Recently the Hon’ble Supreme Court in the case of Vinod Kumar Garg (S) v. State (Government Of National Capital Territory Of Delhi), took into consideration the previously decided cases on the matter and held that, once it is proved that the accused has ‘Demanded’ and subsequently received any illegal gratification, the ‘Presumption’ u/s 20 of the Prevention of Corruption Act, 1988 becomes applicable. Thus, this blog discusses whether ‘Demand’ of illegal gratification is a pre-requisite for an offense under the Prevention of Corruption Act (P.C. Act) and why it is need of the hour to add the word “demand” in Section 20 of the P.C. Act, 1988.
What is presumption?
The law on “presumptions” is given under Chapter VII of the Indian Evidence Act, 1872, is one of the most multifaceted and unresearched areas under IEA, 1872. Though unexplored and complex ‘presumption’ holds importance as it influences the interpretation of the presumption of proof and the assessment of the evidence in a criminal proceeding against the opponents.
The presumption, as defined by Stephen, is a “rule of law that courts and judges shall draw a particular inference from a particular fact or a particular piece of evidence unless and until the truth of such inference is disproved”[i]. Nevertheless, presumptions generally have an evidentiary value that is more than that of the fact.
Section 4 of the Act provides three kinds of presumptions namely ‘may presume’, ‘shall presume’, and ‘conclusive proof’ which could be raised by the court against the accused after guilt is proved ‘beyond reasonable doubt’ by the prosecution. The burden of proof immediately shifts to the accused, when either of the three presumptions is raised by the court. The accused than to remove the presumption must either satisfy a ‘persuasive burden’ or an ‘evidentiary burden’.
The presumption under the Prevention of Corruption Act 1988 –
Section 20 of the P.C. Act discusses “Presumption” where public servant accepts gratification other than legal remuneration. The provision states that when in any trial of offense which is punishable under S. 7 or S. 11 or S. 13(1)(a), the prosecution must prove that the accused has accepted or obtained or has agreed to accept or obtain, any gift, gratification either for him or for any other person. Once the acceptance of such gratification is proved, it will allow the courts to raise the presumption under this section.
Analysis of Presumption under PC Act –
As laid down by Hon’ble Supreme Court in judgments like P. Satyanarayana Murthy, B. Jayaraj, A. Subair, Dnyaneshwar Laxman Rao Wankhede and Mukhtiar Singh, the term ‘accept’ in the clause 1 of S. 20, signifies “to obtain or to take or to get with the consenting mind”. Making it necessary for the prosecution not only to prove acceptance of gratification by the accused but also to establish that he had done it with a consenting mind. For this, the prosecution is required to show the consent or an agreement by the accused had taken place before accepting or receiving the gratification as mentioned by the complainant.
The presumption under S. 20 is the presumption of law. The use of the term ‘Shall Presume’ makes it an obligation on the courts to bring into notice this presumption whenever a case is brought under the provisions of the C.A. Act.
When the prosecution proves essentials for bringing the presumption, the court has to carry on the basis unless the contrary is proved; that any valuable thing attained or received by the accused was received as a reward or motive (defined u/s 7 of CA Act) or for a consideration which accused knows to be inadequate.
The presumption raised is a rebuttal in nature and can be standoff by the accused, after providing evidence to the contrary and sometimes even on cross-examination of prosecution evidence (Witnesses and documents). As held in the case of Sanjay v. State of Maharashtra, the burden of proof placed upon the accused by the presumption under section 20 (Section 4 of Prevention of Corruption Act, 1947) can be refuted by raising proof of nature of ‘preponderance of probability’ in his favor and will consequently get the benefit of the doubt.
The demand for delight is the sine qua non to constitute an offense against the accused and mere possession or recovery of currency notes will not amount to an offense under the act. It is only on proof of illegal gratification that a presumption under section 20 can be raised and unless there is no proof no presumption will follow.
In Bindra Ban Brijal v. The state, the constitutional validity of S. 4 of the P.C. Act, 1947 (same as S. 20 of 1988 act) was challenged before Punjab and Haryana High Court. The appellant argued that presumption under the provision is a real disadvantage to the accused, discriminatory, and also a violative of the founding pillar of criminal justice jurisprudence i.e. ‘an accused must be considered innocent until proven guilty’. The Court while negating the arguments held that the presumption under the said provision is rebuttable and not of conclusive nature, an examination of the nature of presumption will show that no real hardship is caused on the accused by this special rule of evidence.
The Court while referring to S. 114 of Indian Evidence Act, 1872 pointed out that it is very wide in its application. When a public servant is charged with allegations of corruption and subsequently is found to have in possession of such gratification. The court can fit such case u/s 114 of IEA and may presume (discretion) about nexus between complaint of corruption and possession of gratification. Hence, concluded that what all presumption u/s 4 of the Act (1947) does is to make it obligatory on the court to raise such presumption. The provision was held to be constitutionally valid.
Similarly, The Hon’ble court in the present case (Vinod Kumar) held that even if the complainant becomes hostile, this would not completely collapse the prosecution case and other evidence on the record should be examined to corroborate the prosecution version of the case.
The legislatures while drafting the Prevention of Corruption Act, 1988 and even Act of 1947 probably understood that it would be difficult to convict an accused under this Act. Due to the lack of direct evidence in these cases, it would be a daunting task for the prosecution to prove the motive of the accused behind such an act. The “presumption” therefore becomes an important part of this legislation. The presumption is accessible to court only after certain facts are proved by the prosecution beyond a reasonable doubt. The prosecution then is relieved from the burden of proving the motive behind such acceptance of gratification by the accused.
The burden of proof placed upon the accused after raising the presumption is not like the burden placed on the prosecution (beyond a reasonable doubt) but of the nature of preponderance of probability.
The literal interpretation of the statute done by Supreme Courts in earlier judgments, it can be said that if an accused has received any gratification he can be convicted whether he had demanded it or not. But this could not be the intention of the legislature because this would result in misuse of the law and putting of innocent public servants behind the bars.
Judiciary in the present case of Vinod Kumar Garg (S) v. State (Government Of National Capital Territory Of Delhi) has very well reiterated the new interpretation of Section 7 and 13 of Prevention of Corruption Act, drawing attention to the point that the word “demand” is an indispensable requirement for the conviction under the act and after this only presumption under section 20 of the act can be raised. But it is important to consider that judicial review is only a momentary measure to solve this issue and there is a need to insert the word “demand” in the Act to punish the guilty and protect the innocent which is the purpose and object of the Act.