PW hostile, prosecution fail, if demand is not proved
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1592 OF 2022
SOUNDARAJAN APPELLANT
v.
STATE REP. BY THE INSPECTOR OF
POLICE VIGILANCE ANTICORRUPTION
DINDIGUL ...RESPONDENT
J U D G M E N T
ABHAY S. OKA, J.
7. Dr Joseph Aristotle, the learned counsel representing
the State Government, submitted that in view of Section
464 of the Code of Criminal Procedure, 1973 (for short
'CrPC'), no defect or omission in the framing of charge is
fatal to the prosecution case unless any prejudice caused
due to the said omission or failure of justice is established
by the accused. He submitted that, in this case, prejudice
has not been shown.
8. He relied on this Court's decisions in the cases of
Mohan Singh v. State of Bihar1 and Union of India v. ExGNR Ajeet Singh2
. The learned counsel lastly relied upon a
decision of the Constitution Bench in the case of Neeraj
Dutta v. State (Govt. of NCT of Delhi)3
for submitting that
1 (2011) 9 SCC 272
2 (2013) 4 SCC 186
3 2022 SCC online SC 1724
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a demand for gratification can be established even on the
basis of circumstantial evidence.
FINDING ON PROOF OF DEMAND
9. We have considered the submissions. It is well settled
that for establishing the commission of an offence
punishable under Section 7 of the PC Act, proof of demand
of gratification and acceptance of the gratification is a sine
qua non. Moreover, the Constitution Bench in the case of
Neeraj Dutta3
has reiterated that the presumption under
Section 20 of the PC Act can be invoked only on proof of
facts in issue, namely, the demand of gratification by the
accused and the acceptance thereof.
10. As stated earlier, complainant PW2 has not supported
the prosecution. He has not said anything in his
examinationinchief about the demand made by the
appellant. The public prosecutor crossexamined PW2. The
witness stated that there was no demand of a bribe made
by the appellant. According to him, he filed a complaint as
the return of the sale deed was delayed. Though PW2
accepted that he had filed the complaint, in the crossexamination, he was not confronted with the material
Criminal Appeal No.1592 of 2022
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portions of the complaint in which he had narrated how the
alleged demand was made. The public prosecutor ought to
have confronted the witness with his alleged prior
statements in the complaint and proved that part of the
complaint through the concerned police officer who had
reduced the complaint into writing. However, that was not
done.
11. Now, we turn to the evidence of the shadow witness
(PW3). In the examinationinchief, he stated that the
appellant asked the PW2 whether he had brought the
amount. PW3 did not say that the appellant made a
specific demand of gratification in his presence to PW2. To
attract Section 7 of the PC Act, the demand for gratification
has to be proved by the prosecution beyond a reasonable
doubt. The word used in Section 7, as it existed before 26th
July 2018, is 'gratification'. There has to be a demand for
gratification. It is not a simple demand for money, but it
has to be a demand for gratification. If the factum of
demand of gratification and acceptance thereof is proved,
then the presumption under Section 20 can be invoked,
and the Court can presume that the demand must be as a
motive or reward for doing any official act. This
presumption can be rebutted by the accused.
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12. There is no circumstantial evidence of demand for
gratification in this case. In the circumstances, the offences
punishable under Section 7 and Section 13(2) read with
Section 13(1)(d) have not been established. Unless both
demand and acceptance are established, offence of
obtaining pecuniary advantage by corrupt means covered
by clauses (i) and (ii) of Section 13(1)(d) cannot be proved.