The Supreme Court on Thursday ruled that in a public servant can be held guilty under the Prevention of Corruption Act based on circumstantial evidence in the absence of direct evidence [Neeraj Dutta vs NCT Delhi].

A Constitution Bench led by Justice S Abdul Nazeer and also comprising Justices V Ramasubramanian, BR Gavai, AS Bopanna, and BV Nagarathna said that the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral or documentary evidence.

"In the absence of evidence of complainant (direct or primary), it is permissible to draw an inferential deduction of culpability," the Court held.

However, presumption of fact with regard to demand or acceptance of illegal gratification may be made by a court of law by way of an inference only when foundational facts have been proved, the Court clarified.

The Court further said that in order to prove the demand and acceptance the following aspects have to be borne in mind:

- If there is an offer to pay by the bribe giver without any demand by public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7;

- If public servant makes a demand and giver accepts it, it is a case of obtainment. In both cases, the offer and demand have to be proved by the prosecution as a fact in issue;

- Mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or 13(1).

The bench also held that there was no conflict in its earlier three-judge bench decisions which gave rise to the Constitution bench reference with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 and 13(1)(d).

The Court had on November 22 reserved its judgment in the matter dealing with the following question of law:

"Whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?"

The reference to a 5-judge bench arose after a 3-judge bench in August 2019 noted that the law in concern as laid out in its decisions in B Jayaraj vs State of Andhra Pradesh, and P Satyanarayana Murthy vs District Inspector of Police, State of Andhra Pradesh and Another, conflict with its decision in M Narsinga Rao vs State of AP.

Specifically, the issue was regarding the nature and quality of proof required to sustain a conviction for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption (PC) Act, when the primary evidence of the complainant was unavailable.

In Satyanaryana Murthy, the Court had held that, in the absence of primary evidence of the complainant due to his death, inferential deductions to sustain a conviction was impermissible in law.

In Narsinga Rao, the top court had sustained convictions despite a lack of primary evidence by relying on other evidence and raising a presumption under the statute.

Several appeals under the PC Act had subsequently been adjourned by the top court citing the pendency of the present reference.

Senior Advocate S Nagamuthu represented the lead appellant in the case.

Additional Solicitor General Jayant Sud appeared for the prosecution.

References:

barandbench.com