Section 11 of the Prevention of Corruption Act: A Tough Offence to Defend, But Not Impossible

As always, I will keep this post precise and to the point. Section 11 of the Prevention of Corruption Act, 1988 (“PC Act”) is one of the most challenging provisions to defend against. The reasons are twofold.

Firstly, a plain reading of Section 11 shows that the mere receipt or even attempt to receive an “undue advantage” by a public servant—or any other person on their behalf—is punishable. Unlike Section 7 of the PC Act, there is no requirement of a prior demand or acceptance of the undue advantage.

Secondly, once it is established that an undue advantage was received or attempted to be received by the public servant, the presumption under Section 20 of the PC Act is automatically triggered. This shifts the burden onto the accused to prove their innocence—an uphill task in most cases.

For reference, Section 11 reads as follows:

“11. Public servant obtaining undue advantage without consideration from person concerned in proceeding or business transacted by such public servant.

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 not be less than six months but which may extend to five years and shall also be liable to fine.”

Let’s consider an example.

‘Z’, a public servant, is handling a file for issuance of a Food Safety Certificate to a restaurant owned by ‘X’. The certificate is issued to X. However, four months later, Rs. 10,000 is credited to Z’s bank account by a company owned by X.

Even if:

• There was no specific demand for the amount by Z,

• X was otherwise eligible for the certificate, and

• The issuance of the certificate was not directly connected to the payment,

the offence under Section 11 is, on the face of it, complete. The money transferred would be treated as an “undue advantage,” and the burden of disproving this rests on Z. That’s how dangerous this provision can be. And this is precisely why defending a case at the stage of framing of charge becomes extremely difficult, as the court is only required to form a prima facie view—not to weigh the evidence conclusively.

In my experience, I’ve seen lawyers concede to the framing of charge under Section 11 without resistance. In my opinion, this is a flawed practice. An accused deserves a fair opportunity before trial begins. Even if the case appears weak at first glance, the defence must be asserted robustly.

How Then Do We Defend a Client Like ‘Z’?

The answer lies in a careful reading of the section itself. Note the words used: “accepts” and “obtains”. In the earlier part of this post, I deliberately used the word “received”—but that’s not what the statute uses.

Let’s examine the distinction:

• Accept means to consent to receive or undertake something offered. This implies that there must first be an offer, and that the public servant voluntarily consents to it.

• Obtain means to get, acquire, or secure something—this too implies some positive action or overt conduct.

In the absence of evidence of:

1. An offer being made by X or someone on his behalf,

2. A consensual acceptance of that offer by Z, or

3. Any overt act by Z to acquire the undue advantage,

the foundational ingredients of Section 11 are missing.

Crucially, without these foundational facts, the presumption under Section 20 does not get triggered and this is the point at which the defence must press hard.

I recently adopted this approach in a case involving a former public servant from the Directorate of Hydrocarbons. The chargesheet invoked Section 11, but completely lacked allegations—let alone proof—of any consent or overt act by the public servant to obtain any undue advantage. The transfer of funds was entirely unilateral and unconnected to any demonstrable benefit given or sought. There was no evidence of any communication, request, acceptance, or involvement on the part of the accused.

In such a scenario, I argue that the offence under Section 11 is not made out, even at the stage of charge. I will update readers as the matter progresses.

For those interested in a deeper understanding of this approach, I recommend reading the Five-Judge Bench decision in Neeraj Dutta v. State. While that case primarily dealt with Section 7 and evidentiary presumptions, its reasoning is instructive in interpreting the requirements of demand, acceptance, and overt act, which are equally relevant when analysing Section 11.

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Section 11 is undoubtedly one of the toughest sections under the PC Act to defend—but not indefensible. The key lies in dissecting the statutory language, identifying the absence of foundational facts, and pushing back on presumptions being applied prematurely. A vigilant and strategic defence, even at the charge stage, can make all the difference.