Summary
A Constitution Bench answered a reference on proving a bribe demand when the complainant's direct evidence is unavailable because he has died, turned hostile or is otherwise absent. It held that proof of demand and acceptance of illegal gratification remains essential under Sections 7 and 13(1)(d)(i) and (ii) of the Prevention of Corruption Act. That proof may come from other witnesses, documents or circumstantial evidence. A presumption of fact may be drawn once the foundational facts are proved. The trial neither abates nor ends in acquittal merely because the complainant's evidence is missing. The Section 20 presumption of motive or reward applies to Section 7, not Section 13(1)(d). B. Jayaraj, P. Satyanarayana Murthy and M. Narasinga Rao do not conflict.
Issues
- Whether, in the absence of the complainant's evidence or other direct or primary evidence of demand, guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 may be inferred from other evidence adduced by the prosecution.
- Whether B. Jayaraj and P. Satyanarayana Murthy conflict with M. Narasinga Rao on the nature and quality of proof needed where the complainant's primary evidence is unavailable.
Provisions considered
- Sections 7, 13(1)(d)(i) and (ii) and 20 (as they stood before amendment), Prevention of Corruption Act, 1988Section 7 covers acceptance of an offer from the bribe giver and Section 13(1)(d) obtainment following a demand by the public servant; either the offer or the demand must be proved, and the legal presumption under Section 20 arises only for Section 7 once acceptance is proved. (¶¶ 3, 4, 5, 7, 48, 68)
- Sections 3, 4, 59, 60, 114 and 154, Indian Evidence Act, 1872Facts may be proved by oral, documentary or circumstantial evidence; a discretionary presumption of fact may be drawn only from proved foundational facts, while the Section 20 presumption is compulsory; and a witness cross-examined by the party calling him under Section 154 is not wholly effaced. (¶¶ 29, 33, 35, 46, 50, 53, 64, 67)
Held
- Proof of demand and acceptance of illegal gratification is a sine qua non for offences under Sections 7 and 13(1)(d)(i) and (ii); it may be proved by direct oral or documentary evidence or, in their absence, by circumstantial evidence, and mere acceptance or receipt without proof of the offer or demand is not an offence. (¶¶ 2, 68)
- If the bribe giver offers and the public servant simply accepts, it is acceptance under Section 7 and no prior demand is needed; if the public servant demands and receives payment, it is obtainment under Section 13(1)(d)(i) and (ii); in each case the offer or the demand must be proved as a fact in issue. (¶¶ 8, 68)
- A court may draw a presumption of fact as to demand and acceptance or obtainment only where the foundational facts are proved, subject to rebuttal; this discretionary presumption is distinct from the mandatory, rebuttable presumption in law under Section 20, which presumes motive or reward on proof of acceptance under Section 7 and does not apply to Section 13(1)(d). (¶¶ 48, 50, 68)
- Where the complainant turns hostile, dies or is unavailable, demand may be proved through any other witness, documents or circumstantial evidence, and the trial neither abates nor ends in acquittal on that ground; following Sat Paul, a witness contradicted by the party calling him is not washed off the record, and the creditworthy part of his testimony, if corroborated, may support a conviction. (¶¶ 60, 62, 66, 67, 68)
- B. Jayaraj and P. Satyanarayana Murthy, where acquittals followed for want of other evidence of demand, do not conflict with M. Narasinga Rao, where other evidence proved demand; the reference was answered in the affirmative. (¶¶ 12, 69, 70)
Result
Reference answered: in the absence of the complainant's direct or primary evidence, guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 may be inferred from other evidence adduced by the prosecution; Criminal Appeal No. 1669 of 2009 and connected matters directed to be placed before the appropriate Bench after orders of the Chief Justice of India.