited conduct is accepting, obtaining or attempting to obtain an undue advantage for the public servant or another person without consideration, or for consideration that the public servant knows to be inadequate.
The provision further requires the statutory connection with the giver. This includes a person whom the public servant knows to have been, to be, or likely to be concerned in a proceeding or business transacted or about to be transacted by the public servant; a person having the specified connection with the official functions or public duty of the public servant or a superior public servant; or a person known to be interested in or related to the person so concerned.
Meaning of Undue Advantage
Section 2(d) defines "undue advantage" as any gratification whatever, other than legal remuneration. The statutory explanation makes clear that gratification is not confined to money or to benefits capable of being estimated in money. "Legal remuneration" includes remuneration that the public servant is permitted by the Government or organisation served to receive.
Punishment under Section 11
The punishment is imprisonment for a term of not less than six months and up to five years, together with fine.
Section 12 - Punishment for Abetment of Offences
Section 12 was substantially widened by the 2018 amendment. It now applies to a person who abets any offence punishable under the Prevention of Corruption Act, whether or not the principal offence is ultimately committed in consequence of that abetment.
Section 12 - Current statutory provision
Whoever abets any offence punishable under this Act, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years, but which may extend to seven years and shall also be liable to fine.
Meaning and scope of abetment
Section 12 makes the punishable conduct the abetment of an offence under the Act and expressly states that liability does not depend on the offence actually being committed in consequence of the abetment. The meaning and application of abetment must be read with the applicable general criminal law and the facts of the particular case.
Punishment under Section 12
The punishment is imprisonment for not less than three years and up to seven years, together with fine.
Relationship Between Sections 11 and 12
Section 11 is a substantive offence directed at specified receipt or attempted receipt of an undue advantage by a public servant. Section 12 is a general abetment provision extending across offences punishable under the Act. A case involving Section 11 may therefore raise separate questions about the conduct of the public servant and the conduct of another person alleged to have abetted an offence, depending on the evidence and statutory ingredients.
Legal update: Section 11 terminology and Section 12 scope updated to reflect the Prevention of Corruption (Amendment) Act, 2018 effective from 26 July 2018.