Uttarakhand High Court

2014 vs Smt. Manju Kannojia" Under on 11 January, 2023

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

           HON'BLE SRI JUSTICE SANJAYA KUMAR MISHRA
             HON'BLE SRI JUSTICE ALOK KUMAR VERMA
                         11th JANUARY, 2023

        SPECIAL LEAVE TO APPEAL NO.77 OF 2022
                        WITH
          GOVERNMENT APPEAL NO.23 OF 2022


Between:


State of Uttarakhand                         ......Appellant

And

Manju Kannojia                                .......Respondent

Counsel for the State/ Appellant : Mr. J.S. Virk, Deputy Advocate General assisted by Mr. P.S. Uniyal, Brief Holder for the State.

Counsel for the Respondent : Vipul Sharma, learned counsel for the respondent.

Upon hearing the learned counsel for the parties, this Court made the following judgment:

(Per: Sri SANJAYA KUMAR MISHRA, J.)

By filing this application under Section 378(3) of the

Code of Criminal Procedure, 1973 (hereinafter referred to as,

"the Code" for brevity), the State of Uttarakhand has prayed for

Special Leave to Appeal against the judgement and order of

acquittal recorded by the Special Court Vigilance/ Prevention of

Corruption Act, Dehradun in Special Sessions Trial No. 06 of

2014, "State of Uttarakhand vs. Smt. Manju Kannojia" under

Section 7 and Section 13(1)(d) read with Section 13 (2) of the

Prevention of Corruption Act, 1988.

2. In this connection, the learned counsel for the State

would rely upon the judgment of the Constitution Bench of

Hon'ble Supreme Court in the case of Neeraj Dutta vs. State

(Govt. of N.C.T. of Delhi), 2022 SCC Online SC 1724,

wherein, the Constitution Bench of Hon'ble Supreme Court

answered the reference made to by three Judge Bench of

Hon'ble Supreme Court in order to resolve a conflict of the

judgment rendered by three Judge Bench of the Hon'ble

Supreme Court in cases of B. Jayaraj vs. State of Andhra

Pradesh, (2014) 13 SCC 55 and P. Satyanarayana

Murthy v. District Inspector of Police, State of Andhra

Pradesh and Another, (2015) 10 SCC 152, as the same is

considered to be in conflict with earlier three Judge Bench's

judgment of this Court in the case of M. Narsinga

Rao v. 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 Section 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988 when

the primary evidence of the complainant is unavailable.

3. In this case, also the primary evidence of the

complainant is not available, in the sense, that she has not

supported the case of prosecution and has been declared hostile

by the prosecution.

4. While answering the reference made, the Hon'ble

Supreme Court has held as follows:-

"74. 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 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 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.

(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 latter simply accepts the offer and receives the illegal 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 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.

(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) 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 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 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 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 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.

(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

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 point (e) as the former is a mandatory presumption while the latter is discretionary in nature.

5. Applying this principle to the case in hand, it seen

that (i) the complainant has turned hostile; (ii) the shadow

witness or the witness over hearing the conversation, has

supported the prosecution having being examined as PW7; (iii)

he has seen the respondent accepting money from the

complainant. Thus, it is apparent in such situation the

presumption under Section 20 of the P.C. Act will be attracted.

6. Moreover, the prosecution has also established that

the complainant has certain work with the respondent herein

regarding certain complaint with respect to the Anganwadi

Centre in which the complainant is working and the sole

respondent is the Child Development Project Officer and