Direct evidence of corruption against public servant not necessary: Supreme Court

In a significant judgment, the Supreme Court observed that circumstantial evidence can be considered to sustain a conviction of public officers for the offence of illegal gratification. 

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ON December 15, the Supreme Court Constitution bench of Justices Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, and B.V. Nagarathna in Neeraj Dutta versus State (Govt. of N.C.T. of Delhi) held that it is permissible to draw an inferential deduction of guilt of a public servant based on other evidence adduced by the prosecution under the Prevention of Corruption Act, 1988.

The judgment has emerged from the reference to a constitutional bench of the question of the nature and quality of proof of demand of illegal gratification (bribe) necessary to sustain a conviction of a public servant for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Act (prior to its amendment in 2018) when the primary evidence of the complainant is unavailable.

Also read: Can a legislator, who betrays a bribe-giver, claim immunity from prosecution?

What do the concerned provisions (prior to the Act's amendment) say?

Section 7 deals with a public servant or someone expecting to be a public servant accepting or obtaining gratification other than legal remuneration. The gratification can be for themself or for any other person. It must be obtained or accepted as a 'motive or reward' for doing or forbearing to do any official act or to show any favour or disfavour.

Section 13(1)(d)(i) provides grounds of criminal misconduct if a public servant by corrupt or illegal means obtains for themself or for any other person any valuable thing or pecuniary advantage. Section 13(1)(d)(ii) deals with illegal gratification obtained by abusing one's position as a public servant.

What was the question of law referred to the five-judge Constitution bench?

The reference arises out of a judgment dated February 28, 2019, passed by a division bench of the Supreme Court. This was then referred to a five-judge Constitution bench through an order by a three-judge bench on August 27, 2019.

The division bench had expressed certain doubts as to the validity of the position of law as expounded by the Supreme Court in P. Satyanarayana Murthy versus District Inspector of Police, State of Andhra Pradesh & Anr. (2015) and B. Jayaraj versus State of Andhra Pradesh (2014). 

In P. Satyanarayana Murthy, a three-judge bench of the Supreme Court held that in the absence of primary evidence, inferential deductions to sustain a conviction under sections 7 and 13(1)(d)(i) and (ii) was impermissible in law.  In this case, the complainant died and could not be examined by the prosecution. Whereas in B. Jayaraj, the conviction could not be sustained because the complainant disowned making a complaint and was declared hostile, as per another three-judge bench.

The division bench noted the divergence in the treatment of the evidentiary requirements for proving the offence under sections 7 and 13(1)(d) read with section 13(2) in the above two cases to be in conflict with M. Narsinga Rao versus State of Andhra Pradesh (2001), the latter also decided by a three-judge bench.

In M. Narasinga Rao, in which the prosecution witnesses had turned hostile, a question was raised about whether a legal presumption can be based on a factual presumption.

The court observed that once it is established that there was a demand or payment or acceptance of gratification and once the foundational facts were proved, the presumption for payment or acceptance of illegal gratification was applicable, provided that the same is not rebutted. Then the legal presumption was to be drawn from the said gratification that was accepted as a "motive or reward" for doing or forbearing to do any act, as per Section 20 of the Act. Thus, in this case, the demand for illegal gratification was established by other evidence.

Also read: Restoration of official sanction for corruption probes: Supreme Court to clarify whether it would have retroactive effect

What is the legal presumption under section 20?

Section 20 concerns a presumption where the public servant accepts gratification other than legal remuneration, before it was amended in 2018 to a presumption where public servant accepts any undue advantage.

The Constitution bench in the instant case noted that in the absence of proof of demand, a presumption that is legal in nature would not arise. The proof of demand and acceptance of illegal gratification by a public servant is a sine qua non for an offence to be established under sections 7, 13(1)(d)(i) and (ii) of the Act, prior to its amendment in 2018.

The bench observed that the mere acceptance of any amount allegedly by way of illegal gratification or recovery, in the absence of proof of demand, would not be sufficient to bring home the charge under sections 7, 13(1)(d)(i) and (ii).

To prove an offence under section 13(1)(d)(i), a demand of illegal gratification must be proved because the provision uses the term 'obtain'. The court here distinguished the terms 'acceptance' and' obtainment,' where the latter means to secure or gain as a result of request or effort. Here, the initiative vests in the person who receives it.

Further, it said that the only condition for drawing a legal presumption under section 20 is that during the trial, it should be proved that the accused had accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence.

What did the court decide on the conflict of law among the three previous judgments?

The Supreme Court said that there was no conflict in the three-judge bench decisions of the court in B. Jayaraj and P. Satyanarayana Murthy with that in M. Narasinga Rao. It clarified that in the absence of evidence from the complainant (that is, direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of guilt of a public servant under sections 7 and 13(1)(d) read with section 13(2) of the Act based on other evidence adduced by the prosecution.

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, the court explained. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence, as per the court.

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 and documentary evidence, laid down the Constitution bench.

Also read: Corruption by a public servant is an offence against the State and the society at large: Supreme Court

What aspects have to be borne in mind to prove the demand and acceptance of illegal gratification?

To prove the demand and acceptance of illegal gratification by the public servant, it has to be borne in mind that if there is an offer to pay by the bribe giver, without there being any demand from the public servant and the latter 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.

If the public servant makes a demand and 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, prior to its amendment in 2018.

In both cases, 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 pre-2018 Act.

What happens to the conviction if the complainant has turned hostile, or is dead or unavailable?

In the event the complainant turns 'hostile', or has died or is unavailable 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 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 court observed, "Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."