PRESUMPTION IN THE PREVENTION OF CORRUPTION ACT, 1988

The cardinal principle of criminal law is that the accused is presumed to be innocent until proved guilty beyond all reasonable doubt. That is to say shifting burden of proof to accused’s shoulders will curtail his right of fair trail. He needs to answer only the specific charges leveled against him. To prove a prima facie case for framing charge as contemplated in section Cr.P.C. after hearing the arguments of the prosecution and defense by the court is the boredom of the prosecution. Prosecution must place the materials before the court to satisfy the court that there is a prima facie case against the accused[1]. (This cardinal principle is not a matter of right of the accused if it is specifically omitted in the statute by the legislature.

What is presumption?

A fact assumed to be true under the law is called a presumption. For example, a criminal defendant is presumed to be innocent until the prosecuting attorney proves beyond a reasonable doubt that she is guilty. Presumptions are used to relieve a party from having to actually prove the truth of the fact being presumed. Once a presumption is relied on by one party, however, the other party is normally allowed to offer evidence to disprove (rebut) the  Presumption. The presumption is known as a rebuttable presumption. In essence, then, what a presumption really does is place the obligation of presenting evidence concerning a particular fact on a particular party.
An inference as to the existence of one fact, from the existence of some other fact, founded on a previous experience of their connexion. Or it, is an opinion, which circumstances, give rise to, relative to a matter of fact, which they are supposed to attend.

Presumptions are either legal and artificial, or natural.

Legal or artificial presumptions are such as derive from the law a technical or artificial, operation and effect, beyond their mere natural. Tendency to produce belief, and operate uniformly, without applying the process of reasoning on which they are founded, to the circumstances of the particular case. For instance, at the expiration of twenty years, without payment of interest on a bond, or other acknowledgment of its existence, satisfaction is to be presumed; but if a single day less than twenty years has elapsed, the presumption of satisfaction from mere lapse of time, does not arise; this is evidently an artificial and arbitrary distinction. An example of another nature is given under this head by the civilians. If a mother and her infant at the breast perish in the same conflagration, the law presumes that the mother survived, and that the infant perished first, on account of its weakness, and on this ground the succession belongs to the heirs of the mother.
Legal presumptions are of two kinds: first, such as are made by the law itself, or presumptions of mere law; secondly, such as are to be made by a jury, or presumptions of law and fact.
Presumptions of mere law, are either absolute and conclusive; as, for instance, the presumption of law that a bond or other specialty was executed upon a good consideration, cannot be rebutted by evidence, so long as the instrument is not impeached for fraud or they are not absolute, and may be rebutted evidence; for example, the law presumes that a bill of exchange was accepted on a good consideration, but that presumption may be rebutted by proof to the contrary.
Presumptions of law and fact are such artificial presumptions as are recognized aud warranted by the law as the pro er inferences to be made by juries under particular circumstances; for instance, au unqualified refusal to deliver up the goods on demand made by the owner, does not fall within any definition of a conversion, but inasmuch as the detention is attended with all the evils of a conversion to the owner, the law makes it, in its effects and consequences, equivalent to a conversion, by directing or advising the jury to infer a conversion from the facts of demand and refusal.
Natural presumptions depend upon their own form and efficacy in generating belief or conviction on the mind, as derived from these connexions which are pointed out by experience; they are wholly independent of any artificial connexions and relations, and differ from mere presumptions of law in this essential respect, that those depend, or rather are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, from the course of nature and the ordinary habits of society.[2]
It is a rule of law that courts shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved. It is an inference of fact drawn from other known or proved facts.

The term ”presumption,” in its largest and most comprehensive signification, may be defined to be an inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted. Like “presumptive evidence” it has there obtained a restricted legal signification, and is used to designate an inference, affirmative or disaffirmative of the existence of some fact, drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed, or admitted or established by legal evidence to the satisfaction of the tribunal.[3] 

In English law presumptions are of three kinds, they are: -

1) Presumption just et de jure: - They are inferences of facts so over whelming that the law will not permit evidence to collect to contradict them. They are akin to the words “Conclusive Proof” used in the Indian Evidence Act [IEA].[4]

2) Presumptions Juris:- They are inferences of fact, which only hold until evidence has been given which contradicts them. They are akin to the words “shall presume” used in IEA.

3) Presumptions hormins or facts:- They do not really deserve to be classed amongst legal presumptions they are inferences of fact, law does not command courts to draw them but only advises their doing so. They are akin to the words “may presume” used in IEA.[5]

In IEA the words, “may”,“shall presume and ”conclusive proof” are defined in Section 4.

Section 4:

“May presume”. - Whenever it is provided by this Act that the Court may presume a fact it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:

“Shall presume”. - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;

“Conclusive proof”. - When one fact is declared by this Act to be conclusive proof of another the Court shall, on proof of the fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

“May presume” is presumptions of facts or natural Presumptions. These presumptions are always permissive and rebut table. This is dealt in Sections 86 to 88,90 and 114 in IEA.

Section 86 related to presumptions as to certified copies of foreign judicial records. S.87 is presumption as to books, maps and charts. Section 88is about presumption as to telegraphic messages. Sections 90 is of presumptions as to documents thirty years old. Section 114 presumption deals with the existence of certain facts by the court. As an illustration the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received goods knowing them to be stolen, unless he can account for his possession (S.4-Illustration (a)). This does not mean that in all cases this maxims do apply. It will do apply to a particular fact and circumstances and do not apply to other facts and circumstances.

Shall Presume are rebut table presumptions of law. Sections 79 to 85, 89 and 105 of IEA deals with it. Section 79is about Presumptions as to genuineness of certified copies, S.80 is presumption as to documents produces as record or evidence, S.81 as to presumptions as to Gazettes, newspapers, private Acts of Parliament and other documents, S.82 deals with Presumption as to document admissible in England without proof of seal or signature, S.83 is of maps or plan made by authority of Government, S.84 as to collections of laws and reports of decisions, S.85 as to powers-of-attorney, S.89 deals with Presumption as to due execution, etc., of documents not produced and S.105 is related to the burden of proving that case of the accused comes within exceptions in the India Penal Code (XLV of 1860) or with in special exceptions or proviso contained in any other part of the same code or in any law defining the offence.

“Conclusive proof” is Irrefutable Presumptions of Law. Sections 41,112 and 113 deals with the conclusive proof. Section 41 states about the Relevancy of certain judgments in probate, etc., jurisdiction, Section 112 is about the birth during marriage, conclusive proof of legitimacy and Section 113 is about the proof of cession of territory. Section 113A &B IS INSERTED BY Act 46 of 1983.S.11A is a about the presumption as to abatement of suicide by married women and 113B inserted by Act--------- which deals with dowry death. At this Section 113B needs some elaboration because it is a reverse onus clause. Whether this section is reasonable and fair to the cardinal principle of then jurisprudence of the Indian judicial system.  Death, the cessation of life, voluntarily may be with so many reasoning, which the dead man alone is knowing. This may not be reasoned due to the cruelty of demand of dowry. The present day stress and strain the mental unbalancing of the victim may lead to suicidal death. This presumption cannot be rebutted in fools proof method because the cruelty is to the wife by the husband for dowry, a wealth, to an extent for the benefit of her children, in a few cases and also the relation ship between the husband accused and wife victim is exclusively known only to them. The Supreme Court in a recent judgment deprecated the practice of including the in-laws and other relatives as co-accused in dowry death cases.

So in a case where the court is considering the reverse onus clause maxim, the mental element, social realities which is different in different places and in social systems, the family background of the victim etc., are relevant facts in issue before the application of this maxim. How far this is considered is a big question.

Now let us go to the Presumption in the Prevention of Corruption Act, 1988 under section 20.

Section.20 of the Prevention of Corruption Act, 1988(corresponding to Section.6 in the old act, The Prevention of Corruption Act, 1947) deals with raising of presumption where a public servant faces a trial of an offence punishable under S.7 or S.11 or clause (a) or clause (b) of subsection (1) of section 13 of the Prevention of Corruption Act, 1988.

Section 20: Presumption where public servant accepts gratification other than legal remuneration. - (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 any other person, any gratification (other than legal remuneration) 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 or for a consideration which he knows to be inadequate.

   (2) Where in any trail of an offence punish-able 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 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.

    (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.

Presumption under this clause is limited to a few sections and not applicable to the whole Act. The court can draw presumption under this section for an offence under section 7.

The provision of Section 7 is related to Public servant taking gratification other than legal remuneration in respect of an official act. The plain meaning of this section is demand of illegal gratification or bribe and an attempt to obtain the same. More clearly a demand for bribe or illegal gratification for showing or forbearing to show or for doing a favour or disfavour or rendering or attempting to render a service or disservice to any person as a motive or reward for doing or forbearing to do any official act.

Section 11 deals with Public servants obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. - Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

This section corresponds to Sec. 165 of Indian Penal Code, 1860(45 of 1860) with slight modification. The difference between section 7 and this section is, under section 7 the illegal gratification (presents also included as per the Explanation (c) of section 7) is receiving by a public servant as a motive or reward for abusing his office and under this section i.e. Section 11, question of motive or reward is immaterial and the acceptance of a valuable thing without consideration or with inadequate consideration from a person who has or is likely to have any business to be transacted is forbidden because though not taken as a motive or reward for showing any official favour, it is likely to influence the public servant to show official favour to the person giving such valuable thing. The provisions of Secs. 7,11 and 13(Secs. 161 and 165 Indian Penal Code, 1860 and Sec.5 of Prevention of Corruption Act, 1947) are intended to keep the public servant free from corruption and thus ultimately ensure purity in public life[6]. The Supreme Court in A. Vaidyanatha Iyer’s case held that Section 11 is so worded as to cover corruptions, which do not come under Secs. 7,8 and 9 of Act 49 of 1988.[7]

          Section 13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, -

(a)                If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b)               If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

Clause 13 deals with criminal misconduct by a public servant and corresponds to existing sub-section (1) and (2) of Section 5 and Section 13(1) (a) and (b) corresponds to Section 5 (1) (a) and (b) of the Prevention of Corruption Act, 1947.Section 13 (1) (a) and (b) deals with the habitual committing of the offences stated in section 7 and 11 of the Act.

Habitually: - The word “habitually” means “usually” or “according to custom”[8]. The word habitually must be taken to mean repeatedly or persistently, and habit is capable of proof by adducing evidence of the commission of number of similar acts[9].

As such the word habitually is not defined in the act. Section 413 of the Indian Penal Code, Section 110 of the Corp. and Madras Restriction of Habitual Offenders Act, 1948 may afford some guidance to interpret the meaning of the word habitually. Section 413 of Indian Penal Code is related to an offence of habitually receiving stolen property. It must be proved that the accused has committed this offence in different occasions and on different dates. Section 110 of the Cr.PC. deals with Security for good behavior from habitual offenders. The word ‘habit’ implies a tendency or capacity resulting from the frequent repetition of the same acts. The words “by habit” and “habitually” imply frequent practice or use. The aforesaid words have been used in Section 110 of the Code of Criminal Procedure Code in the sense of depravity of character as evidenced by the frequent repetition or commission of offence mentioned in the section[10]. Section 2 (4) of the Madras Restriction of Habitual Offenders Act, 6 of 1948, defines a “habitual offenders” as follows:

“Habitual offenders” means a person who before or after the commencement of this Act, has been sentenced to a substantive term of imprisonment, such sentence not having been set aside in appeal or revision, on not less than three occasions, for one or other of the offences under the Indian Penal Code, set forth in the Schedule, each of the subsequent sentences having been passed in respect of an offence committed after the passing of the sentence on the previous occasion:

These definitions or judicial observations are not suffice to fix the liability to an accused for habitual commission of an offence under the above sections. In Halsbury’s Law of England92nd Ed., Vol.IX P 237), it is stated:

          “There is however no exhaustive definition of habitual criminal and the question whether an offender is or not a habitual criminal always one of fact for jury”. The question of ‘habitual’ will be decided by the court after taking into consideration all relevant facts and circumstances.

Presumption under Section 20 is as stated earlier is limited to Secs 7,11 and 13(1) (a) and (b) of the Act only.

The presumption raised under Section 4(Now Section 20 of the new Act) is a presumption of law, which the Court is bound to draw, once it is proved that the accused Public servant received or obtained a valuable thing in the circumstances mentioned in the section[11].

The purpose of the presumption under Section 4 (1) (Now Section 20 of the new Act) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under Section 5 (1) (2) (Section 13 of the new Act) of Prevention of Corruption Act and Section 161 (Now Section 7 of the prevention of Corruption Act,1988) of the Indian Penal Code,1860. The presumption, therefore, can be used in furtherance of the prosecution case and not in derogation of it. I f the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born.”[12]

It is the duty of the prosecution to first prove the basic facts on which the prosecution rests, before placing reliance on the presumption. Unless that is done this legal presumption cannot be invoked. Now a question may arise whether this reverse clause presumption is a judicial enthusiasm?

In Shivaji Bobade v State of Maharashtra[13] the Supreme Court observed that jurisprudential enthusiasm for presuming innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. The presumption of innocence has become a judicial mockery now a days when the only person who knows the truth is standing on the accused dock keeping mum and seeing the drama playing by the prosecutor investigating agency witnesses and the court. He may be laughing at seeing this drama to find out the truth for doing justice. A time has come to change the keep mum theory and statutory burden will be given to accused to prove his case when the prosecution proves a prima facie case. This argument is a material deviation from the present legal jurisprudence. But for the present system of advanced and technically well-planned modus operandi by the offenders, adoption of such a system of reverse clause presumptions are welcome for the present scenario.

The burden of proof on the prosecution is not shifting to the accused initially when the prosecution failed to prove the guilt of the accused. When the prosecution has succeeded in making out the elements of the offence, and the accused is taking a definite defense like trust theory, fees theory or debt theory then the burden of proving the defense is on the accused. It is not good law to shift the burden to accused only because the proof to prove the elements of the offence is difficult for the prosecution. The presumption of innocence has been received the constitutional recognition. The Supreme Court held that an accused person is entitled to rely on the presumption of innocence in his favour.[14]

A number of circumstances, each individually very slight, may so tally and confirm each other as to leave no room for doubt of the fact which they tend to establish.[15]

A presumption cannot contradict facts averred or proved.[16]

An accused cannot be convicted basing only on the presumption. It is the burden of prosecution to prove a prima facie case against the accused then only the presumption starts to run. Where the prosecution has not produced any evidence of dishonest misappropriation court cannot convict the accused merely on the basis of any presumption.[17]

Section 20 presumption arises as soon as the prosecution has proved that the accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person provided (however illogical it may be) that in the former case it has further proved that such gratification was accepted or obtained, or agreed to be accepted or attempted to be obtained, by way of legal remuneration.[18]

The presumption under Section 4 (Sec. 20 of the new Act) arose when it was shown that the accused had received the stated amount and the said amount was not legal remuneration.[19] Therefore the presumption will arise only when acceptance of money or money’s worth is proved in the case.[20]

Where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the Court would certainly be entitled to draw presumption under Sec. 4(1)(Sec. 20 of the new Act) of the Prevention Of Corruption Act, 1947.[21]

The accused is not required to prove his defense by the strict standard of proof beyond reasonable doubt. It is sufficient if he offers an explanation or defense, which is probable and once this is done, the presumption under Sec. 4 (Sec.20 of Act 49 of 1988) stands rebutted.[22]

 It is contented by the defense that mere receipt of money did not justify the raising of the presumption and something more than the mere receipt of the money had to be proved. This argument was rejected by the Supreme Court and it was held that mere receipt of the money was sufficient to raise a presumption under sub-section (1).[23]

If the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in Sec. 161, Penal Code (Sec. 7 of Act 49 of 1988). As held in V. D. Jhingan V. State of Utter Pradesh,[24] the accused can establish his case by preponderance of probabilities; that is to say, he need not prove his case beyond reasonable doubt.[25]

The two witnesses, who at that material time were holding responsible positions in the State Bank of India and Canara Bank respectively, categorically stated that that they saw PW9 taking out the notes from his pocket and handing over the same to Damodaran (the appellant), and the appellant, after counting these notes, putting them in the right front pocket of his trousers. The unimpeachable evidence of these two witnesses conclusively proves the transaction was counsel (sic). That necessarily means that the appellant accepted the money and the defense story of PW9 thrusted the money is patently untrue. Consequent upon such proof, the presumption under Section. 4 (1) of the Act would operate and since the appellant did not rebut that presumption the conviction of the appellant under Section 161 I.P.C. has got to be upheld.[26]

Illustration (a) – whether presumption under illustration (a) to S.114 of the Evidence Act should be drawn in a given situation is a matter, which depends on the evidence and circumstances of the cases. The nature of the stolen articles, the nature of the identification by its owner, the place and circumstances of its recovery, the explanation of the person concerned from whom the recovery is made are all factors which are to be taken in to consideration in arriving at a decision.[27]

To conclude, there is an outcry from some parts to change the law of presumption to favor the prosecution for reasons against the right to silence, a right inborn in Indians. This change in presumption behaviour may sabotage the Indian Judicial thinking and may favor the state. But white collar cases the shifting of burden is a necessity. But in cases like dowry laws this is heavily misutilized by the authorities and public. So in all laws ‘resumption’is a dangerous sword with double edges. Handling it carefully is the best legal solution.

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)