Proof of illegal gratification by a public servant
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
S. ABDUL NAZEER; J., B.R. GAVAI; J., A.S. BOPANNA; J., V. RAMASUBRAMANIAN; J.,
B. V. NAGARATHNA; J.
CRIMINAL APPEAL NO. 1669 OF 2009; 15 December, 2022
NEERAJ DUTTA versus STATE (GOVT. OF N.C.T. OF DELHI)
68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact
in issue by the prosecution is a sine qua non in order to establish the guilt of the accused
public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
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(b) In order to bring home the guilt of the accused, the prosecution has to first prove
the demand of illegal gratification and the subsequent acceptance as a matter of fact. This
fact in issue can be proved either by direct evidence which can be in the nature of oral
evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal
gratification can also be proved by circumstantial evidence in the absence of direct oral
and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal
gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from
the public servant and the latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there
need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver
accepts the demand and tenders the demanded gratification which in turn is received by
the public servant, it is a case of obtainment. In the case of obtainment, the prior demand
for illegal gratification emanates from the public servant. This is an offence under Section
13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by
the public servant respectively have to be proved by the prosecution as a fact in issue. In
other words, mere acceptance or receipt of an illegal gratification without anything more
would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively
of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there
must be an offer which emanates from the bribe giver which is accepted by the public
servant which would make it an offence. Similarly, a prior demand by the public servant
when accepted by the bribe giver and inturn there is a payment made which is received
by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i)
and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment
of an illegal gratification may be made by a court of law by way of an inference only when
the foundational facts have been proved by relevant oral and documentary evidence and
not in the absence thereof. On the basis of the material on record, the Court has the
discretion to raise a presumption of fact while considering whether the fact of demand has
been proved by the prosecution or not. Of course, a presumption of fact is subject to
rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his
evidence during trial, demand of illegal gratification can be proved by letting in the
evidence of any other witness who can again let in evidence, either orally or by
documentary evidence or the prosecution can prove the case by circumstantial evidence.
The trial does not abate nor does it result in an order of acquittal of the accused public
servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a presumption that the illegal gratification was for
the purpose of a motive or reward as mentioned in the said Section. The said presumption
has to be raised by the court as a legal presumption or a presumption in law. Of course,
the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13
(1) (d)
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(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from
presumption of fact referred to above in point (e) as the former is a mandatory presumption
while the latter is discretionary in nature.
69. In view of the aforesaid discussion and conclusions, we find that there is no conflict
in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana
Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the
nature and quality of proof necessary to sustain a conviction for offences under Sections
7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary
evidence” of the complainant is unavailable owing to his death or any other reason. The
position of law when a complainant or prosecution witness turns “hostile” is also discussed
and the observations made above would accordingly apply in light of Section 154 of the
Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between
the judgments in the aforesaid three cases.
70. Accordingly, the question referred for consideration of this Constitution Bench is
answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary
evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public
servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on
other evidence adduced by the prosecution.