In the complaint for corruption it is not that every officer in the Government has to be arrayed in respect of any role performed or not. The mere presence of an officer in a meeting and that too when he was not a signatory and really had no role to play in that capacity, cannot be used to justify his name being included as an accused.
Manju Surana vs Sunil Arora decided by SC on 27 March, 2018.
Quantum of Bribe
There are cases where the amount of bribe is small and in certain cases, it is extremely high. The gravity of the offence in such a case, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.
Niranjan Hemchandra Sashittal vs State Of Maharashtra decided by SC on 15 March, 2013 published (2013) 4 SCC 642.
Presumption of Bribe
When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
M. Narsinga Rao v. State of A.P. (2001) 1 SCC 691.
Demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
State of Punjab vs. Madan Mohan Lal Verma (2013) 14 SCC 153 followed in Mukhtiar Singh vs State of Punjab decided by SC on 5 July, 2016.
It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow.
N.Sunkanna vs State of A.P decided by SC on 14 October, 2015.
The direct or primary evidence of demand may not be available at least in three instances:- (i) where the complainant is dead and could not be examined; (ii) complainant turned hostile; and (iii) complainant could not be examined either due to non-availability or other reasons. Direct proof of demand may not be available in all the above instances but from the evidence of panch witness, acceptance of money was proved by Phenolphthalein Test and by raising presumption under Section 20 of the Act, it is permissible to draw inference to prove the demand.
Neeraj Dutta vs State( Govt.Of N.C.T.Of Delhi) decided by SC on 28 February, 2019.
However the court after making above observations, expressed reservation and has referred following question for consideration of larger bench of Supreme Court:
"The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not 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 Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution."
Until the decision is given, the above question remains open for speculation.
Demand & Acceptance of bribe
Mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence of corruption.
B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55 followed in P.Satyanarayana Murthy vs Dist. Insp. of Police decided by SC on 14 September, 2015.
The prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
A. Subair vs. State of Kerala (2009)6 SCC 587.
As a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.
M.K. Harshan v. State of Kerala, AIR 1995 SC 2178, 1995 CriLJ 3978, 1996 (1) KLT 88 SC, (1996) 11 SCC 720 followed in Krishan Chander vs State Of Delhi decided by SC on 6 January, 2016.
Indians generally have a habit of doing auspicious things by right hand. In this case a contention was raised that a person would not normally receive money by his left hand. The contention was held to be without basis and purely in the realm of surmises and conjectures.
State of Andhra Pradesh vs Kesavapatnam China Swamy decided by SC on 6 May, 2015.
Bribe and defence of loan
Invariably in most cases of bribe the accused takes the defence of taking loan from complainant or in some cases the defence is that accused had given loan which was being repaid by the complainant.
In one of the earliest cases, the Complainant had secured a contract at Railway Loco Shed for the removal of cinders from ash pits and for loading coal. Accused a Loco Foreman demanded Rs. 400 per month from him to allow him to carry out his contract peacefully without any harassment. Complainant informed Anti-corruption branch and a trap was laid with marked currency notes of Rs.375 as previously settled with accused and he was caught red handed. Subsequently the defence raised by accused that the amount was the loan he had sought from complainant, was rejected as wholly unsatisfactory and unreasonable to rebut the presumption of receipt of illegal gratification.
C.I. Emden v. State of U.P., AIR 1960 SC 548: 1960 SCR (2) 592.
Conspiracy with third party
Where the criminal conspiracy between the public servant and the person accepting the money is not acquitted the public servant is entitled to acquittal as demand and acceptance of bribe 'by him' is not proved.
Dashrath Singh Chauhan vs C.B.I. decided by SC on 9 October, 2018.
Circumstantial Evidence
Circumstantial evidence must point to the guilt of an accused. Mere suspicion is not enough.
Though the prosecution had established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together held to be not leading to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence.
Abdulla Mohammed Pagarkar v. State (UT of Goa, Daman and Diu) [Abdulla Mohammed Pagarkar v. State (UT of Goa, Daman and Diu), (1980) 3 SCC 110 : 1980 SCC (Cri) 546; See also C.Chenga Reddy vs. State of A.P: (1996) 10 SCC 193.
Charge of Disproportionate Assets
A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld. A Fundamental Right is not absolute in terms. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional.
Noor Aga v. State of Punjab, 2008 (9) SCALE 691; Jayendra Vishnu Thakur v. State of Maharashtra, 2009 (7) SCALE 757.
Where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail.
Dilip and Another v. State of M.P. (2007) 1 SCC 450 and Gagan Kanojiav. State of Punjab (2006) 13 SCC 516.
A person cannot be subjected to a criminal prosecution either for a charge which is amorphous and transitory and further on evidence that is conjectural or hypothetical. The appellant in the determinations before the Courts below has been subjected to a trial in which both the charges and evidence on aspects with vital bearing thereon lacked certitude, precision and unambiguity.
Vasant Rao Guhe vs State of Madhya Pradesh, decided by SC on 9 August, 2017.
In the above case on the two major heads of income i.e. pay and agricultural earnings, the learned Trial Court not only of its own embarked on an inquiry to ascertain and compute the figures, it wholly resorted to inferences in calculating the pay for the periods omitted by the prosecution as well as in fixing 60% expenditure from pay towards household needs. It's assessment of agricultural income was wholly presumptive in absence of any basis whatsoever in support thereof. This is noticeably in the face of the admission of the prosecution that while levelling the charge against the appellant of acquisition of assets disproportionate to his known sources of income, it had not accounted for his income from pay vis-à-vis the periods omitted as well as from agricultural earnings. The figures ultimately arrived at by the Trial Court were patently different from those mentioned in the charge framed against the accused. On these facts while acquitting the accused Supreme Court observed:
"...Admittedly, having regard to the ultimate figures as calculated by the Courts below, the charge has undergone a metamorphosis. This assumes immense significance in view of the fact that no fresh charge had been framed on the allegations for which the appellant was eventually convicted and sentenced. Any adverse inference prejudicial to the appellant was thus not available in law, he not having been confronted with the altered imputations. To reiterate, the charge for which the appellant finally has been convicted wears a new complexion different from the one with which he had been arraigned at the initiation of the trial. The appellant thus for all practical purposes was subjected to a trial involving fleeting frames of accusations of which he was denied prior notice. This is clearly opposed to the fundamental precepts of a criminal prosecution. …… in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account there for. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or property disproportionate to his known sources of income..."
Vasant Rao Guhe vs State of Madhya Pradesh, decided by SC on 9 August, 2017.
Therefore the charge of possession of assets disproportionate to known sources of income must be specific and must contain specific amount of income expenditure and value of asset without any guess work.
Documentary Evidence
The documents produced by the prosecution on being admitted by the accused became authentic and the contents thereof became substantive evidence. Non production of signatories of documents, is not necessary in such case.
Sub-section 3 of Section 294 Cr. P.C. clearly envisage that the documents produced by the prosecution on being admitted by the accused became authentic and the contents thereof became substantive evidence. In this case as discussed above, since documents were produced and relied by the Public Prosecutor as his documents had to be read in evidence by the Court without proving the signatures of the person by whom it was purported to have been signed. However, if the Trial Court, at any stage, found that mis-carriage of justice was going to take place on account of these documents being admitted without formal proof, then he could suo moto call the attesting witnesses of the sale agreement and the purchaser Mr. Kuldeep Singh Sehgal. Having not done so, the Trial Court could not draw presumption that genuineness of these documents was in doubt. Hence, the observations of the Trial Court in this regard are not supported from the evidence on record. In fact the Trial Court fell in error in presuming and concluding in his judgment that the genuineness of these documents was doubted by the prosecution. In fact such an observation is not borne our from the testimony of any of the witnesses or from the statement of Public Prosecutor rather it appears to be the figment of Court'sown imagination. Trial Court drew this conclusion even though that was not the case set up by the Public Prosecutor. Observations in this regard are quite contrary to the facts placed on record. In view of the admitted facts, the Trial Court ought to have held that provision of Sub-section 3 of Sections 294 Cr. P.C. are applicable.
Gunjit Singh vs. State, 1996 (4) Crimes 1 Del.
Extra-judicial confession
Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction.
Sahadevan v. State of Tamil Nadu (2012) 6 SCC 403; Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259; followed in Ram Lal vs State of Himachal Pradesh, decided by SC on 3 October, 2018.
In the above case of Ram Lal, the court accepted the extra judicial confession made by accused in his own hand writing made in the course of enquiry made by superior officers.
Seizure of property
The bank account of the accused or any of his relation is 'property' within the meaning of Section 102 of the Criminal Procedure Code and a police officer in the course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.
Corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object en-grafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation to 'property' within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub-section (2) of Section 13, the legislature have provided that the Courts in fixing the amount of fine shall take into consideration the amount or the value of the property, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub-section (1) of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act.
State of Maharashtra v. Tapas D. Neogy, 1999(7) SCC 685: 1999(5) Scale 613: 1999(7) JT 92: 1999(98) Comp Case 626: 1999 CrLJ 4305: 1999 SCC(Cr) 1352.
Where there is possibility of preparation of recovery memo on the day next to the day of occurrence, it was held that the recovery was held doubtful in these words:
"According to PW 12 M.L. Sahini he remained at the spot upto 12.00 mid night and completed the investigation. To the same effect is the statement of PW11 Vijay Malik. However, no other witness examined from the side of the prosecution supports the said version. According to PW3 Gajender Singh the raiding party remained at the spot for about 5/7 minutes. According to PW6 Sunil Kumar his statement was not recorded at the spot. It was recorded on the next day at the police station, Anti Corruption Branch, Similarly as per the statement of PW9 Mahesh Chand Sharma the police officers left the spot within ¾ minutes after their arrival along with the accused persons. Furthermore, the statement of PW9 Mahesh Chand Sharma was not recorded at the spot as per his own statement and those of other witnesses. Even PW3 Gajender Singh has averred during his cross-examination by A.P.P. that he went to the Anti-Corruption Branch after the occurrence on the next day to sign some papers. This goes to show that documents were prepared on the next day at the police station. This again goes to show that the prosecution version is not correct and is to be looked upon with suspicion.
Om Prakash vs. State, 1998 (4) Crimes 227 Del: 1998(4) AD(Delhi) 93: 1998(75) DLT 69: 1998(3) CCR 521: 1998(2) JCC(Delhi) 93: 1998(47) DRJ 569.
With these principles of evidence and proof, the prosecution of an accused goes to Trial before the court of competent jurisdiction.
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