Supreme Court Constitutional Bench - Direct Evidence Of Bribe Not Necessary To Convict Public Servant Under Prevention Of Corruption Act

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1669 OF 2009

NEERAJ DUTTA    ....APPELLANT

VS.

STATE (GOVT. OF N.C.T. OF DELHI)   .... RESPONDENT

WITH SLP (Crl.) No. 6497 of 2020

SLP (Crl.) No. 294 of 2022 CRIMINAL APPEAL NO. 1779 OF 2010 CRIMINAL APPEAL NO. 2136 OF 2010 DIARY NO. 27232 OF 2019 SLP (Crl.) NO. 11339 OF 2019 SLP(Crl.) NO. 3828 OF 2020 SLP (Crl.) NO. 5905 OF 2021 SLP(Crl.) NO. 6279 OF 2020 CRIMINAL APPEAL NO. 678 OF 2021 CRIMINAL APPEAL NO. 1490 OF 2021 CRIMINAL APPEAL NO. 1592 OF 2022 2

J U D G M E N T

NAGARATHNA, J.

By Order dated 27.08.2019, a Three Judge Bench of this court has referred the question of law framed to be decided by a Bench of appropriate strength. That is how this batch of cases has been referred to the Constitution Bench comprising of five judges by Hon’ble the Chief Justice of India. For easy reference, the Order of Reference dated 27.08.2019 is extracted as under: “

O R D E R

1.The present reference, concerning the Prevention of Corruption Act, 1988, arises out of the order dated 28.02.2019, passed by a two-judge bench of this Court, wherein they expressed certain doubts as to the validity of the position of law as expounded by this Court in the case of P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 152. In that case, the Court held that, in the absence of primary evidence of the complainant due to his death, inferential deductions in order to sustain a conviction under Sections 7 and 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 was impermissible in law.

2. However, the Court, vide order dated 28.02.2019, highlighted a number of judgments, such as Kishan Chand Mangal vs. State of Rajasthan, (1982) 3 SCC 466; Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390; and M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, wherein this Court, despite the absence of primary evidence of the complainant, sustained the conviction of the accused by relying on other evidence, and raising a presumption under the statute.

3.Noting the divergence in the treatment of the evidentiary requirement for proving the offence under Sections 7 and 13(1) (d) read with Section 13(2), Prevention of Corruption Act, 1988, the Court referred the following question of a law for determination by a larger bench: “The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not 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.”

4. Heard learned senior counsels for the parties at length.

5.We note that two three-judge benches of this Court, in the cases of B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55; and P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and Another, (2015) 10 SCC 152, are in conflict with an earlier three-judge bench decision of this Court in M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, regarding the nature and quality of proof necessary to sustain a conviction for the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 when the primary evidence of the complainant is unavailable. 6.We therefore consider it appropriate to refer the question of law framed to be decided by a bench of appropriate strength. The Registry is directed to place the papers before the Chief Justice of India for appropriate orders.”  2. Thus, the moot question that arises for answering the reference is, in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. This is because in the absence of proof of demand, a legal presumption under Section 20 of the Prevention of Corruption Act, 1988 (for short ‘the Act’) would not arise. Thus, the proof of demand is a sine qua non for an offence to be established under Sections 7, 13(1)(d)(i) and (ii) of the Act and de hors the proof of demand the offence under the two sections cannot be brought home. Thus, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof 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) of the Act. Hence, the pertinent question is, as to how demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning “hostile” or the complainant not being available on account of his death or for any other reason. In this regard, it is necessary to discuss the relevant Sections of the Evidence Act before answering the question for reference. Relevant provisions of the Act 3.

10. Before proceeding further, it would be useful to refer to the relevant provisions of the Act. Sections 7,13(1)(d)(i) and (ii) and 20 of 5 the Act as they stood prior to their amendments are extracted as under: 7. Public servant taking gratification other than legal remuneration in respect of an official act.— Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to seven years and shall also be liable to fine. Explanations —(a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for 6 doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. xxx xxx xxx Section 13 – Criminal misconduct by a public servant. - “(1) A public servant is said to commit the offence of criminal misconduct, - a) ….. b) …. c) …. (d) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; Explanation.- For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.” xxx xxx xxx Section 20 - Presumption where public servant accepts gratification other than legal remuneration. - 7 (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in subsections (1) and (2), the court may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.” 4. The following are the ingredients of Section 7 of the Act: i) the accused must be a public servant or expecting to be a public servant; ii) he should accept or obtain or agrees to accept or attempts to obtain from any person;  iii) for himself or for any other person; iv) any gratification other than legal remuneration; v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour. 5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, - (i) the accused must be a public servant; (ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward. iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d). 9 vi) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision. vii) therefore, to make out an offence under this provision, there has to be actual obtainment. viii) since the legislature has used two different expressions namely “obtains” or “accepts”, the difference between these two must be noted. 6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5 SCC 86 (“Subash Parbat Sonvane”), it was observed that mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d). In Sections 7 and 13(1)(a) and (b) of the Act, the legislature has specifically used the word “accepts” or “obtains”. As against this, there is departure in the language used in sub-section (1)(d) of Section 13 and it has omitted the word “accepts” and has emphasized on the word “obtains”. In sub-clauses (i), (ii) and (iii) of Section 13(1)(d), the emphasis is on the word “obtains”. Therefore, there must be evidence on record that the accused “obtains” for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or that he obtained for any person any valuable thing or pecuniary advantage without any public interest. 10 It was further observed with reference to Ram Krishan vs. state of Delhi AIR 1956 SC 476 (“Ram Krishan”), that for the purpose of Section 13(1)(a) and (b) of the Act: “It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour.” 7. Moreover, the statutory presumption under Section 20 of the Act is available for the offence punishable under Sections 7 or 11 or clauses (a) and (b) of sub-section (1) of section 13 and not for clause (d) of sub-section (1) of Section 13.

8. Reliance could also be placed on C.K. Damodaran Nair vs. Government of India (1997) 9 SCC 477 (“C.K. Damodaran Nair”). That was a case under the Prevention of Corruption Act, 1947 (‘1947 Act’ for the sake of convenience). Speaking of a charge under Section 7 of the Act, it was held that the prosecution was required to prove that: (i) the appellant was a public servant at the material time; (ii) the appellant accepted or obtained a gratification other than legal remuneration; and (iii) the gratification was for illegal purpose. While discussing the expression “accept”, it was observed that “accept” means to take or receive with a “consenting mind”. Consent 11 can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, would be able to get some official favour from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to “acceptance”. Therefore, it cannot be said, as an abstract proposition of law, that without a prior demand, there cannot be “acceptance”. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the 1947 Act is concerned. Under the said Section, the prosecution has to prove that the accused “obtained” the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the 1947 Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the 1947 Act. According to this Court, “obtain” means to secure or gain (something) as a result of request or effort. In the case of obtainment, the initiative vests in the person who receives and, in that context, a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the 1947 Act unlike an offence under Section 161 of 12 the Indian Penal Code (for short, ‘IPC’)., which, can be, established by proof of either “acceptance” or “obtainment”. Conflict in the three decisions?

9. On a perusal of the Order of Reference, we find that it has been discerned by a bench of three judges that there is a conflict in the decisions of two three-judge Benches of this Court in the cases of B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55 (“B. Jayaraj”); P. Satyanarayana Murthy vs. D. Inspector of Police, State of A.P. (2015) 10 SCC 152 (“P. Satyanarayana Murthy”) with the decision in M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 (“M. Narsinga Rao”) with regard to the nature and quality of proof necessary to sustain a conviction under Section 7 and Section 13(2) read with Section 13(1)(d) of the Act when the primary evidence of the complainant is unavailable. Thus, in the absence of primary evidence of the complainant due to his death or non-availability, is it permissible to draw an inferential deduction of culpability/ guilt of a public servant under Section 7 and Section 13(2) read with Section 13(1)(d) of the Act based on other evidence adduced by the prosecution, is the neat question which is under consideration by this Constitution Bench.

13 Trilogy Of Cases:

10. Before proceeding further, it would be useful to consider in detail the judgments referred to in the Order of Reference. (A) B. Jayaraj (i) In B.Jayaraj, PW-2 the complainant therein did not support the prosecution case under Section 7 and Section 13(1)(d) (i) and (ii) of the Act. The complainant therein disowned making the complaint and had stated in his deposition that the amount of Rs.250/- was paid to the accused with a request that the same may be deposited in the bank as fee for the renewal of his licence. The complainant was not willing to support the case of the prosecution. The complainant was therefore declared “hostile”. This Court observed that the complainant did not support the case of the prosecution insofar as demand made by the accused for the bribe is concerned and the prosecution did not examine any other witness present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant had disowned what he had stated in the initial complaint and in the absence of any other evidence to prove that the accused had made any demand, the evidence of the complainant therein and the complaint (Exh. 14 P-11) could not be relied upon to come to the conclusion that the above material furnished proof of the demand allegedly made by the accused. The only other material available was the recovery of the tainted currency notes from the possession of the accused therein. It was observed that mere possession and recovery of the currency notes from the accused without proof of demand would not bring home the offence under Section 7. Therefore, the use of illegal means or abuse of position by a public servant to obtain any valuable thing or pecuniary advantage was not held to be established insofar as the offence under Sections 13(1)(d)(i) and (ii) of the Act is concerned. (ii) It was further observed that the presumption under Section 20 of the Act could not also be drawn in respect of an offence under Section 7 of the Act. That such a presumption could have been drawn only if there was proof of acceptance of illegal gratification for which proof of demand was a sine qua non and as the same was lacking in the said case, the primary facts on the basis of which the legal presumption under Section 20 could be drawn were wholly absent. Consequently, the conviction was set aside and appeal was allowed. 15 (B) P. Satyanarayana Murthy (i) In P. Satyanarayana Murthy, the fact was that during the trial of charges under Sections 7 and 13 (1)(d)(i) and (ii) and Section 13(2) of the Act, the prosecution examined seven witnesses and also adduced documentary evidence in support of the charges. But the complainant therein had died prior thereto and therefore, could not be examined by the prosecution. According to the complainant, he was disinclined to pay the illegal gratification as demanded by the public servant and hence had filed the complaint with the Deputy Superintendent of Police, Anti-Corruption Bureau, Kurnool and sought action against the appellant in the said case. (ii) This Court by placing reliance on B. Jayaraj observed that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence under Sections 7 as well as 13 (1)(d)(i) and (ii) of the Act. This is because proof of demand is a sine qua non or an indispensable essentiality and a mandate for an offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act. That proof of acceptance of illegal gratification could follow only if there was proof of demand. That proof of demand of illegal gratification is the gravamen of the offence under Sections 7 16 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, the charge would thereby fail. In other words, mere acceptance of any amount by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto would not be sufficient to bring home the charge under the said Sections of the Act. It was observed that in the absence of proof of demand, a legal presumption under Section 20 the Act would also not arise. (iii) It was further observed that the material on record in the said case when judged on the touchstone of the legal principle discussed, left no doubt that the prosecution in the said case had failed to prove unequivocally the demand of illegal gratification and thus, the prosecution and the conviction of the appellant under Section 13(1)(d)(i) and (ii) read with section 13(2) of the Act was not sustainable. (iv) In P. Satyanarayana Murthy, reference was made to two cases, namely, A. Subair vs. State of Kerala (2009) 6 SCC 587 (“A. Subair”) and State of Kerala vs. C.P.Rao (2011) 6 SCC 450 (“C.P.Rao”). In the first of the aforesaid two cases, it was observed that the prosecution has to prove the charge under Sections 7 and 13(1)(d) of the Act like in any criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of 17 demand and acceptance of illegal gratification which are vital ingredients necessary to be proved to record a conviction. In C.P. Rao, which is the second of the two cases referred to in P. Satyanarayana Murthy, it was observed by this Court that mere recovery by itself would not prove the charge against the accused. In the absence of any evidence to prove the payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction could not be sustained. (v) Both the above judgments in B.Jayaraj and P. Satyanarayana Murthy are rendered by Benches of Three Judges and in the Order of Reference, it is stated that the same are in conflict with M. Narasinga Rao which is also a judgment by a Bench of three judges of this Court. (C) M. Narasinga Rao (i) In M. Narasinga Rao, K.T. Thomas, J. writing the judgment for the Bench raised the question as to, whether, a legal presumption can be based on a factual presumption. It was observed that a factual presumption is discretionary and depends upon the exercise of discretion by the Court whereas a legal presumption has to be compulsorily raised. It was further observed that Section 20 of the Act envisaged a legal presumption which means that on the proof of certain facts, 18 the court “shall presume” other facts. But when there is no direct evidence for establishing the primary fact or the fact in issue, the Court has to depend upon the process of inference drawn from other facts to reach the said primary fact. The crux of the question involved therefore was whether an inference made could be used as a premise for the compulsory presumption envisaged in Section 20 of the Act. (ii) In the said case, during the trial before the Special Judge, two witnesses of the prosecution namely, PW-1 and PW-2 made a volte-face during the trial and denied having paid any bribe to the appellant therein and also denied that the appellant had demanded the bribe amount. Both the witnesses were thus declared as “hostile”. According to the appellant therein, the tainted currency notes were forcibly stuffed into his pocket and in support of this, he had examined two witnesses on the defence side. Both the trial court and the High Court disbelieved the defence witnesses in toto and found that PW 1 and PW 2 were won over by the appellant and that is why they turned against their own version recorded by the investigating officer and subsequently by a Magistrate under Section 164 of the CrPC. (iii) In the said case, this Court made a detailed discussion of the expressions “may presume” and “shall presume” as defined in 19 Section 4 of the Evidence Act. This Court observed that the word “proof” means such evidence as would induce a reasonable man to come to a particular conclusion. It was further observed that a presumption is an inference of a certain fact drawn from other proved facts. The Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. A presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in the law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts, the court can draw an inference and that would remain until such inference is either disproved or dispelled. It was held that, for the purpose of reaching one conclusion, the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, this Court sounded a note of caution by stating that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. Reliance was placed on Suresh Budharmal Kalani vs. State of Maharashtra (1998) 7 SCC 337 (“Suresh Budharmal Kalani”), wherein it was 20 observed that a presumption can be drawn only from facts — by a process of probable and logical reasoning and not from other presumptions. (iv) This Court on the facts established in said case observed that the circumstances preceding and succeeding the discovery of tainted currency notes in the appellant’s pocket helped the Court to draw a factual presumption that the appellant therein had willingly received the tainted currency notes. (v) Relying upon Hazari Lal vs. State (Delhi Admn.) (1980) 2 SCC 390 (“Hazari Lal”), this Court reasoned on the facts of that case that in the absence of direct evidence to show that the public servant had demanded or accepted the bribe, no presumption under Section 4 of the 1947 Act (Section 20 of the Act) could be drawn merely based on the recovery of the marked currency notes. Speaking for a Bench of two judges, O.Chinnappa Reddy, J. in Hazari Lal further observed that it was not necessary that the passing of money should be proved by direct evidence as it could also be proved by circumstantial evidence. Also, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which happened in the common course of natural events, human conduct and public and private business. The accused in Hazari Lal had taken the currency notes from his 21 pocket and flung them across the wall and the said notes had been obtained from PW-3 therein a few minutes earlier who was shown to be in possession of the notes. Hence, presumption under Section 4(1) of the 1947 Act was immediately attracted. Although it was a rebuttable presumption, in the said case, there was no material to rebut the presumption. The accused was, therefore held guilty of the offence. (vi) Thus, in M. Narsinga Rao, a three-judge bench of this Court approved the reasoning of the two-judge bench in Hazari Lal. In M. Narsinga Rao, this Court observed that once it was 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. As the said presumption of fact was not rebutted by the accused the fact of demand was proved. Consequently, the legal presumption was to be drawn that the said gratification was accepted as a “motive or reward” for doing or forbearing to do any act as per Section 20 of the Act. (vii) It was further observed in the said case that the prosecution had proved that the appellant therein had accepted gratification. Therefore, the Court was under a legal 22 compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. It was further observed that the two witnesses examined on the defence side were unable to rebut the presumptions raised and hence, this Court dismissed the appeal and held the accused to be guilty.

11. Another judgment referred to in the Reference Order which is a case which arises under the 1947 Act is Kishan Chand Mangal vs. State of Rajasthan (1982) 3 SCC 466 (“Kishan Chand Mangal”). In the said case, it was observed that it was a case of entrapment where the complainant had given a bribe and the demand of the said bribe was also present. It was observed that the evidence on record, for instance, the complainant’s visit to the Anti-Corruption Bureau, his producing currency notes and the superior officer of the department making a trap arrangement, and the raiding party going to the house of the accused indicated that a prior demand for payment was made by the accused and the same was circumstantial evidence.

12. In the aforesaid cases, the common thread which runs through is that the complainant was not available to let in evidence and hence, there was absence of direct evidence. In B. Jayaraj the complainant did not support the prosecution and hence was declared “hostile”; in P. Satyanarayana Murthy, the complainant had died prior to the 23 examination of seven witnesses while in M. Narasinga Rao the prosecution witnesses had turned “hostile”. Therefore, in B. Jayaraj and in P. Satyanarayana Murthy the Court acquitted the accused while in M. Narasinga Rao despite two witnesses being declared as “hostile”, on facts, it was found that the accused therein had willingly received the tainted currency notes and hence, this Court sustained the conviction of the accused. It was observed that despite two prosecution witnesses turning “hostile”, it was established by other evidence that there was a demand of illegal gratification. Since the foundational facts were proved, the presumption for payment or acceptance of the same was applicable, which was not rebutted. Consequently, the legal presumption under Section 20 of the Act was also raised and remained unrebutted. In the above said backdrop the reference was made to the larger Bench and ultimately to the Constitution Bench. Submissions:

67. Therefore, this Court cautioned 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. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.

68. What emerges from the aforesaid discussion is summarised as under: 66 (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution 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. (b) 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 proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) 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. (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: (i) 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. (ii) On the other hand, 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. (iii) 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. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made 68 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. (f) 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. (g) 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. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.

69 (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. 69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, 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. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.

70. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: 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 70 Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

71. We direct that individual cases may be considered before the appropriate Bench after seeking orders of Hon’ble the Chief Justice of India. Before we conclude, we hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption. In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh vs. State of Haryana (1997) 4 SCC 14: “6. ………..Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The