Appellate Courts Can Interfere With Acquittal Judgments Despite Double Presumption In Favour Of Accused: Kerala High Court

Justice Kauser Edappagath relying upon various Apex Court decisions stated that in an appeal against acquittal, the High Court has full power to review facts and law and to reconsider evidence to decide if an order of acquittal should be reversed. 

“It is true that in the case of acquittal, there is double presumption in favour of the accused, and an order of acquittal cannot be interfered with as a matter of course. However, there is no difference in power, scope, jurisdiction, or limitation under the Cr. P.C. between the appeals against judgment of conviction or acquittal. The appellate court is free to consider fact and law, despite the self-restraint that has been ingrained into practice, while dealing with the judgment of acquittal considering the interest of justice and fundamental principles of presumption of innocence.”

The Court was considering an appeal by the State against an acquittal order passed by a Special Court in a corruption case. The allegation was that the accused village officer accepted a bribe of Rs. 3000 and thereby committed offences punishable under Sections 7 and 13 of the Prevention of Corruption (PC) Act.

Section 7 deals with acceptance of illegal gratification by the public servant and Section 13 deals with criminal misconduct and punishment for criminal misconduct by a public servant.

Special Public Prosecutor A Rajesh submitted that the Special Court had failed to appreciate the evidence from the right perspective and that the case was proved beyond reasonable doubt. It was also argued that the court below failed to consider the existence of the presumption of acceptance of illegal gratification under Section 20 of the PC Act, even without direct evidence for the demand for money.

Advocate Devaprasanth P J appearing for the accused submitted that in acquittals, there is a double presumption in favour of the accused and that a judgment of acquittal can be interfered with only in exceptional cases when there exist compelling circumstances. It was also submitted that there was no demand for illegal gratification.

The Court found that the Special Court cannot rule out the recovery of tainted notes from the accused's office merely because at the time of trial, there was no visible pink colour on the currency notes or the accused's hand during the phenolphthalein test. It added that the colour could have faded over the passage of time and found that it is not mandatory to conduct a phenolphthalein test to establish demand or acceptance of a bribe.

“The phenolphthalein test is conducted for the conscious satisfaction of the trap officer that he was proceeding against a real bribe taker to satisfy himself that the suspected public servant had really demanded and accepted the bribe money. Independent of the evidence regarding the phenolphthalein test, the demand and acceptance can be proved.”

Further, the High Court held that under Section 20 of the PC Act, direct evidence was not necessary in all cases to prove the demand and acceptance of money. It observed that demand and acceptance of illegal money can also be proved by circumstantial evidence. The Court noted that in the instant case, the evidence from the witnesses proves direct demand and acceptance of bribery as well as its recovery.

The Court relied upon the decisions of the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor (1934) and Nur Mohammed v. King Emperor (1945) and other Apex Court decisions and stated that the appellate court has wide power in interfering with orders of acquittals to undo patent errors of law, grave miscarriage of justice, perverse findings of fact, excluding relevant evidence, considering irrelevant evidence etc.

It was found that once it was proved that the accused accepted illegal gratification without any protest, then it would attract the offence of criminal misconduct by public servants under Sections 7 and 13 of the PC Act. The Court also noted that the Special judge failed to ignore the existence of a strong presumption against the accused under Section 20 that acceptance of illegal money can be proved even without direct evidence. It stated thus:

“It was further held that the only condition for drawing the presumption is that during the trial it should be proved that the accused has accepted or agreed to accept any gratification and that once it is proved that gratification has been accepted, the presumption automatically arose. In this case, the condition precedent to draw such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record.”

The Court analysed the evidence, sequence of events, and circumstances and held that the accused had committed the offences under the PC Act and set aside the order of acquittal passed by the Special Court.

Case Title: State of Kerala V P M Kunhappan

Citation: 2023 LiveLaw (Ker) 460

Case number: CRL.A NO. 1726 Of 2010