# NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)

- **Citation:** [2022] 5 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 2022-12-15
- **Case number:** Criminal Appeal No. 1669 of 2009
- **Bench:** S. Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/neeraj-dutta-v-state-govt-of-n-c-t-of-delhi-36373
- **Pages:** 58

## Headnote

Prevention of Corruption Act 1988: ss.7 and 13(1)(d) r/w
s.13(2) - In the absence of evidence of the complainant (direct/
primary, oral/documentary evidence) it is permissible to draw an
inferential deduction of culpability/guilt of a public servant u/ss.7
and 13(1)(d) r/w s.13(2) of the Act based on other evidence adduced
by the prosecution.
Reference Matter - Prevention of Corruption Act 1988 -
Whether B. Jayaraj v State of A.P & P. Satyanarayana Murthy v D.
Insp. Of Police, State of A.P. in conflict with M. Narsinga Rao v State
of A.P - Reference Answered - There is no conflict in B. Jayaraj
and P. Satyanarayana Murthy with the decision in M. Narasinga Rao,
with regard to the nature and quality of proof necessary to sustain
a conviction for offences u/ss.7 or 13(1)(d)(i) and (ii) of the Act,
when the direct evidence of the complainant or "primary evidence"
of the complainant is unavailable owing to his death or any other
reason - Proof of demand and acceptance of illegal gratification
by a public servant as a fact in issue by the prosecution is a sine
qua non in order to establish the guilt of the accused public servant
u/ss.7 and 13 (1)(d) (i) and (ii) of the Act - Prosecution has to first
prove the demand of illegal gratification and the subsequent
acceptance as a matter of fact and the same can be proved by
direct evidence - The proof of demand and acceptance of illegal
gratification can also be proved by circumstantial evidence in the
absence of direct oral and documentary evidence, if such
circumstantial evidences corroborates the foundational fact of
demand and acceptance of illegal gratification.
Prevention of Corruption Act 1988: s.20 - Scope of
Presumption used therein - s.20 envisages the law regarding the
presumption where public servant accepts gratification other than
[2022] 5 S.C.R. 104
104
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legal remuneration - The expression used therein is "shall presume"
which is legal or compulsory presumption - The said provision deals
with a legal presumption which is in the nature 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
- It does not say that the said condition should be satisfied through
direct evidence but the only requirement is that it must be proved
that the accused has accepted or agreed to accept gratification.
Evidence Act, 1872: s.3 - Word "Fact" - "Factum Probandum
& Factum Probans" - Classification and Connection - Fact consists
of state of things, events or mental state - The principal fact (factin-issue) constitutes Factum Probandum whereas the evidentiary fact
(relevant fact) constitute Factum Probans - Facts relevant to the
issue are evidentiary fact which render probable the existence or
non-existence of fact-in-issue or some other relevant fact.
Evidence Act, 1872: s.3 - Word "Evidence" - Scope - Evidence
may include the actual words of witnesses, or documents produced
- The term evidence is not restricted to only oral and documentary
evidence but also to other things like material objects, the demeanour
of the witnesses, facts of which judicial notice could be taken,
admissions of parties, local inspection made and answers given by
the accused to questions put forth by the Magistrate or Judge u/
s.313 of the Criminal Procedure Code.
Evidence Act, 1872 - ss. 3, 59, 60, 61 - Classification of
Evidence - Evidence may be classified as direct evidence (original
evidence) and indirect evidence (substantial evidence) - Direct
Evidence establishes the existence of a thing or fact either by actual
production or by testimony or demonstrable declaration of someone
who has himself perceived it and the same is devoid of any room
for inference or presumption - Indirect Evidence gives rise to the
logical inference that a fact-in-issue exists, either conclusively or
presumptively - Direct Evide

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NEERAJ DUTTA
v.
STATE (GOVT. OF N.C.T. OF DELHI)
(Criminal Appeal No. 1669 of 2009)
DECEMBER 15, 2022
[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,
V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]
Prevention of Corruption Act 1988: ss.7 and 13(1)(d) r/w
s.13(2) - In the absence of evidence of the complainant (direct/
primary, oral/documentary evidence) it is permissible to draw an
inferential deduction of culpability/guilt of a public servant u/ss.7
and 13(1)(d) r/w s.13(2) of the Act based on other evidence adduced
by the prosecution.
Reference Matter - Prevention of Corruption Act 1988 -
Whether B. Jayaraj v State of A.P & P. Satyanarayana Murthy v D.
Insp. Of Police, State of A.P. in conflict with M. Narsinga Rao v State
of A.P - Reference Answered - There is no conflict in B. Jayaraj
and P. Satyanarayana Murthy with the decision in M. Narasinga Rao,
with regard to the nature and quality of proof necessary to sustain
a conviction for offences u/ss.7 or 13(1)(d)(i) and (ii) of the Act,
when the direct evidence of the complainant or "primary evidence"
of the complainant is unavailable owing to his death or any other
reason - Proof of demand and acceptance of illegal gratification
by a public servant as a fact in issue by the prosecution is a sine
qua non in order to establish the guilt of the accused public servant
u/ss.7 and 13 (1)(d) (i) and (ii) of the Act - Prosecution has to first
prove the demand of illegal gratification and the subsequent
acceptance as a matter of fact and the same can be proved by
direct evidence - The proof of demand and acceptance of illegal
gratification can also be proved by circumstantial evidence in the
absence of direct oral and documentary evidence, if such
circumstantial evidences corroborates the foundational fact of
demand and acceptance of illegal gratification.
Prevention of Corruption Act 1988: s.20 - Scope of
Presumption used therein - s.20 envisages the law regarding the
presumption where public servant accepts gratification other than
[2022] 5 S.C.R. 104
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legal remuneration - The expression used therein is "shall presume"
which is legal or compulsory presumption - The said provision deals
with a legal presumption which is in the nature 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
- It does not say that the said condition should be satisfied through
direct evidence but the only requirement is that it must be proved
that the accused has accepted or agreed to accept gratification.
Evidence Act, 1872: s.3 - Word "Fact" - "Factum Probandum
& Factum Probans" - Classification and Connection - Fact consists
of state of things, events or mental state - The principal fact (factin-issue) constitutes Factum Probandum whereas the evidentiary fact
(relevant fact) constitute Factum Probans - Facts relevant to the
issue are evidentiary fact which render probable the existence or
non-existence of fact-in-issue or some other relevant fact.
Evidence Act, 1872: s.3 - Word "Evidence" - Scope - Evidence
may include the actual words of witnesses, or documents produced
- The term evidence is not restricted to only oral and documentary
evidence but also to other things like material objects, the demeanour
of the witnesses, facts of which judicial notice could be taken,
admissions of parties, local inspection made and answers given by
the accused to questions put forth by the Magistrate or Judge u/
s.313 of the Criminal Procedure Code.
Evidence Act, 1872 - ss. 3, 59, 60, 61 - Classification of
Evidence - Evidence may be classified as direct evidence (original
evidence) and indirect evidence (substantial evidence) - Direct
Evidence establishes the existence of a thing or fact either by actual
production or by testimony or demonstrable declaration of someone
who has himself perceived it and the same is devoid of any room
for inference or presumption - Indirect Evidence gives rise to the
logical inference that a fact-in-issue exists, either conclusively or
presumptively - Direct Evidence may constitute either oral or
documentary evidence - Indirect evidence may constitute evidence
which is circumstantial in nature.
Evidence Act, 1872: s.60 - Oral Evidence - Classification
and Scope - Oral Evidence can be either original or hearsay in
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)
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nature - It is original if it is given by the person who himself have
seen or heard something through his own senses - Hearsay Evidence
could be called as derivative, transmitted or second-hand evidence
in which a witness is merely reporting what he had not himself seen
or heard but have learnt from some third person - Oral Evidence is
also sub-categorized as Primary and Secondary evidence - Former
is an oral account of the original evidence while latter is a report
or an oral account of the original evidence or a copy of a document
or a model of the original thing - As per the mandate of s.60, the
oral evidence must be direct or positive.
Evidence Act, 1872: Word "Hearsay evidence" - Scope -
The expression "hearsay evidence" is not defined under the Evidence
Act - Hearsay evidence is inadmissible to prove a fact which is
deposed to on hearsay, but it does not necessarily preclude evidence
as to a statement having been made upon which certain action was
taken or certain results followed such as evidence of an informant
of the crime.
Evidence Act, 1872: ss. 59, 61, 62, 63, 64, 65, 66, 67(2), 78
- Documentary Evidence - Classification and scope - As per the
mandate of s.59 contents of document cannot be proved by oral
evidence - Documentary evidences are to be proved by production
of documents themselves or, in their absence, by secondary evidence
u/s.65 of the Act - s.61 permits proof of contents of document by
primary or by secondary evidence - As per s.62, primary evidence
mean when the document itself is produced for inspection of the
court - For an evidence to be a secondary evidence for proving the
contents of the document, it must be of the kind as specified u/s.63
- As per the mandate of s.64 document must be proved by adducing
primary evidence, except in the cases mentioned u/s.65 - The policy
of law is that primary evidence is the best evidence and it affords
the greatest certainty of the fact in question and it is only when the
absence of the primary source has been satisfactorily explained
that secondary evidence is permissible to prove the contents of
documents.
Evidence Act, 1872: ss. 4, 114 - Law regarding presumptions
- Word "May Presume, Shall Presume, Conclusive Proof" - Factual
Presumption or discretionary presumption come under "May
Presume" and in this case facts may be proved either by adducing
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evidence or the court may presume the existence of a fact - Legal
Presumption or Compulsory Presumption come under "shall
presume" and once it is declared by the law that the court shall
presume the existence of a fact, then the court is under obligation
to presume such fact unless such presumption is displaced by
adducing evidence contrary to such presumption - Conclusive proof
is a strict declaration of law and once a fact is declared to be a
conclusive proof of the other, then the court shall not allow the
evidence to be adduced to misplace such presumption - The
presumption as contemplated by s.114 is a discretionary presumption.
Evidence Act, 1872: Chapter 7 - Burden of Proof - The phrase
"burden of proof" has two meanings one, the burden of proof as a
matter of law and pleading and the other, the burden of establishing
a case; the former is fixed as a question of law on the basis of the
pleadings and is unchanged during the entire trial, whereas the
latter is not constant but shifts as soon as a party adduces sufficient
evidence to raise a presumption in his favour.
Evidence Act, 1872: Hostile Witness - Admissibility of
Evidence - Settled Legal Position - Even if a witness is treated as
"hostile" and is cross-examined, his evidence cannot be written off
altogether but must be considered with due care and circumspection
and that part of the testimony which is creditworthy must be
considered and acted upon.
Answering the Reference petition, the Court
HELD: 1. Congruent to the principle of res gestae, a fact
includes a state of things or events as well as the mental state
i.e. intention or animus. A fact in law of evidence includes the
factum probandum i.e., the principal fact to be proved and the
factum probans, i.e., the evidentiary fact from which the principal
fact follows immediately or by inference. On the other hand, the
expression "fact in issue" means the matters which are in dispute
or which form the subject of investigation. It is well settled that
evidence is upon facts pleaded in a case and hence, the principal
facts are sometimes the facts in issue. Facts relevant to the issue
are evidentiary facts which render probable the existence or nonexistence of a fact in issue or some relevant fact. [Para 30,
31][144-C-E]
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2. In criminal cases, the facts in issue are constituted in
the charge, or acquisition, in cases of warrant or summon cases.
The proof of facts in issue could be oral and documentary
evidence. Evidence is the medium through which the court is
convinced of the truth or otherwise of the matter under enquiry,
i.e., the actual words of witnesses, or documents produced and
not the facts which have to be proved by oral and documentary
evidence. Of course, the term evidence is not restricted to only
oral and documentary evidence but also to other things like
material objects, the demeanour of the witnesses, facts of which
judicial notice could be taken, admissions of parties, local
inspection made and answers given by the accused to questions
put forth by the Magistrate or Judge under Section 313 of the
Criminal Procedure Code (CrPC). [Para 32][144-E-G]
3. "Direct" or "original" evidence means that evidence
which establishes the existence of a thing or fact either by actual
production or by testimony or demonstrable declaration of
someone who has himself perceived it, and believed that it
established a fact in issue. Direct evidence proves the existence
of a fact in issue without any inference of presumption. On the
other hand, "indirect evidence" or "substantial evidence" gives
rise to the logical inference that such a fact exists, either
conclusively or presumptively. The effect of substantial evidence
under consideration must be such as not to admit more than one
solution and must be inconsistent with any explanation that the
fact is not proved. By direct or presumptive evidence
(circumstantial evidence), one may say that other facts are proved
from which, existence of a given fact may be logically inferred.
[Para 33][144-G-H; 145-A-B]
4. Oral evidence can be classified as original and hearsay
evidence. Original evidence is that which a witness reports himself
to have seen or heard through the medium of his own senses.
Hearsay evidence is also called derivative, transmitted, or
second-hand evidence in which a witness is merely reporting not
what he himself saw or heard, and not what has come under the
immediate observation of his own bodily senses, but what he has
learnt in respect of the fact through the medium of a third person.
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Normally, a hearsay witness would be inadmissible, but when it is
corroborated by substantive evidence of other witnesses, it would
be admissible. [Para 34][145-C-D]
5. Evidence that does not establish the fact in issue directly
but throws light on the circumstances in which the fact in issue
did not occur is circumstantial evidence (also called inferential
or presumptive evidence). Circumstantial evidence means facts
from which another fact is inferred. Although circumstantial
evidence does not go to prove directly the fact in issue, it is
equally direct. Circumstantial evidence has also to be proved by
direct evidence of the circumstances. [Para 35][145-E-F]
6. Section 59 of the Evidence Act states that all facts, except
the contents of documents or electronic records, may be proved
by oral evidence. Oral evidence means the testimony of living
persons examined in the presence of the court or commissioners
appointed by the court, deaf and dumb persons may also adduce
evidence by signs or through interpretation or by writing, if they
are literate. Documentary evidences, on the other hand, are to
be proved by the production of the documents themselves or, in
their absence, by secondary evidence under Section 65 of the
Act. Further, facts showing the existence of any state of mind,
such as intention, knowledge, good faith, negligence, or ill will
need not be proved by direct testimony. It may be proved
inferentially from conduct, surrounding circumstances, etc. [Para
36, 37][145-G-H; 146-A-B]
7. Section 60 of the Evidence Act requires that oral
evidence must be direct or positive. Direct evidence is when it
goes straight to establish the main fact in issue. The word "direct"
is used in juxtaposition to derivative or hearsay evidence where
a witness gives evidence that he received information from some
other person. If that person does not, himself, state such
information, such evidence would be inadmissible being hearsay
evidence. On the other hand, forensic procedure as circumstantial
or inferential evidence or presumptive evidence (Section 3) is
indirect evidence. It means proof of other facts from which the
existence of the fact in issue may be logically inferred. In this
context, the expression "circumstantial evidence" is used in a
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loose sense as, sometimes, circumstantial evidence may also be
direct. Although the expression "hearsay evidence" is not defined
under the Evidence Act, it is, nevertheless, in constant use in
the courts. However, hearsay evidence is inadmissible to prove
a fact which is deposed to on hearsay, but it does not necessarily
preclude evidence as to a statement having been made upon
which certain action was taken or certain results followed such
as evidence of an informant of the crime. At this stage, it must be
distinguished that even with regard to oral evidence, there are
sub-categories - primary evidence and secondary evidence.
Primary evidence is an oral account of the original evidence i.e.,
of a person who saw what happened and gives an account of it
recorded by the court, or the original document itself, or the
original thing when produced in court. Secondary evidence is a
report or an oral account of the original evidence or a copy of a
document or a model of the original thing. [Para 39, 40, 41][146D-H]
8. Section 61 deals with proof of contents of documents
which is by either primary or by secondary evidence. When a
document is produced as primary evidence, it will have to be
proved in the manner laid down in Sections 67 to 73 of the
Evidence Act. Mere production and marking of a document as
an exhibit by the court cannot be held to be due proof of its
contents. Its execution has to be proved by admissible evidence.
On the other hand, when a document is produced and admitted
by the opposite party and is marked as an exhibit by the court,
the contents of the document must be proved either by the
production of the original document i.e., primary evidence or by
copies of the same as per Section 65 as secondary evidence. So
long as an original document is in existence and is available, its
contents must be proved by primary evidence. It is only when
the primary evidence is lost, in the interest of justice, the
secondary evidence must be allowed. Primary evidence is the
best evidence and it affords the greatest certainty of the fact in
question. Thus, when a particular fact is to be established by
production of documentary evidence, there is no scope for leading
oral evidence. What is to be produced is the primary evidence
i.e., document itself. It is only when the absence of the primary
source has been satisfactorily explained that secondary evidence
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is permissible to prove the contents of documents. Secondary
evidence, therefore, should not be accepted without a sufficient
reason being given for non-production of the original. [Para
42][147-A-E]
9. Section 62 of the Evidence Act defines primary evidence
to mean the documents itself produced for the inspection of the
court. If primary evidence is available, it would exclude secondary
evidence. Section 63 of the Evidence Act deals with secondary
evidence and defines what it means and includes. Section 63
mentions five kinds of secondary evidence, namely, - (i) Certified
copies given under the provisions hereinafter contained; (ii)
Copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared
with such copies; (iii) Copies made from or compared with the
original; (iv) Counterparts of documents as against the parties
who did not execute them; (v) Oral accounts of the contents of a
document given by some person who has himself seen it. [Para
43][147-E-H; 148-A]
10. Section 64 of the Evidence Act states that documents
must be proved by primary evidence except in certain cases
mentioned above. Once a document is admitted, the contents of
that document are also admitted in evidence, though those
contents may not be conclusive evidence. Moreover, once certain
evidence is conclusive it shuts out any other evidence which would
detract from the conclusiveness of that evidence. There is a
prohibition for any other evidence to be led which may detract
from the conclusiveness of that evidence and the court has no
option to hold the existence of the fact otherwise when such
evidence is made conclusive. Thus, once a document has been
properly admitted, the contents of the documents would stand
admitted in evidence, and if no objection has been raised with
regard to its mode of proof at the stage of tendering in evidence
of such a document, no such objection could be allowed to be
raised at any later stage of the case or in appeal. [Para 44][148B-D]
11. Courts are authorised to draw a particular inference
from a particular fact, unless and until the truth of such inference
is disproved by other facts. The court can, under Section 4 of the
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Evidence Act, raise a presumption for purposes of proof of a fact.
It is well settled that a presumption is not in itself evidence but
only makes a prima facie case for a party for whose benefit it
exists. As per English Law, there are three categories of
presumptions, namely, (i) presumptions of fact or natural
presumption; (ii) presumption of law (rebuttable and
irrebuttable); and (iii) mixed presumptions i.e., "presumptions
of mixed law and fact" or "presumptions of fact recognised by
law". The expression "may presume" and "shall presume" in
Section 4 of the Evidence Act are also categories of presumptions.
Factual presumptions or discretionary presumptions come under
the division of "may presume" while legal presumptions or
compulsory presumptions come under the division of "shall
presume". "May presume" leaves it to the discretion of the court
to make the presumption according to the circumstances of the
case but "shall presume" leaves no option with the court, and it
is bound to presume the fact as proved until evidence is given to
disprove it, for instance, the genuineness of a document
purporting to be the Gazette of India. The expression "shall
presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of
the Evidence Act. [Para 46][148-F-H; 149-A-B]
12. Section 20 of the Act deals with presumption where
public servant accepts gratification other than legal remuneration.
It uses the expression "shall be presumed" in sub-section (1)
and sub-section (2) unless the contrary is proved. The said
provision deals with a legal presumption which is in the nature 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 a
legal presumption under Section 20 of the Act is that during trial,
it should be proved that the accused had 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. [Para 48][149-E-G]
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13. A presumption under Section 114 of the Evidence Act
is discretionary in nature inasmuch as it is open to the court to
draw or not to draw a presumption as to the existence of one fact
from the proof of another fact. This is unlike a presumption under
Section 4(1) of the 1947 Act or Section 20 of the Act where the
court has to draw such presumption, if a certain fact is proved,
that is, where any illegal gratification has been received by an
accused. In such a case the presumption that has to be drawn
that the person received that thing as a motive of reward.
Therefore, the court has no choice in the matter, once it is
established that the accused has received a sum of money which
was not due to him as a legal remuneration. Of course, it is open
to the accused to show that though that money was not due to
him as a legal remuneration it was legally due to him in some
other manner or that he had received it under a transaction or an
arrangement which is lawful. The burden resting on the accused
in such a case would not be as light as it is where a presumption
is raised under Section 114 of the Evidence Act and cannot be
held to be discharged merely by reason of the fact that the
explanation offered by the accused is reasonable and probable.
It must further be shown that the explanation is a true one. The
words "unless the contrary is proved" which occur in this
provision make it clear that the presumption has to be rebutted
by "proof" and not by a bare explanation which is merely plausible.
A fact is said to be proved when its existence is directly
established or when upon the material brought before it, the Court
finds its existence to be so probable that a reasonable man would
act on the supposition that it exists. Unless, therefore, the
explanation is supported by proof, the presumption created by
the provision cannot be said to be rebutted. [Para 50][150-C-H]
14. As opposed to the expressions "may presume" and
"shall presume", the expression "conclusive proof" is also used
in Section 4 of the Evidence Act. When the law says that a
particular kind of evidence would be conclusive, that fact can be
proved either by that evidence or by some other evidence that
the court permits or requires. When evidence which is made
conclusive is adduced, the court has no option but to hold that
the fact exists. For instance, the statement in an order of the
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court is conclusive of what happened before the presiding officer
of the court. Thus, conclusive proof gives an artificial probative
effect by the law to certain facts. No evidence is allowed to be
produced with a view to combat that effect. When a statute makes
certain facts final and conclusive, evidence to disprove such facts
is not to be allowed. [Para 52][151-B-D]
15. All evidence let in before the court of law are classified
either as direct or circumstantial evidence. "Direct evidence"
means when the principal fact is attested directly by witnesses,
things or documents. For all other forms, the term "circumstantial
evidence" which is "indirect evidence" is referred, whether by
witnesses, things or documents, which can be received as
evidence. This is also of two kinds namely, conclusive and
presumptive. Conclusive is when the connection between the
principal and evidentiary facts - the factum probandum and factum
probans - is a necessary consequence of the laws of nature;
"presumptive" is when the inference of the principal fact from
the evidence is only probable, whatever be the degree of
persuasion which it may generate. Thus, circumstantial evidence
is evidence of circumstances as opposed to what is called direct
evidence. The prosecution must take place and prove all
necessary circumstances constituting a complete chain without a
snap and pointing to the hypothesis that except the accused, no
one had committed the offence. [Para 53][151-E-G]
16. Proof of demand and acceptance of illegal gratification
by a public servant as a fact in issue by the prosecution is a sine
qua non in order to establish the guilt of the accused public servant
under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. 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 proved
either by direct evidence which can be 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 and documentary evidence. [Para 68][158-E-F]
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17. There is no conflict in the three judge Bench decisions
of this Court in B. Jayaraj and P. Satyanarayana Murthy with the
three judge Bench decision in M. Narasinga Rao, with regard to
the nature and quality of proof necessary to sustain a conviction
for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act,
when the direct evidence of the complainant or "primary
evidence" of the complainant is unavailable owing to his death or
any other reason. [Para 69][160-E-F]
Subash Parbat Sonvane v. State of Gujarat (2002) 5
SCC 86 : [2002] 3 SCR 359; Ram Krishan v. State of
Delhi AIR 1956 SC 476 : [1956] SCR 182; C.K.
Damodaran Nair v. Government of India (1997) 9 SCC
477 : [1997] 1 SCR 107; B. Jayaraj v. State of Andhra
Pradesh (2014) 13 SCC 55 ("B. Jayaraj") : [2014] 4
SCR 554; P. Satyanarayana Murthy v. D. Inspector of
Police, State of A.P. (2015) 10 SCC 152; M. Narsinga
Rao v. State of A.P. (2001) 1 SCC 691 : [2000] 5 Suppl.
SCR 584; A. Subair v. State of Kerala (2009) 6 SCC
587 : [2009] 9 SCR 1058; State of Kerala v. C.P. Rao
(2011) 6 SCC 450 : [2011] 6 SCR 864; Suresh
Budharmal Kalani v. State of Maharashtra (1998) 7
SCC 337 : [1998] 1 Suppl. SCR 608; Hazari Lal v.
State (Delhi Admn.) (1980) 2 SCC 390 : [1980] 2 SCR
1053; Kishan Chand Mangal v. State of Rajasthan
(1982) 3 SCC 466 : [1983] 1 SCR 569; K. Shanthamma
v. State of Karnataka (2022) 4 SCC 574; State of U.P.
v. Ram Asrey (1990) Suppl. SCC 12; Mukhtiar Singh v.
State of Punjab (2017) 8 SCC 136 : [2017] 8 SCR 109;
M. R. Purushotam v. State of Karnataka (2015) 3 SCC
247; C. M. Sharma v. State of Andhra Pradesh (2010)
15 SCC 1 : [2010] 13 SCR 1105; State of Maharashtra
v. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC
200 : [2009] 11 SCR 513; Sukumaran v. State of Kerala
(2015) 11 SCC 314; Sunkanna v. State of Andhra
Pradesh (2016) 1 SCC 713 : [2015] 12 SCR 882; State
of Madhya Pradesh v. Ram Singh (2000) 5 SCC 88 :
[2000] 1 SCR 579; State of Rajasthan v. Babu Meena
(2013) 4 SCC 206; Amarjit Singh v. State (Delhi Admn.)
1995 Cr LJ 1623 (Del); Kumar Exports v. Sharma
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Carpets (2009) 2 SCC 513 : [2008] 17 SCR 572;
Krishna Janardhan Bhat v. Dattatraya G Hegde (2008)
4 SCC 54 : [2008] 1 SCR 605; State of Madras v. A.
Vaidyanatha Iyer AIR 1958 SC 61 : [1958] SCR 580;
Dhanvantrai Balwantrai Desai v. State of Maharashtra
AIR 1964 SC 575 : [1963] Suppl. SCR 485;
Navaneethakrishnan v. State by Inspector of Police AIR
2018 SC 2027 : [2018] 6 SCR 749; Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 : [1985] 1 SCR 88; Prakash v. State of
Rajasthan (2013) 4 SCC 668 : [2013] 2 SCR 458;
Kundan Lal Rallaram v. The Custodian, Evacuee
Property Bombay AIR 1961 SC 1316; Madhukar
Bhaskarrao Joshi v. State of Maharashtra (2000) 8 SCC
571 : [2000] 4 Suppl. SCR 475; State v. Dr. Anup Kumar
Srivastava (2017) 15 SCC 560 : [2017] 9 SCR 341;
State of Andhra Pradesh v. V. Vasudeva Rao (2004) 9
SCC 319 : [2003] 5 Suppl. SCR 500; State of Andhra
Pradesh v. P. Venkateshwarlu (2015) 7 SCC 283 :
[2015] 6 SCR 262; Selvaraj v. State of Karnataka
(2015) 10 SCC 230 : [2015] 9 SCR 381; Nayan Kumar
Shivappa Waghmare v. State of Maharashtra (2015) 11
SCC 213 : [2015] 2 SCR 171; Prakash Chand v. State
(Delhi Admn.) (1979) 3 SCC 90 : [1979] 2 SCR 330;
Sat Paul v. Delhi Administration (1976) 1 SCC 727 :
[1976] 2 SCR 11; Swatantar Singh v. State of Haryana
(1997) 4 SCC 14 : [1997] 2 SCR 639; A.B. Bhaskara
Rao v. CBI (2011) 10 SCC 259 : [2011] 12 SCR 718;
State of M.P. v. Shambhu Dayal (2006) 8 SCC 693 :
[2006] 8 Suppl. SCR 319 - referred to.
Case Law Reference
[2002] 3 SCR 359
referred to
Para 6
[1956] SCR 182
referred to
Para 6
[1997] 1 SCR 107
referred to
Para 8
[2014] 4 SCR 554
referred to
Para 9
[2000] 5 Suppl. SCR 584
referred to
Para 9
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[2009] 9 SCR 1058
referred to
Para 10b(iv)
[2011] 6 SCR 864
referred to
Para 10b(iv)
[1998] 1 Suppl. SCR 608
referred to
Para 10c(iii)
[1980] 2 SCR 1053
referred to
Para 10c(v)
[1983] 1 SCR 569
referred to
Para 14(viii)
[2017] 8 SCR 109
referred to
Para 15
[2010] 13 SCR 1105
referred to
Para 15
[2009] 11 SCR 513
referred to
Para 15
[2015] 12 SCR 882
referred to
Para 15
[2000] 1 SCR 579
referred to
Para 23
[2008] 17 SCR 572
referred to
Para 47
[2008] 1 SCR 605
referred to
Para 47
[1958] SCR 580
referred to
Para 49
[1963] Suppl. SCR 485
referred to
Para 50
[2018] 6 SCR 749
referred to
Para 53
[1985] 1 SCR 88
referred to
Para 55
[2013] 2 SCR 458
referred to
Para 55
[2000] 4 Suppl. SCR 475
referred to
Para 57
[2017] 9 SCR 341
referred to
Para 58
[2003] 5 Suppl. SCR 500
referred to
Para 59(i)
[2015] 6 SCR 262
referred to
Para 59(ii)
[2015] 9 SCR 381
referred to
Para 59(iii)
[2015] 2 SCR 171
referred to
Para 61
[1979] 2 SCR 330
referred to
Para 62
[1976] 2 SCR 11
referred to
Para 66
[1997] 2 SCR 639
referred to
Para 71
[2011] 12 SCR 718
referred to
Para 71
[2006] 8 Suppl. SCR 319
referred to
Para 71
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1669 of 2009.
From the Judgment and Order dated 02.04.2009 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 4 of 2007.
With
SLP (Crl.) No. 6497 of 2020, SLP (Crl.) No. 294 of 2022, Criminal
Appeal Nos. 1779 and 2136 of 2010, Diary No. 27232 of 2019, SLP
(Crl.) No. 11339 of 2019, SLP (Crl.) No. 3828 of 2020, SLP (Crl.) No.
5905 of 2021, SLP (Crl.) No. 6279 of 2020, Criminal Appeal Nos. 678
and 1490 of 2021, Criminal Appeal No. 1592 of 2022.
Ms. Aishwarya Bhati, Jayant K. Sud, ASGs, Saurabh Mishra,
AAG, Ardhendumauli Kumar Prasad, Addl. A.G., S. Nagamuthu, Basava
Prabhu S. Patil, M. Karpaga Vinayagam, Sushil Kumar Jain, Ms. Kiran
Suri, Ms. Sonia Mathur, Sr. Advs., Satinder S. Gulati, Raj Kishor
Choudhary, A.S. Vairawan, R. Sudhakaran, G.R. Vikash, D. Subrahmanya
Bhanu, Rohan Singh, Ms. Shalini Mishra, Kamaldeep Gulati, M. P.
Parthiban, T. Hari Hara Sudhan, G. Mani Prabhu, C. Santhosh,
Ms. Pushpita Basak, Geet Ahuja, Samarth Kashyap, Anirudh Sanganeria,
K. V. Muthu Kumar, Nitin Kumar, Deepak Sharma, C. Aravind,
Ms. Christi Jain, Puneet Jain, Dr. Ajay Kumar, Kaushal Yadav, Dr. Sushil
Balwada, Ram Kishor Singh Yadav, Nand Lal Kumar Mishra, Umang
Mehta, Harsh Jain, Ms. Yashoda Katiyar, Shafik Ahmad, Vikrant Yadav,
Arjun Raghuvanshi, Santosh Kumar, Ms. Shweta Yadav, Prithvi Pal,
Sawan Kumar Shukla, Anil Sharma, Roy Abraham, Ms. Reena Roy,
Akhil Abraham, Yaudhinder Lal, Ms. Purva, Himinder Lal, Raghenth
Basant, Ms. Liz Mathew, Ms. Roopali Lakhotia, Ajay Krishna, B. Balaji,
Mallikarjun S. Mylar, Bammappanavar K. S., Haribansh Manav, Ashok
Bannidinni, Gagan Gupta, Ananta Prasad Mishra, Deepak Kumar Jain,
Anil S. P., Nikhil D. Kamath, Pavan R. Javali, Sunil M. V., Vinayak
Kulkarni, Somashekar Narayana, Uday Urs, Parnam Prabhakar, S.J.
Amith, Syed Ahmad Naqvi, Sanjeev Kumar, Dr. Sumant Bharadwaj,
Vedant Bharadwaj, Ms. Mridula Ray Bharadwaj, M/S Bannidinni and
Co., Ms. Rukhmini Bobde, Ms. Snidha Mehra, Sanjay Kr. Tyagi, Adit
Khorana, Shubranshu Padhi, Udai Khanna, Ms. Manisha Chava,
Ms. Kanika, Ms. Shivika Mehra, Manvendra Singh, Abhijeet Singh,
Ms. Poornima Singh, Ms. B.L.N. Shivani, Aman Sharma, Kartik Jasra,
Randeep Sachdeva, Ms. Shreya Jain, Harish Nadda, Shivam Jasra,
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Gurmeet Singh Makker, Ajay Pal, Harsh Parashar, Nishe Rajen Shonker,
Ms. Anu K. Joy, Alim Anvar, Dr. Joseph Aristotle S., Ms. Nupur Sharma,
Shobhit Bhardwaj, Sanjeev Kr. Mahara, Ms. Vaidehi Rastogi, Abhinav
Shrivastava, Sunny Choudhary, Sandeep Sharma, Shivang Rawat,
Ms. Radhika Jalan, Mahfooz A.Naski, Polanki Gowtham, Shaik
Mohamad Haneef, T. Vijaya Bhaskar Reddy, K.V. Girish Chowdary,
Ms. Rajeswari Mukherjee, Ms. Niti Richhariya Advs. for the appearing
parties.
The Judgment of the Court was delivered by
NAGARATHNA, J.
By Order dated 27.08.2019, a Three Judge Bench of this court
has referred the question of law framed to be decided by a Bench of
appropriate strength. That is how this batch of cases has been referred
to the Constitution Bench comprising of five judges by Hon'ble the Chief
Justice of India. For easy reference, the Order of Reference dated
27.08.2019 is extracted as under:
"O R D E R
1.
The present reference, concerning the Prevention of
Corruption Act, 1988, arises out of the order dated
28.02.2019, passed by a two-judge bench of this Court,
wherein they expressed certain doubts as to the validity of
the position of law as expounded by this Court in the case
of P.Satyanarayana Murthy vs. District Inspector of
Police, State of Andhra Pradesh and another, (2015) 10
SCC 152. In that case, the Court held that, in the absence of
primary evidence of the complainant due to his death,
inferential deductions in order to sustain a conviction under
Sections 7 and 13(1)(d)(i) and (ii) of the Prevention of
Corruption Act, 1988 was impermissible in law.
2.
However, the Court, vide order dated 28.02.2019, highlighted
a number of judgments, such as Kishan Chand Mangal
vs. State of Rajasthan, (1982) 3 SCC 466; Hazari Lal vs.
State (Delhi Administration), (1980) 2 SCC 390; and
M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691,
wherein this Court, despite the absence of primary evidence
of the complainant, sustained the conviction of the accused
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by relying on other evidence, and raising a presumption under
the statute.
3.
Noting the divergence in the treatment of the evidentiary
requirement for proving the offence under Sections 7 and
13(1) (d) read with Section 13(2), Prevention of Corruption
Act, 1988, the Court referred the following question of a
law for determination by a larger bench:
"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."
4.
Heard learned senior counsels for the parties at length.
5.
We note that two three-judge benches of this Court, in the
cases of B. Jayaraj vs. State of Andhra Pradesh, (2014)
13 SCC 55; and P.Satyanarayana Murthy vs. 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 vs. 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.
6.
We therefore consider it appropriate to refer the question
of law framed to be decided by a bench of appropriate
strength. The Registry is directed to place the papers before
the Chief Justice of India for appropriate orders."
2. Thus, the moot question that arises for answering the reference
is, 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. This is because in the absence of proof
of demand, a legal presumption under Section 20 of the Prevention of
Corruption Act, 1988 (for short 'the Act') would not arise. Thus, the
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proof of demand is a sine qua non for an offence to be established
under Sections 7, 13(1)(d)(i) and (ii) of the Act and de hors the proof of
demand the offence under the two sections cannot be brought home.
Thus, mere acceptance of any amount allegedly by way of illegal
gratification or recovery thereof in the absence of proof of demand would
not be sufficient to bring home the charge under Sections 7, 13(1)(d)(i)
and (ii) of the Act. Hence, the pertinent question is, as to how demand
could be proved in the absence of any direct evidence being let in by the
complainant owing to the complainant not supporting the complaint or
turning "hostile" or the complainant not being available on account of his
death or for any other reason. In this regard, it is necessary to discuss
the relevant Sections of the Evidence Act before answering the question
for reference.
Relevant provisions of the Act
3. Before proceeding further, it would be useful to refer to the
relevant provisions of the Act. Sections 7,13(1)(d)(i) and (ii) and 20 of
the Act as they stood prior to their amendments are extracted as under:
7. Public servant taking gratification other than legal
remuneration in respect of an official act.- Whoever, being,
or expecting to be a public servant, accepts or obtains or agrees
to accept or attempts to obtain from any person, for himself or for
any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do
any official act or for showing or forbearing to show, in the exercise
of his official functions, favour or disfavour to any person or for
rendering or attempting to render any service or disservice to any
person, with the Central Government or any State Government or
Parliament or the Legislature of any State or with any local
authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or
otherwise, shall be punishable with imprisonment which shall be
not less than six months but which may extend to seven years and
shall also be liable to fine.
Explanations -(a) "Expecting to be a public servant". If a person
not expecting to be in office obtains a gratification by deceiving
others into a belief that he is about to be in office, and that he will
then serve them, he may be guilty of cheating, but he is not guilty
of the offence defined in this section.
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)
[B. V.