NEERAJ DUTTA versus STATE (GOVT. OF N.C.T. OF DELHI) on 15 December 2022

SUPREME COURT REPORTS

[2022] 5 S.C.R.

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NEERAJ DUTTA

v.

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

(Criminal Appeal No. 1669 of 2009)

BDECEMBER 15, 2022

[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]

Prevention of Corruption Act 1988: ss.7 and 13(1)(d) r/ws.13(2) – In the absence of evidence of the complainant (direct/Cprimary, oral/documentary evidence) it is permissible to draw aninferential deduction of culpability/guilt of a public servant u/ss.7and 13(1)(d) r/w s.13(2) of the Act based on other evidence adducedby the prosecution.

Reference Matter – Prevention of Corruption Act 1988 –DWhether B. Jayaraj v State of A.P & P. Satyanarayana Murthy v D.Insp. Of Police, State of A.P. in conflict with M. Narsinga Rao v Stateof A.P – Reference Answered – There is no conflict in B. Jayarajand P. Satyanarayana Murthy with the decision in M. Narasinga Rao,with regard to the nature and quality of proof necessary to sustainEa conviction for offences u/ss.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 otherreason – Proof of demand and acceptance of illegal gratificationby a public servant as a fact in issue by the prosecution is a sinequa non in order to establish the guilt of the accused public servantFu/ss.7 and 13 (1)(d) (i) and (ii) of the Act – Prosecution has to firstprove the demand of illegal gratification and the subsequentacceptance as a matter of fact and the same can be proved bydirect evidence – The proof of demand and acceptance of illegalgratification can also be proved by circumstantial evidence in theGabsence of direct oral and documentary evidence, if suchcircumstantial evidences corroborates the foundational fact ofdemand and acceptance of illegal gratification.

Prevention of Corruption Act 1988: s.20 – Scope ofPresumption used therein – s.20 envisages the law regarding theHpresumption where public servant accepts gratification other than104

legal remuneration – The expression used therein is “shall presume”which is legal or compulsory presumption – The said provision dealswith a legal presumption which is in the nature of a command that ithas to be presumed that the accused accepted the gratification as amotive or reward for doing or forbearing to do any official act etc.,if the condition envisaged in the former part of the Section is satisfied– It does not say that the said condition should be satisfied throughdirect evidence but the only requirement is that it must be provedthat the accused has accepted or agreed to accept gratification.

Evidence Act, 1872: s.3 – Word “Fact” – “Factum Probandum& Factum Probans” – Classification and Connection – Fact consistsof state of things, events or mental state – The principal fact (fact-in-issue) constitutes Factum Probandum whereas the evidentiary fact(relevant fact) constitute Factum Probans – Facts relevant to theissue are evidentiary fact which render probable the existence ornon-existence of fact-in-issue or some other relevant fact.

Evidence Act, 1872: s.3 – Word “Evidence” – Scope – Evidencemay include the actual words of witnesses, or documents produced– The term evidence is not restricted to only oral and documentaryevidence but also to other things like material objects, the demeanourof the witnesses, facts of which judicial notice could be taken,admissions of parties, local inspection made and answers given bythe accused to questions put forth by the Magistrate or Judge u/s.313 of the Criminal Procedure Code.

Evidence Act, 1872 – ss. 3, 59, 60, 61 – Classification ofEvidence – Evidence may be classified as direct evidence (originalevidence) and indirect evidence (substantial evidence) – DirectEvidence establishes the existence of a thing or fact either by actualproduction or by testimony or demonstrable declaration of someonewho has himself perceived it and the same is devoid of any roomfor inference or presumption – Indirect Evidence gives rise to thelogical inference that a fact-in-issue exists, either conclusively orpresumptively – Direct Evidence may constitute either oral ordocumentary evidence – Indirect evidence may constitute evidencewhich is circumstantial in nature.

Evidence Act, 1872: s.60 – Oral Evidence – Classificationand Scope – Oral Evidence can be either original or hearsay in AB

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Anature – It is original if it is given by the person who himself haveseen or heard something through his own senses – Hearsay Evidencecould be called as derivative, transmitted or second-hand evidencein which a witness is merely reporting what he had not himself seenor heard but have learnt from some third person – Oral Evidence isalso sub-categorized as Primary and Secondary evidence – FormerBis an oral account of the original evidence while latter is a reportor an oral account of the original evidence or a copy of a documentor a model of the original thing – As per the mandate of s.60, theoral evidence must be direct or positive.

Evidence Act, 1872: Word “Hearsay evidence” – Scope –CThe expression “hearsay evidence” is not defined under the EvidenceAct – Hearsay evidence is inadmissible to prove a fact which isdeposed to on hearsay, but it does not necessarily preclude evidenceas to a statement having been made upon which certain action wastaken or certain results followed such as evidence of an informantDof the crime.

Evidence Act, 1872: ss. 59, 61, 62, 63, 64, 65, 66, 67(2), 78– Documentary Evidence – Classification and scope – As per themandate of s.59 contents of document cannot be proved by oralevidence – Documentary evidences are to be proved by productionEof documents themselves or, in their absence, by secondary evidenceu/s.65 of the Act – s.61 permits proof of contents of document byprimary or by secondary evidence – As per s.62, primary evidencemean when the document itself is produced for inspection of thecourt – For an evidence to be a secondary evidence for proving thecontents of the document, it must be of the kind as specified u/s.63F– As per the mandate of s.64 document must be proved by adducingprimary evidence, except in the cases mentioned u/s.65 – The policyof law is that primary evidence is the best evidence and it affordsthe greatest certainty of the fact in question and it is only when theabsence of the primary source has been satisfactorily explainedGthat secondary evidence is permissible to prove the contents ofdocuments.

Evidence Act, 1872: ss. 4, 114 – Law regarding presumptions– Word “May Presume, Shall Presume, Conclusive Proof” – FactualPresumption or discretionary presumption come under “MayHPresume” and in this case facts may be proved either by adducing

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evidence or the court may presume the existence of a fact – LegalPresumption or Compulsory Presumption come under “shallpresume” and once it is declared by the law that the court shallpresume the existence of a fact, then the court is under obligationto presume such fact unless such presumption is displaced byadducing evidence contrary to such presumption – Conclusive proofis a strict declaration of law and once a fact is declared to be aconclusive proof of the other, then the court shall not allow theevidence to be adduced to misplace such presumption – Thepresumption as contemplated by s.114 is a discretionary presumption.

Evidence Act, 1872: Chapter 7 – Burden of Proof - The phrase“burden of proof” has two meanings one, the burden of proof as amatter of law and pleading and the other, the burden of establishinga case; the former is fixed as a question of law on the basis of thepleadings and is unchanged during the entire trial, whereas thelatter is not constant but shifts as soon as a party adduces sufficientevidence to raise a presumption in his favour.

Evidence Act, 1872: Hostile Witness – Admissibility ofEvidence – Settled Legal Position – Even if a witness is treated as“hostile” and is cross-examined, his evidence cannot be written offaltogether but must be considered with due care and circumspectionand that part of the testimony which is creditworthy must beconsidered and acted upon.

Answering the Reference petition, the Court HELD: 1. Congruent to the principle of res gestae, a factincludes a state of things or events as well as the mental statei.e. intention or animus. A fact in law of evidence includes thefactum probandum i.e., the principal fact to be proved and thefactum probans, i.e., the evidentiary fact from which the principalfact follows immediately or by inference. On the other hand, theexpression “fact in issue” means the matters which are in disputeor which form the subject of investigation. It is well settled thatevidence is upon facts pleaded in a case and hence, the principalfacts are sometimes the facts in issue. Facts relevant to the issueare evidentiary facts which render probable the existence or non-existence of a fact in issue or some relevant fact. [Para 30,31][144-C-E]

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A2. In criminal cases, the facts in issue are constituted inthe charge, or acquisition, in cases of warrant or summon cases.The proof of facts in issue could be oral and documentaryevidence. Evidence is the medium through which the court isconvinced of the truth or otherwise of the matter under enquiry,i.e., the actual words of witnesses, or documents produced andBnot the facts which have to be proved by oral and documentaryevidence. Of course, the term evidence is not restricted to onlyoral and documentary evidence but also to other things likematerial objects, the demeanour of the witnesses, facts of whichjudicial notice could be taken, admissions of parties, localCinspection made and answers given by the accused to questionsput forth by the Magistrate or Judge under Section 313 of theCriminal Procedure Code (CrPC). [Para 32][144-E-G]

3. “Direct” or “original” evidence means that evidencewhich establishes the existence of a thing or fact either by actualDproduction or by testimony or demonstrable declaration ofsomeone who has himself perceived it, and believed that itestablished a fact in issue. Direct evidence proves the existenceof a fact in issue without any inference of presumption. On theother hand, “indirect evidence” or “substantial evidence” givesrise to the logical inference that such a fact exists, eitherEconclusively or presumptively. The effect of substantial evidenceunder consideration must be such as not to admit more than onesolution and must be inconsistent with any explanation that thefact is not proved. By direct or presumptive evidence(circumstantial evidence), one may say that other facts are provedFfrom which, existence of a given fact may be logically inferred.[Para 33][144-G-H; 145-A-B]

4. Oral evidence can be classified as original and hearsayevidence. Original evidence is that which a witness reports himselfto have seen or heard through the medium of his own senses.GHearsay evidence is also called derivative, transmitted, orsecond-hand evidence in which a witness is merely reporting notwhat he himself saw or heard, and not what has come under theimmediate observation of his own bodily senses, but what he haslearnt in respect of the fact through the medium of a third person.

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Normally, a hearsay witness would be inadmissible, but when it iscorroborated by substantive evidence of other witnesses, it wouldbe admissible. [Para 34][145-C-D]

5. Evidence that does not establish the fact in issue directlybut throws light on the circumstances in which the fact in issuedid not occur is circumstantial evidence (also called inferentialor presumptive evidence). Circumstantial evidence means factsfrom which another fact is inferred. Although circumstantialevidence does not go to prove directly the fact in issue, it isequally direct. Circumstantial evidence has also to be proved bydirect evidence of the circumstances. [Para 35][145-E-F]

6. Section 59 of the Evidence Act states that all facts, exceptthe contents of documents or electronic records, may be provedby oral evidence. Oral evidence means the testimony of livingpersons examined in the presence of the court or commissionersappointed by the court, deaf and dumb persons may also adduceevidence by signs or through interpretation or by writing, if theyare literate. Documentary evidences, on the other hand, are tobe proved by the production of the documents themselves or, intheir absence, by secondary evidence under Section 65 of theAct. Further, facts showing the existence of any state of mind,such as intention, knowledge, good faith, negligence, or ill willneed not be proved by direct testimony. It may be provedinferentially from conduct, surrounding circumstances, etc. [Para36, 37][145-G-H; 146-A-B]

7. Section 60 of the Evidence Act requires that oralevidence must be direct or positive. Direct evidence is when itgoes straight to establish the main fact in issue. The word “direct”is used in juxtaposition to derivative or hearsay evidence wherea witness gives evidence that he received information from someother person. If that person does not, himself, state suchinformation, such evidence would be inadmissible being hearsayevidence. On the other hand, forensic procedure as circumstantialor inferential evidence or presumptive evidence (Section 3) isindirect evidence. It means proof of other facts from which theexistence of the fact in issue may be logically inferred. In thiscontext, the expression “circumstantial evidence” is used in a AB

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Aloose sense as, sometimes, circumstantial evidence may also bedirect. Although the expression “hearsay evidence” is not definedunder the Evidence Act, it is, nevertheless, in constant use inthe courts. However, hearsay evidence is inadmissible to provea fact which is deposed to on hearsay, but it does not necessarilypreclude evidence as to a statement having been made uponBwhich certain action was taken or certain results followed suchas evidence of an informant of the crime. At this stage, it must bedistinguished that even with regard to oral evidence, there aresub-categories – primary evidence and secondary evidence.Primary evidence is an oral account of the original evidence i.e.,Cof a person who saw what happened and gives an account of itrecorded by the court, or the original document itself, or theoriginal thing when produced in court. Secondary evidence is areport or an oral account of the original evidence or a copy of adocument or a model of the original thing. [Para 39, 40, 41][146-D-H]D

8. Section 61 deals with proof of contents of documentswhich is by either primary or by secondary evidence. When adocument is produced as primary evidence, it will have to beproved in the manner laid down in Sections 67 to 73 of theEvidence Act. Mere production and marking of a document asEan exhibit by the court cannot be held to be due proof of itscontents. Its execution has to be proved by admissible evidence.On the other hand, when a document is produced and admittedby the opposite party and is marked as an exhibit by the court,the contents of the document must be proved either by theFproduction of the original document i.e., primary evidence or bycopies of the same as per Section 65 as secondary evidence. Solong as an original document is in existence and is available, itscontents must be proved by primary evidence. It is only whenthe primary evidence is lost, in the interest of justice, thesecondary evidence must be allowed. Primary evidence is theGbest evidence and it affords the greatest certainty of the fact inquestion. Thus, when a particular fact is to be established byproduction of documentary evidence, there is no scope for leadingoral evidence. What is to be produced is the primary evidencei.e., document itself. It is only when the absence of the primaryHsource has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents. Secondaryevidence, therefore, should not be accepted without a sufficientreason being given for non-production of the original. [Para42][147-A-E]

9. Section 62 of the Evidence Act defines primary evidenceto mean the documents itself produced for the inspection of thecourt. If primary evidence is available, it would exclude secondaryevidence. Section 63 of the Evidence Act deals with secondaryevidence and defines what it means and includes. Section 63mentions five kinds of secondary evidence, namely, - (i) Certifiedcopies given under the provisions hereinafter contained; (ii)Copies made from the original by mechanical processes which inthemselves ensure the accuracy of the copy, and copies comparedwith such copies; (iii) Copies made from or compared with theoriginal; (iv) Counterparts of documents as against the partieswho did not execute them; (v) Oral accounts of the contents of adocument given by some person who has himself seen it. [Para43][147-E-H; 148-A]

10. Section 64 of the Evidence Act states that documentsmust be proved by primary evidence except in certain casesmentioned above. Once a document is admitted, the contents ofthat document are also admitted in evidence, though thosecontents may not be conclusive evidence. Moreover, once certainevidence is conclusive it shuts out any other evidence which woulddetract from the conclusiveness of that evidence. There is aprohibition for any other evidence to be led which may detractfrom the conclusiveness of that evidence and the court has nooption to hold the existence of the fact otherwise when suchevidence is made conclusive. Thus, once a document has beenproperly admitted, the contents of the documents would standadmitted in evidence, and if no objection has been raised withregard to its mode of proof at the stage of tendering in evidenceof such a document, no such objection could be allowed to beraised at any later stage of the case or in appeal. [Para 44][148-B-D]

11. Courts are authorised to draw a particular inferencefrom a particular fact, unless and until the truth of such inferenceis disproved by other facts. The court can, under Section 4 of the A

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AEvidence Act, raise a presumption for purposes of proof of a fact.It is well settled that a presumption is not in itself evidence butonly makes a prima facie case for a party for whose benefit itexists. As per English Law, there are three categories ofpresumptions, namely, (i) presumptions of fact or naturalpresumption; (ii) presumption of law (rebuttable andBirrebuttable); and (iii) mixed presumptions i.e., “presumptionsof mixed law and fact” or “presumptions of fact recognised bylaw”. The expression “may presume” and “shall presume” inSection 4 of the Evidence Act are also categories of presumptions.Factual presumptions or discretionary presumptions come underCthe division of “may presume” while legal presumptions orcompulsory presumptions come under the division of “shallpresume”. “May presume” leaves it to the discretion of the courtto make the presumption according to the circumstances of thecase but “shall presume” leaves no option with the court, and itis bound to presume the fact as proved until evidence is given toDdisprove it, for instance, the genuineness of a documentpurporting to be the Gazette of India. The expression “shallpresume” is found in Sections 79, 80, 81, 83, 85, 89 and 105 ofthe Evidence Act. [Para 46][148-F-H; 149-A-B]

12. Section 20 of the Act deals with presumption whereEpublic servant accepts gratification other than legal remuneration.It uses the expression “shall be presumed” in sub-section (1)and sub-section (2) unless the contrary is proved. The saidprovision deals with a legal presumption which is in the nature ofa command that it has to be presumed that the accused acceptedFthe gratification as a motive or reward for doing or forbearing todo any official act etc., if the condition envisaged in the formerpart of the Section is satisfied. The only condition for drawing alegal presumption under Section 20 of the Act is that during trial,it should be proved that the accused had accepted or agreed toaccept any gratification. The Section does not say that the saidGcondition should be satisfied through direct evidence. Its onlyrequirement is that it must be proved that the accused hasaccepted or agreed to accept gratification. [Para 48][149-E-G]

13. A presumption under Section 114 of the Evidence Actis discretionary in nature inasmuch as it is open to the court todraw or not to draw a presumption as to the existence of one factfrom the proof of another fact. This is unlike a presumption underSection 4(1) of the 1947 Act or Section 20 of the Act where thecourt has to draw such presumption, if a certain fact is proved,that is, where any illegal gratification has been received by anaccused. In such a case the presumption that has to be drawnthat the person received that thing as a motive of reward.Therefore, the court has no choice in the matter, once it isestablished that the accused has received a sum of money whichwas not due to him as a legal remuneration. Of course, it is opento the accused to show that though that money was not due tohim as a legal remuneration it was legally due to him in someother manner or that he had received it under a transaction or anarrangement which is lawful. The burden resting on the accusedin such a case would not be as light as it is where a presumptionis raised under Section 114 of the Evidence Act and cannot beheld to be discharged merely by reason of the fact that theexplanation offered by the accused is reasonable and probable.It must further be shown that the explanation is a true one. Thewords “unless the contrary is proved” which occur in thisprovision make it clear that the presumption has to be rebuttedby “proof” and not by a bare explanation which is merely plausible.A fact is said to be proved when its existence is directlyestablished or when upon the material brought before it, the Courtfinds its existence to be so probable that a reasonable man wouldact on the supposition that it exists. Unless, therefore, theexplanation is supported by proof, the presumption created bythe provision cannot be said to be rebutted. [Para 50][150-C-H]

14. As opposed to the expressions “may presume” and“shall presume”, the expression “conclusive proof” is also usedin Section 4 of the Evidence Act. When the law says that aparticular kind of evidence would be conclusive, that fact can beproved either by that evidence or by some other evidence thatthe court permits or requires. When evidence which is madeconclusive is adduced, the court has no option but to hold thatthe fact exists. For instance, the statement in an order of the AB

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Acourt is conclusive of what happened before the presiding officerof the court. Thus, conclusive proof gives an artificial probativeeffect by the law to certain facts. No evidence is allowed to beproduced with a view to combat that effect. When a statute makescertain facts final and conclusive, evidence to disprove such factsis not to be allowed. [Para 52][151-B-D]B

15. All evidence let in before the court of law are classifiedeither as direct or circumstantial evidence. “Direct evidence”means when the principal fact is attested directly by witnesses,things or documents. For all other forms, the term “circumstantialevidence” which is “indirect evidence” is referred, whether byCwitnesses, things or documents, which can be received asevidence. This is also of two kinds namely, conclusive andpresumptive. Conclusive is when the connection between theprincipal and evidentiary facts – the factum probandum and factumprobans - is a necessary consequence of the laws of nature;D“presumptive” is when the inference of the principal fact fromthe evidence is only probable, whatever be the degree ofpersuasion which it may generate. Thus, circumstantial evidenceis evidence of circumstances as opposed to what is called directevidence. The prosecution must take place and prove allnecessary circumstances constituting a complete chain without aEsnap and pointing to the hypothesis that except the accused, noone had committed the offence. [Para 53][151-E-G]

16. Proof of demand and acceptance of illegal gratificationby a public servant as a fact in issue by the prosecution is a sinequa non in order to establish the guilt of the accused public servantFunder Sections 7 and 13 (1)(d) (i) and(ii) of the Act. In order tobring home the guilt of the accused, the prosecution has to firstprove the demand of illegal gratification and the subsequentacceptance as a matter of fact. This fact in issue can be provedeither by direct evidence which can be in the nature of oralGevidence or documentary evidence. Further, the fact in issue,namely, the proof of demand and acceptance of illegal gratificationcan also be proved by circumstantial evidence in the absence ofdirect oral and documentary evidence. [Para 68][158-E-F]

17. There is no conflict in the three judge Bench decisionsof this Court in B. Jayaraj and P. Satyanarayana Murthy with thethree judge Bench decision in M. Narasinga Rao, with regard tothe nature and quality of proof necessary to sustain a convictionfor offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act,when the direct evidence of the complainant or “primaryevidence” of the complainant is unavailable owing to his death orany other reason. [Para 69][160-E-F]

Subash Parbat Sonvane v. State of Gujarat (2002) 5SCC 86 : [2002] 3 SCR 359; Ram Krishan v. State ofDelhi AIR 1956 SC 476 : [1956] SCR 182; C.K.Damodaran Nair v. Government of India (1997) 9 SCC477 : [1997] 1 SCR 107; B. Jayaraj v. State of AndhraPradesh (2014) 13 SCC 55 (“B. Jayaraj”) : [2014] 4SCR 554; P. Satyanarayana Murthy v. D. Inspector ofPolice, State of A.P. (2015) 10 SCC 152; M. NarsingaRao v. State of A.P. (2001) 1 SCC 691 : [2000] 5 Suppl.SCR 584; A. Subair v. State of Kerala (2009) 6 SCC587 : [2009] 9 SCR 1058; State of Kerala v. C.P. Rao(2011) 6 SCC 450 : [2011] 6 SCR 864; SureshBudharmal Kalani v. State of Maharashtra (1998) 7SCC 337 : [1998] 1 Suppl. SCR 608; Hazari Lal v.State (Delhi Admn.) (1980) 2 SCC 390 : [1980] 2 SCR1053; Kishan Chand Mangal v. State of Rajasthan(1982) 3 SCC 466 : [1983] 1 SCR 569; K. Shanthammav. State of Karnataka (2022) 4 SCC 574; State of U.P.v. Ram Asrey (1990) Suppl. SCC 12; Mukhtiar Singh v.State of Punjab (2017) 8 SCC 136 : [2017] 8 SCR 109;M. R. Purushotam v. State of Karnataka (2015) 3 SCC247; C. M. Sharma v. State of Andhra Pradesh (2010)15 SCC 1 : [2010] 13 SCR 1105; State of Maharashtrav. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC200 : [2009] 11 SCR 513; Sukumaran v. State of Kerala(2015) 11 SCC 314; Sunkanna v. State of AndhraPradesh (2016) 1 SCC 713 : [2015] 12 SCR 882; Stateof Madhya Pradesh v. Ram Singh (2000) 5 SCC 88 :[2000] 1 SCR 579; State of Rajasthan v. Babu Meena(2013) 4 SCC 206; Amarjit Singh v. State (Delhi Admn.)1995 Cr LJ 1623 (Del); Kumar Exports v. Sharma A

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ACarpets (2009) 2 SCC 513 : [2008] 17 SCR 572;Krishna Janardhan Bhat v. Dattatraya G Hegde (2008)4 SCC 54 : [2008] 1 SCR 605; State of Madras v. A.Vaidyanatha Iyer AIR 1958 SC 61 : [1958] SCR 580;Dhanvantrai Balwantrai Desai v. State of MaharashtraAIR 1964 SC 575 : [1963] Suppl. SCR 485;BNavaneethakrishnan v. State by Inspector of Police AIR2018 SC 2027 : [2018] 6 SCR 749; SharadBirdhichand Sarda v. State of Maharashtra (1984) 4SCC 116 : [1985] 1 SCR 88; Prakash v. State ofRajasthan (2013) 4 SCC 668 : [2013] 2 SCR 458;CKundan Lal Rallaram v. The Custodian, EvacueeProperty Bombay AIR 1961 SC 1316; MadhukarBhaskarrao Joshi v. State of Maharashtra (2000) 8 SCC571 : [2000] 4 Suppl. SCR 475; State v. Dr. Anup KumarSrivastava (2017) 15 SCC 560 : [2017] 9 SCR 341;State of Andhra Pradesh v. V. Vasudeva Rao (2004) 9DSCC 319 : [2003] 5 Suppl. SCR 500; State of AndhraPradesh v. P. Venkateshwarlu (2015) 7 SCC 283 :[2015] 6 SCR 262; Selvaraj v. State of Karnataka(2015) 10 SCC 230 : [2015] 9 SCR 381; Nayan KumarShivappa Waghmare v. State of Maharashtra (2015) 11ESCC 213 : [2015] 2 SCR 171; Prakash Chand v. State(Delhi Admn.) (1979) 3 SCC 90 : [1979] 2 SCR 330;Sat Paul v. Delhi Administration (1976) 1 SCC 727 :[1976] 2 SCR 11; Swatantar Singh v. State of Haryana(1997) 4 SCC 14 : [1997] 2 SCR 639; A.B. BhaskaraRao v. CBI (2011) 10 SCC 259 : [2011] 12 SCR 718;FState of M.P. v. Shambhu Dayal (2006) 8 SCC 693 :[2006] 8 Suppl. SCR 319 – referred to.

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[2009] 9 SCR 1058referred toPara 10b(iv)A[2011] 6 SCR 864referred toPara 10b(iv)[1998] 1 Suppl. SCR 608referred toPara 10c(iii)[1980] 2 SCR 1053referred toPara 10c(v)[1983] 1 SCR 569referred toPara 14(viii)B[2017] 8 SCR 109referred toPara 15[2010] 13 SCR 1105referred toPara 15[2009] 11 SCR 513referred toPara 15C[2015] 12 SCR 882referred toPara 15[2000] 1 SCR 579referred toPara 23[2008] 17 SCR 572referred toPara 47[2008] 1 SCR 605referred toPara 47D[1958] SCR 580referred toPara 49[1963] Suppl. SCR 485referred toPara 50[2018] 6 SCR 749referred toPara 53[1985] 1 SCR 88referred toPara 55E[2013] 2 SCR 458referred toPara 55[2000] 4 Suppl. SCR 475referred toPara 57[2017] 9 SCR 341referred toPara 58[2003] 5 Suppl. SCR 500referred toPara 59(i)F[2015] 6 SCR 262referred toPara 59(ii)[2015] 9 SCR 381referred toPara 59(iii)[2015] 2 SCR 171referred toPara 61[1979] 2 SCR 330referred toPara 62G[1976] 2 SCR 11referred toPara 66[1997] 2 SCR 639referred toPara 71[2011] 12 SCR 718referred toPara 71[2006] 8 Suppl. SCR 319referred toPara 71H

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1669 of 2009.

From the Judgment and Order dated 02.04.2009 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 4 of 2007.

WithB

SLP (Crl.) No. 6497 of 2020, SLP (Crl.) No. 294 of 2022, CriminalAppeal Nos. 1779 and 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 Nos. 678and 1490 of 2021, Criminal Appeal No. 1592 of 2022.

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Ms. Aishwarya Bhati, Jayant K. Sud, ASGs, Saurabh Mishra,AAG, Ardhendumauli Kumar Prasad, Addl. A.G., S. Nagamuthu, BasavaPrabhu S. Patil, M. Karpaga Vinayagam, Sushil Kumar Jain, Ms. KiranSuri, Ms. Sonia Mathur, Sr. Advs., Satinder S. Gulati, Raj KishorChoudhary, A.S. Vairawan, R. Sudhakaran, G.R. Vikash, D. SubrahmanyaDBhanu, Rohan Singh, Ms. Shalini Mishra, Kamaldeep Gulati, M. P.Parthiban, T. Hari Hara Sudhan, G. Mani Prabhu, C. Santhosh,Ms. Pushpita Basak, Geet Ahuja, Samarth Kashyap, Anirudh Sanganeria,K. V. Muthu Kumar, Nitin Kumar, Deepak Sharma, C. Aravind,Ms. Christi Jain, Puneet Jain, Dr. Ajay Kumar, Kaushal Yadav, Dr. SushilEBalwada, Ram Kishor Singh Yadav, Nand Lal Kumar Mishra, UmangMehta, Harsh Jain, Ms. Yashoda Katiyar, Shafik Ahmad, Vikrant Yadav,Arjun Raghuvanshi, Santosh Kumar, Ms. Shweta Yadav, Prithvi Pal,Sawan Kumar Shukla, Anil Sharma, Roy Abraham, Ms. Reena Roy,Akhil Abraham, Yaudhinder Lal, Ms. Purva, Himinder Lal, RaghenthBasant, Ms. Liz Mathew, Ms. Roopali Lakhotia, Ajay Krishna, B. Balaji,FMallikarjun S. Mylar, Bammappanavar K. S., Haribansh Manav, AshokBannidinni, Gagan Gupta, Ananta Prasad Mishra, Deepak Kumar Jain,Anil S. P., Nikhil D. Kamath, Pavan R. Javali, Sunil M. V., VinayakKulkarni, Somashekar Narayana, Uday Urs, Parnam Prabhakar, S.J.Amith, Syed Ahmad Naqvi, Sanjeev Kumar, Dr. Sumant Bharadwaj,GVedant Bharadwaj, Ms. Mridula Ray Bharadwaj, M/S Bannidinni andCo., Ms. Rukhmini Bobde, Ms. Snidha Mehra, Sanjay Kr. Tyagi, AditKhorana, Shubranshu Padhi, Udai Khanna, Ms. Manisha Chava,Ms. Kanika, Ms. Shivika Mehra, Manvendra Singh, Abhijeet Singh,Ms. Poornima Singh, Ms. B.L.N. Shivani, Aman Sharma, Kartik Jasra,Randeep Sachdeva, Ms. Shreya Jain, Harish Nadda, Shivam Jasra, H

Gurmeet Singh Makker, Ajay Pal, Harsh Parashar, Nishe Rajen Shonker,Ms. Anu K. Joy, Alim Anvar, Dr. Joseph Aristotle S., Ms. Nupur Sharma,Shobhit Bhardwaj, Sanjeev Kr. Mahara, Ms. Vaidehi Rastogi, AbhinavShrivastava, Sunny Choudhary, Sandeep Sharma, Shivang Rawat,Ms. Radhika Jalan, Mahfooz A.Naski, Polanki Gowtham, ShaikMohamad Haneef, T. Vijaya Bhaskar Reddy, K.V. Girish Chowdary,Ms. Rajeswari Mukherjee, Ms. Niti Richhariya Advs. for the appearingparties.

The Judgment of the Court was delivered by NAGARATHNA, J.

By Order dated 27.08.2019, a Three Judge Bench of this courthas referred the question of law framed to be decided by a Bench ofappropriate strength. That is how this batch of cases has been referredto the Constitution Bench comprising of five judges by Hon’ble the ChiefJustice of India. For easy reference, the Order of Reference dated27.08.2019 is extracted as under:

“O R D E R

1. The present reference, concerning the Prevention ofCorruption Act, 1988, arises out of the order dated28.02.2019, passed by a two-judge bench of this Court,wherein they expressed certain doubts as to the validity ofthe position of law as expounded by this Court in the caseof P.Satyanarayana Murthy vs. District Inspector ofPolice, State of Andhra Pradesh and another, (2015) 10SCC 152. In that case, the Court held that, in the absence ofprimary evidence of the complainant due to his death,inferential deductions in order to sustain a conviction underSections 7 and 13(1)(d)(i) and (ii) of the Prevention ofCorruption Act, 1988 was impermissible in law.

2. However, the Court, vide order dated 28.02.2019, highlighteda number of judgments, such as Kishan Chand Mangalvs. State of Rajasthan, (1982) 3 SCC 466; Hazari Lal vs.State (Delhi Administration), (1980) 2 SCC 390; andM. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691,wherein this Court, despite the absence of primary evidenceof the complainant, sustained the conviction of the accused AB

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Aby relying on other evidence, and raising a presumption underthe statute.

3. Noting the divergence in the treatment of the evidentiaryrequirement for proving the offence under Sections 7 and13(1) (d) read with Section 13(2), Prevention of CorruptionBAct, 1988, the Court referred the following question of alaw for determination by a larger bench:

“The question whether in the absence of evidence ofcomplainant/direct or primary evidence of demand ofillegal gratification, is it not permissible to draw inferentialdeduction of culpability/guilt of a public servant underSection 7 and Section 13(1)(d) read with Section 13(2)of Prevention of Corruption Act, 1988 based on otherevidence adduced by the prosecution.”

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4. Heard learned senior counsels for the parties at length.D5.We note that two three-judge benches of this Court, in thecases of B. Jayaraj vs. State of Andhra Pradesh, (2014)13 SCC 55; and P.Satyanarayana Murthy vs. DistrictInspector of Police, State of Andhra Pradesh andAnother, (2015) 10 SCC 152, are in conflict with an earlierEthree-judge bench decision of this Court in M. NarsingaRao vs. State of A.P., (2001) 1 SCC 691, regarding thenature and quality of proof necessary to sustain a convictionfor the offences under Section 7 and 13(1)(d) read withSection 13(2) of the Prevention of Corruption Act, 1988 whenthe primary evidence of the complainant is unavailable.F

6. We therefore consider it appropriate to refer the questionof law framed to be decided by a bench of appropriatestrength. The Registry is directed to place the papers beforethe Chief Justice of India for appropriate orders.”

2. Thus, the moot question that arises for answering the referenceGis, in the absence of the complainant letting in direct evidence of demandowing to the non-availability of the complainant or owing to his death orother reason, whether the demand for illegal gratification could beestablished by other evidence. This is because in the absence of proofof demand, a legal presumption under Section 20 of the Prevention ofHCorruption Act, 1988 (for short ‘the Act’) would not arise. Thus, the proof of demand is a sine qua non for an offence to be establishedunder Sections 7, 13(1)(d)(i) and (ii) of the Act and de hors the proof ofdemand the offence under the two sections cannot be brought home.Thus, mere acceptance of any amount allegedly by way of illegalgratification or recovery thereof in the absence of proof of demand wouldnot 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 demandcould be proved in the absence of any direct evidence being let in by thecomplainant owing to the complainant not supporting the complaint orturning “hostile” or the complainant not being available on account of hisdeath or for any other reason. In this regard, it is necessary to discussthe relevant Sections of the Evidence Act before answering the questionfor reference.

Relevant provisions of the Act

3. Before proceeding further, it would be useful to refer to therelevant provisions of the Act. Sections 7,13(1)(d)(i) and (ii) and 20 ofthe Act as they stood prior to their amendments are extracted as under:

7. Public servant taking gratification other than legalremuneration in respect of an official act.— Whoever, being,or expecting to be a public servant, accepts or obtains or agreesto accept or attempts to obtain from any person, for himself or forany other person, any gratification whatever, other than legalremuneration, as a motive or reward for doing or forbearing to doany official act or for showing or forbearing to show, in the exerciseof his official functions, favour or disfavour to any person or forrendering or attempting to render any service or disservice to anyperson, with the Central Government or any State Government orParliament or the Legislature of any State or with any localauthority, corporation or Government company referred to in clause(c) of section 2, or with any public servant, whether named orotherwise, shall be punishable with imprisonment which shall benot less than six months but which may extend to seven years andshall also be liable to fine.

Explanations—(a) “Expecting to be a public servant”. If a personnot expecting to be in office obtains a gratification by deceivingothers into a belief that he is about to be in office, and that he willthen serve them, he may be guilty of cheating, but he is not guiltyof the offence defined in this section.

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A(b) ”Gratification”. The word “gratification” is not restricted topecuniary gratifications or to gratifications estimable in money.

(c) ”Legal remuneration”. The words “legal remuneration” arenot restricted to remuneration which a public servant can lawfullydemand, but include all remuneration which he is permitted by theBGovernment or the organisation, which he serves, to accept.

(d) ”A motive or reward for doing”. A person who receives agratification as a motive or reward for doing what he does notintend or is not in a position to do, or has not done, comes withinthis expression.

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(e) Where a public servant induces a person erroneously to believethat his influence with the Government has obtained a title forthat person and thus induces that person to give the public servant,money or any other gratification as a reward for this service, thepublic servant has committed an offence under this section.

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Section 13 – Criminal misconduct by a public servant. - “(1) A public servant is said to commit the offence of criminalmisconduct, - a)…..b)….

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(d) if he,—F

(i) by corrupt or illegal means, obtains for himself or for any otherperson any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himselfor for any other person any valuable thing or pecuniary advantage;or G

(iii) while holding office as a public servant, obtains for any personany valuable thing or pecuniary advantage without any publicinterest; Explanation.- For the purposes of this section, “known sourcesof income” means income received from any lawful source and H

such receipt has been intimated in accordance with the provisionsof any law, rules or orders for the time being applicable to a publicservant.”

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Section 20 - Presumption where public servant acceptsgratification other than legal remuneration. -

(1) Where, in any trial of an offence punishable under section 7 orsection 11 or clause (a) or clause (b) of sub-section (1) of section13 it is proved that an accused person has accepted or obtainedor has agreed to accept or attempted to obtain for himself, or forany other person, any gratification (other than legal remuneration)or any valuable thing from any person, it shall be presumed, unlessthe contrary is proved, that he accepted or obtained or agreed toaccept or attempted to obtain that gratification or that valuablething, as the case may be, as a motive or reward such as ismentioned in section 7 or, as the case may be, without considerationor for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 12or under clause (b) of section 14, it is proved that any gratification(other than legal remuneration) or any valuable thing has beengiven or offered to be given or attempted to be given by an accusedperson, it shall be presumed, unless the contrary is proved, that hegave or offered to give or attempted to give that gratification orthat valuable thing, as the case may be, as a motive or rewardsuch as is mentioned in section 7, or as the case may be, withoutconsideration or for a consideration which he knows to beinadequate.

(3) Notwithstanding anything contained in sub-sections (1) and(2), the court may decline to draw the presumption referred to ineither of the said sub-sections, if the gratification or thing aforesaidis, in its opinion, so trivial that no inference of corruption mayfairly 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 apublic servant; A

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Aii)he should accept or obtain or agrees to accept or attemptsto obtain from any person;

iii)for himself or for any other person;

iv)any gratification other than legal remuneration; Bv)as a motive or reward for doing or forbearing to do anyofficial act or to show any favour or disfavour.

5. Section 13(1)(d) of the Act has the following ingredients whichhave to be proved before bringing home the guilt of a public servant,namely, - C(i)the accused must be a public servant;

(ii) by corrupt or illegal means, obtains for himself or for anyother person any valuable thing or pecuniary advantage; orby abusing his position as public servant, obtains for himselfor for any other person any valuable thing or pecuniaryDadvantage; or while holding office as public servant, obtains for any personany valuable thing or pecuniary advantage without any publicinterest.

iii)to make out an offence under Section 13(1)(d), there is noErequirement that the valuable thing or pecuniary advantageshould have been received as a motive or reward.

iv)an agreement to accept or an attempt to obtain does notfall within Section 13(1)(d).

Fvi)mere acceptance of any valuable thing or pecuniaryadvantage is not an offence under this provision.

vii)therefore, to make out an offence under this provision, therehas to be actual obtainment.

viii)since the legislature has used two different expressionsGnamely “obtains” or “accepts”, the difference between thesetwo must be noted.

6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5SCC 86 (“Subash Parbat Sonvane”), it was observed that mereacceptance of money without there being any other evidence would notHbe 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 specificallyused the word “accepts” or “obtains”. As against this, there is departurein the language used in sub-section (1)(d) of Section 13 and it has omittedthe 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 orpecuniary advantage by either corrupt or illegal means or by abusing hisposition as a public servant or that he obtained for any person any valuablething or pecuniary advantage without any public interest.

It was further observed with reference to Ram Krishan vs. stateof Delhi AIR 1956 SC 476 (“Ram Krishan”), that for the purpose ofSection 13(1)(a) and (b) of the Act:

“It is enough if by abusing his position as a public servant a manobtains for himself any pecuniary advantage, entirely irrespectiveof motive or reward for showing favour or disfavour.”

7. Moreover, the statutory presumption under Section 20 of theAct is available for the offence punishable under Sections 7 or 11 orclauses (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 (‘1947Act’ for the sake of convenience). Speaking of a charge under Section7 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 thanlegal 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”. Consentcan be established not only by leading evidence of prior agreement butalso from the circumstances surrounding the transaction itself withoutproof of such prior agreement. If an acquaintance of a public servant inexpectation and with the hope that in future, if need be, would be able toget some official favour from him, voluntarily offers any gratification AB

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Aand if the public servant willingly takes or receives such gratification itwould certainly amount to “acceptance”. Therefore, it cannot be said,as an abstract proposition of law, that without a prior demand, therecannot be “acceptance”. The position will, however, be different so faras an offence under Section 5(1)(d) read with Section 5(2) of the 1947Act is concerned. Under the said Section, the prosecution has to proveBthat the accused “obtained” the valuable thing or pecuniary advantageby corrupt or illegal means or by otherwise abusing his position as apublic servant and that too without the aid of the statutory presumptionunder Section 4(1) of the 1947 Act as it is available only in respect ofoffences under Section 5(1)(a) and (b) and not under Section 5(1)(c),C(d) or (e) of the 1947 Act. According to this Court, “obtain” means tosecure or gain (something) as a result of request or effort. In the case ofobtainment, the initiative vests in the person who receives and, in thatcontext, a demand or request from him will be a primary requisite for anoffence under Section 5(1)(d) of the 1947 Act unlike an offence underSection 161 of the Indian Penal Code (for short, ‘IPC’)., which, can be,Destablished 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 hasbeen discerned by a bench of three judges that there is a conflict in theEdecisions of two three-judge Benches of this Court in the cases ofB. 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”) withthe 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 proofFnecessary 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 thecomplainant is unavailable. Thus, in the absence of primary evidence ofthe complainant due to his death or non-availability, is it permissible todraw an inferential deduction of culpability/ guilt of a public servant underGSection 7 and Section 13(2) read with Section 13(1)(d) of the Act basedon other evidence adduced by the prosecution, is the neat question whichis under consideration by this Constitution Bench.

Trilogy Of Cases:

10. Before proceeding further, it would be useful to consider inHdetail the judgments referred to in the Order of Reference.

(A) B. Jayaraj

(i) In B.Jayaraj, PW-2 the complainant therein did not supportthe prosecution case under Section 7 and Section 13(1)(d) (i)and (ii) of the Act. The complainant therein disowned makingthe complaint and had stated in his deposition that the amountof Rs.250/- was paid to the accused with a request that thesame may be deposited in the bank as fee for the renewal ofhis licence. The complainant was not willing to support thecase of the prosecution. The complainant was thereforedeclared “hostile”. This Court observed that the complainantdid not support the case of the prosecution insofar as demandmade by the accused for the bribe is concerned and theprosecution did not examine any other witness present at thetime when the money was allegedly handed over to the accusedby the complainant, to prove that the same was pursuant toany demand made by the accused. When the complainanthad disowned what he had stated in the initial complaint andin the absence of any other evidence to prove that the accusedhad made any demand, the evidence of the complainant thereinand the complaint (Exh. P-11) could not be relied upon tocome to the conclusion that the above material furnished proofof the demand allegedly made by the accused. The only othermaterial available was the recovery of the tainted currencynotes from the possession of the accused therein. It wasobserved that mere possession and recovery of the currencynotes from the accused without proof of demand would notbring home the offence under Section 7. Therefore, the useof illegal means or abuse of position by a public servant toobtain any valuable thing or pecuniary advantage was not heldto be established insofar as the offence under Sections13(1)(d)(i) and (ii) of the Act is concerned.

(ii) It was further observed that the presumption under Section20 of the Act could not also be drawn in respect of an offenceunder Section 7 of the Act. That such a presumption couldhave been drawn only if there was proof of acceptance ofillegal gratification for which proof of demand was a sinequa non and as the same was lacking in the said case, theprimary facts on the basis of which the legal presumption A

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Aunder Section 20 could be drawn were wholly absent.Consequently, the conviction was set aside and appeal wasallowed.

(B) P. Satyanarayana Murthy

(i) In P. Satyanarayana Murthy, the fact was that during theBtrial of charges under Sections 7 and 13 (1)(d)(i) and (ii) andSection 13(2) of the Act, the prosecution examined sevenwitnesses and also adduced documentary evidence in supportof the charges. But the complainant therein had died priorthereto and therefore, could not be examined by theCprosecution. According to the complainant, he was disinclinedto pay the illegal gratification as demanded by the publicservant and hence had filed the complaint with the DeputySuperintendent of Police, Anti-Corruption Bureau, Kurnooland sought action against the appellant in the said case.

D(ii) This Court by placing reliance on B. Jayaraj observed thatmere possession and recovery of currency notes from theaccused without proof of demand would not establish anoffence under Sections 7 as well as 13 (1)(d)(i) and (ii) of theAct. This is because proof of demand is a sine qua non oran indispensable essentiality and a mandate for an offenceEunder Sections 7 and 13(1)(d)(i) and (ii) of the Act. That proofof acceptance of illegal gratification could follow only if therewas proof of demand. That proof of demand of illegalgratification is the gravamen of the offence under Sections 7and 13(1)(d)(i) and (ii) of the Act and in the absence thereof,Fthe charge would thereby fail. In other words, mere acceptanceof any amount by way of illegal gratification or recoverythereof dehors the proof of demand, ipso facto would not besufficient to bring home the charge under the said Sections ofthe Act. It was observed that in the absence of proof ofdemand, a legal presumption under Section 20 the Act wouldGalso not arise.

(iii) It was further observed that the material on record in the saidcase when judged on the touchstone of the legal principlediscussed, left no doubt that the prosecution in the said casehad failed to prove unequivocally the demand of illegal H

gratification and thus, the prosecution and the conviction ofthe appellant under Section 13(1)(d)(i) and (ii) read with section13(2) of the Act was not sustainable.

(iv) In P. Satyanarayana Murthy, reference was made to twocases, namely, A. Subair vs. State of Kerala (2009) 6 SCC587 (“A. Subair”) and State of Kerala vs. C.P.Rao (2011)6 SCC 450 (“C.P.Rao”). In the first of the aforesaid twocases, it was observed that the prosecution has to prove thecharge under Sections 7 and 13(1)(d) of the Act like in anycriminal offence and that the accused should be consideredto be innocent till it is established otherwise by proper proofof demand and acceptance of illegal gratification which arevital ingredients necessary to be proved to record a conviction.In C.P. Rao, which is the second of the two cases referred toin P. Satyanarayana Murthy, it was observed by this Courtthat mere recovery by itself would not prove the charge againstthe accused. In the absence of any evidence to prove thepayment of bribe or to show that the accused had voluntarilyaccepted the money knowing it to be bribe, the convictioncould not be sustained.

(v) Both the above judgments in B.Jayaraj and P.Satyanarayana Murthy are rendered by Benches of ThreeJudges and in the Order of Reference, it is stated that thesame are in conflict with M. Narasinga Rao which is also ajudgment by a Bench of three judges of this Court.

(C) M. Narasinga Rao

(i) In M. Narasinga Rao, K.T. Thomas, J. writing thejudgment 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 discretionaryand depends upon the exercise of discretion by the Courtwhereas a legal presumption has to be compulsorily raised.It was further observed that Section 20 of the Act envisageda legal presumption which means that on the proof of certainfacts, the court “shall presume” other facts. But when thereis no direct evidence for establishing the primary fact orthe fact in issue, the Court has to depend upon the process A

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of inference drawn from other facts to reach the said primaryfact. The crux of the question involved therefore waswhether an inference made could be used as a premise forthe compulsory presumption envisaged in Section 20 of theAct.

(ii) In the said case, during the trial before the Special Judge,two witnesses of the prosecution namely, PW-1 and PW-2made a volte-face during the trial and denied having paidany bribe to the appellant therein and also denied that theappellant had demanded the bribe amount. Both thewitnesses were thus declared as “hostile”. According tothe appellant therein, the tainted currency notes were forciblystuffed into his pocket and in support of this, he hadexamined two witnesses on the defence side. Both the trialcourt and the High Court disbelieved the defence witnessesin toto and found that PW 1 and PW 2 were won over bythe appellant and that is why they turned against their ownversion recorded by the investigating officer andsubsequently by a Magistrate under Section 164 of theCrPC.

(iii) In the said case, this Court made a detailed discussion ofthe expressions “may presume” and “shall presume” asdefined in Section 4 of the Evidence Act. This Courtobserved that the word “proof” means such evidence aswould induce a reasonable man to come to a particularconclusion. It was further observed that a presumption isan inference of a certain fact drawn from other provedfacts. The Court is only applying a process of intelligentreasoning which the mind of a prudent man would do undersimilar circumstances. A presumption is not the finalconclusion to be drawn from other facts. But it could aswell be final if it remains undisturbed later. Presumption inthe law of evidence is a rule indicating the stage of shiftingthe burden of proof. From a certain fact or facts, the courtcan draw an inference and that would remain until suchinference is either disproved or dispelled. It was held that,for the purpose of reaching one conclusion, the court canrely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat thepresumption as tantamounting to proof. However, this Courtsounded a note of caution by stating that it may be unsafeto use that presumption to draw yet another discretionarypresumption unless there is a statutory compulsion. Reliancewas placed on Suresh Budharmal Kalani vs. State ofMaharashtra (1998) 7 SCC 337 (“Suresh BudharmalKalani”), wherein it was observed that a presumption canbe drawn only from facts — by a process of probable andlogical reasoning and not from other presumptions.

(iv) This Court on the facts established in said case observedthat the circumstances preceding and succeeding thediscovery of tainted currency notes in the appellant’s pockethelped the Court to draw a factual presumption that theappellant therein had willingly received the tainted currencynotes.

(v) Relying upon Hazari Lal vs. State (Delhi Admn.) (1980)2 SCC 390 (“Hazari Lal”), this Court reasoned on thefacts of that case that in the absence of direct evidence toshow that the public servant had demanded or acceptedthe bribe, no presumption under Section 4 of the 1947 Act(Section 20 of the Act) could be drawn merely based onthe recovery of the marked currency notes. Speaking for aBench of two judges, O.Chinnappa Reddy, J. in HazariLal further observed that it was not necessary that thepassing of money should be proved by direct evidence as itcould also be proved by circumstantial evidence. Also, underSection 114 of the Evidence Act, the Court may presumethe existence of any fact which happened in the commoncourse of natural events, human conduct and public andprivate business. The accused in Hazari Lal had taken thecurrency notes from his pocket and flung them across thewall and the said notes had been obtained from PW-3 thereina few minutes earlier who was shown to be in possessionof the notes. Hence, presumption under Section 4(1) of the1947 Act was immediately attracted. Although it was arebuttable presumption, in the said case, there was nomaterial to rebut the presumption. The accused was,therefore held guilty of the offence.

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A(vi)Thus, in M. Narsinga Rao, a three-judge bench of thisCourt approved the reasoning of the two-judge bench inHazari Lal. In M. Narsinga Rao, this Court observedthat once it was established that there was a demand orpayment or acceptance of gratification and once thefoundational facts were proved the presumption for paymentBor acceptance of illegal gratification was applicable. As thesaid presumption of fact was not rebutted by the accusedthe fact of demand was proved. Consequently, the legalpresumption was to be drawn that the said gratification wasaccepted as a “motive or reward” for doing or forbearingCto do any act as per Section 20 of the Act.

(vii) It was further observed in the said case that the prosecutionhad proved that the appellant therein had acceptedgratification. Therefore, the Court was under a legalcompulsion to draw the legal presumption that suchDgratification was accepted as a reward for doing the publicduty. It was further observed that the two witnessesexamined on the defence side were unable to rebut thepresumptions raised and hence, this Court dismissed theappeal and held the accused to be guilty.

E11. Another judgment referred to in the Reference Order whichis 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 wherethe complainant had given a bribe and the demand of the said bribe wasalso present. It was observed that the evidence on record, for instance,Fthe complainant’s visit to the Anti-Corruption Bureau, his producingcurrency notes and the superior officer of the department making a traparrangement, and the raiding party going to the house of the accusedindicated that a prior demand for payment was made by the accusedand the same was circumstantial evidence.G

12. In the aforesaid cases, the common thread which runs throughis that the complainant was not available to let in evidence and hence,there was absence of direct evidence. In B. Jayaraj the complainantdid not support the prosecution and hence was declared “hostile”; in P.Satyanarayana Murthy, the complainant had died prior to theHexamination of seven witnesses while in M. Narasinga Rao the

prosecution witnesses had turned “hostile”. Therefore, in B. Jayarajand in P. Satyanarayana Murthy the Court acquitted the accused whilein M. Narasinga Rao despite two witnesses being declared as “hostile”,on facts, it was found that the accused therein had willingly received thetainted currency notes and hence, this Court sustained the conviction ofthe accused. It was observed that despite two prosecution witnessesturning “hostile”, it was established by other evidence that there was ademand 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 underSection 20 of the Act was also raised and remained unrebutted. In theabove said backdrop the reference was made to the larger Bench andultimately to the Constitution Bench.

Submissions:

13. We have heard the learned senior counsel and learned counselfor the appellants and learned ASG and other counsel for the respondents.

14. Shri S.Nagamuthu, learned senior counsel, during the courseof his submission contended as follows:

(i) That the question for consideration has not beenappropriately framed and hence, the appropriate questionmay have to be reframed by this Court. He submitted thatnormally, in a case under Sections 7, 13(1)(d)(i) and (ii), thecomplainant is expected to speak about prior demand andsubsequent receipt or acceptance of illegal gratification bya public servant. But, if his evidence is not available, it wouldimply that there is no direct oral evidence of the said witnessto prove the aforesaid two facts. The issue before theConstitution Bench is, whether, the aforesaid two facts couldbe proved by any other mode in the absence of directevidence so that the guilt of the public servant could bebrought home. In this regard, our attention was drawn toSections 7, 13(1)(d)(i) and (ii) and 20 of the Act as theystood prior to the amendment of the Act. Much emphasiswas laid on the expression “accept” or “obtain” or “agreesto accept” or “attempt to obtain”.

(ii) In the context of Section 20 of the Act which deals withraising the legal presumption with regard to motive or A

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Areward, elaborate arguments were made on the differencebetween acceptance or obtainment. It was submitted that,in both cases, there is an offer and acceptance of the offer.If the offer emanates from the bribe giver without therebeing any demand from the public servant and the lattersimply accepts the offer and receives the illegal gratification,Bit is a case of acceptance as per Section 7 of the Act. Inthe case of acceptance, as dealt with in Section 7 of theAct, there need not be any prior demand by the publicservant.

(iii) On the other hand, in the case of obtainment the offerCemanates from the public servant, i.e., he makes a demandand the bribe giver accepts the offer and pays the demandedgratification which is, in turn, received by the public servant.Thus in the case of obtainment, there is a prior demand forillegal gratification made by the public servant and in suchDa case also, both the demand and receipt of illegalgratification have to be proved. This act of a public servantis an offence under Section 13(1)(d)(i) and (ii) and therefore,a prior demand by the public servant is a sine qua non foran offence under Section 13(1)(d)(i) and (ii). In this regard,reliance was placed on the judgment of this Court in B.EJayaraj; P. Satyanarayana Murthy; Kishan ChandMangal; C.K. Damodaran Nair and Kishan Chander.

(iv) Thus, if there is a demand followed by a receipt by thepublic servant, the act of obtainment under Section13(1)(d)(i) and (ii) is complete. It is then not necessary toFprove “motive or reward” as the same is foreign to Section13(1)(d)(i) and (ii). Therefore, Section 20 of the Act doesnot pertain to a legal presumption to be raised for an offenceunder Section 13(1)(d)(i) and (ii).

(v) It was further submitted that in the case of obtainment,Greceipt of gratification in pursuance of the demand mustalso be proved as a fact in issue. That in the absence ofproof of receipt of gratification, mere demand does notconstitute an offence under Section 13(1)(d)(i) and (ii). Butif demand is construed as an attempt, then such an attemptto obtain is an offence under Section 7 of the Act.H

(vi) Further under Section 13(1)(d)(i) and (ii), obtainment couldbe proved by (i) oral evidence; (ii) documentaryevidence; (iii) statutory presumption; and (iv) circumstantialevidence. That the person to whom the demand was madecould let in oral evidence and the same is direct evidenceunder Sections 59 and 60 of the Evidence Act. Further, ifanybody else was present at the time of making of thedemand, his oral evidence would also be direct evidenceand the same may be sufficient to prove the demand. Incase the person to whom the demand was made is eitherdead or unavailable for letting in evidence or turns “hostile”and there is no direct eye witness account of the fact ofdemand, then, in the absence of any other evidence, theaccused is entitled to acquittal. However, if the demand isevidenced by any document such as demand being madethrough email, letter or any other communication, the saidfact could be proved by documentary evidence in theabsence of any direct or oral evidence although thecomplainant or the person to whom the demand has beenmade is not available to let in evidence.

(vii) It was further submitted by Shri. Nagamuthu, learned seniorcounsel that Section 20 of the Act mandates a presumptionto be made by the court which is in the nature of a legalpresumption. The presumption in relation to any illegalgratification accepted or obtained or agreed to be acceptedor deemed to be obtained “as motive or reward”, as perSection 7 of the Act, is a restricted and conditionalpresumption. The said presumption can be raised only on aproof of acceptance or obtainment or agreement to acceptor attempt to obtain the illegal gratification and is not apresumption of guilt of an offence.

(viii) That the legal presumption that could be raised under Section20 of the Act is in contradiction to a presumption that couldbe raised under Section 114 of the Evidence Act. By citingan example, it was sought to be contended that, if taintedcurrency notes are found in the possession of a publicservant in a trap case, there can be a presumption underSection 114 of the Act that he might have received it. But A

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this is a rebuttable presumption and the accused can rebutthis presumption by offering his explanation for thepossession of the tainted notes. The said presumption is apresumption of fact. However, there can be no presumptionof demand as such. In other words, the demand as a matterof fact cannot be presumed under Section 114 of theEvidence Act, unless for such a presumption to be made,the foundational facts are proved and such foundationalfacts unerringly point to the irresistible and only conclusionof proof of demand. This would imply that mere recoveryof the tainted notes from the possession of the accusedwould not give rise to a presumption of demand. In thisregard reference was made to B. Jayaraj and a recentjudgment of this Court in K. Shanthamma vs. State ofKarnataka (2022) 4 SCC 574 (“K. Shanthamma”).

(ix) It was next submitted that Section 7 of the Act speaks ofacceptance or obtainment or an agreement to accept or anattempt to obtain. Further, the expression “acceptance”must be differentiated from the expression “receipt” as theyconvey different meanings in the context of Section 7 ofthe Act. That Section 7 of the Act does not speak of receiptbut only of acceptance. In order to convert receipt intoacceptance, it should be proved that a demand is made fromthe bribe giver. In other words, the bribe giver should haveoffered the gratification while demanding a favour fromthe public servant.

(x) Therefore, the mere receipt of any property or valuablesecurity would not tantamount to acceptance unless the bribegiver had made an offer demanding favour from the publicservant. This fact in issue should be proved by directevidence. However, if the bribe giver or the complainantdies or turns “hostile” and the fact cannot be proved bydirect evidence, then it could be proved by the evidence ofanother witness who has direct knowledge of the said factor even by circumstantial evidence. In the event the fact ofacceptance is proved, Section 20 would apply and apresumption has to be raised that the acceptance was thereward of an act. Further, no presumption of acceptance NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)[B. V. NAGARATHNA, J.]

can be raised under Section 114 of the Evidence Act in theabsence of foundational facts being proved.

(xi) It was submitted by Shri Nagamuthu, learned senior counselthat once acceptance or obtainment or agreement to acceptor attempt to obtain is proved, then the presumption underSection 20 vis-a-vis “motive or reward” could be raised inthe context of Section 7 of the Act. But, acceptance orobtainment or an agreement to accept or an attempt to obtaincannot be established by means of a presumption in theabsence of foundational facts. The reason why Section 20raises a legal presumption is in order to prove mens rea ofthe accused, namely, that the public servant knew that hehad received illegal gratification as a “motive or reward”.Since, this fact is difficult to be proved by direct oralevidence or documentary evidence, the Parliament in itswisdom has incorporated Section 20 of the Act with amandate to the Court to presume the illegal gratification asonly a “motive or reward”. Of course, such legalpresumption is also rebuttable.

(xii) Coming to the actual question raised before the ConstitutionBench, it was submitted by the learned senior counsel ShriNagamuthu that the act of obtainment contains two facets,namely, prior demand and receipt of illegal gratification bythe public servant and both these facts should be provedbeyond reasonable doubt. The fact of demand could beproved by oral evidence. However, in the absence ofcomplainant’s evidence to prove obtainment or an attemptto obtain, the presumption under Section 20 cannot arise.Further, if such obtainment or attempt was witnessed bysome other witness, then that witness can prove the saidfact even in the absence of the bribe giver being availableto be let in as evidence.

(xiii) On the other hand, in the case of acceptance or agreementto accept the gratification, the offer should have been madeby the de facto complainant and the accused-public servantshould have accepted the offer. In this case, there is noprior demand by the public servant. Therefore, even if thereis proof through other evidence that the public servant A

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Areceived some property from the de facto complainant, thatwill not automatically go to prove acceptance in terms ofSection 7 of the Act. In other words, mere receipt of aproperty by a public servant does not amount to eitheracceptance or obtainment. To convert the receipt toacceptance in terms of Section 7 of the Act, it should beBproved that an offer preceded the receipt; and in the caseof obtainment, the receipt should be preceded by a demandby the public servant.

(xiv) With reference to M. Narasinga Rao, it was contendedthat this Court has not dealt with the difference betweenCSection 7 and Section 13(1)(d) of the Act and with regardto the difference between acceptance and obtainment andalso the non-applicability of the presumption under Section20 in a case which falls under Section 13(1)(d) of the Act.

(xv) According to learned senior counsel Shri Nagamuthu,DM. Narasinga Rao does not lay down any proposition oflaw. Further, with reference to M. Narasinga Rao it wassubmitted that demand being a sine qua non for subsequentreceipt of illegal gratification could be proved bycircumstantial evidence subject to the principle that theEchange of proved circumstances should unerringly pointtowards the guilt of the accused and there should not beany other hypothesis that could apply. It was contendedthat in the absence of the bribe giver, the proof of demandcould be presumed from circumstances. With reference toP. Satyanarayana Murthy, learned senior counselFcontended that only a presumption of fact of conduct canbe raised as per Section 4 of the Evidence Act. That in thesaid case, the complainant turned “hostile” and there wasno other direct evidence to prove the demand but that thetainted currency notes were recovered from the accused.GThat in the absence of proof of demand for illegalgratification, the use of corrupt or illegal means by publicservants to obtain a valuable thing or pecuniary advantagewas not established at all.

(xvi) Learned senior counsel placed reliance on Kishan ChandHMangal to submit that as per the Woolmington principle, there should be proof beyond reasonable doubt and the saidprinciple would apply under the Act under consideration.That there cannot be any inference of guilt and that onlypresumptions could be raised, as per Section 4 of theEvidence Act, based on the foundational facts being provedbeyond reasonable doubt and in the absence of rebuttalevidence. In view of the aforesaid submissions, ShriNagamuthu submitted that the question raised forconsideration must be answered in the negative.

15. Shri M. Karpaga Vinayagam, learned senior counsel submittedthat the proof of demand of public servant alleged by the prosecution isa sine qua non in order to establish the guilt of the accused publicservant. That mere acceptance of or the recovery of tainted notes is notsufficient to bring home the guilt of the accused as the prosecution hasto first prove that demand of illegal gratification was made by the accused.Thereafter, the subsequent acceptance and recovery of the tainted noteswould complete the chain of circumstances to bring home the guilt ofthe accused. In this regard, learned senior counsel placed reliance onState of U.P. vs. Ram Asrey 1990 Supp SCC 12 (“Ram Asrey”);Mukhtiar Singh vs. State of Punjab; (2017) 8 SCC 136 (“MukhtiarSingh”); M.R. Purushotam vs. State of Karnataka (2015) 3 SCC247 (“M.R. Purushotam”); C.M. Sharma vs. State of AndhraPradesh (2010) 15 SCC 1 (“C.M. Sharma”); State of Maharashtravs. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200(“Dnyaneshwar Laxman Rao”); Sukumaran vs. State of Kerala(2015) 11 SCC 314 (“Sukumaran”) and Sunkanna vs. State ofAndhra Pradesh (2016) 1 SCC 713 (“Sunkanna”).

16. Learned Counsel Shri Raghenth Basant contended that in P.Satyanarayana Murthy, it has not been laid as a principle of law that inevery case where the complainant is dead, demand cannot be proved atall. That other evidence adduced by the prosecution can be consideredto come to a conclusion, where there is proof beyond reasonable doubt.

17. It was contended that there was an erroneous assumption inP. Satyanarayana Murthy, wherein it was observed that only directevidence is a sine qua non for proving a case under Sections 7, 13(1)(d)(i)and (ii) of the Act. The Division Bench as well as the three judge Benchtherefore, referred the matter to the larger bench. But that is not theposition. In fact, in B. Jayaraj, the complainant turned “hostile” at the A

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Atime of trial and this Court examined the evidence of other witnesses onbehalf of the prosecution and held that the prosecution had not been ableto prove that any demand had been made by the accused beyondreasonable doubt. It was further held in the said case that the presumptionin Section 20 of the Act can be drawn only on proof of acceptance ofillegal gratification.B

18. According to Shri Basant, in M. Narasinga Rao, thecomplainant turned “hostile”. But, on the basis of the evidence adducedby the prosecution, this Court concluded that even in the absence ofdirect evidence, the rest of the evidence adduced and the circumstanceswere sufficient to bring home the guilt of the accused. Reliance wasCplaced on the following observation in support of the submission:

“But the other circumstance which have been proved in this caseand those preceding and succeeding the searching out of the taintedcurrency notes, are relevant and useful to help the court to drawa factual presumption that the appellant had willingly received theDcurrency notes.”

19. In M. Narasinga Rao, this Court held that the prosecutionhas proved the case beyond reasonable doubt whereas in B. Jayarajthe prosecution was unsuccessful in proving so. Therefore, there is noconflict between the judgment in M. Narasinga Rao on the one handEand B. Jayaraj and P. Satyanarayana Murthy on the other.

20. That the presumption under Section 20 of the Act would applyonly if the fact of demand and acceptance or of illegal gratification, asthe case may be, is proved. Such a proof can be adduced even by wayof circumstantial evidence in the absence of direct evidence. This wouldFbe so particularly in trap cases as the prosecution has to prove that theaccused had demanded a bribe from the complainant. The factum ofdemand can be either proved by direct evidence or through circumstantialevidence.

21. Shri Sushil Kumar Jain, learned senior counsel also submittedGthat the demand of a valuable thing or pecuniary advantage either forhimself or for some other person is a necessary ingredient or a sine quanon to bring home a conviction under Sections 7 and 13(1)(d). Thedemand can be proved either by direct oral evidence or documentaryevidence. That the presumption under Section 20 is applicable only inrespect of offences under Sections 7, 11 and Section 13(1)(a) and (b)H

since the demand is a part of the word “obtain”. However, thisfoundational fact has to be proved and cannot be presumed. So also,with regard to the word “accepted”, the demand must be proved. ThatSection 20 is akin to Section 4 of the 1947 Act and prior to the Actcoming into force, the offences against corrupt public servants werealso covered under Sections 161 and 165 A of the IPC. Section 4 of the1947 Act prescribed the statutory presumptions for offences underSections 161 and 165 of the IPC. By Section 31 of the Act, Sections 161to 165 (A) were repealed and are now covered by Sections 7 and 11 ofthe Act. The Act is a special statute and a complete code by itself.

22. Learned senior counsel further urged that under the criminaljurisprudence in India, there is always a presumption of innocence untilthe guilt is proved and there is no presumption of guilt. Therefore, therehas to be proof beyond reasonable doubt of a demand and its acceptanceso as to bring home the guilt of the accused. In this regard, reliance wasplaced on para 18 of M. Narasinga Rao.

23. Ms. Aishwarya Bhati, learned ASG drew our attention to thereport of the Committee on the Prevention of Corruption Act submittedby the K.Santanam Committee and contended that it has been statedtherein that corruption has increased to a large extent and people havestarted losing faith in the integrity of public administration. Reliance wasplaced on State of Madhya Pradesh vs. Ram Singh (2000) 5 SCC 88(“Ram Singh”) to draw our attention to the fact that the Act has beenintended to make effective provisions for the prevention of bribery andcorruption which has been rampant amongst the public servants. TheAct is a social legislation intended to curb the illegal activities of publicservants and is designed to be liberally construed so as to advance itsobject. Procedural delays and technicalities of law should not be permittedto defeat the objects sought to be achieved by the Act while interpretingvarious provisions of the Act and deciding cases under it. She furtherdrew our attention to various decisions of this Court wherein despite thecomplainant having died or having turned “hostile” or not being availablefor letting in evidence, on the basis of the other evidence on record,conviction has been ordered. Many of the decisions referred to by herhave been cited above. She submitted that even if the complainant turns“hostile” with regard to certain aspects of the evidence referred by him,his entire evidence cannot be discarded.

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A24. Learned ASG submitted that the judgments of this Court inB.Jayaraj and P. Satyanarayana Murthy have been correctly decidedand the questions raised may accordingly be answered.

25. Learned ASG Shri J.K. Sud submitted that the issue beforethe Constitution Bench pertains to the proof of guilt of a public servantBunder Sections 7, 13(1)(d) read with Section 13(2) of the Act in a casewhere the complainant’s evidence is unavailable. He submitted that proofdoes not mean proof in the sense of a rigid and mathematicaldemonstration, as that is impossible; it must mean such evidence as wouldinduce a reasonable man to come to a particular conclusion. In reachingthe conclusion, the court can use the process of inferences to be drawnCfrom the facts produced or proved and such inferences are akin topresumptions in law. That a presumption of fact can be made by a courtof law by exercise of discretion, having regard to the common course ofnatural events, human conduct, public or private business in relation tothe facts of the particular case. This discretion is envisaged in SectionD114 of the Evidence Act. A presumption can thus be drawn on proof ofcertain facts. Also, a presumption is not a final conclusion to be drawnfrom other facts. A presumption of certain facts would remain until suchinference is either disproved or dispelled. Unless the presumption isdisproved or dispelled or rebutted the court can treat the presumption astantamounting to proof. However, a presumption can be drawn onlyEfrom facts and not from other presumptions by a process of probableand logical reasoning. As opposed to presumptions on facts, there iswhat is known as legal presumption which is a compulsory presumptionsuch as under Section 20 (1) of the Act. That under Section 20 of theAct, it could be a presumption that the accused accepted or agreed toFaccept any gratification as a motive or reward for doing or forbearing todo any official act. Hence, the conditions envisaged under Section 20have to be satisfied before raising a presumption against the accused,namely that the accused has accepted or agreed to accept any illegalgratification. This proof need not be through direct evidence which isonly one of the basis for proving a fact.G

26. Learned ASG further submitted that the word “obtain” meansto secure or gain something as a result of a request to “obtain” and“accept”, i.e., means to take or receive with a consenting mind. Consentcan be established by not only leading evidence but also from thecircumstances surrounding the transaction itself without proof of suchH

prior agreement. If an acquaintance of a public servant with a hope thatin the future, if need be, he would be able to get some official favourfrom him, voluntarily offers any gratification and if the public servantwillingly takes or receives such gratification, it would “amount toacceptance” within the meaning of Section 161 of the IPC.

27. Dr. Joseph Aristotle, learned counsel submitted on behalf ofthe State of Tamil Nadu that the death or the non-availability ofcomplainant or the complainant turning “hostile” are three instances whenthere would not be availability of complainant’s direct evidence to bringhome the guilt of the accused-public servant. That death or non-availabilityof the complainant would not vitiate the case of the prosecution as theincriminating circumstance of demand can be proved by circumstanceseven in the absence of the complainant. The quality of the evidence letin by the prosecution is more significant than the sole direct evidence ofdemand being spoken to. In the case of a trap, the court has to considerthe ingredients of the factum of offences namely, acceptance of demandand recovery of tainted money in its entirety. Hence, the case of theprosecution does not come to an end with the death of the complainant,as even in the absence of a complainant, it is possible to prove the factumof demand and recovery of tainted money by an independent witnesswhose evidence can be the basis for passing an order of conviction.

Question for consideration:

28. On consideration of the aforesaid cases, the question framedfor determination by the larger Bench is as under:

“1) Whether, in the absence of evidence of complainant/direct orprimary evidence of demand of illegal gratification, is it notpermissible to draw an inferential deduction of culpability/guilt ofa public servant under Section 7 and Section 13(1)(d) read withSection 13(2) of Prevention of Corruption Act, 1988 based onother evidence adduced by the prosecution?”

In order to answer the aforesaid question, it would be useful torecapitulate the relevant provisions of the law of evidence vis-à-vistendering of oral and documentary evidence; presumptions andcircumstantial evidence. Thereafter to analyse the three cases and alsoother cases cited at the Bar in the background of the question raised andto derive a conclusion from the said discussion.

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ARelevant provisions of Law of Evidence - A discussion:

29. Since the main thrust of this case is on the quality of evidencefor proof of demand and acceptance of an illegal gratification before apublic servant can be held guilty of an offence under Section 7 and/orSection 13(1)(d) of the Act, it would be appropriate to discuss the salientBprinciples of law of evidence relevant to the question under consideration.

In this context, it would be necessary to refer to Sections 3, 4, 59,60, 61, 62, 63, 64, 65 and 154 of the Evidence Act.

30. Congruent to the principle of res gestae, a fact includes astate of things or events as well as the mental state i.e. intention orCanimus. A fact in law of evidence includes the factum probandum i.e.,the principal fact to be proved and the factum probans, i.e., the evidentiaryfact from which the principal fact follows immediately or by inference.On the other hand, the expression “fact in issue” means the matterswhich are in dispute or which form the subject of investigation. (videDSection 3 of Evidence Act).

31. It is well settled that evidence is upon facts pleaded in a caseand hence, the principal facts are sometimes the facts in issue. Factsrelevant to the issue are evidentiary facts which render probable theexistence or non-existence of a fact in issue or some relevant fact.

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E32. In criminal cases, the facts in issue are constituted in thecharge, or acquisition, in cases of warrant or summon cases. The proofof facts in issue could be oral and documentary evidence. Evidence isthe medium through which the court is convinced of the truth or otherwiseof the matter under enquiry, i.e., the actual words of witnesses, orFdocuments produced and not the facts which have to be proved by oraland documentary evidence. Of course, the term evidence is not restrictedto only oral and documentary evidence but also to other things likematerial objects, the demeanour of the witnesses, facts of which judicialnotice could be taken, admissions of parties, local inspection made andanswers given by the accused to questions put forth by the MagistrateGor Judge under Section 313 of the Criminal Procedure Code (CrPC).

33. Further, according to Sarkar on Law of Evidence, 20[th] Edition,Volume 1, “direct” or “original” evidence means that evidence whichestablishes the existence of a thing or fact either by actual production orby testimony or demonstrable declaration of someone who has himselfHperceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference ofpresumption. On the other hand, “indirect evidence” or “substantialevidence” gives rise to the logical inference that such a fact exists, eitherconclusively or presumptively. The effect of substantial evidence underconsideration must be such as not to admit more than one solution andmust be inconsistent with any explanation that the fact is not proved. Bydirect or presumptive evidence (circumstantial evidence), one may saythat other facts are proved from which, existence of a given fact may belogically inferred.

34. Again, oral evidence can be classified as original and hearsayevidence. Original evidence is that which a witness reports himself tohave seen or heard through the medium of his own senses. Hearsayevidence is also called derivative, transmitted, or second-hand evidencein which a witness is merely reporting not what he himself saw or heard,and not what has come under the immediate observation of his ownbodily senses, but what he has learnt in respect of the fact through themedium of a third person. Normally, a hearsay witness would beinadmissible, but when it is corroborated by substantive evidence of otherwitnesses, it would be admissible vide Mukhtiar Singh.

35. Evidence that does not establish the fact in issue directly butthrows light on the circumstances in which the fact in issue did not occuris circumstantial evidence (also called inferential or presumptiveevidence). Circumstantial evidence means facts from which anotherfact is inferred. Although circumstantial evidence does not go to provedirectly the fact in issue, it is equally direct. Circumstantial evidence hasalso to be proved by direct evidence of the circumstances.

Further, letting in evidence should be in accordance with theprovision of the Evidence Act by the examination of witnesses, i.e.,examination-in-chief, cross-examination, and re-examination.

36. Section 59 of the Evidence Act states that all facts, except thecontents of documents or electronic records, may be proved by oralevidence. Oral evidence means the testimony of living persons examinedin the presence of the court or commissioners appointed by the court,deaf and dumb persons may also adduce evidence by signs or throughinterpretation or by writing, if they are literate.

37. Documentary evidences, on the other hand, are to be provedby the production of the documents themselves or, in their absence, by A

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Asecondary evidence under Section 65 of the Act. Further, facts showingthe existence of any state of mind, such as intention, knowledge, goodfaith, negligence, or ill will need not be proved by direct testimony. Itmay be proved inferentially from conduct, surrounding circumstances,etc. (See Sections 8 and 14 of Evidence Act).

B38. Insofar as oral evidence is concerned, this Court in State ofRajasthan vs. Babu Meena (2013) 4 SCC 206 (“Babu Meena”) hasclassified the same into three categories :–(i) wholly reliable; (ii) whollyunreliable, and; (iii) neither wholly reliable nor wholly unreliable. Whilean accused can be convicted on the sole testimony of a wholly reliablewitness, the uncorroborated evidence of a wholly unreliable testimonyCof a witness must result in an acquittal.

39. Section 60 of the Evidence Act requires that oral evidencemust be direct or positive. Direct evidence is when it goes straight toestablish the main fact in issue. The word “direct” is used in juxtapositionto derivative or hearsay evidence where a witness gives evidence thatDhe received information from some other person. If that person doesnot, himself, state such information, such evidence would be inadmissiblebeing hearsay evidence. On the other hand, forensic procedure ascircumstantial or inferential evidence or presumptive evidence (Section3) is indirect evidence. It means proof of other facts from which theEexistence of the fact in issue may be logically inferred. In this context,the expression “circumstantial evidence” is used in a loose sense as,sometimes, circumstantial evidence may also be direct.

40. Although the expression “hearsay evidence” is not definedunder the Evidence Act, it is, nevertheless, in constant use in the courts.FHowever, hearsay evidence is inadmissible to prove a fact which isdeposed to on hearsay, but it does not necessarily preclude evidence asto a statement having been made upon which certain action was takenor certain results followed such as evidence of an informant of the crime.

41. At this stage, it must be distinguished that even with regard toGoral evidence, there are sub-categories – primary evidence and secondaryevidence. Primary evidence is an oral account of the original evidencei.e., of a person who saw what happened and gives an account of itrecorded by the court, or the original document itself, or the originalthing when produced in court. Secondary evidence is a report or an oralaccount of the original evidence or a copy of a document or a model ofHthe original thing.

42. Section 61 deals with proof of contents of documents which isby either primary or by secondary evidence. When a document isproduced as primary evidence, it will have to be proved in the mannerlaid down in Sections 67 to 73 of the Evidence Act. Mere production andmarking of a document as an exhibit by the court cannot be held to bedue proof of its contents. Its execution has to be proved by admissibleevidence. On the other hand, when a document is produced and admittedby the opposite party and is marked as an exhibit by the court, the contentsof the document must be proved either by the production of the originaldocument i.e., primary evidence or by copies of the same as per Section65 as secondary evidence. So long as an original document is in existenceand is available, its contents must be proved by primary evidence. It isonly when the primary evidence is lost, in the interest of justice, thesecondary evidence must be allowed. Primary evidence is the bestevidence and it affords the greatest certainty of the fact in question.Thus, when a particular fact is to be established by production ofdocumentary evidence, there is no scope for leading oral evidence. Whatis to be produced is the primary evidence i.e., document itself. It is onlywhen the absence of the primary source has been satisfactorily explainedthat secondary evidence is permissible to prove the contents of documents.Secondary evidence, therefore, should not be accepted without a sufficientreason being given for non-production of the original.

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43. Section 62 of the Evidence Act defines primary evidence tomean the documents itself produced for the inspection of the court. Ifprimary evidence is available, it would exclude secondary evidence.Section 63 of the Evidence Act deals with secondary evidence and defineswhat it means and includes. Section 63 mentions five kinds of secondaryevidence, namely, - F

(i) Certified copies given under the provisions hereinaftercontained;

(ii) Copies made from the original by mechanical processeswhich in themselves ensure the accuracy of the copy, andcopies compared with such copies;G

(iii) Copies made from or compared with the original;

(iv) Counterparts of documents as against the parties who didnot execute them; H

A(v)Oral accounts of the contents of a document given by someperson who has himself seen it.

44. Section 64 of the Evidence Act states that documents must beproved by primary evidence except in certain cases mentioned above.Once a document is admitted, the contents of that document are alsoBadmitted in evidence, though those contents may not be conclusiveevidence. Moreover, once certain evidence is conclusive it shuts out anyother evidence which would detract from the conclusiveness of thatevidence. There is a prohibition for any other evidence to be led whichmay detract from the conclusiveness of that evidence and the court hasno option to hold the existence of the fact otherwise when such evidenceCis made conclusive. Thus, once a document has been properly admitted,the contents of the documents would stand admitted in evidence, and ifno objection has been raised with regard to its mode of proof at thestage of tendering in evidence of such a document, no such objectioncould be allowed to be raised at any later stage of the case or in appealDvide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del)

(“Amarjit Singh”). But the documents can be impeached in any othermanner, though the admissibility cannot be challenged subsequently whenthe document is bound in evidence.

45. The cases in which secondary evidence relating to documentsEmay be given are stated in Section 65 of the Evidence Act read withSection 66, Section 67(2), Section 78. Proof of documents, whether publicor private, including execution of such documents etc.

Presumptions:46. Courts are authorised to draw a particular inference from aFparticular fact, unless and until the truth of such inference is disprovedby other facts. The court can, under Section 4 of the Evidence Act, raisea presumption for purposes of proof of a fact. It is well settled that apresumption is not in itself evidence but only makes a prima facie casefor a party for whose benefit it exists. As per English Law, there areGthree categories of presumptions, namely, (i) presumptions of fact ornatural presumption; (ii) presumption of law (rebuttable and irrebuttable);and (iii) mixed presumptions i.e., “presumptions of mixed law and fact”or “presumptions of fact recognised by law”. The expression “maypresume” and “shall presume” in Section 4 of the Evidence Act are alsocategories of presumptions. Factual presumptions or discretionaryH

presumptions come under the division of “may presume” while legalpresumptions or compulsory presumptions come under the division of“shall presume”. “May presume” leaves it to the discretion of the courtto make the presumption according to the circumstances of the case but“shall presume” leaves no option with the court, and it is bound to presumethe fact as proved until evidence is given to disprove it, for instance, thegenuineness of a document purporting to be the Gazette of India. Theexpression “shall presume” is found in Sections 79, 80, 81, 83, 85, 89 and105 of the Evidence Act.

47. Similarly in a trial under Section 138 of the NegotiableInstruments Act, a presumption will have to be made that every negotiableinstrument was made or drawn for consideration and that it was executedfor discharge of debt or liability once the execution of negotiable instrumentis either proved or admitted vide Kumar Exports vs. Sharma Carpets(2009) 2 SCC 513 (“Kumar Exports”). Further, the question as towhether the presumption stood rebutted or not must, therefore, bedetermined keeping in view the other evidence on record. [KrishnaJanardhan Bhat vs. Dattatraya G Hegde (2008) 4 SCC 54 (“KrishnaJanardhan Bhat”)].

48. Section 20 of the Act deals with presumption where publicservant accepts gratification other than legal remuneration. It uses theexpression “shall be presumed” in sub-section (1) and sub-section (2)unless the contrary is proved. The said provision deals with a legalpresumption which is in the nature of a command that it has to bepresumed that the accused accepted the gratification as a motive orreward for doing or forbearing to do any official act etc., if the conditionenvisaged in the former part of the Section is satisfied. The only conditionfor drawing a legal presumption under Section 20 of the Act is thatduring trial, it should be proved that the accused had accepted oragreed to accept any gratification. The Section does not say that thesaid condition should be satisfied through direct evidence. Its onlyrequirement is that it must be proved that the accused has accepted oragreed to accept gratification.

49. In State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC61 (“A. Vaidyanatha Iyer”), it was observed that the presumption underSection 4(1) of the 1947 Act which is similar to Section 20 of the Actunder consideration would arise where illegal gratification has beenaccepted, then the presumption introduces an exception to the general AB

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Arule as to the burden of proof in criminal cases and shifts the onus on tothe accused. The legislature has used the words “shall presume” andnot “may presume” which means that the presumption has to be raisedas it is a presumption of law and therefore it is obligatory on the court toraise this presumption. Further, the presumptions of law constitute abranch of jurisprudence unlike a case of presumption of fact which isBdiscretionary.

50. Distinguishing a presumption under Section 4(1) of the 1947Act with a presumption under Section 114 of the Evidence Act, it wasobserved in Dhanvantrai Balwantrai Desai vs. State of MaharashtraAIR 1964 SC 575 (“Dhanvantrai Balwantrai Desai”) that aCpresumption under Section 114 of the Evidence Act is discretionary innature inasmuch as it is open to the court to draw or not to draw apresumption as to the existence of one fact from the proof of anotherfact. This is unlike a presumption under Section 4(1) of the 1947 Act orSection 20 of the Act where the court has to draw such presumption, ifDa certain fact is proved, that is, where any illegal gratification has beenreceived by an accused. In such a case the presumption that has to bedrawn that the person received that thing as a motive of reward.Therefore, the court has no choice in the matter, once it is establishedthat the accused has received a sum of money which was not due to himas a legal remuneration. Of course, it is open to the accused to showEthat though that money was not due to him as a legal remuneration itwas legally due to him in some other manner or that he had received itunder a transaction or an arrangement which is lawful. The burden restingon the accused in such a case would not be as light as it is where apresumption is raised under Section 114 of the Evidence Act and cannotFbe held to be discharged merely by reason of the fact that the explanationoffered by the accused is reasonable and probable. It must further beshown that the explanation is a true one. The words “unless the contraryis proved” which occur in this provision make it clear that the presumptionhas to be rebutted by “proof” and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directlyGestablished or when upon the material brought before it, the Court findsits existence to be so probable that a reasonable man would act on thesupposition that it exists. Unless, therefore, the explanation is supportedby proof, the presumption created by the provision cannot be said to berebutted.H

51. One of the modes through which a fact can be proved. But,that is not the only mode envisaged under the Evidence Act. Proof ofthe fact depends upon the degree of probability of it having existed. Thestandard required for reaching the supposition is that of a prudent manacting in any important matter concerning him.

52. As opposed to the expressions “may presume” and “shallpresume”, the expression “conclusive proof” is also used in Section 4 ofthe Evidence Act. When the law says that a particular kind of evidencewould be conclusive, that fact can be proved either by that evidence orby some other evidence that the court permits or requires. When evidencewhich is made conclusive is adduced, the court has no option but to holdthat the fact exists. For instance, the statement in an order of the courtis conclusive of what happened before the presiding officer of the court.Thus, conclusive proof gives an artificial probative effect by the law tocertain facts. No evidence is allowed to be produced with a view tocombat that effect. When a statute makes certain facts final andconclusive, evidence to disprove such facts is not to be allowed.

Circumstantial Evidence

53. As already noted, all evidence let in before the court of laware classified either as direct or circumstantial evidence. “Directevidence” means when the principal fact is attested directly by witnesses,things or documents. For all other forms, the term “circumstantialevidence” which is “indirect evidence” is referred, whether by witnesses,things or documents, which can be received as evidence. This is also oftwo kinds namely, conclusive and presumptive. Conclusive is when theconnection between the principal and evidentiary facts – the factumprobandum and factum probans - is a necessary consequence of thelaws of nature; “presumptive” is when the inference of the principalfact from the evidence is only probable, whatever be the degree ofpersuasion which it may generate (Best, 11[th] Edition, Section 293). Thus,circumstantial evidence is evidence of circumstances as opposed to whatis called direct evidence. The prosecution must take place and prove allnecessary circumstances constituting a complete chain without a snapand pointing to the hypothesis that except the accused, no one hadcommitted the offence vide Navaneethakrishnan vs. State by Inspectorof Police AIR 2018 SC 2027 (“Navaneethakrishnan”).

54. The principal fact can be proved indirectly by means of certaininferences drawn from its existence or its connection with other A

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Acircumstantial evidence. It is often said that witnesses may lie but notthe circumstances. However, the court must adopt a cautious approachwhile basing its conviction purely on circumstantial evidence. Inferenceof guilt can be drawn only when all incriminating facts and circumstancesare found to be incompatible with the innocence of an accused. In otherwords, circumstantial evidence is not direct to the point in issue butBconsists of evidence of various other facts which are so closely associatedwith the fact in issue that, taken together they form a chain ofcircumstances from which the existence of the principal fact can belegally inferred or presumed.

55. It is trite law that in cases dependent on circumstantial evidence,Cthe inference of guilt can be made if all the incriminating facts andcircumstances are incompatible with the innocence of the accused orany other reasonable hypotheses than that of his guilt, and provide acogent and complete chain of events which leave no reasonable doubt inthe judicial mind. When an incriminating circumstance is put to the accusedDand the said accused either offers no explanation or offers an explanationwhich is found to be untrue, then the same becomes an additional link inthe chain of circumstances to make it complete. If the combined effectof all the proven facts taken together is conclusive in establishing theguilt of the accused, a conviction would be justified even though any oneor more of those facts by itself is not decisive. (Sharad BirdhichandESarda vs. State of Maharashtra (1984) 4 SCC 116 (“SharadBirdhichand Sarda”) as reiterated in Prakash vs. State of Rajasthan(2013) 4 SCC 668 (“Prakash”)).

56. In Kundan Lal Rallaram vs. The Custodian, EvacueeProperty Bombay AIR 1961 SC 1316 (“Kundan Lal Rallaram”),Fthis Court speaking though K. Subba Rao, J. observed that the rules ofevidence pertaining to burden of proof are embodied in Chapter 7 of theEvidence Act. The phrase “burden of proof” has two meanings :- one,the burden of proof as a matter of law and pleading and the other, theburden of establishing a case; the former is fixed as a question of law onGthe basis of the pleadings and is unchanged during the entire trial, whereasthe latter is not constant but shifts as soon as a party adduces sufficientevidence to raise a presumption in his favour. The evidence required toshift the burden need not necessarily be direct evidence i.e., oral ordocumentary evidence or admissions made by opposite party; it maycomprise of circumstantial evidence or presumptions of law or fact.H

Analysis:

57. In the case of B. Jayaraj, the complainant did not supportthe prosecution case. In P. Satyanarayana Murthy, the complainanthad died prior to letting in his evidence in the case. In M. NarasingaRao, the question was whether a legal presumption could be based on afactual presumption. In Hazari Lal, this Court through O. ChinnappaReddy, J. observed that it is not necessary that the passing of moneyshould be proved by direct evidence, it could also be proved bycircumstantial evidence. Furthermore, in Madhukar Bhaskarrao Joshivs. State of Maharashtra (2000) 8 SCC 571 (“MadhukarBhaskarrao Joshi”), it was observed that in order to draw a presumptionunder Section 20 of the Act, the premise is that there was payment oracceptance of gratification. Once the said premise is established, theinference to be drawn is that the said gratification was accepted as a“motive or reward” for doing or forbearing to do any official act.

58. P. Satyanaratana Murthy has been referred to in State vs.Dr. Anup Kumar Srivastava (2017) 15 SCC 560 (“Dr. Anup KumarSrivastava”) by observing that what constitutes illegal gratification is aquestion of law; whether on the evidence let in, crime has been committedor not is a question of fact. If, therefore, the evidence regarding thedemand and acceptance of a bribe leaves room for doubt and does notdisplace wholly, the presumption of innocence, the charge cannot besaid to have been established. The court also made observations regardingframing of charge in a criminal trial where the court is expected to applyits mind to the entire record and documents placed therewith before thecourt. It was also held that proof of demand is an indispensable mandatefor the offence under Sections 7 and 13 of the Act. On the facts of thesaid case, it was held that the same was absent and the accused wasliable to be acquitted.

59. In all the cases leading to the reference, it is either the deathor the refusal to support the prosecution case that has led to the legalpresumption under Section 20 of the Act not being raised and not bringinghome the guilt of the accused.

60. Learned ASG and counsel also drew our attention to thefollowing precedents:

(i) In the case of State of Andhra Pradesh vs. V. VasudevaRao (2004) 9 SCC 319 (“V. Vasudeva Rao”), this Court, B

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in the absence of the complainant due to his death proceededto convict the accused based on the evidence available onrecord and further held that for the purpose of reaching aconclusion, the court can rely on factual presumption undersection 114 of the Evidence Act. A fact may also be provedby direct testimony or by circumstantial evidence.

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(ii) In Kishan Chand Mangal, this Court upheld the convictionbased on the evidence of the shadow witnesses. Similarlyin State of Andhra Pradesh vs. P. Venkateshwarlu (2015)7 SCC 283 (“P. Venkateshwarlu”), when the complainantdied during the pendency of the trial, this Court convictedCthe accused by relying upon the evidence of the otherwitnesses, as the factum of demand, acceptance andrecovery of the tainted money was proved by theprosecution.

(iii) In contradiction to the aforesaid cases, our attention wasDdrawn to Selvaraj vs. State of Karnataka (2015) 10 SCC230 (“Selvaraj”), wherein on the death of the complainant,acquittal was ordered as the accused was relieved fromhis duty and was not competent to transact any officialbusiness apart from the fact that there was contradiction inEthe version of witnesses.

(iv) In A. Subair, the acquittal was based on the ground thatthere was no other evidence to fall back upon in the absenceof the complainant letting in evidence.

61. Learned senior counsel Shri Aristotle, further contended thatFin those cases, where the complainant becomes “hostile”, his evidencedoes not get effaced as the court must consciously ascertain as to whatextent he has supported the case of the prosecution. The evidence of a“hostile” witness “complainant” stands on a different footing than thedeath of the complainant or the non-availability of the complainant. ItGwas submitted that when the complainant turns “hostile”, the evidenceof the shadow witness would play a vital role as he can also tenderprimary evidence with regard to the demand of illegal gratification.Similarly, Nayan Kumar Shivappa Waghmare vs. State ofMaharashtra (2015) 11 SCC 213 (“Nayan Kumar ShivappaWaghmare”), was relied upon to buttress the fact that if the complainantHturns “hostile”, the conviction is permissible on the basis of presumption and other evidence. On the other hand, in B. Jayaraj the acquittal wasbased on the fact that the complainant had turned “hostile” and therewas no other witness to support the case of the prosecution and hence,there was lack of evidence against the accused. In C.P. Rao, the acquittalwas based not merely on the non-availability of the complainant but thefact that there was previous animosity between the complainant and theaccused and also on the ground that money was thrust into the hands ofthe accused. Similarly, in N. Sunkanna, the accused was acquitted onthe ground that the witness had turned “hostile” and the demand wasnot proved. So also, in the case of M.R. Purushotam.

62. Learned counsel Shri Aristotle also made reference to C.M.Sharma wherein the conviction was upheld even though the shadowwitness was not present when the demand for illegal gratification wasmade and the amount was paid and there was recovery of tainted money.So also, in Prakash Chand vs. State (Delhi Admn.) (1979) 3 SCC 90(“Prakash Chand”) when the shadow witness turned “hostile”, theconviction was based on the evidence of other witnesses. Therefore,even in the absence of a complainant letting in his evidence or thecomplainant turning “hostile”, the case of the prosecution would notcollapse and the prosecution can only prove the case beyond reasonabledoubt if there is other evidence to prove the case.

63. Before answering the question under reference, we deem itnecessary to clarify on one aspect of the matter and that is with regardto “hostile witness”.

64. Learned senior counsel Shri Nagamuthu submitted that theexpression “hostile witness” must be read in the context of Section 154of the Evidence Act. Section 154 of the Evidence Act states that thecourt may, in its discretion, permit the person who calls a witness to putany question to him which might be put in cross-examination by theadverse party. It further states that the Section does not disentitle theperson so permitted to rely on any part of the evidence of such witness.For immediate reference, Section 154 of the Evidence Act is extractedas under:

“154. Question by party to his own witness.—

(1) The Court may, in its discretion, permit the person who callsa witness to put any question to him which might be put incross-examination by the adverse party.

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A(2) Nothing in this section shall disentitle the person so permittedunder sub-section (1), to rely on any part of the evidence ofsuch witness.”

The said Section was amended with effect from 16.04.2006 andsub-section (2) of Section 154 was added from the said date while theBoriginal Section was renumbered as sub-section (1) of Section 154.

65. Learned senior counsel Shri Nagamuthu submitted that whenthe prosecution examines a witness who does not support the case ofthe prosecution he cannot be “declared” to be a “hostile witness” andhis evidence cannot be discarded as a whole. Although, permission mayCbe given by the Court to such a witness to be cross-examined by theprosecution as per sub-section (2) of Section 154 of the Evidence Act, itis not necessary to declare such a witness as a “hostile witness”. This isbecause a statement of a “hostile witness” can be examined to the extentthat it supports the case of prosecutor.

D66. In this regard, our attention was drawn to Sat Paul vs. DelhiAdministration (1976) 1 SCC 727 (“Sat Paul”) which is a case arisingunder the 1947 Act wherein this Court speaking through Sarkaria, J. hasmade pertinent observations regarding the credibility of a hostile witness.It was observed in paragraph 30 of the judgment that the terms “hostilewitness”, “adverse witness”, “unfavourable witness”, “unwilling witness”Eare all terms of English law. At Common law, if a witness exhibitedmanifest antipathy, by his demeanour, answers and attitude, to the causeof the party calling him, the party was not, as a general rule, permitted tocontradict him with his previous inconsistent statements, nor allowed toimpeach his credit by general evidence of bad character. It was observedFin paragraph 33 that the rigidity of the rule prohibiting a party to discreditor contradict its own witness was to an extent relaxed by evolving theterms “hostile witness” and “unfavourable witness” and by attemptingto draw a distinction between the two categories. A “hostile witness” isdescribed as one who is not desirous of telling the truth at the instance ofthe party calling him, and an “unfavourable witness” is one called by aGparty to prove a particular fact in issue or relevant to the issue who failsto prove such fact, or proves an opposite fact. In the context of Sections142 and 154 of the Evidence Act, this Court observed in paragraphs 38and 52 as under:

“38. To steer clear of the controversy over the meaning of theHterms “hostile” witness, “adverse” witness, “unfavourable” witness

which had given rise to considerable difficulty and conflict ofopinion in England, the authors of the Indian Evidence Act, 1872seem to have advisedly avoided the use of any of those terms sothat, in India, the grant of permission to cross-examine his ownwitness by a party is not conditional on the witness being declared“adverse” or “hostile”. Whether it be the grant of permission underSection 142 to put leading questions, or the leave under Section154 to ask questions which might be put in cross-examination bythe adverse party, the Indian Evidence Act leaves the matterentirely to the discretion of the court (see the observations of SirLawrence Jenkins in Baikuntha Nath vs. Prasannamoyi AIR1922 PC 409. The discretion conferred by Section 154 on thecourt is unqualified and untrammelled, and is apart from anyquestion of “hostility”. It is to be liberally exercised whenever thecourt from the witnesses’ demeanour, temper, attitude, bearing,or the tenor and tendency of his answers, or from a perusal of hisprevious inconsistent statement, or otherwise, thinks that the grantof such permission is expedient to extract the truth and to dojustice. The grant of such permission does not amount to anadjudication by the court as to the veracity of the witness.Therefore, in the order granting such permission it is preferable toavoid the use of such expressions, such as “declared hostile”,“declared unfavourable”, the significance of which is still not freefrom the historical cobwebs which, in their wake bring a misleadinglegacy of confusion, and conflict that had so long vexed the Englishcourts.

52. From the above conspectus, it emerges clear that even in acriminal prosecution when a witness is cross-examined andcontradicted with the leave of the court, by the party calling him,his evidence cannot, as a matter of law, be treated as washed offthe record altogether. It is for the Judge of fact to consider ineach case whether as a result of such cross-examination andcontradiction, the witness stands thoroughly discredited or canstill be believed in regard to a part of his testimony. If the Judgefinds that in the process, the credit of the witness has not beencompletely shaken, he may, after reading and considering theevidence of the witness, as a whole, with due caution and care,accept, in the light of the other evidence on the record, that partof his testimony which he finds to be creditworthy and act upon it.

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AIf in a given case, the whole of the testimony of the witness isimpugned, and in the process, the witness stands squarely andtotally discredited, the Judge should, as a matter of prudence,discard his evidence in toto.”

67. Therefore, this Court cautioned that even if a witness is treatedBas “hostile” and is cross-examined, his evidence cannot be written offaltogether but must be considered with due care and circumspectionand that part of the testimony which is creditworthy must be consideredand acted upon. It is for the judge as a matter of prudence to considerthe extent of evidence which is creditworthy for the purpose of proof ofthe case. In other words, the fact that a witness has been declaredC“hostile” does not result in an automatic rejection of his evidence. Even,the evidence of a “hostile witness” if it finds corroboration from thefacts of the case may be taken into account while judging the guilt of theaccused. Thus, there is no legal bar to raise a conviction upon a “hostilewitness” testimony if corroborated by other reliable evidence.D68. What emerges from the aforesaid discussion is summarisedas under:

(a) Proof of demand and acceptance of illegal gratification by apublic servant as a fact in issue by the prosecution is a sinequa non in order to establish the guilt of the accused publicEservant 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 prosecutionhas to first prove the demand of illegal gratification and thesubsequent acceptance as a matter of fact. This fact in issuecan be proved either by direct evidence which can be in theFnature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand andacceptance of illegal gratification can also be proved bycircumstantial evidence in the absence of direct oral anddocumentary evidence.

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(d) In order to prove the fact in issue, namely, the demand andacceptance of illegal gratification by the public servant, thefollowing aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver withoutthere being any demand from the public servant and theH

latter simply accepts the offer and receives the illegalgratification, it is a case of acceptance as per Section 7of the Act. In such a case, there need not be a priordemand by the public servant.

(ii) On the other hand, if the public servant makes ademand and the bribe giver accepts the demand andtenders the demanded gratification which in turn isreceived by the public servant, it is a case of obtainment.In the case of obtainment, the prior demand for illegalgratification emanates from the public servant. This isan 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 bribegiver and the demand by the public servant respectivelyhave to be proved by the prosecution as a fact in issue.In other words, mere acceptance or receipt of an illegalgratification without anything more would not make it anoffence under Section 7 or Section 13 (1)(d), (i) and (ii)respectively of the Act. Therefore, under Section 7 ofthe Act, in order to bring home the offence, there mustbe an offer which emanates from the bribe giver which isaccepted by the public servant which would make it anoffence. Similarly, a prior demand by the public servantwhen accepted by the bribe giver and inturn there is apayment 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 andacceptance or obtainment of an illegal gratification may bemade by a court of law by way of an inference only when thefoundational facts have been proved by relevant oral anddocumentary evidence and not in the absence thereof. Onthe basis of the material on record, the Court has the discretionto raise a presumption of fact while considering whether thefact of demand has been proved by the prosecution or not.Of course, a presumption of fact is subject to rebuttal by theaccused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns ‘hostile’, or has died or isunavailable to let in his evidence during trial, demand of illegal A

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Agratification can be proved by letting in the evidence of anyother witness who can again let in evidence, either orally orby documentary evidence or the prosecution can prove thecase by circumstantial evidence. The trial does not abate nordoes it result in an order of acquittal of the accused publicservant.B

(g) In so far as Section 7 of the Act is concerned, on the proof ofthe facts in issue, Section 20 mandates the court to raise apresumption that the illegal gratification was for the purposeof a motive or reward as mentioned in the said Section. Thesaid presumption has to be raised by the court as a legalCpresumption or a presumption in law. Of course, the saidpresumption is also subject to rebuttal. Section 20 does notapply to Section 13 (1) (d) (i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of theAct is distinct from presumption of fact referred to above inDpoint (e) as the former is a mandatory presumption while thelatter is discretionary in nature.

69. In view of the aforesaid discussion and conclusions, we findthat there is no conflict in the three judge Bench decisions of this Courtin B. Jayaraj and P. Satyanarayana Murthy with the three judge BenchEdecision in M. Narasinga Rao, with regard to the nature and quality ofproof necessary to sustain a conviction for offences under Sections 7 or13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainantor “primary evidence” of the complainant is unavailable owing to hisdeath or any other reason. The position of law when a complainant orprosecution witness turns “hostile” is also discussed and the observationsFmade above would accordingly apply in light of Section 154 of theEvidence Act. In view of the aforesaid discussion, we hold that there isno conflict between the judgments in the aforesaid three cases.

70. Accordingly, the question referred for consideration of thisConstitution Bench is answered as under:G

In the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferentialdeduction of culpability/guilt of a public servant under Section 7 andSection 13(1)(d) read with Section 13(2) of the Act based on otherevidence adduced by the prosecution.

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71. We direct that individual cases may be considered before theappropriate Bench after seeking orders of Hon’ble the Chief Justice ofIndia.

Before we conclude, we hope and trust that the complainants aswell as the prosecution make sincere efforts to ensure that the corruptpublic servants are brought to book and convicted so that theadministration and governance becomes unpolluted and free fromcorruption.

In this regard, we would like to reiterate what has been stated bythis Court in Swatantar Singh vs. State of Haryana (1997) 4 SCC14:

“6. ………..Corruption is corroding, like cancerous lymphnodes, the vital veins of the body politic, social fabric ofefficiency in the public service and demoralising the honestofficers. The efficiency in public service would improve onlywhen the public servant devotes his sincere attention and doesthe duty diligently, truthfully, honestly and devotes himselfassiduously to the performance of the duties of his post. Thereputation of corruption would gather thick and unchaseableclouds around the conduct of the officer and gain notorietymuch faster than the smoke”.

The above has been reiterated in A.B. Bhaskara Rao vs. CBI(2011) 10 SCC 259 by quoting as under from the case of State of M.P.vs. Shambhu Dayal (2006) 8 SCC 693:

“32. It is difficult to accept the prayer of the respondent thata lenient view be taken in this case. The corruption by publicservants has become a gigantic problem. It has spreadeverywhere. No facet of public activity has been left unaffectedby the stink of corruption. It has deep and pervasive impacton the functioning of the entire country. Large-scalecorruption retards the nation-building activities and everyonehas to suffer on that count.”

We place on record our appreciation of all learned senior counselas well as counsel and instructing counsel including learned ASGs whohave assisted the Court.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

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