By Dr Swati Jindal Garg
Rigoberta Menchu, a Nobel laureate, rightly said: “Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruptions are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain.”
In a recent development, a five-judge Constitution Bench held that a court can convict a corrupt official under the Prevention of Corruption (PC) Act for demanding and accepting bribe even when there is no direct evidence against him. The bench, comprising Justices Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna, also said that corrupt officials must be booked and convicted.
Corruption has taken gigantic proportions affecting governance and has a demoralising effect on honest officers, the bench further said. The Court went on to clarify that even if direct evidence of the complainant is not available, owing to death or other reasons, there can be conviction of the public servant under the PC Act with circumstantial evidence and held that it is 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 the Prevention of Corruption Act, 1988, based on other evidence adduced by the prosecution. “This can be proved either by direct evidence in the nature of oral evidence or documentary evidence. 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 or documentary evidence,” the bench stated.
The bench also clarified that the trial would not automatically abate nor can result in an acquittal of a public servant just because the complainant dies or turns hostile or does not take the stand and held that a case can still be proved with other evidence or testimonies.
Justice Nagarathna pronounced: “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 either proved by direct evidence, in nature of oral evidence/documentary evidence. 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 or documentary evidence.”
The judgment went on to state that in order to establish the guilt of the public servant, all that needs to be shown is the proof of demand and acceptance of illegal gratification by him. In case 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, then it shall be a case of acceptance under Section 7 of the Act and he cannot escape punishment. If on the other hand, if the public servant makes a demand and the bribe is given, which then is accepted by him, it becomes a case of obtainment, which is an offence under Section 13(1)(d)(i) and (ii) of the Act.
The Court also clarified that in both the cases, the offer by the bribe giver and the demand by the public servant has to be proved by the prosecution as a fact in issue. The said presumption would further be subject to rebuttal by the accused. The judgment also states that the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration with the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.
The Constitution Bench’s verdict came on a plea which asked if public servants can be prosecuted for bribery if bribe givers fail to record their statements or turn hostile, and the hearing was concluded on the issue of whether death, non-appearance of complainants or them turning hostile will impact pending cases under the Prevention of Corruption Act. The question before the bench was also to examine whether in such a scenario, it will be for the prosecution to establish guilt using other evidence. As per the Prevention of Corruption Act, a public servant can be convicted in offences related to bribery if the element of demand and acceptance of bribes is proved.
The five-judge bench was deciding the issue in lieu of a matter that had been referred by a three-judge bench to the chief justice in February 2019 citing an inconsistency in an earlier decision of 2015 where the Court had said that public servants ought to be acquitted if primary evidence was lacking against them.
The three-judge bench had referred the issue to the Constitution Bench, after noting: “We note that two three-judge benches of this Court, in the cases of B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55; and P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another, (2015) 10 SCC 152, are in conflict with an earlier three-judge bench decision of this Court in M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691, regarding the nature and quality of proof necessary to sustain a conviction for the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 when the primary evidence of the complainant is unavailable.”
The central government, while pointing out several cases where the accused were set free on the basis of the 2015 verdict, said that the Court has a perfect opportunity to clarify its 2015 judgment to say that lack of direct evidence or primary evidence will not result in automatic acquittal. The government further pressed for a stringent anti-corruption law saying it was the “need of the hour” as corruption was making the country hollow.
Corruption is a cancer that eats away at a citizen’s faith in democracy and diminishes innovation and creativity. The fight against corruption has to be made part of Indian culture. Fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi