Penal Code Section 161 Details: Bailable/Non-bailable, Cognizable/Non-cognizable

A) Details:

Section 161 of the Bangladesh Penal Code deals with the offence of taking gratification by a public servant other than a legal remuneration in respect of an official act. It is an offence committed by a public servant who accepts gratification (i.e., illegal money, valuable thing or service) other than legal remuneration, in return for performing or abstaining from performing any official duty.

B) Punishment:

The punishment for the offence under Section 161 of the Bangladesh Penal Code is imprisonment for a term which may extend to seven years, and a fine.

C) Bailable or Non-bailable:

The offence under Section 161 of the Bangladesh Penal Code is a non-bailable offence, which means that the accused cannot be released on bail as a matter of right.

D) Cognizable or non-cognizable offense:

The offence under Section 161 of the Bangladesh Penal Code is a cognizable offence, which means that the police can arrest the accused without a warrant.

E) Offence ingredients:

The ingredients of the offence under Section 161 of the Bangladesh Penal Code are:

1. The accused must be a public servant.
2. The accused must have accepted or obtained gratification (other than legal remuneration).
3. The gratification must be in respect of an official act.

F) What need to be proved:

To prove the offence under Section 161 of the Bangladesh Penal Code, it is essential to prove the following:

1. The accused is a public servant.
2. The accused accepted or obtained gratification (other than legal remuneration).
3. The gratification was in respect of an official act.
4. The act for which the gratification was taken was an official duty.

F) Defence:

The defences available for the offence under Section 161 of the Bangladesh Penal Code are:

1. Lack of intention: If the accused can prove that he did not have any intention to accept or obtain gratification, then he cannot be convicted of the offence under Section 161.
2. Legal remuneration: If the accused can show that he accepted or obtained legal remuneration for the official act, then he cannot be convicted of the offence under Section 161.

G) Top Case Laws with References:

1. In the case of Khorshed Alam vs. The State, 1982, the court held that the essence of the offence under Section 161 is the acceptance of gratification for an official act. The prosecution has to establish a direct connection between the act for which the gratification was taken and the official duty.
2. In the case of The State vs. Kazi Monirul Islam, 2018, the court held that it is not necessary to prove that the accused has actually performed or abstained from performing the official act for which the gratification was taken. It is sufficient to prove that the gratification was taken in respect of an official act.