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PC Act -Is Direct Evidence Of Bribe Demand Necessary To Punish Public Servant? Supreme Court Constitution Bench Reserves Judgement- Read Full Courtroom Exchange
LIVELAW NEWS NETWORK
23 Nov 2022 3:30 AM GMT
The Supreme Court on Tuesday reserved its judgment on whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, it is 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 Supreme Court on Tuesday reserved its judgment on whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, it is 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
Earlier, appearing before the 5-Judge Bench of Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna, SG Tushar Mehta had provided an outline of the present case, "This case is under the Prevention of Corruption Act. Here the bribe giver died, so there is no question of proving the illegal demand made by him. Whether that can be inferred in the trial?" Justice Nazeer had noted that what is of utmost importance is to examine, "Is it the only way to prove?" The SG had submitted that is precisely what the reference order says.
First, a reference was made by a Division Bench to a larger Bench upon observing that insistence of direct proof or primary evidence for proving the demand may not be in consonance with the view taken many judgments wherein despite the absence of primary evidence of the complainant, the Apex Court had sustained the conviction of the accused by relying on other evidence, and raising a presumption under the statute. It was of the opinion -
"Insistence of direct proof or primary evidence for proving the demand may not be in consonance with the view taken by this Court in number of judgments. The learned senior counsel has drawn our attention to other cases to substantiate her contention that Satyanarayana had not taken note of the consistent view taken by the Supreme Court. We are not delving into the controversy any further"
Later, the 3-judge Bench, which had referred the present issue to the Constitution Bench, had noted -
"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 court-room exchange as it transpired on Tuesday is as follows-
'Mere receipt of any money or property with no proved demand would not give rise to any assumption under PC Act S. 20 that there was obtainment'- Sr. Adv. S. Nagamuthu for the appellants
Mr. Nagamuthu: "If the offer originates from the bribe giver and it is accepted by the public servant, this is acceptance. Section 7 covers this. If the offer, the demand arises from the public servant and it is accepted by the bribe giver, it is obtainment. Both are different. The differences are dealt with in section 20"
Bench: "Why are we doing all this research about offer, demand and acceptance of payment? So that the people who receive money should escape? He is a very good man, he does not make any demands, he only accepts?"
Mr. Nagamuthu: "There are two facts of issue in obtainment- whether there was demand, whether he received the money in pursuance of demand. In case of acceptance also there are 2 facts of issue. Every fact of issue has to be proved beyond reasonable doubt. So far as Satyanarayana Murthy is concerned, by the use of the word 'primary evidence' what they mean is 'direct evidence'"
Bench: "If the de facto complainant is dead or turns hostile, whether the demand can be proved or not- that is the main question"
Mr. Nagamuthu: "It can be. From other evidence. That is what Satyanarayana Murthy says"
Bench: "Then Satyanarayana Murthy has been wrongly decided. Because there, the complainant is dead, but PW1's evidence, if it is taken into consideration, would have proved the demand as well as acceptance. So prima facie, we find that the reference is correct"
Mr. Nagamuthu: "The law stated in the judgment is that demand, as a fact in issue, has to be proved beyond reasonable doubt. How it is to be proved in absence of de facto complainant? From other evidence. That is agreed. But no other presumption will arise. Section 20 cannot be invoked....See dowry death- they have to be married, death must occur in seven years, there must be harassment soon before death with regard to dowry- these are all foundational facts. Then we presume that the husband or relative has caused the death. In the absence of proof of any one of these foundational facts, 114 (Evidence Act) presumption cannot arise. 114 is applicable to presumption in prevention of corruption act also. But the foundational facts must be proved in order to evoke the presumption under 114. Law stated in Satyanarayana Murthy is absolutely correct, that is my respectful submission. The evidence in that case was insufficient, but Satyanarayana says that mere inferential deduction, without proof of foundational fact, is incorrect. That is the correct position of law. Now that is doubted in the reference order"
Bench: "So if demand is not proved but Receipt is proved, does presumption apply?"
Mr. Nagamuthu: "You cannot invoke the presumption at all. Precondition is that mere receipt would not give rise to presumption, but it is proof of demand and proof of acceptance, proof of Obtainment, in terms of section 7. Proof of obtainment gives rise to presumption, not mere receipt. Satyanarayana Murthy says that presumption under 20 only arises if demand and receipt are proved.. Section 20 is not applicable to 13(1)(d) at all....Say, I have a pen. I keep it in my pocket. It is for the prosecution to say that this you demanded and received as gratification and that is why it is in your pocket. It cannot be presumed, it has to be proved as a fact in issue"
Bench: "Suppose acceptance is proved, there is a Panch witness who says that he came and he received the money?"
Mr. Nagamuthu: "Acceptance means both offer and receipt. Acceptance is a legal term used in section 7. Mere receipt of any money or property with no proved demand would not give right to any assumption that there was obtainment. From other evidence, other circumstances, demand has to be proved for presumption under 20"
Bench: "Once demand is proved and receipt is proved, there is no question of presumption that it was received as a motive or reward....?"
Mr. Nagamuthu: "For 13(1)(d), motive or reward is irrelevant. Motive or reward is used only in section 7. That is why 20 has been made applicable to 7 alone, not to 13(1)(d). For the purpose of section 7, it must also be proved as a Question of fact that the money was received as a motive or reward, whereas for 13(1)(d), there is no such ingredient….If I am a public servant, I can make a demand for myself or for my superior. But that it is a reward for my superior has to be presumed because he has not made any demand. Therefore section 20 says that you presume that this is received as a motive or reward. Section 7 alone uses motive or reward as an ingredient, not 13(1)(d)….Panch witness may say that I went along with him and he received the money. But that by itself is not sufficient for convicting. Because obtainment is required for convicting a person under 13(1)(d). There must be evidence that the accused obtained for himself but not for any other person any valuable thing by illegal means, abusing his position as public servant. Obtainment is to be proved"
Bench: "So in the facts of a case, if you are found to have accepted money, at least so far as section 7 is concerned, you have accepted without demand, you just put it in the pocket, then there is no consenting mind to receive it as a gratification. So in that case, section 20 presumption will apply and the burden will shift to you to rebut that it was not illegal gratification"
Mr. Nagamuthu: "Consenting mind may mean that I consented as a loan- He gave me money and I put it in my pocket means that I received it as a loan amount. I receive it, I keep it, the presumption is that there is consent on my part. But it does not give rise to the presumption that I received it as a bribe. Section 20 comes later"
Bench: "Justice Thomas has given an illustration in Narsing Rao- under 114, if stolen property is found in possession of a person, it is assumed that he has stolen it and he has to report it"
Mr. Nagamuthu: "Depending on the facts of each case, it has to be decided. 114 is not a formula, it is to be inferred from natural human conduct"
'Hostility is not a bad thing which reflects the character of the witness; he may be hostile to falsehood'- SC
Mr. Nagamuthu: "Let no witness be branded as unfavourable or hostile even before giving a finding on it in the judgment. It is a judicial declaration when the evidence is being recorded. The witness says, 'I am on oath telling the truth'. Why should you declare that I am a false witness or a hostile witness? I am coming to the court to tell the truth, not a lie"
Bench: "This understanding has arisen out of treating 'hostility' as an ugly world. It is not so. He is hostile to the party calling him into the witness box, he is hostile to falsity and therefore, he is speaking the truth. It can be either way. What is the truth in the evidence has to be found out by the court. There is a long line of decisions which says that despite the court passing such a declaration, the entire evidence is not washed away. If that is so, the court, despite declaration of hostility, has not treated him as a false witness. They are still prepared to give credibility to some portion of the evidence. Therefore, the courts have understood the term here not as a term which brings out bad character of the individual"
Mr. Nagamuthu: "Under the English law, if a witness is treated as hostile, then he can be entitled to cross examination only by the party calling him. Hostile means one who is not speaking something which is expected by the party who has called him. That witness can only be allowed to be cross-examined, he cannot be allowed to be contradicted. There is another kind of witness- unfavourable witness. He is one who has not stated what he had stated earlier. Suppose a witness is declared unfavourable and not hostile, then he can be contradicted by his previous statement. That is the distinction in the English law. In India, we don't use the term unfavourable"
Bench: "There is a long line of decisions which says something. There is a law that the practice of the court is also the law of the court"
Mr. Nagamuthu: "This practice should go. Suppose I go to the court as a witness, I tell the truth, even without examining the correctness of my evidence you declare me as hostile, you say I am unfavourable. It is a stigma on me. Kindly don't do that"
Bench: "He is declared hostile only when he does not support what has been stated in sections 161 or 164 (Cr. P. C.)"
Mr. Nagamuthu: "I am not expected to speak what they expected. I am here to tell the truth on oath"
Bench: "That is why you are hostile to falsehood. Is that a credit or discredit to you? You are unfavourable to falsehood. These terms can be used both ways. Hostility is not a bad thing which reflects the character of the witness. Why has the witness turned hostile? Is it because he is speaking the truth....Hostile is used in a loose sense, that a person who is hostile to the prosecution's case is declared hostile. That is not correct in the legal sense....So if at the end of the trial, the court finds that you are correct, then the court will give a finding that the evidence of such and such person is correct and the prosecution is wrong. On the contrary, if the evidence of such person is found to be trustworthy, at the end of the trial, there would be strictures against prosecution....In fact, once we accept the position that despite declaration of hostility, his evidence can be relied upon, it means no stigma is attached. Stigma would be if the court is not relying on any part of his statement. We ultimately analyse his evidence and rely upon it. If we rely upon it, where is the question of you becoming untouchable in society?...There is a case where the father cremated the dead body of the son, and in the court, he was under pressure and he turned hostile and said he is not my son. What is wrong in declaring that the father is hostile? It is not only about what the police are capable of doing, now the prosecution is capable of doing more. Let us not use the word hostile to be stigmatic to a witness so long as the hostile witness statement can be relied upon by the court"
Mr. Nagamuthu: "If a witness is declared as hostile, then he can only be cross-examined and not contradicted. If he is declared as unfavourable, then he can be contradicted. If the court prefers to use the word hostile, then the implication is that the witness can only be cross-examined and not contradicted"
'Corruption is a menace in the country. These provisions should be given strict interpretation. It cannot be that section 20 presumption will not apply without proof of demand'- ASG Aishwarya Bhati
ASG Bhati: "Section 20 does not require demand. Corruption is eating up the country. These provisions need to be given a strict interpretation and applied stringent. It cannot be that section 20 will not apply without proof of demand. The section does not say that, the section only says acceptance...Your Lordships, as a Constitution bench, may not go into the invitation that my learned senior colleague has drawn up about the difference between acceptance and obtainment. This distinction is not in the statute"
Bench: "The question referred is if the complainant dies or he turns hostile, what should happen? Should the proceedings come to an end or other evidence can be looked into. To our mind, Satyanarayana Murthy gives a complete answer for us. Do you have any objection, if the complainant dies or he turns hostile or he is not available, if we have an option to consider the other evidence available? Some judgments say it is the end of the road if once he dies or turns hostile. Satyanarayana Murthy says all the other evidence has to be considered. You have an objection to it?"
ASG: "To the proposition, we have no objection. The other evidence can be looked into. This is a rule of evidence which is not confined to PC Act but applies to other penal statutes also, that indirect evidence can be looked into"
CASE TITLE: Neeraj Dutta v. State (GNCTD)
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