Direct Evidence of Bribe Not Necessary

In December 2022, the Supreme Court of India held that public servants can be convicted for bribery in corruption cases based on circumstantial evidence when there is no direct oral or documentary evidence against such individuals.

A five-judge Constitution Bench headed by Justice S A Nazeer stated that both complainants and prosecutors should make genuine efforts to convict corrupt public servants and make sure they are judged for their actions by the book. The apex court asked complainants and prosecution to adhere to this so that administration and governance can be made corruption-free.

Legal Provisions on Corruption

Acts of corruption are primarily addressed through the Prevention of Corruption Act, 1988 (Act).

Note: The provisions of this Act are applicable to all Indian citizens, including individuals outside India.

As per Section 2(c) of the Act, a public servant is defined as ‘to inter alia include any person in the service or pay of the government, local authority or a corporation established by law, a Judge, receiver or commissioner appointed by a Court, an arbitrator appointed by a Court or by a competent public authority.’

‘Undue advantage’ under Section 2(d) is defined as ‘any gratification which in turn is not limited to pecuniary gratifications.’

Section 7 of the Act lists the punishments for any public servant who:

• Obtains, accepts or attempts to obtain from any individual an undue advantage with the intention to perform or cause performance of a public duty improperly or through a third party.
• Obtains, accepts or attempts to obtain some undue advantage from any person as a reward for the improper performance of a public duty.
• Performs or induces another public servant to perform a public duty improperly or dishonestly.

Note: It has been clarified that it does not matter whether the undue advantage has been obtained directly or indirectly through a third-party.

Section 8 of the Act deems it punishable for any individual who gives or promises to give an undue advantage to another person with an intention to:

• Induce a public servant to perform a public duty improperly.
• Reward the public servant for the improper performance of public duty.

Note: Provisions stated under Section 8 will not be applicable where a person is compelled to give such undue advantage and such person should then report the matter to the law enforcement authority within a period of 7 days from the date of giving such undue advantage.

Direct and Indirect Evidence

It is crucial to be familiar with the meaning of direct and indirect evidence.

Direct Evidence

When the principal fact is attested directly by witnesses, things or documents.

Indirect Evidence (Circumstantial Evidence)

All evidence which is not direct in nature – also means evidence of circumstances – all the necessary circumstances should constitute such a complete chain without a snap and should point towards the hypothesis that except the Accused, no one had committed the offense.

Relevant Judgements

In the case of P. Satyanaryana Murthy vs District Inspector of Police, State of AP [(2015) 10 SCC 152], the Supreme Court held that in case of absence of primary evidence of the complainant due to his death, inferential deductions to sustain a conviction under the provisions of the Act was not permissible under the law. The Court observed that proof of demand was a sine qua non for an offence under Section 7. This case was heard by a 3-judge bench.

In the case of M. Narsinga Rao vs State of AP [(2001) 1 SCC 691], the apex court sustained the conviction of the Accused by relying upon other evidence and by raising a presumption under the Act even though the primary evidence of the complainant was missing. This judgment too was given by a 3-judge bench.

As two 3-judge benches of the Supreme Court had completely opposite views, the controversy whether in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence, was finally settled by the Constitution bench of the Supreme Court in the case of Neeraj Dutta vs State (Govt. of NCT of Delhi) [AIR 2023 SC 330]

In the above-mentioned case, Supreme Court’s Constitution Bench held that:

• Proof of demand and acceptance of bribery by a public servant is a sine qua non to establish their guilt.
• The prosecution must prove the demand and the subsequent acceptance as a matter of fact. This can be done using both direct and indirect evidence.
• The presumption of fact with respect to demand and acceptance may be made by a Court by way of an inference only if the foundational facts have been proved by relevant oral or documentary evidence.

Conclusion

Direct evidence of bribery is not a requirement for a public servant to be convicted of this crime under the provisions of the Prevention of Corruption Act. Furthermore, the fact of demand and acceptance of such illegal gratification can be proved using circumstantial evidence as well.