The Orissa High Court's Single Judge Bench ruled on December 16 that the prosecution's case could not have been supported throughout the investigation just because the informant who took part in the trap in connection with the demand for bribes did not support it. 

The Single Judge Bench responded to a petition seeking the dismissal of such a case by saying:

“No doubt the essential ingredients of demand and acceptance shall have to be established to bring home the charge but even when a material witness does not support the prosecution after being a part of the alleged trap at whose instance it was laid, the Court is of the considered view that notwithstanding his hostile testimony during investigation, the whole of the evidence cannot be discarded.”

The Court cited the case of P. Satyanarayan Murthy v. District Inspector of Police, State of Andhra Pradesh, in which it was determined that Sections 7 and 13 of the Act would not be violated simply by accepting money that was allegedly given illegally or by recovering it without a demand or proof. It was also made plain there that the legal presumption under Section 20 of the Act would not arise in the absence of sufficient proof. 

The court ruled that the entirety of the evidence cannot be disregarded, despite the material witness' hostile testimony during the investigation.

“The demand and acceptance may be proved from other materials during the trial connected to the alleged trap and also by subjecting the informant to examination in terms of Section 154 of Indian Evidence Act. Whether there was a demand and acceptance of illegal gratification by an accused can still be proved by incriminating evidence even when the prosecution case does not receive any support from a witness like the informant," the Court further noted.

The earlier decisions in B. Jayaraj v. State of AP (2014) 4 SCALE 81 and M.R. Purushotham v. State of Karnataka (2014) 11 SCALE 467 do not establish a proposition that when the complainant turned hostile and does not support the case, the prosecution cannot prove its case otherwise and the Court cannot legitimately draw the presumption. Instead, the court stated that the decision in Vinod Kumar strongly favors the prosecution's contention.

"In view of the settled position of law, the conclusion is inevitable that the vigilance proceeding before the learned court below cannot be quashed even after the informant’s hostile testimony during investigation as the demand and acceptance of illegal gratification by the petitioner would still depend on the probative value of other evidence including that of the over-hearing witness," said the court, while dismissing the petition.

On the basis of a written complaint submitted to the DSP (Vigilance), Phulbani Unit on June 23, 2011, a case was opened with the allegation that the petitioner had improperly demanded a bribe of Rs. 23,000 from the informant in exchange for a new electrical connection for a welding shop. 

The Vigilance team allegedly set up a trap and the petitioner was caught, with the money being retrieved and seized. Following the conclusion of the investigation, the petitioner was charged with violating Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act in addition to Section 7. 

When questioned during the investigation, the informant, however, did not support the purported trap and recovery of the bribe amount from the petitioner.

Case Title: Brahmananda Sahu v. State of Orissa (Vigilance)
Case No.: CRLMC No. 5247 of 2015
Link: https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=oVz058q2ZLjDVEITM0Vw1N0Yiz5F8q%2BDw3fmApvZfGGN%2F8e69kY9Len5SuxHqUmq&caseno=CRLMC/5247/2015&cCode=1&appFlag=