Direct Evidence Of Bribe Demand Not Necessary To Convict Public Servant Under Prevention Of Corruption Act : Supreme Court CB

In an important ruling, the Supreme Court on Thursday held that direct evidence of demand or acceptance of bribe is not necessary to convict a public servant under the Prevention of Corruption Act and that the such fact can be proved through circumstantial evidence.

Even if the direct evidence of the complainant is not available, owing to death or other reasons, or the complainant turning a hostile witness, there can be conviction of the public servant under the PC Act, if the demand for illegal gratification is proved through inferential evidence based on circumstances. Presumption of fact with regard to demand or acceptance may be made by a court of law by way of an inference only when foundational facts have been proved.

The Constitution Bench held that in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, it is permissible to draw 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.

The 5-Judge Bench of Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna had reserved the judgment on November 23.

Justice Nagarathna pronounced the operative portion of the judgment as follows :

"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 either proved by direct evidence, in nature of oral evidence/documentary evidence. Further, the fact in issue namely, the proof of demand and acceptance of illegal gratification, can also be proved by circumstantial evidence in the absence of direct, oral or documentary evidence".

Further, it was held :

"In the event the complainant turns hostile or has died or is unable to let in his evidence during the trial, the 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 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 public servant"

The other conclusions from the judgment are as follows :

Proof of demand and acceptance of illegal gratification by a public servant is a fact in issue is a sine qua non in order to establish the guilt of the accused public servant under Section 7 and 13(1)(d)(i) and (ii) of the Act.

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:

(i) If there is an offer to pay by the bribe giver, without there being any demand from the public servant, and the later simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per S. 7 of the Act. In such case there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe is given or the demanded gratification in tendered, which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment the prior demand of illegal gratification emanates from the public servant. This is an offence under S. 13(1)(d)(i) and (ii) of the Act.

In both cases, 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 S. 7 or Section 13(1)(d)(i) and (ii)

Presumption of fact with regard to demand or acceptance may be made by a court of law by way of an inference only when foundational facts have been proved. A presumption is subject to rebuttal by the accused. 

There is no conflict in the 3-Judge decision of the court in Jayraj and P. Satyanarayan Murthy with 3-Judge Bench decision in M.Narsingh Rao with the nature and quality of proof necessary to sustain a conviction for offences under Section 7 and Section 13(1)(d)(i) & (ii)

Background

In 2019, a reference was made by a Division Bench to a larger Bench upon observing that insistence of direct proof or primary evidence for proving the demand may not be in consonance with the view taken many judgments wherein despite the absence of primary evidence of the complainant, the Apex Court had sustained the conviction of the accused by relying on other evidence, and raising a presumption under the statute.

Later, the 3-judge Bench, referred the issue to the Constitution Bench, after noting-

Click here to read/download the judgment