Holding

In the absence of the complainant’s direct evidence, it is permissible to draw an inferential deduction of culpability under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act based on other evidence adduced by the prosecution.

Summary

The case concerned an appeal by Neeraj Dutta against the State under the Prevention of Corruption Act, 1988, where the prosecution alleged that the public servant had demanded and accepted illegal gratification. The central issue was whether, in the absence of the complainant’s direct or primary evidence of demand, the court could infer guilt under Sections 7 and 13(1)(d) read with Section 13(2) based on other evidence. The Court examined the nature of direct, indirect and circumstantial evidence under the Evidence Act, 1872, and the operation of the statutory presumption in Section 20 of the Corruption Act. It held that proof of demand and acceptance is a sine qua non, but such proof may be established by oral, documentary or circumstantial evidence, and an inferential deduction is permissible when primary evidence is unavailable. Consequently, the reference was answered affirmatively, allowing convictions to be sustained on inferential evidence, and the matter was remitted for further consideration by the appropriate bench.

Issues considered

The admissibility of inferential deductions of guilt under Sections 7 and 13(1)(d) of the Prevention of Corruption Act when the complainant's direct evidence of demand is unavailable.
The scope and applicability of the legal presumption under Section 20 of the Act in the absence of primary evidence.
The role of circumstantial evidence and factual presumptions under the Evidence Act in proving demand and acceptance of illegal gratification.

Legislation cited

Indian Evidence Act, 1872s. 114, s. 154, s. 3, s. 4, s. 59, s. 60, s. 61, s. 62, s. 63, s. 64, s. 65, s. 66, s. 67
Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 20, s. 7

Subjects

Prevention of Corruption ActSection 7Section 13(1)(d)Section 20Indian Evidence Actdirect evidencecircumstantial evidencelegal presumptionhostile witnessinferential deductionproof of demand

Judgment

104 [2022]REPORTS
SUPREME COURT 5 S.C.R. 104 [2022] 5 S.C.R.

A NEERAJ DUTTA
v.
STATE (GOVT. OF N.C.T. OF DELHI)
(Criminal Appeal No. 1669 of 2009)
B 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/
C
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 –
D
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
E 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
F
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
G 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
H presumption where public servant accepts gratification other than
104
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 105

legal remuneration – The expression used therein is “shall presume” A
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
B
– 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 (fact- C
in-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 D
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 E
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 F
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 G
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
H
106 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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 –
C 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
D 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
E 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
F – 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
G 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
H Presume” and in this case facts may be proved either by adducing
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 107

evidence or the court may presume the existence of a fact – Legal A
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
B
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 C
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. D
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 E
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 F
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 G
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 non-
existence of a fact in issue or some relevant fact. [Para 30,
31][144-C-E]
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108 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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.
G 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.

H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 109

Normally, a hearsay witness would be inadmissible, but when it is A
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 B
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]
C
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 D
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 E
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 F
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 G
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
H
110 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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.,
C 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][146-
D-H]
D
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
E 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
F 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
G 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
H source has been satisfactorily explained that secondary evidence
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 111

is permissible to prove the contents of documents. Secondary A
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 B
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 C
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 D
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 E
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 F
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 G
raised at any later stage of the case or in appeal. [Para 44][148-
B-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 H
112 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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
C 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
D
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
E 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
F 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
G 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]

H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 113

13. A presumption under Section 114 of the Evidence Act A
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,
B
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 C
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
D
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 E
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
F
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 G
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
H
114 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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]
B
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
C 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;
D “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
E 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
F 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
G 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]

H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 115

17. There is no conflict in the three judge Bench decisions A
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
B
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 C
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. D
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 E
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; F
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 G
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 H
116 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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;
B
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;
C 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
D
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
E 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;
F
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
G [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
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 117

[2009] 9 SCR 1058 referred to Para 10b(iv) A
[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) B
[2017] 8 SCR 109 referred to Para 15
[2010] 13 SCR 1105 referred to Para 15
[2009] 11 SCR 513 referred to Para 15
C
[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
D
[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
E
[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) F
[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 G
[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 H
118 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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.
C
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
D 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
E 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,
F 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,
G 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,
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 119

Gurmeet Singh Makker, Ajay Pal, Harsh Parashar, Nishe Rajen Shonker, A
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,
B
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 C
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: D
“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 E
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, F
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
G
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
H
120 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B 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
C 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.
D 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
E 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.
F
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
G
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
H Corruption Act, 1988 (for short ‘the Act’) would not arise. Thus, the
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 121
[B. V. NAGARATHNA, J.]

proof of demand is a sine qua non for an offence to be established A
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)
B
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 C
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: D

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 E
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 F
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. G
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. H
122 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (b) ”Gratification”. The word “gratification” is not restricted to
pecuniary gratifications or to gratifications estimable in money.
(c) ”Legal remuneration”. The words “legal remuneration” are
not restricted to remuneration which a public servant can lawfully
demand, but include all remuneration which he is permitted by the
B Government or the organisation, which he serves, to accept.
(d) ”A motive or reward for doing”. A person who receives a
gratification as a motive or reward for doing what he does not
intend or is not in a position to do, or has not done, comes within
this expression.
C (e) Where a public servant induces a person erroneously to believe
that his influence with the Government has obtained a title for
that person and thus induces that person to give the public servant,
money or any other gratification as a reward for this service, the
public servant has committed an offence under this section.
D xxx xxx xxx
Section 13 – Criminal misconduct by a public servant. -
“(1) A public servant is said to commit the offence of criminal
misconduct, -
E a) …..
b) ….
c) ….
(d) if he,—
F (i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself
or for any other person any valuable thing or pecuniary advantage;
or
G
(iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
interest;
Explanation.- For the purposes of this section, “known sources
of income” means income received from any lawful source and
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 123
[B. V. NAGARATHNA, J.]

such receipt has been intimated in accordance with the provisions A
of any law, rules or orders for the time being applicable to a public
servant.”
xxx xxx xxx
Section 20 - Presumption where public servant accepts
gratification other than legal remuneration. - B

(1) Where, in any trial of an offence punishable under section 7 or
section 11 or clause (a) or clause (b) of sub-section (1) of section
13 it is proved that an accused person has accepted or obtained
or has agreed to accept or attempted to obtain for himself, or for
any other person, any gratification (other than legal remuneration) C
or any valuable thing from any person, it shall be presumed, unless
the contrary is proved, that he accepted or obtained or agreed to
accept or attempted to obtain that gratification or that valuable
thing, as the case may be, as a motive or reward such as is
mentioned in section 7 or, as the case may be, without consideration D
or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12
or under clause (b) of section 14, it is proved that any gratification
(other than legal remuneration) or any valuable thing has been
given or offered to be given or attempted to be given by an accused E
person, it shall be presumed, unless the contrary is proved, that he
gave or offered to give or attempted to give that gratification or
that valuable thing, as the case may be, as a motive or reward
such as is mentioned in section 7, or as the case may be, without
consideration or for a consideration which he knows to be
inadequate. F
(3) Notwithstanding anything contained in sub-sections (1) and
(2), the court may decline to draw the presumption referred to in
either of the said sub-sections, if the gratification or thing aforesaid
is, in its opinion, so trivial that no inference of corruption may
fairly be drawn.” G
4. The following are the ingredients of Section 7 of the Act:
i) the accused must be a public servant or expecting to be a
public servant;
H
124 SUPREME COURT REPORTS [2022] 5 S.C.R.

A ii) he should accept or obtain or agrees to accept or attempts
to obtain from any person;
iii) for himself or for any other person;
iv) any gratification other than legal remuneration;
B v) as a motive or reward for doing or forbearing to do any
official act or to show any favour or disfavour.
5. Section 13(1)(d) of the Act has the following ingredients which
have to be proved before bringing home the guilt of a public servant,
namely, -
C (i) the accused must be a public servant;
(ii) by corrupt or illegal means, obtains for himself or for any
other person any valuable thing or pecuniary advantage; or
by abusing his position as public servant, obtains for himself
or for any other person any valuable thing or pecuniary
D advantage; or
while holding office as public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
interest.
iii) to make out an offence under Section 13(1)(d), there is no
E requirement that the valuable thing or pecuniary advantage
should have been received as a motive or reward.
iv) an agreement to accept or an attempt to obtain does not
fall within Section 13(1)(d).

F vi) mere acceptance of any valuable thing or pecuniary
advantage is not an offence under this provision.
vii) therefore, to make out an offence under this provision, there
has to be actual obtainment.
viii) since the legislature has used two different expressions
G namely “obtains” or “accepts”, the difference between these
two must be noted.
6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5
SCC 86 (“Subash Parbat Sonvane”), it was observed that mere
acceptance of money without there being any other evidence would not
H be sufficient for convicting the accused under Section 13(1)(d). In
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 125
[B. V. NAGARATHNA, J.]

Sections 7 and 13(1)(a) and (b) of the Act, the legislature has specifically A
used the word “accepts” or “obtains”. As against this, there is departure
in the language used in sub-section (1)(d) of Section 13 and it has omitted
the word “accepts” and has emphasized on the word “obtains”. In sub-
clauses (i), (ii) and (iii) of Section 13(1)(d), the emphasis is on the word
“obtains”. Therefore, there must be evidence on record that the accused
B
“obtains” for himself or for any other person, any valuable thing or
pecuniary advantage by either corrupt or illegal means or by abusing his
position as a public servant or that he obtained for any person any valuable
thing or pecuniary advantage without any public interest.
It was further observed with reference to Ram Krishan vs. state
of Delhi AIR 1956 SC 476 (“Ram Krishan”), that for the purpose of C
Section 13(1)(a) and (b) of the Act:
“It is enough if by abusing his position as a public servant a man
obtains for himself any pecuniary advantage, entirely irrespective
of motive or reward for showing favour or disfavour.”
D
7. Moreover, the statutory presumption under Section 20 of the
Act is available for the offence punishable under Sections 7 or 11 or
clauses (a) and (b) of sub-section (1) of section 13 and not for clause
(d) of sub-section (1) of Section 13.
8. Reliance could also be placed on C.K. Damodaran Nair vs. E
Government of India (1997) 9 SCC 477 (“C.K. Damodaran Nair”).
That was a case under the Prevention of Corruption Act, 1947 (‘1947
Act’ for the sake of convenience). Speaking of a charge under Section
7 of the Act, it was held that the prosecution was required to prove that:
(i) the appellant was a public servant at the material time; F
(ii) the appellant accepted or obtained a gratification other than
legal remuneration; and
(iii) the gratification was for illegal purpose.
While discussing the expression “accept”, it was observed that
“accept” means to take or receive with a “consenting mind”. Consent G
can be established not only by leading evidence of prior agreement but
also from the circumstances surrounding the transaction itself without
proof of such prior agreement. If an acquaintance of a public servant in
expectation and with the hope that in future, if need be, would be able to
get some official favour from him, voluntarily offers any gratification H
126 SUPREME COURT REPORTS [2022] 5 S.C.R.

A and if the public servant willingly takes or receives such gratification it
would certainly amount to “acceptance”. Therefore, it cannot be said,
as an abstract proposition of law, that without a prior demand, there
cannot be “acceptance”. The position will, however, be different so far
as an offence under Section 5(1)(d) read with Section 5(2) of the 1947
Act is concerned. Under the said Section, the prosecution has to prove
B
that the accused “obtained” the valuable thing or pecuniary advantage
by corrupt or illegal means or by otherwise abusing his position as a
public servant and that too without the aid of the statutory presumption
under Section 4(1) of the 1947 Act as it is available only in respect of
offences under Section 5(1)(a) and (b) and not under Section 5(1)(c),
C (d) or (e) of the 1947 Act. According to this Court, “obtain” means to
secure or gain (something) as a result of request or effort. In the case of
obtainment, the initiative vests in the person who receives and, in that
context, a demand or request from him will be a primary requisite for an
offence under Section 5(1)(d) of the 1947 Act unlike an offence under
Section 161 of the Indian Penal Code (for short, ‘IPC’)., which, can be,
D
established by proof of either “acceptance” or “obtainment”.
Conflict in the three decisions?
9. On a perusal of the Order of Reference, we find that it has
been discerned by a bench of three judges that there is a conflict in the
E decisions of two three-judge Benches of this Court in the cases of
B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55 (“B.
Jayaraj”); P. Satyanarayana Murthy vs. D. Inspector of Police,
State of A.P. (2015) 10 SCC 152 (“P. Satyanarayana Murthy”) with
the decision in M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691
(“M. Narsinga Rao”) with regard to the nature and quality of proof
F necessary to sustain a conviction under Section 7 and Section 13(2)
read with Section 13(1)(d) of the Act when the primary evidence of the
complainant is unavailable. Thus, in the absence of primary evidence of
the complainant due to his death or non-availability, is it permissible to
draw an inferential deduction of culpability/ guilt of a public servant under
G Section 7 and Section 13(2) read with Section 13(1)(d) of the Act based
on other evidence adduced by the prosecution, is the neat question which
is under consideration by this Constitution Bench.
Trilogy Of Cases:
10. Before proceeding further, it would be useful to consider in
H detail the judgments referred to in the Order of Reference.
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 127
[B. V. NAGARATHNA, J.]

(A) B. Jayaraj A
(i) In B.Jayaraj, PW-2 the complainant therein did not support
the prosecution case under Section 7 and Section 13(1)(d) (i)
and (ii) of the Act. The complainant therein disowned making
the complaint and had stated in his deposition that the amount
of Rs.250/- was paid to the accused with a request that the B
same may be deposited in the bank as fee for the renewal of
his licence. The complainant was not willing to support the
case of the prosecution. The complainant was therefore
declared “hostile”. This Court observed that the complainant
did not support the case of the prosecution insofar as demand
made by the accused for the bribe is concerned and the C
prosecution did not examine any other witness present at the
time when the money was allegedly handed over to the accused
by the complainant, to prove that the same was pursuant to
any demand made by the accused. When the complainant
had disowned what he had stated in the initial complaint and D
in the absence of any other evidence to prove that the accused
had made any demand, the evidence of the complainant therein
and the complaint (Exh. P-11) could not be relied upon to
come to the conclusion that the above material furnished proof
of the demand allegedly made by the accused. The only other
material available was the recovery of the tainted currency E
notes from the possession of the accused therein. It was
observed that mere possession and recovery of the currency
notes from the accused without proof of demand would not
bring home the offence under Section 7. Therefore, the use
of illegal means or abuse of position by a public servant to F
obtain any valuable thing or pecuniary advantage was not held
to be established insofar as the offence under Sections
13(1)(d)(i) and (ii) of the Act is concerned.
(ii) It was further observed that the presumption under Section
20 of the Act could not also be drawn in respect of an offence G
under Section 7 of the Act. That such a presumption could
have been drawn only if there was proof of acceptance of
illegal gratification for which proof of demand was a sine
qua non and as the same was lacking in the said case, the
primary facts on the basis of which the legal presumption
H
128 SUPREME COURT REPORTS [2022] 5 S.C.R.

A under Section 20 could be drawn were wholly absent.
Consequently, the conviction was set aside and appeal was
allowed.
(B) P. Satyanarayana Murthy
(i) In P. Satyanarayana Murthy, the fact was that during the
B trial of charges under Sections 7 and 13 (1)(d)(i) and (ii) and
Section 13(2) of the Act, the prosecution examined seven
witnesses and also adduced documentary evidence in support
of the charges. But the complainant therein had died prior
thereto and therefore, could not be examined by the
C prosecution. According to the complainant, he was disinclined
to pay the illegal gratification as demanded by the public
servant and hence had filed the complaint with the Deputy
Superintendent of Police, Anti-Corruption Bureau, Kurnool
and sought action against the appellant in the said case.
D (ii) This Court by placing reliance on B. Jayaraj observed that
mere possession and recovery of currency notes from the
accused without proof of demand would not establish an
offence under Sections 7 as well as 13 (1)(d)(i) and (ii) of the
Act. This is because proof of demand is a sine qua non or
an indispensable essentiality and a mandate for an offence
E under Sections 7 and 13(1)(d)(i) and (ii) of the Act. That proof
of acceptance of illegal gratification could follow only if there
was proof of demand. That proof of demand of illegal
gratification is the gravamen of the offence under Sections 7
and 13(1)(d)(i) and (ii) of the Act and in the absence thereof,
F the charge would thereby fail. In other words, mere acceptance
of any amount by way of illegal gratification or recovery
thereof dehors the proof of demand, ipso facto would not be
sufficient to bring home the charge under the said Sections of
the Act. It was observed that in the absence of proof of
demand, a legal presumption under Section 20 the Act would
G also not arise.
(iii) It was further observed that the material on record in the said
case when judged on the touchstone of the legal principle
discussed, left no doubt that the prosecution in the said case
had failed to prove unequivocally the demand of illegal
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 129
[B. V. NAGARATHNA, J.]

gratification and thus, the prosecution and the conviction of A
the appellant under Section 13(1)(d)(i) and (ii) read with section
13(2) of the Act was not sustainable.
(iv) In P. Satyanarayana Murthy, reference was made to two
cases, namely, A. Subair vs. State of Kerala (2009) 6 SCC
587 (“A. Subair”) and State of Kerala vs. C.P.Rao (2011) B
6 SCC 450 (“C.P.Rao”). In the first of the aforesaid two
cases, it was observed that the prosecution has to prove the
charge under Sections 7 and 13(1)(d) of the Act like in any
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 C
vital ingredients necessary to be proved to record a conviction.
In C.P. Rao, which is the second of the two cases referred to
in P. Satyanarayana Murthy, it was observed by this Court
that mere recovery by itself would not prove the charge against
the accused. In the absence of any evidence to prove the D
payment of bribe or to show that the accused had voluntarily
accepted the money knowing it to be bribe, the conviction
could not be sustained.
(v) Both the above judgments in B.Jayaraj and P.
Satyanarayana Murthy are rendered by Benches of Three E
Judges and in the Order of Reference, it is stated that the
same are in conflict with M. Narasinga Rao which is also a
judgment by a Bench of three judges of this Court.
(C) M. Narasinga Rao
(i) In M. Narasinga Rao, K.T. Thomas, J. writing the F
judgment for the Bench raised the question as to, whether,
a legal presumption can be based on a factual presumption.
It was observed that a factual presumption is discretionary
and depends upon the exercise of discretion by the Court
whereas a legal presumption has to be compulsorily raised. G
It was further observed that Section 20 of the Act envisaged
a legal presumption which means that on the proof of certain
facts, the court “shall presume” other facts. But when there
is no direct evidence for establishing the primary fact or
the fact in issue, the Court has to depend upon the process
H
130 SUPREME COURT REPORTS [2022] 5 S.C.R.

A of inference drawn from other facts to reach the said primary
fact. The crux of the question involved therefore was
whether an inference made could be used as a premise for
the compulsory presumption envisaged in Section 20 of the
Act.
B (ii) In the said case, during the trial before the Special Judge,
two witnesses of the prosecution namely, PW-1 and PW-2
made a volte-face during the trial and denied having paid
any bribe to the appellant therein and also denied that the
appellant had demanded the bribe amount. Both the
witnesses were thus declared as “hostile”. According to
C the appellant therein, the tainted currency notes were forcibly
stuffed into his pocket and in support of this, he had
examined two witnesses on the defence side. Both the trial
court and the High Court disbelieved the defence witnesses
in toto and found that PW 1 and PW 2 were won over by
D the appellant and that is why they turned against their own
version recorded by the investigating officer and
subsequently by a Magistrate under Section 164 of the
CrPC.
(iii) In the said case, this Court made a detailed discussion of
E the expressions “may presume” and “shall presume” as
defined in Section 4 of the Evidence Act. This Court
observed that the word “proof” means such evidence as
would induce a reasonable man to come to a particular
conclusion. It was further observed that a presumption is
an inference of a certain fact drawn from other proved
F facts. The Court is only applying a process of intelligent
reasoning which the mind of a prudent man would do under
similar circumstances. A presumption is not the final
conclusion to be drawn from other facts. But it could as
well be final if it remains undisturbed later. Presumption in
G the law of evidence is a rule indicating the stage of shifting
the burden of proof. From a certain fact or facts, the court
can draw an inference and that would remain until such
inference is either disproved or dispelled. It was held that,
for the purpose of reaching one conclusion, the court can
rely on a factual presumption. Unless the presumption is
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 131
[B. V. NAGARATHNA, J.]

disproved or dispelled or rebutted, the Court can treat the A
presumption as tantamounting to proof. However, this Court
sounded a note of caution by stating that it may be unsafe
to use that presumption to draw yet another discretionary
presumption unless there is a statutory compulsion. Reliance
was placed on Suresh Budharmal Kalani vs. State of
B
Maharashtra (1998) 7 SCC 337 (“Suresh Budharmal
Kalani”), wherein it was observed that a presumption can
be drawn only from facts — by a process of probable and
logical reasoning and not from other presumptions.
(iv) This Court on the facts established in said case observed
that the circumstances preceding and succeeding the C
discovery of tainted currency notes in the appellant’s pocket
helped the Court to draw a factual presumption that the
appellant therein had willingly received the tainted currency
notes.
(v) Relying upon Hazari Lal vs. State (Delhi Admn.) (1980) D
2 SCC 390 (“Hazari Lal”), this Court reasoned on the
facts of that case that in the absence of direct evidence to
show that the public servant had demanded or accepted
the bribe, no presumption under Section 4 of the 1947 Act
(Section 20 of the Act) could be drawn merely based on E
the recovery of the marked currency notes. Speaking for a
Bench of two judges, O.Chinnappa Reddy, J. in Hazari
Lal further observed that it was not necessary that the
passing of money should be proved by direct evidence as it
could also be proved by circumstantial evidence. Also, under
Section 114 of the Evidence Act, the Court may presume F
the existence of any fact which happened in the common
course of natural events, human conduct and public and
private business. The accused in Hazari Lal had taken the
currency notes from his pocket and flung them across the
wall and the said notes had been obtained from PW-3 therein G
a few minutes earlier who was shown to be in possession
of the notes. Hence, presumption under Section 4(1) of the
1947 Act was immediately attracted. Although it was a
rebuttable presumption, in the said case, there was no
material to rebut the presumption. The accused was,
therefore held guilty of the offence. H
132 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (vi) Thus, in M. Narsinga Rao, a three-judge bench of this
Court approved the reasoning of the two-judge bench in
Hazari Lal. In M. Narsinga Rao, this Court observed
that once it was established that there was a demand or
payment or acceptance of gratification and once the
foundational facts were proved the presumption for payment
B
or acceptance of illegal gratification was applicable. As the
said presumption of fact was not rebutted by the accused
the fact of demand was proved. Consequently, the legal
presumption was to be drawn that the said gratification was
accepted as a “motive or reward” for doing or forbearing
C to do any act as per Section 20 of the Act.
(vii) It was further observed in the said case that the prosecution
had proved that the appellant therein had accepted
gratification. Therefore, the Court was under a legal
compulsion to draw the legal presumption that such
D gratification was accepted as a reward for doing the public
duty. It was further observed that the two witnesses
examined on the defence side were unable to rebut the
presumptions raised and hence, this Court dismissed the
appeal and held the accused to be guilty.
E 11. Another judgment referred to in the Reference Order which
is a case which arises under the 1947 Act is Kishan Chand Mangal vs.
State of Rajasthan (1982) 3 SCC 466 (“Kishan Chand Mangal”).
In the said case, it was observed that it was a case of entrapment where
the complainant had given a bribe and the demand of the said bribe was
also present. It was observed that the evidence on record, for instance,
F the complainant’s visit to the Anti-Corruption Bureau, his producing
currency notes and the superior officer of the department making a trap
arrangement, and the raiding party going to the house of the accused
indicated that a prior demand for payment was made by the accused
and the same was circumstantial evidence.
G 12. In the aforesaid cases, the common thread which runs through
is that the complainant was not available to let in evidence and hence,
there was absence of direct evidence. In B. Jayaraj the complainant
did not support the prosecution and hence was declared “hostile”; in P.
Satyanarayana Murthy, the complainant had died prior to the
H examination of seven witnesses while in M. Narasinga Rao the
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 133
[B. V. NAGARATHNA, J.]

prosecution witnesses had turned “hostile”. Therefore, in B. Jayaraj A
and in P. Satyanarayana Murthy the Court acquitted the accused while
in M. Narasinga Rao despite two witnesses being declared as “hostile”,
on facts, it was found that the accused therein had willingly received the
tainted currency notes and hence, this Court sustained the conviction of
the accused. It was observed that despite two prosecution witnesses
B
turning “hostile”, it was established by other evidence that there was a
demand of illegal gratification. Since the foundational facts were proved,
the presumption for payment or acceptance of the same was applicable,
which was not rebutted. Consequently, the legal presumption under
Section 20 of the Act was also raised and remained unrebutted. In the
above said backdrop the reference was made to the larger Bench and C
ultimately to the Constitution Bench.
Submissions:
13. We have heard the learned senior counsel and learned counsel
for the appellants and learned ASG and other counsel for the respondents.
D
14. Shri S.Nagamuthu, learned senior counsel, during the course
of his submission contended as follows:
(i) That the question for consideration has not been
appropriately framed and hence, the appropriate question
may have to be reframed by this Court. He submitted that E
normally, in a case under Sections 7, 13(1)(d)(i) and (ii), the
complainant is expected to speak about prior demand and
subsequent receipt or acceptance of illegal gratification by
a public servant. But, if his evidence is not available, it would
imply that there is no direct oral evidence of the said witness
to prove the aforesaid two facts. The issue before the F
Constitution Bench is, whether, the aforesaid two facts could
be proved by any other mode in the absence of direct
evidence so that the guilt of the public servant could be
brought home. In this regard, our attention was drawn to
Sections 7, 13(1)(d)(i) and (ii) and 20 of the Act as they G
stood prior to the amendment of the Act. Much emphasis
was laid on the expression “accept” or “obtain” or “agrees
to accept” or “attempt to obtain”.
(ii) In the context of Section 20 of the Act which deals with
raising the legal presumption with regard to motive or
H
134 SUPREME COURT REPORTS [2022] 5 S.C.R.

A reward, elaborate arguments were made on the difference
between acceptance or obtainment. It was submitted that,
in both cases, there is an offer and acceptance of the offer.
If the offer emanates from the bribe giver without there
being any demand from the public servant and the latter
simply accepts the offer and receives the illegal gratification,
B
it is a case of acceptance as per Section 7 of the Act. In
the case of acceptance, as dealt with in Section 7 of the
Act, there need not be any prior demand by the public
servant.
(iii) On the other hand, in the case of obtainment the offer
C emanates from the public servant, i.e., he makes a demand
and the bribe giver accepts the offer and pays the demanded
gratification which is, in turn, received by the public servant.
Thus in the case of obtainment, there is a prior demand for
illegal gratification made by the public servant and in such
D a case also, both the demand and receipt of illegal
gratification have to be proved. This act of a public servant
is an offence under Section 13(1)(d)(i) and (ii) and therefore,
a prior demand by the public servant is a sine qua non for
an offence under Section 13(1)(d)(i) and (ii). In this regard,
reliance was placed on the judgment of this Court in B.
E Jayaraj; P. Satyanarayana Murthy; Kishan Chand
Mangal; C.K. Damodaran Nair and Kishan Chander.
(iv) Thus, if there is a demand followed by a receipt by the
public servant, the act of obtainment under Section
13(1)(d)(i) and (ii) is complete. It is then not necessary to
F prove “motive or reward” as the same is foreign to Section
13(1)(d)(i) and (ii). Therefore, Section 20 of the Act does
not pertain to a legal presumption to be raised for an offence
under Section 13(1)(d)(i) and (ii).
(v) It was further submitted that in the case of obtainment,
G receipt of gratification in pursuance of the demand must
also be proved as a fact in issue. That in the absence of
proof of receipt of gratification, mere demand does not
constitute an offence under Section 13(1)(d)(i) and (ii). But
if demand is construed as an attempt, then such an attempt
H to obtain is an offence under Section 7 of the Act.
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 135
[B. V. NAGARATHNA, J.]

(vi) Further under Section 13(1)(d)(i) and (ii), obtainment could A
be proved by (i) oral evidence; (ii) documentary
evidence; (iii) statutory presumption; and (iv) circumstantial
evidence. That the person to whom the demand was made
could let in oral evidence and the same is direct evidence
under Sections 59 and 60 of the Evidence Act. Further, if
B
anybody else was present at the time of making of the
demand, his oral evidence would also be direct evidence
and the same may be sufficient to prove the demand. In
case the person to whom the demand was made is either
dead or unavailable for letting in evidence or turns “hostile”
and there is no direct eye witness account of the fact of C
demand, then, in the absence of any other evidence, the
accused is entitled to acquittal. However, if the demand is
evidenced by any document such as demand being made
through email, letter or any other communication, the said
fact could be proved by documentary evidence in the
D
absence of any direct or oral evidence although the
complainant or the person to whom the demand has been
made is not available to let in evidence.
(vii) It was further submitted by Shri. Nagamuthu, learned senior
counsel that Section 20 of the Act mandates a presumption
to be made by the court which is in the nature of a legal E
presumption. The presumption in relation to any illegal
gratification accepted or obtained or agreed to be accepted
or deemed to be obtained “as motive or reward”, as per
Section 7 of the Act, is a restricted and conditional
presumption. The said presumption can be raised only on a F
proof of acceptance or obtainment or agreement to accept
or attempt to obtain the illegal gratification and is not a
presumption of guilt of an offence.
(viii) That the legal presumption that could be raised under Section
20 of the Act is in contradiction to a presumption that could G
be raised under Section 114 of the Evidence Act. By citing
an example, it was sought to be contended that, if tainted
currency notes are found in the possession of a public
servant in a trap case, there can be a presumption under
Section 114 of the Act that he might have received it. But
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136 SUPREME COURT REPORTS [2022] 5 S.C.R.

A this is a rebuttable presumption and the accused can rebut
this presumption by offering his explanation for the
possession of the tainted notes. The said presumption is a
presumption of fact. However, there can be no presumption
of demand as such. In other words, the demand as a matter
of fact cannot be presumed under Section 114 of the
B
Evidence Act, unless for such a presumption to be made,
the foundational facts are proved and such foundational
facts unerringly point to the irresistible and only conclusion
of proof of demand. This would imply that mere recovery
of the tainted notes from the possession of the accused
C would not give rise to a presumption of demand. In this
regard reference was made to B. Jayaraj and a recent
judgment of this Court in K. Shanthamma vs. State of
Karnataka (2022) 4 SCC 574 (“K. Shanthamma”).
(ix) It was next submitted that Section 7 of the Act speaks of
D acceptance or obtainment or an agreement to accept or an
attempt to obtain. Further, the expression “acceptance”
must be differentiated from the expression “receipt” as they
convey different meanings in the context of Section 7 of
the Act. That Section 7 of the Act does not speak of receipt
but only of acceptance. In order to convert receipt into
E acceptance, it should be proved that a demand is made from
the bribe giver. In other words, the bribe giver should have
offered the gratification while demanding a favour from
the public servant.
(x) Therefore, the mere receipt of any property or valuable
F security would not tantamount to acceptance unless the bribe
giver had made an offer demanding favour from the public
servant. This fact in issue should be proved by direct
evidence. However, if the bribe giver or the complainant
dies or turns “hostile” and the fact cannot be proved by
G direct evidence, then it could be proved by the evidence of
another witness who has direct knowledge of the said fact
or even by circumstantial evidence. In the event the fact of
acceptance is proved, Section 20 would apply and a
presumption has to be raised that the acceptance was the
reward of an act. Further, no presumption of acceptance
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 137
[B. V. NAGARATHNA, J.]

can be raised under Section 114 of the Evidence Act in the A
absence of foundational facts being proved.
(xi) It was submitted by Shri Nagamuthu, learned senior counsel
that once acceptance or obtainment or agreement to accept
or attempt to obtain is proved, then the presumption under
Section 20 vis-a-vis “motive or reward” could be raised in B
the context of Section 7 of the Act. But, acceptance or
obtainment or an agreement to accept or an attempt to obtain
cannot be established by means of a presumption in the
absence of foundational facts. The reason why Section 20
raises a legal presumption is in order to prove mens rea of
the accused, namely, that the public servant knew that he C
had received illegal gratification as a “motive or reward”.
Since, this fact is difficult to be proved by direct oral
evidence or documentary evidence, the Parliament in its
wisdom has incorporated Section 20 of the Act with a
mandate to the Court to presume the illegal gratification as D
only a “motive or reward”. Of course, such legal
presumption is also rebuttable.
(xii) Coming to the actual question raised before the Constitution
Bench, it was submitted by the learned senior counsel Shri
Nagamuthu that the act of obtainment contains two facets, E
namely, prior demand and receipt of illegal gratification by
the public servant and both these facts should be proved
beyond reasonable doubt. The fact of demand could be
proved by oral evidence. However, in the absence of
complainant’s evidence to prove obtainment or an attempt
to obtain, the presumption under Section 20 cannot arise. F
Further, if such obtainment or attempt was witnessed by
some other witness, then that witness can prove the said
fact even in the absence of the bribe giver being available
to be let in as evidence.
(xiii) On the other hand, in the case of acceptance or agreement G
to accept the gratification, the offer should have been made
by the de facto complainant and the accused-public servant
should have accepted the offer. In this case, there is no
prior demand by the public servant. Therefore, even if there
is proof through other evidence that the public servant H
138 SUPREME COURT REPORTS [2022] 5 S.C.R.

A received some property from the de facto complainant, that
will not automatically go to prove acceptance in terms of
Section 7 of the Act. In other words, mere receipt of a
property by a public servant does not amount to either
acceptance or obtainment. To convert the receipt to
acceptance in terms of Section 7 of the Act, it should be
B
proved that an offer preceded the receipt; and in the case
of obtainment, the receipt should be preceded by a demand
by the public servant.
(xiv) With reference to M. Narasinga Rao, it was contended
that this Court has not dealt with the difference between
C Section 7 and Section 13(1)(d) of the Act and with regard
to the difference between acceptance and obtainment and
also the non-applicability of the presumption under Section
20 in a case which falls under Section 13(1)(d) of the Act.
(xv) According to learned senior counsel Shri Nagamuthu,
D M. Narasinga Rao does not lay down any proposition of
law. Further, with reference to M. Narasinga Rao it was
submitted that demand being a sine qua non for subsequent
receipt of illegal gratification could be proved by
circumstantial evidence subject to the principle that the
E change of proved circumstances should unerringly point
towards the guilt of the accused and there should not be
any other hypothesis that could apply. It was contended
that in the absence of the bribe giver, the proof of demand
could be presumed from circumstances. With reference to
P. Satyanarayana Murthy, learned senior counsel
F contended that only a presumption of fact of conduct can
be raised as per Section 4 of the Evidence Act. That in the
said case, the complainant turned “hostile” and there was
no other direct evidence to prove the demand but that the
tainted currency notes were recovered from the accused.
G That in the absence of proof of demand for illegal
gratification, the use of corrupt or illegal means by public
servants to obtain a valuable thing or pecuniary advantage
was not established at all.
(xvi) Learned senior counsel placed reliance on Kishan Chand
H Mangal to submit that as per the Woolmington principle,
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 139
[B. V. NAGARATHNA, J.]

there should be proof beyond reasonable doubt and the said A
principle would apply under the Act under consideration.
That there cannot be any inference of guilt and that only
presumptions could be raised, as per Section 4 of the
Evidence Act, based on the foundational facts being proved
beyond reasonable doubt and in the absence of rebuttal
B
evidence. In view of the aforesaid submissions, Shri
Nagamuthu submitted that the question raised for
consideration must be answered in the negative.
15. Shri M. Karpaga Vinayagam, learned senior counsel submitted
that the proof of demand of public servant alleged by the prosecution is
a sine qua non in order to establish the guilt of the accused public C
servant. That mere acceptance of or the recovery of tainted notes is not
sufficient to bring home the guilt of the accused as the prosecution has
to first prove that demand of illegal gratification was made by the accused.
Thereafter, the subsequent acceptance and recovery of the tainted notes
would complete the chain of circumstances to bring home the guilt of D
the accused. In this regard, learned senior counsel placed reliance on
State of U.P. vs. Ram Asrey 1990 Supp SCC 12 (“Ram Asrey”);
Mukhtiar Singh vs. State of Punjab; (2017) 8 SCC 136 (“Mukhtiar
Singh”); M.R. Purushotam vs. State of Karnataka (2015) 3 SCC
247 (“M.R. Purushotam”); C.M. Sharma vs. State of Andhra
Pradesh (2010) 15 SCC 1 (“C.M. Sharma”); State of Maharashtra E
vs. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200
(“Dnyaneshwar Laxman Rao”); Sukumaran vs. State of Kerala
(2015) 11 SCC 314 (“Sukumaran”) and Sunkanna vs. State of
Andhra Pradesh (2016) 1 SCC 713 (“Sunkanna”).
16. Learned Counsel Shri Raghenth Basant contended that in P. F
Satyanarayana Murthy, it has not been laid as a principle of law that in
every case where the complainant is dead, demand cannot be proved at
all. That other evidence adduced by the prosecution can be considered
to come to a conclusion, where there is proof beyond reasonable doubt.
17. It was contended that there was an erroneous assumption in G
P. Satyanarayana Murthy, wherein it was observed that only direct
evidence is a sine qua non for proving a case under Sections 7, 13(1)(d)(i)
and (ii) of the Act. The Division Bench as well as the three judge Bench
therefore, referred the matter to the larger bench. But that is not the
position. In fact, in B. Jayaraj, the complainant turned “hostile” at the H
140 SUPREME COURT REPORTS [2022] 5 S.C.R.

A time of trial and this Court examined the evidence of other witnesses on
behalf of the prosecution and held that the prosecution had not been able
to prove that any demand had been made by the accused beyond
reasonable doubt. It was further held in the said case that the presumption
in Section 20 of the Act can be drawn only on proof of acceptance of
illegal gratification.
B
18. According to Shri Basant, in M. Narasinga Rao, the
complainant turned “hostile”. But, on the basis of the evidence adduced
by the prosecution, this Court concluded that even in the absence of
direct evidence, the rest of the evidence adduced and the circumstances
were sufficient to bring home the guilt of the accused. Reliance was
C placed on the following observation in support of the submission:
“But the other circumstance which have been proved in this case
and those preceding and succeeding the searching out of the tainted
currency notes, are relevant and useful to help the court to draw
a factual presumption that the appellant had willingly received the
D currency notes.”
19. In M. Narasinga Rao, this Court held that the prosecution
has proved the case beyond reasonable doubt whereas in B. Jayaraj
the prosecution was unsuccessful in proving so. Therefore, there is no
conflict between the judgment in M. Narasinga Rao on the one hand
E and B. Jayaraj and P. Satyanarayana Murthy on the other.
20. That the presumption under Section 20 of the Act would apply
only if the fact of demand and acceptance or of illegal gratification, as
the case may be, is proved. Such a proof can be adduced even by way
of circumstantial evidence in the absence of direct evidence. This would
F be so particularly in trap cases as the prosecution has to prove that the
accused had demanded a bribe from the complainant. The factum of
demand can be either proved by direct evidence or through circumstantial
evidence.
21. Shri Sushil Kumar Jain, learned senior counsel also submitted
G that the demand of a valuable thing or pecuniary advantage either for
himself or for some other person is a necessary ingredient or a sine qua
non to bring home a conviction under Sections 7 and 13(1)(d). The
demand can be proved either by direct oral evidence or documentary
evidence. That the presumption under Section 20 is applicable only in
respect of offences under Sections 7, 11 and Section 13(1)(a) and (b)
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 141
[B. V. NAGARATHNA, J.]

since the demand is a part of the word “obtain”. However, this A
foundational fact has to be proved and cannot be presumed. So also,
with regard to the word “accepted”, the demand must be proved. That
Section 20 is akin to Section 4 of the 1947 Act and prior to the Act
coming into force, the offences against corrupt public servants were
also covered under Sections 161 and 165 A of the IPC. Section 4 of the
B
1947 Act prescribed the statutory presumptions for offences under
Sections 161 and 165 of the IPC. By Section 31 of the Act, Sections 161
to 165 (A) were repealed and are now covered by Sections 7 and 11 of
the Act. The Act is a special statute and a complete code by itself.
22. Learned senior counsel further urged that under the criminal
jurisprudence in India, there is always a presumption of innocence until C
the guilt is proved and there is no presumption of guilt. Therefore, there
has to be proof beyond reasonable doubt of a demand and its acceptance
so as to bring home the guilt of the accused. In this regard, reliance was
placed on para 18 of M. Narasinga Rao.
23. Ms. Aishwarya Bhati, learned ASG drew our attention to the D
report of the Committee on the Prevention of Corruption Act submitted
by the K.Santanam Committee and contended that it has been stated
therein that corruption has increased to a large extent and people have
started losing faith in the integrity of public administration. Reliance was
placed on State of Madhya Pradesh vs. Ram Singh (2000) 5 SCC 88 E
(“Ram Singh”) to draw our attention to the fact that the Act has been
intended to make effective provisions for the prevention of bribery and
corruption which has been rampant amongst the public servants. The
Act is a social legislation intended to curb the illegal activities of public
servants and is designed to be liberally construed so as to advance its
object. Procedural delays and technicalities of law should not be permitted F
to defeat the objects sought to be achieved by the Act while interpreting
various provisions of the Act and deciding cases under it. She further
drew our attention to various decisions of this Court wherein despite the
complainant having died or having turned “hostile” or not being available
for letting in evidence, on the basis of the other evidence on record, G
conviction has been ordered. Many of the decisions referred to by her
have been cited above. She submitted that even if the complainant turns
“hostile” with regard to certain aspects of the evidence referred by him,
his entire evidence cannot be discarded.

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142 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 24. Learned ASG submitted that the judgments of this Court in
B.Jayaraj and P. Satyanarayana Murthy have been correctly decided
and the questions raised may accordingly be answered.
25. Learned ASG Shri J.K. Sud submitted that the issue before
the Constitution Bench pertains to the proof of guilt of a public servant
B under Sections 7, 13(1)(d) read with Section 13(2) of the Act in a case
where the complainant’s evidence is unavailable. He submitted that proof
does not mean proof in the sense of a rigid and mathematical
demonstration, as that is impossible; it must mean such evidence as would
induce a reasonable man to come to a particular conclusion. In reaching
the conclusion, the court can use the process of inferences to be drawn
C from the facts produced or proved and such inferences are akin to
presumptions in law. That a presumption of fact can be made by a court
of law by exercise of discretion, having regard to the common course of
natural events, human conduct, public or private business in relation to
the facts of the particular case. This discretion is envisaged in Section
D 114 of the Evidence Act. A presumption can thus be drawn on proof of
certain facts. Also, a presumption is not a final conclusion to be drawn
from other facts. A presumption of certain facts would remain until such
inference is either disproved or dispelled. Unless the presumption is
disproved or dispelled or rebutted the court can treat the presumption as
tantamounting to proof. However, a presumption can be drawn only
E from facts and not from other presumptions by a process of probable
and logical reasoning. As opposed to presumptions on facts, there is
what is known as legal presumption which is a compulsory presumption
such as under Section 20 (1) of the Act. That under Section 20 of the
Act, it could be a presumption that the accused accepted or agreed to
F accept any gratification as a motive or reward for doing or forbearing to
do any official act. Hence, the conditions envisaged under Section 20
have to be satisfied before raising a presumption against the accused,
namely that the accused has accepted or agreed to accept any illegal
gratification. This proof need not be through direct evidence which is
only one of the basis for proving a fact.
G
26. Learned ASG further submitted that the word “obtain” means
to secure or gain something as a result of a request to “obtain” and
“accept”, i.e., means to take or receive with a consenting mind. Consent
can be established by not only leading evidence but also from the
circumstances surrounding the transaction itself without proof of such
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 143
[B. V. NAGARATHNA, J.]

prior agreement. If an acquaintance of a public servant with a hope that A
in the future, if need be, he would be able to get some official favour
from him, voluntarily offers any gratification and if the public servant
willingly takes or receives such gratification, it would “amount to
acceptance” within the meaning of Section 161 of the IPC.
27. Dr. Joseph Aristotle, learned counsel submitted on behalf of B
the State of Tamil Nadu that the death or the non-availability of
complainant or the complainant turning “hostile” are three instances when
there would not be availability of complainant’s direct evidence to bring
home the guilt of the accused-public servant. That death or non-availability
of the complainant would not vitiate the case of the prosecution as the
incriminating circumstance of demand can be proved by circumstances C
even in the absence of the complainant. The quality of the evidence let
in by the prosecution is more significant than the sole direct evidence of
demand being spoken to. In the case of a trap, the court has to consider
the ingredients of the factum of offences namely, acceptance of demand
and recovery of tainted money in its entirety. Hence, the case of the D
prosecution does not come to an end with the death of the complainant,
as even in the absence of a complainant, it is possible to prove the factum
of demand and recovery of tainted money by an independent witness
whose evidence can be the basis for passing an order of conviction.
Question for consideration: E
28. On consideration of the aforesaid cases, the question framed
for determination by the larger Bench is as under:
“1) Whether, in the absence of evidence of complainant/direct or
primary evidence of demand of illegal gratification, is it not
permissible to draw an inferential deduction of culpability/guilt of F
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?”
In order to answer the aforesaid question, it would be useful to
recapitulate the relevant provisions of the law of evidence vis-à-vis G
tendering of oral and documentary evidence; presumptions and
circumstantial evidence. Thereafter to analyse the three cases and also
other cases cited at the Bar in the background of the question raised and
to derive a conclusion from the said discussion.
H
144 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Relevant provisions of Law of Evidence - A discussion:
29. Since the main thrust of this case is on the quality of evidence
for proof of demand and acceptance of an illegal gratification before a
public servant can be held guilty of an offence under Section 7 and/or
Section 13(1)(d) of the Act, it would be appropriate to discuss the salient
B principles of law of evidence relevant to the question under consideration.
In this context, it would be necessary to refer to Sections 3, 4, 59,
60, 61, 62, 63, 64, 65 and 154 of the Evidence Act.
30. 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
C 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. (vide
D Section 3 of Evidence Act).
31. 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 non-existence of a fact in issue or some relevant fact.
E 32. 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
F 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
G or Judge under Section 313 of the Criminal Procedure Code (CrPC).
33. Further, according to Sarkar on Law of Evidence, 20 th Edition,
Volume 1, “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
H perceived it, and believed that it established a fact in issue. Direct evidence
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 145
[B. V. NAGARATHNA, J.]

proves the existence of a fact in issue without any inference of A
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
B
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.
34. Again, 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 C
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. Normally, a hearsay witness would be D
inadmissible, but when it is corroborated by substantive evidence of other
witnesses, it would be admissible vide Mukhtiar Singh.
35. 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 E
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.
Further, letting in evidence should be in accordance with the F
provision of the Evidence Act by the examination of witnesses, i.e.,
examination-in-chief, cross-examination, and re-examination.
36. 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 G
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.
37. Documentary evidences, on the other hand, are to be proved
by the production of the documents themselves or, in their absence, by
H
146 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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. (See Sections 8 and 14 of Evidence Act).
B 38. Insofar as oral evidence is concerned, this Court in State of
Rajasthan vs. Babu Meena (2013) 4 SCC 206 (“Babu Meena”) has
classified the same into three categories :–(i) wholly reliable; (ii) wholly
unreliable, and; (iii) neither wholly reliable nor wholly unreliable. While
an accused can be convicted on the sole testimony of a wholly reliable
witness, the uncorroborated evidence of a wholly unreliable testimony
C of a witness must result in an acquittal.
39. 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
D 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
E existence of the fact in issue may be logically inferred. In this context,
the expression “circumstantial evidence” is used in a loose sense as,
sometimes, circumstantial evidence may also be direct.
40. Although the expression “hearsay evidence” is not defined
under the Evidence Act, it is, nevertheless, in constant use in the courts.
F 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.
41. At this stage, it must be distinguished that even with regard to
G 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
H the original thing.
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 147
[B. V. NAGARATHNA, J.]

42. Section 61 deals with proof of contents of documents which is A
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
B
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 C
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
D
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 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.
43. Section 62 of the Evidence Act defines primary evidence to E
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, - F
(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; G
(iii) Copies made from or compared with the original;
(iv) Counterparts of documents as against the parties who did
not execute them;
H
148 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (v) Oral accounts of the contents of a document given by some
person who has himself seen it.
44. 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
B 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
C 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
D vide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del)
(“Amarjit Singh”). But the documents can be impeached in any other
manner, though the admissibility cannot be challenged subsequently when
the document is bound in evidence.
45. The cases in which secondary evidence relating to documents
E may be given are stated in Section 65 of the Evidence Act read with
Section 66, Section 67(2), Section 78. Proof of documents, whether public
or private, including execution of such documents etc.
Presumptions:
46. Courts are authorised to draw a particular inference from a
F particular fact, unless and until the truth of such inference is disproved
by other facts. The court can, under Section 4 of the 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
G 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
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 149
[B. V. NAGARATHNA, J.]

presumptions come under the division of “may presume” while legal A
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
B
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.
47. Similarly in a trial under Section 138 of the Negotiable
Instruments Act, a presumption will have to be made that every negotiable
instrument was made or drawn for consideration and that it was executed C
for discharge of debt or liability once the execution of negotiable instrument
is either proved or admitted vide Kumar Exports vs. Sharma Carpets
(2009) 2 SCC 513 (“Kumar Exports”). Further, the question as to
whether the presumption stood rebutted or not must, therefore, be
determined keeping in view the other evidence on record. [Krishna D
Janardhan Bhat vs. Dattatraya G Hegde (2008) 4 SCC 54 (“Krishna
Janardhan Bhat”)].
48. 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) E
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 F
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. G
49. In State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC
61 (“A. Vaidyanatha Iyer”), it was observed that the presumption under
Section 4(1) of the 1947 Act which is similar to Section 20 of the Act
under consideration would arise where illegal gratification has been
accepted, then the presumption introduces an exception to the general H
150 SUPREME COURT REPORTS [2022] 5 S.C.R.

A rule as to the burden of proof in criminal cases and shifts the onus on to
the accused. The legislature has used the words “shall presume” and
not “may presume” which means that the presumption has to be raised
as it is a presumption of law and therefore it is obligatory on the court to
raise this presumption. Further, the presumptions of law constitute a
branch of jurisprudence unlike a case of presumption of fact which is
B
discretionary.
50. Distinguishing a presumption under Section 4(1) of the 1947
Act with a presumption under Section 114 of the Evidence Act, it was
observed in Dhanvantrai Balwantrai Desai vs. State of Maharashtra
AIR 1964 SC 575 (“Dhanvantrai Balwantrai Desai”) that a
C 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
D 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
E 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
F 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
G 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.
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 151
[B. V. NAGARATHNA, J.]

51. One of the modes through which a fact can be proved. But, A
that is not the only mode envisaged under the Evidence Act. Proof of
the fact depends upon the degree of probability of it having existed. The
standard required for reaching the supposition is that of a prudent man
acting in any important matter concerning him.
52. As opposed to the expressions “may presume” and “shall B
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 court C
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. D
Circumstantial Evidence
53. As already noted, 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 E
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 F
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 (Best, 11th Edition, Section 293). 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 G
and pointing to the hypothesis that except the accused, no one had
committed the offence vide Navaneethakrishnan vs. State by Inspector
of Police AIR 2018 SC 2027 (“Navaneethakrishnan”).
54. The principal fact can be proved indirectly by means of certain
inferences drawn from its existence or its connection with other H
152 SUPREME COURT REPORTS [2022] 5 S.C.R.

A circumstantial evidence. It is often said that witnesses may lie but not
the circumstances. However, the court must adopt a cautious approach
while basing its conviction purely on circumstantial evidence. Inference
of guilt can be drawn only when all incriminating facts and circumstances
are found to be incompatible with the innocence of an accused. In other
words, circumstantial evidence is not direct to the point in issue but
B
consists of evidence of various other facts which are so closely associated
with the fact in issue that, taken together they form a chain of
circumstances from which the existence of the principal fact can be
legally inferred or presumed.
55. It is trite law that in cases dependent on circumstantial evidence,
C the inference of guilt can be made if all the incriminating facts and
circumstances are incompatible with the innocence of the accused or
any other reasonable hypotheses than that of his guilt, and provide a
cogent and complete chain of events which leave no reasonable doubt in
the judicial mind. When an incriminating circumstance is put to the accused
D and the said accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional link in
the chain of circumstances to make it complete. If the combined effect
of all the proven facts taken together is conclusive in establishing the
guilt of the accused, a conviction would be justified even though any one
or more of those facts by itself is not decisive. (Sharad Birdhichand
E Sarda vs. State of Maharashtra (1984) 4 SCC 116 (“Sharad
Birdhichand Sarda”) as reiterated in Prakash vs. State of Rajasthan
(2013) 4 SCC 668 (“Prakash”)).
56. In Kundan Lal Rallaram vs. The Custodian, Evacuee
Property Bombay AIR 1961 SC 1316 (“Kundan Lal Rallaram”),
F this Court speaking though K. Subba Rao, J. observed that the rules of
evidence pertaining to burden of proof are embodied in Chapter 7 of the
Evidence Act. 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
G 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. The evidence required to
shift the burden need not necessarily be direct evidence i.e., oral or
documentary evidence or admissions made by opposite party; it may
comprise of circumstantial evidence or presumptions of law or fact.
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 153
[B. V. NAGARATHNA, J.]

Analysis: A
57. In the case of B. Jayaraj, the complainant did not support
the prosecution case. In P. Satyanarayana Murthy, the complainant
had died prior to letting in his evidence in the case. In M. Narasinga
Rao, the question was whether a legal presumption could be based on a
factual presumption. In Hazari Lal, this Court through O. Chinnappa B
Reddy, J. observed that it is not necessary that the passing of money
should be proved by direct evidence, it could also be proved by
circumstantial evidence. Furthermore, in Madhukar Bhaskarrao Joshi
vs. State of Maharashtra (2000) 8 SCC 571 (“Madhukar
Bhaskarrao Joshi”), it was observed that in order to draw a presumption
under Section 20 of the Act, the premise is that there was payment or C
acceptance of gratification. Once the said premise is established, the
inference to be drawn is that the said gratification was accepted as a
“motive or reward” for doing or forbearing to do any official act.
58. P. Satyanaratana Murthy has been referred to in State vs.
Dr. Anup Kumar Srivastava (2017) 15 SCC 560 (“Dr. Anup Kumar D
Srivastava”) by observing that what constitutes illegal gratification is a
question of law; whether on the evidence let in, crime has been committed
or not is a question of fact. If, therefore, the evidence regarding the
demand and acceptance of a bribe leaves room for doubt and does not
displace wholly, the presumption of innocence, the charge cannot be E
said to have been established. The court also made observations regarding
framing of charge in a criminal trial where the court is expected to apply
its mind to the entire record and documents placed therewith before the
court. It was also held that proof of demand is an indispensable mandate
for the offence under Sections 7 and 13 of the Act. On the facts of the
said case, it was held that the same was absent and the accused was F
liable to be acquitted.
59. In all the cases leading to the reference, it is either the death
or the refusal to support the prosecution case that has led to the legal
presumption under Section 20 of the Act not being raised and not bringing
home the guilt of the accused. G
60. Learned ASG and counsel also drew our attention to the
following precedents:
(i) In the case of State of Andhra Pradesh vs. V. Vasudeva
Rao (2004) 9 SCC 319 (“V. Vasudeva Rao”), this Court,
H
154 SUPREME COURT REPORTS [2022] 5 S.C.R.

A in the absence of the complainant due to his death proceeded
to convict the accused based on the evidence available on
record and further held that for the purpose of reaching a
conclusion, the court can rely on factual presumption under
section 114 of the Evidence Act. A fact may also be proved
by direct testimony or by circumstantial evidence.
B
(ii) In Kishan Chand Mangal, this Court upheld the conviction
based on the evidence of the shadow witnesses. Similarly
in State of Andhra Pradesh vs. P. Venkateshwarlu (2015)
7 SCC 283 (“P. Venkateshwarlu”), when the complainant
died during the pendency of the trial, this Court convicted
C the accused by relying upon the evidence of the other
witnesses, as the factum of demand, acceptance and
recovery of the tainted money was proved by the
prosecution.
(iii) In contradiction to the aforesaid cases, our attention was
D drawn to Selvaraj vs. State of Karnataka (2015) 10 SCC
230 (“Selvaraj”), wherein on the death of the complainant,
acquittal was ordered as the accused was relieved from
his duty and was not competent to transact any official
business apart from the fact that there was contradiction in
E the version of witnesses.
(iv) In A. Subair, the acquittal was based on the ground that
there was no other evidence to fall back upon in the absence
of the complainant letting in evidence.
61. Learned senior counsel Shri Aristotle, further contended that
F in those cases, where the complainant becomes “hostile”, his evidence
does not get effaced as the court must consciously ascertain as to what
extent he has supported the case of the prosecution. The evidence of a
“hostile” witness “complainant” stands on a different footing than the
death of the complainant or the non-availability of the complainant. It
G was submitted that when the complainant turns “hostile”, the evidence
of the shadow witness would play a vital role as he can also tender
primary evidence with regard to the demand of illegal gratification.
Similarly, Nayan Kumar Shivappa Waghmare vs. State of
Maharashtra (2015) 11 SCC 213 (“Nayan Kumar Shivappa
Waghmare”), was relied upon to buttress the fact that if the complainant
H turns “hostile”, the conviction is permissible on the basis of presumption
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 155
[B. V. NAGARATHNA, J.]

and other evidence. On the other hand, in B. Jayaraj the acquittal was A
based on the fact that the complainant had turned “hostile” and there
was no other witness to support the case of the prosecution and hence,
there was lack of evidence against the accused. In C.P. Rao, the acquittal
was based not merely on the non-availability of the complainant but the
fact that there was previous animosity between the complainant and the
B
accused and also on the ground that money was thrust into the hands of
the accused. Similarly, in N. Sunkanna, the accused was acquitted on
the ground that the witness had turned “hostile” and the demand was
not proved. So also, in the case of M.R. Purushotam.
62. Learned counsel Shri Aristotle also made reference to C.M.
Sharma wherein the conviction was upheld even though the shadow C
witness was not present when the demand for illegal gratification was
made and the amount was paid and there was recovery of tainted money.
So also, in Prakash Chand vs. State (Delhi Admn.) (1979) 3 SCC 90
(“Prakash Chand”) when the shadow witness turned “hostile”, the
conviction was based on the evidence of other witnesses. Therefore, D
even in the absence of a complainant letting in his evidence or the
complainant turning “hostile”, the case of the prosecution would not
collapse and the prosecution can only prove the case beyond reasonable
doubt if there is other evidence to prove the case.
63. Before answering the question under reference, we deem it E
necessary to clarify on one aspect of the matter and that is with regard
to “hostile witness”.
64. Learned senior counsel Shri Nagamuthu submitted that the
expression “hostile witness” must be read in the context of Section 154
of the Evidence Act. Section 154 of the Evidence Act states that the F
court may, in its discretion, permit the person who calls a witness to put
any question to him which might be put in cross-examination by the
adverse party. It further states that the Section does not disentitle the
person so permitted to rely on any part of the evidence of such witness.
For immediate reference, Section 154 of the Evidence Act is extracted
as under: G
“154. Question by party to his own witness.—
(1) The Court may, in its discretion, permit the person who calls
a witness to put any question to him which might be put in
cross-examination by the adverse party.
H
156 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (2) Nothing in this section shall disentitle the person so permitted
under sub-section (1), to rely on any part of the evidence of
such witness.”
The said Section was amended with effect from 16.04.2006 and
sub-section (2) of Section 154 was added from the said date while the
B original Section was renumbered as sub-section (1) of Section 154.
65. Learned senior counsel Shri Nagamuthu submitted that when
the prosecution examines a witness who does not support the case of
the prosecution he cannot be “declared” to be a “hostile witness” and
his evidence cannot be discarded as a whole. Although, permission may
C be given by the Court to such a witness to be cross-examined by the
prosecution as per sub-section (2) of Section 154 of the Evidence Act, it
is not necessary to declare such a witness as a “hostile witness”. This is
because a statement of a “hostile witness” can be examined to the extent
that it supports the case of prosecutor.
D 66. In this regard, our attention was drawn to Sat Paul vs. Delhi
Administration (1976) 1 SCC 727 (“Sat Paul”) which is a case arising
under the 1947 Act wherein this Court speaking through Sarkaria, J. has
made pertinent observations regarding the credibility of a hostile witness.
It was observed in paragraph 30 of the judgment that the terms “hostile
witness”, “adverse witness”, “unfavourable witness”, “unwilling witness”
E are all terms of English law. At Common law, if a witness exhibited
manifest antipathy, by his demeanour, answers and attitude, to the cause
of the party calling him, the party was not, as a general rule, permitted to
contradict him with his previous inconsistent statements, nor allowed to
impeach his credit by general evidence of bad character. It was observed
F in paragraph 33 that the rigidity of the rule prohibiting a party to discredit
or contradict its own witness was to an extent relaxed by evolving the
terms “hostile witness” and “unfavourable witness” and by attempting
to draw a distinction between the two categories. A “hostile witness” is
described as one who is not desirous of telling the truth at the instance of
the party calling him, and an “unfavourable witness” is one called by a
G party to prove a particular fact in issue or relevant to the issue who fails
to prove such fact, or proves an opposite fact. In the context of Sections
142 and 154 of the Evidence Act, this Court observed in paragraphs 38
and 52 as under:
“38. To steer clear of the controversy over the meaning of the
H terms “hostile” witness, “adverse” witness, “unfavourable” witness
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 157
[B. V. NAGARATHNA, J.]

which had given rise to considerable difficulty and conflict of A
opinion in England, the authors of the Indian Evidence Act, 1872
seem to have advisedly avoided the use of any of those terms so
that, in India, the grant of permission to cross-examine his own
witness by a party is not conditional on the witness being declared
“adverse” or “hostile”. Whether it be the grant of permission under
B
Section 142 to put leading questions, or the leave under Section
154 to ask questions which might be put in cross-examination by
the adverse party, the Indian Evidence Act leaves the matter
entirely to the discretion of the court (see the observations of Sir
Lawrence Jenkins in Baikuntha Nath vs. Prasannamoyi AIR
1922 PC 409. The discretion conferred by Section 154 on the C
court is unqualified and untrammelled, and is apart from any
question of “hostility”. It is to be liberally exercised whenever the
court from the witnesses’ demeanour, temper, attitude, bearing,
or the tenor and tendency of his answers, or from a perusal of his
previous inconsistent statement, or otherwise, thinks that the grant
D
of such permission is expedient to extract the truth and to do
justice. The grant of such permission does not amount to an
adjudication by the court as to the veracity of the witness.
Therefore, in the order granting such permission it is preferable to
avoid the use of such expressions, such as “declared hostile”,
“declared unfavourable”, the significance of which is still not free E
from the historical cobwebs which, in their wake bring a misleading
legacy of confusion, and conflict that had so long vexed the English
courts.
52. From the above conspectus, it emerges clear that even in a
criminal prosecution when a witness is cross-examined and F
contradicted with the leave of the court, by the party calling him,
his evidence cannot, as a matter of law, be treated as washed off
the record altogether. It is for the Judge of fact to consider in
each case whether as a result of such cross-examination and
contradiction, the witness stands thoroughly discredited or can
still be believed in regard to a part of his testimony. If the Judge G
finds that in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and care,
accept, in the light of the other evidence on the record, that part
of his testimony which he finds to be creditworthy and act upon it. H
158 SUPREME COURT REPORTS [2022] 5 S.C.R.

A If in a given case, the whole of the testimony of the witness is
impugned, and in the process, the witness stands squarely and
totally discredited, the Judge should, as a matter of prudence,
discard his evidence in toto.”
67. Therefore, this Court cautioned that even if a witness is treated
B 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. It is for the judge as a matter of prudence to consider
the extent of evidence which is creditworthy for the purpose of proof of
the case. In other words, the fact that a witness has been declared
C “hostile” does not result in an automatic rejection of his evidence. Even,
the evidence of a “hostile witness” if it finds corroboration from 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.
D 68. What emerges from the aforesaid discussion is summarised
as under:
(a) 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
E servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) 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
F nature of oral evidence or documentary evidence.
(c) 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.
G
(d) In order to prove the fact in issue, namely, the demand and
acceptance of illegal gratification by the public servant, the
following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without
there being any demand from the public servant and the
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 159
[B. V. NAGARATHNA, J.]

latter simply accepts the offer and receives the illegal A
gratification, it is a case of acceptance as per Section 7
of the Act. In such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and B
tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal
gratification emanates from the public servant. This is
an offence under Section 13 (1)(d)(i) and (ii) of the Act.
C
(iii) In both cases of (i) and (ii) above, the offer by the bribe
giver and the demand by the public servant respectively
have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal
gratification without anything more would not make it an
offence under Section 7 or Section 13 (1)(d), (i) and (ii) D
respectively of the Act. Therefore, under Section 7 of
the Act, in order to bring home the offence, there must
be an offer which emanates from the bribe giver which is
accepted by the public servant which would make it an
offence. Similarly, a prior demand by the public servant E
when accepted by the bribe giver and inturn there is a
payment made which is received by the public servant,
would be an offence of obtainment under Section 13 (1)(d)
and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and F
acceptance or obtainment of an illegal gratification may be
made by a court of law by way of an inference only when the
foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On
the basis of the material on record, the Court has the discretion
to raise a presumption of fact while considering whether the G
fact of demand has been proved by the prosecution or not.
Of course, a presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is
unavailable to let in his evidence during trial, demand of illegal H
160 SUPREME COURT REPORTS [2022] 5 S.C.R.

A gratification can be proved by letting in the evidence of any
other witness who can again let in evidence, either orally or
by documentary evidence or the prosecution can prove the
case by circumstantial evidence. The trial does not abate nor
does it result in an order of acquittal of the accused public
servant.
B
(g) In so far as Section 7 of the Act is concerned, on the proof of
the facts in issue, Section 20 mandates the court to raise a
presumption that the illegal gratification was for the purpose
of a motive or reward as mentioned in the said Section. The
said presumption has to be raised by the court as a legal
C presumption or a presumption in law. Of course, the said
presumption is also subject to rebuttal. Section 20 does not
apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the
Act is distinct from presumption of fact referred to above in
D point (e) as the former is a mandatory presumption while the
latter is discretionary in nature.
69. In view of the aforesaid discussion and conclusions, we find
that 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
E 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. The position of law when a complainant or
prosecution witness turns “hostile” is also discussed and the observations
F
made above would accordingly apply in light of Section 154 of the
Evidence Act. In view of the aforesaid discussion, we hold that there is
no conflict between the judgments in the aforesaid three cases.
70. Accordingly, the question referred for consideration of this
Constitution Bench is answered as under:
G
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 under Section 7 and
Section 13(1)(d) read with Section 13(2) of the Act based on other
evidence adduced by the prosecution.
H
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 161
[B. V. NAGARATHNA, J.]

71. We direct that individual cases may be considered before the A
appropriate Bench after seeking orders of Hon’ble the Chief Justice of
India.
Before we conclude, we hope and trust that the complainants as
well as the prosecution make sincere efforts to ensure that the corrupt
public servants are brought to book and convicted so that the B
administration and governance becomes unpolluted and free from
corruption.
In this regard, we would like to reiterate what has been stated by
this Court in Swatantar Singh vs. State of Haryana (1997) 4 SCC
14: C
“6. ………..Corruption is corroding, like cancerous lymph
nodes, the vital veins of the body politic, social fabric of
efficiency in the public service and demoralising the honest
officers. The efficiency in public service would improve only
when the public servant devotes his sincere attention and does
the duty diligently, truthfully, honestly and devotes himself D
assiduously to the performance of the duties of his post. The
reputation of corruption would gather thick and unchaseable
clouds around the conduct of the officer and gain notoriety
much faster than the smoke”.
The above has been reiterated in A.B. Bhaskara Rao vs. CBI E
(2011) 10 SCC 259 by quoting as under from the case of State of M.P.
vs. Shambhu Dayal (2006) 8 SCC 693:
“32. It is difficult to accept the prayer of the respondent that
a lenient view be taken in this case. The corruption by public
servants has become a gigantic problem. It has spread F
everywhere. No facet of public activity has been left unaffected
by the stink of corruption. It has deep and pervasive impact
on the functioning of the entire country. Large-scale
corruption retards the nation-building activities and everyone
has to suffer on that count.”
G
We place on record our appreciation of all learned senior counsel
as well as counsel and instructing counsel including learned ASGs who
have assisted the Court.

Devika Gujral Reference answered.
(Assisted by : Mahendra Yadav, LCRA) H