Brief Facts
- By the Order dated 27.08.2019, a Three Judge Bench of the Hon’ble Apex Court had referred a question of law framed to be decided by a bench of appropriate strength. As a result a batch of cases was referred to the five-Judge Constitution Bench by the Hon’ble Chief Justice of India.
Issues
- Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it 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?
Held
No need for direct evidence of demand
- 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.
Manner of proving of demand and acceptance
- Proof of demand and acceptance of illegal gratification by a public servant is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
- The guilt of the accused can be proved by proving the demand of illegal gratification and the subsequent acceptance as a matter of fact either by direct evidence which can be in the nature of oral evidence or documentary evidence.
- 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.
Non-availability of Complainant or witness turning hostile
- In the event the complainant turns ‘hostile’, or 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.
- The Hon’ble Court further discussed the provisions of section 154 of the Evidence Act and observed that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon.
Presumption under the PC Act
- The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof.
- On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands
- In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section and such presumption is to be treated as legal presumption, though the same is rebuttable.
- Presumption under Section 20 does not apply to Section 13 (1) (d) 27 (i) and (ii) of the Act.
- Presumption in law under Section 20 of the Act is distinct from presumption of fact regarding demand or acceptance, as the former is a mandatory presumption while the latter is discretionary in nature.
Necessary ingredients for offence under section 7 and section 13(1)(d)
- In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
- Cases where there is an offer to pay by bribe giver without demand (Section 7) – If the public servant simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
- Cases where the Public Servant makes a demand [Section 13(1)(d)]– In such case if the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, 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 under Section 13 (1)(d) and (i) and (ii) of the Act.
No conflict in the previous judgments of the Apex Court.
The Constitutional Bench of the Hon’ble Apex Court concluded that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj vs State of Andhra Pradesh (2014) 13 SCC 55 and P. Satyanarayana Murthy vs District Inspector of Police, State of Andhra Pradesh, (2015) 10 SCC 152 with the three judge Bench decision in M. Narasinga Rao vs State of A.P, (2001) 1 SCC 691, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. 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.
Relevant Para No.
4, 30, 31, 32, 67, 68, 70