A Constitution Bench of the Supreme Court on December 15 held that a public servant can be convicted for illegal gratification in a corruption case on the basis of circumstantial evidence when there is no direct oral or documentary evidence against them.
Bench observations
- The Bench was answering a reference on the question whether public servants could be convicted for corruption under Section 7 of the Prevention Of Corruption Act 1988 (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.
- 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.
- 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.
- 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.
- Insofar 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.
Prevention of Corruption Act
- The Prevention of Corruption Act, 1988 was amended by the Prevention of Corruption Act 2018 to make the existing law rigid and expand the coverage of offence under the act.
- The amendment act provides a separate provision for the giver of the bribe.
- The amendment act under Section 8 provides this separate provision. The amendment act addresses the supply side of corruption, which punishes anyone who gives a bribe or promises to give a bribe or any undue advantage as a reward to the public servant for improper performance of the duty; such person shall be punishable with imprisonment of seven years or fine or with both.
- The said section does not apply to the person who got forced to give a bribe or undue advantage to the public servant and has reported the law enforcement agencies within seven years from the date of providing such benefit.
- It is irrelevant whether such undue influence is received directly from the person who is to be bribed or by any other person.
- Section 17A — has been inserted, which bars an “enquiry or inquiry or investigation” by an anti-corruption agency (CBI included) against a public servant in matters relatable to the discharge of his official duties, without the prior approval of the Centre or the state government, as the case may be, or the disciplinary authority. This provision would apply to all public servants, including the lowest rungs of administration.
- In case of MPs and MLAs, approval of the Speakers concerned shall be essential.
- The amended law also provides for the completion of trial by a special judge within a period of two years, extendable to four years in aggregate.
- The amended law bars the prosecution of retired public servants without the sanction for prosecution, to be accorded by the competent authority.
