Public servants can be convicted in corruption case on circumstantial evidence basis, says Supreme Court

A view of the Supreme Court of India in New Delhi.

A view of the Supreme Court of India in New Delhi.

A Constitution Bench of the Supreme Court on December 15, 2022 held that demand and acceptance of bribe or illegal gratification by a public servant can be inferred by a court on circumstantial proof in the absence of direct evidence.

The Bench led by Justice S. Abdul Nazeer said the “stink of corruption” has a “pervasive impact” on the efficient administration and governance of the country. Corrupt officials have a demoralising effect on honest public servants. Corruption by public servants has become a “gigantic problem”. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count, the court observed.

“We hope and trust that complainants and prosecution make sincere efforts to ensure that corrupt public servants are brought to book and convicted, so that the administration and governance becomes unpolluted and free from corruption,” Justice B.V. Nagarathna, who authored the judgment for the five-judge Bench, appealed.

The other judges on the Bench were Justices B.R. Gavai, A.S. Bopanna and V. Ramasubramanian.

The court, quoting from its preceding judgments on the Prevention of Corruption (PC) Act, said it is a “sad but a bitter reality that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers”.

The Bench was answering a reference on the question whether public servants could be convicted for corruption under Section 7 (public servant taking gratification other than legal remuneration in respect of an official act) and 13 (1)(d)(i) and (ii) (criminal misconduct by a public servant) in the absence of direct oral or documentary evidence due to unavailability of the complainant owing to his death or for any other reasons.

“In the absence of the evidence of the complainant (through direct, primary, oral, documentary evidence), it is permissible to draw a deduction of culpability or guilt of a public servant under Sections 7, 13 (1)(d)(i) and (ii) read with 13(2) based on other evidence used by the prosecution,” Justice Nagarathna observed.

The prosecution can prove its case of corruption with the help of any other witness, oral or documentary evidence or circumstantial evidence in cases in which the complainants have turned hostile. The trial would not abate or result in an acquittal.

Justice Nagarathna said if a bribe-giver offers to pay illegal gratification without there being any demand from the public servant and the latter simply accepts the offer and receives the payment, it would be a case of “acceptance” under Section 7 of the PC Act.

On the other hand, if the accused public servant makes a demand for a bribe and accepts the payment, it would be a case of “obtainment” and an offence under 13 (1)(d)(i) and (ii) of the PC Act.

But both the offer by the bribe-giver and the demand and acceptance of the illegal gratification have to be effectively proved by the prosecution as a fact.

“In other words, mere acceptance and receipt of the illegal gratification without anything more would not make it an offence under Section 7 and 13 (1)(d)(i) and (ii) of the Act,” the court said.

Justice Nagarathna interpreted that a court of law could use its discretion to make a “presumption of fact” of the offer made and bribe demanded or accepted by an accused official based on the material on record. The “foundational factors” by means of relevant documentary or oral evidence however should be there on record.

In so far as a trial under Section 7, the Bench said a court should mandatorily raise a “presumption in law” under Section 20 of the Act that, unless the contrary is proved, a public servant has “accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward”.

“We clarify that presumption in law under Section 20 of the Act is distinct from the presumption in fact and the former is a mandatory presumption while the latter is discretionary in nature,” Justice Nagarathna said in the judgment.


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