In CRIM. APPEAL No.1669 of 2009-SC- Mere acceptance of illegal gratification without anything more would not make it offence under Sections 7 or 13 of Prevention of Corruption Act; Demand & acceptance can be proved by circumstantial evidence: SC
Justices S. Abdul Nazeer, B. R. Gavai,A. S. Bopanna, V. Ramasubramanian & B. V. Nagarathna [15-12-20222]

Read Judgment: NEERAJ DUTTA Vs. STATE (GOVT. OF N.C.T. OF DELHI)

Tulip Kanth

New Delhi, December 16, 2022: Hoping and trusting that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration becomes free from corruption, the Supreme Court has held that the proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused under Sections 7 and 13 (1)(d) (i) and(ii) of the Prevention of Corruption Act, 1988.

The Constitution Bench comprising Justice S. Abdul Nazeer, Justice B. R. Gavai, Justice A. S. Bopanna, Justice V. Ramasubramanian and Justice B. V. Nagarathna held, “In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.”

By a 2019 Order, a Larger Bench of the Top Court had referred a question of law to be decided by a Bench of appropriate strength. That is how this batch of cases had been referred to the Constitution Bench comprising five judges. 

The moot question that arose for answering the reference was in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. 

The Constitution Bench had to consider whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, it is not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution.

This matter arose after the Larger Bench noticed that there was a conflict in the decisions of two three-judge Benches of this Court in the cases of B. Jayaraj vs. State of Andhra Pradesh ; P. Satyanarayana Murthy vs. D. Inspector of Police, State of A.P. with the decision in M. Narsinga Rao vs. State of A.P. with regard to the nature and quality of proof necessary to sustain a conviction under Section 7 and Section 13(2) read with Section 13(1)(d) of the Act when the primary evidence of the complainant is unavailable. In these cases, the common thread was that the complainant was not available to let in evidence and hence, there was absence of direct evidence.

The Bench was of the view that in order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

Noting that the the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence, the Bench clarified that u/s 7 in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment u/s 13 (1)(d) and (i) and (ii).

According to the Apex Court, if the complainant turns hostile, has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

On the issue of  Section 7 on the proof of the facts in issue, the Bench opined that Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward. The said presumption has to be raised by the court as a legal presumption or a presumption in law and such  presumption is subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii), the Top Court remarked.

The Bench also found no conflict in the three judge Bench decisions of this Court in B. Jayaraj(Supra) and P. Satyanarayana Murthy(Supra) with the three judge Bench decision in M. Narasinga Rao(Supra).

“The position of law when a complainant or prosecution witness turns hostile is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases”, the Bench asserted.

While clarifying that in the absence of evidence of the complainant it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) based on other evidence adduced by the prosecution, the Bench directed that individual cases may be considered before the appropriate Bench after seeking orders of the Chief Justice of India.