In a recent judgement, a 5-judge Constitution Bench of the Supreme Court of India has clarified the relevance of ‘indirect’ evidence in sustaining a case against public officials under the Prevention of Corruption Act, 1988. In Neeraj Dutta v. State of Delhi (2022), the Constitution Bench was dealing with a ‘reference’ from a 3-judge bench on the question as to whether in cases where the evidence of the complainant/ bribe-giver was unavailable (since they had passed away, turned ‘hostile’, or for any other reason), it was possible to establish the ‘demand’ and the ‘acceptance’ of the bribe by way of circumstantial evidence.

The reference to the Constitution Bench was premised on the perceived inconsistency in various previous judgments of the Supreme Court. In D. Jayaraj (2014), for example, the Supreme Court dealt with a case of a Mandal Revenue Officer who alleged demanded bribes from the complainant, the owner of a fair-price shop. The complainant, at whose instance a trap was laid to apprehend the officer, ultimately disowned his complaint at the trial, turning ‘hostile’ to the prosecution case. Thereafter, in the case of P. Sathyanarayana Murthy (2015), the complainant of alleged bribery against an officer of the Commissionerate of Technical Education passed away before the commencement of trial. In both these cases, the Supreme Court eventually acquitted the accused public officials since ‘primary’ or ‘direct’ evidence of complainant proving the demand of bribe was unavailable. 

The referring 3-judge bench considered the decisions in D. Jayaraj and P. Sathyanarayana Murthy to be in conflict with earlier decisions of the Supreme Court where convictions were upheld despite the absence or ‘hostility’ of the complainant/ bribe-giver.

Answering the reference, the Constitution Bench in a unanimous decision has held that Courts can take recourse to testimony of other witness, documentary evidence or even circumstantial evidence to prove the case of bribery against the accused public officer.

This decision is significant and brings about much wanted clarity under our anti-graft law. There are two categories of offences that may be committed by a public officer which are relevant for the purposes of this decision. First, the offence under Section 7 which pertains to those cases where an officer accepts/ agrees to accept etc. an illegal gratification as “motive or reward” for corrupt performance of their duty. To make out the offence, it is the demand/ acceptance and the motive that is relevant, the actual receipt of the sum being unnecessary for the offence. Second, the offence under Section 13(1)(d) which defines a category of offence of “criminal misconduct” which is committed when an officer “obtains” gratification by corrupt illegal means, by abusing their position or does so contrary to public interest. For this second category, it is the actual receipt or “obtainment” of gratification that is determinative and the means of having done so.

Often, due to various factors, the original complainant/ bribe-giver does not or is not able to provide evidence in support of the prosecution. Further, since most of these demands/ acceptances are transacted behind closed doors, it is difficult to obtain direct evidence from other witnesses. This has proven to be a difficult issue when it comes to making prosecutions for corruption charges.

The Supreme Court’s imprimatur to rely on other evidence, including circumstantial evidence, would aid the prosecution. For instance, the prosecution could now consider using aspects such as the precedent and the antecedent conduct of the officer, the nature of decisions taken by them and recovery of money which remains un-explained to drive home the guilt of an accused officer. This ability to rely upon additional or circumstantial evidence would also serve as a shot in the arm to the prosecuting agencies who are often disadvantaged due to the absence of the complainant/ bribe-giver. 

However, while relying upon such circumstantial evidence, a note of caution may be added. Corruption charges are not necessarily proved merely by recovery of tainted money from a public officer. It would, therefore, be important for the body of judicial precedents to develop so that it can act as a guide for trial courts to specifically identify the kind of circumstances which may be taken into account to prove the offence of corruption.