Supreme Court · 2025

4. Countering the submissions so advanced by learned counsel for petitioner, learned Additional Chief Standing Counsel submitted that when the charges are so glaring that video audio clipping has been made viral and it is apparently clear that the petitioner was involved in the alleged gratification for a sum of Rs. 1,00,000/- and was extracting Rs. 25,000/- per month wholly illegally, nothing further remains to be investigated into. Learned Additional Chief Standing Counsel has placed reliance upon the judgment of Supreme Court in the case of Neeraj Dutta v. State (Govt. of N.C.T of Delhi) Criminal Appeal No. 1669 of 2009 he has placed reliance upon paragraphs 67 and 68 of the judgment that runs and under: "67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" doe not result in automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence.

68. What emerges from the aforesaid discussion is summarized as under: (a) Proof of demand and acceptance of illegal gratification by a public servants 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 the 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 interference 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 had 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 fact 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. Having heard learned counsel for respective parties and having perused the records in order to appreciate the arguments so advanced by learned counsel for petitioner regarding satisfaction to be recorded by the disciplinary authority for not holding a detailed enquiry before imposing major penalty under relevant rules, I consider it appropriate to reproduce the rules "8: Dismissal and Removal:- (1).......... (2)................................... (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or "

6. From a bare reading of the aforesaid rules, it is clear that the authority will be exercising power as exception to the general rule of holding disciplinary proceedings in a case where it is reasonably impracticable to hold enquiry thus the authority has to record its subjective satisfaction but based upon objective consideration. The general rules when is to hold detailed enquiry as per the procedure prescribed in order to obviate any chance of allegations eroding transparency, it is necessary for the authority to record its satisfaction based on considerations that had weighted the mind of the authority that in the given facts and circumstances such an enquiry was not practical. In paragraph 7 as quoted above it has been held by the Supreme Court that the authority is required to record reasons as to why it was not reasonably practicable to hold regular departmental enquiry and if not reason is assigned, then the order is bad. I also find it necessary here to quote the entire impugned order passed by the authority on 07.09.2023 the English translation runs as under: " During the period of Constable No. 2031/ 152330811 Ankit Baliyan being posted at Police Station Rabupura Greater Noida District Gautam Buddh Nagar video audio clipping was viral through social media handle on 07.09.2023along with an application for request in which the applicant Waseem s/o Babu r/o Azad Nagar Kasba and Police Station Rabu Pura District Gautam Buddh Nagar was charging Ankit Baliyan for extracting from him Rs. 25,000/- per month for the previous two years and through whatsapp calls further demanded Rs. 1,00,000/- as illegal gratification else he will be falsely implicated the members of the family of the applicant. As per the report of the Deputy Commissioner of Police and Assistant Commissioner of Police-IV greater Noida on 07.09.2023 prima facie voice in the audio clipping appears to be of constable No. 2031 Ankit Balyan. The charges against the constable are of serious nature which has tarnished the image of police department in the general public.

2. Since the charges have been found proved against the constable by ACP-IV Greater Noida and Deputy Police Commissioner in there report dated 07.09.2023 it required no further enquiry.

3. Accordingly I Madan Ram Singh Deputy Police Commissioner, Gautam Buddh Nagar who is the appointing authority on the post of constable dismiss Constable No. 2031/ 152330811 Ankit Baliyan from service exercising power under Section 8(2) (b) of the U.P. Police Subordinate Rank Officials (Punishment and Appeal) Rules, 1991. September 7, 2023.”

7. It has been pleaded in the petition that petitioner had been falsely implicated in the case and he was innocent and never indulged in any such activity and he had unblemished service record of previous nine years to his credit and yet he had been dismissed from service without giving him a chance to face the departmental enquiry. Pleadings raised in paragraphs 15, 16 and 17 though have been denied in paragraph-14 of the counter affidavit but there is not specific avernment coming up regarding any blot in the service carrier of the petitioner in previous years. The question, therefore, arises how the audio and video clippings have been adjudged to be containing the voice of the petitioner being put to lab test. Nothing has come in the impugned order that the committee that furnished the report did conduct any lab test of the audio clippings. Under the circumstances, therefore the Court finds that the committee ex parte conducted enquiry believing that the audio clipping contained the voice of the petitioner.

8. In such circumstances, therefore, both for not getting the audio clipping tested through the Forensic Science Laboratory merely on the subjective presumption of the officer that the petitioner was involved that impugned order has come to be passed. Interestingly none of the recitals contained in the impugned order as quoted above reflect that there was any satisfaction recorded by the authority that it was reasonably practicable to hold enquiry. No reason has been assigned as to why it was not reasonably practicable to hold enquiry.

9. In the circumstances, therefore, on the touchstone of the principles laid down by the Supreme Court in the case of Reena Rani the order cannot be sustained.

10. Insofar as the judgment that has been cited by learned Additional Chief Standing Counsel in the case of Neeraj Dutta's case is concerned, that relates to a case where the court had recorded findings to the effect that even where the witness has gone hostile ipso facto the prosecution cannot be said to have failed to establish the charge. The Court was to evaluate the evidence and then to come to a conclusion. In my considered view the point that has been raised here in this case regarding the satisfaction to be recorded by the authority by assigning the reason as to why it was not reasonable practicable to hold enquiry, the said issue was not involved in the case of Neeraj Dutta. Thus, the judgment in the case of Neeraj Dutta would not be of any help to the respondent authorities.

11. In view of the above the writ petition succeeds and is allowed. The orders dated 07.09.2023 and appellate order dated

14.12.2023 as well as revisional order dated 26.12.2023 are hereby quashed with all consequential benefits.

12. However it is left upon for the authorities to proceed afresh in accordance with Rules 14 of the, 1991 Rules if they are so advised or if they so desire. Order Date :- 5.5.2025 Nadeem NADEEM AHMAD High Court of Judicature at Allahabad

4. Countering the submissions so advanced by learned counsel for petitioner, learned Additional Chief Standing Counsel submitted that when the charges are so glaring that video audio clipping has been made viral and it is apparently clear that the petitioner was involved in the alleged gratification for a sum of Rs. 1,00,000/- and was extracting Rs. 25,000/- per month wholly illegally, nothing further remains to be investigated into. Learned Additional Chief Standing Counsel has placed reliance upon the judgment of Supreme Court in the case of Neeraj Dutta v. State (Govt. of N.C.T of Delhi) Criminal Appeal No. 1669 of 2009 he has placed reliance upon paragraphs 67 and 68 of the judgment that runs and under: "67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" doe not result in automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence.

68. What emerges from the aforesaid discussion is summarized as under: (a) Proof of demand and acceptance of illegal gratification by a public servants 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 the 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 interference 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 had 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 fact 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. Having heard learned counsel for respective parties and having perused the records in order to appreciate the arguments so advanced by learned counsel for petitioner regarding satisfaction to be recorded by the disciplinary authority for not holding a detailed enquiry before imposing major penalty under relevant rules, I consider it appropriate to reproduce the rules "8: Dismissal and Removal:- (1).......... (2)................................... (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or "

6. From a bare reading of the aforesaid rules, it is clear that the authority will be exercising power as exception to the general rule of holding disciplinary proceedings in a case where it is reasonably impracticable to hold enquiry thus the authority has to record its subjective satisfaction but based upon objective consideration. The general rules when is to hold detailed enquiry as per the procedure prescribed in order to obviate any chance of allegations eroding transparency, it is necessary for the authority to record its satisfaction based on considerations that had weighted the mind of the authority that in the given facts and circumstances such an enquiry was not practical. In paragraph 7 as quoted above it has been held by the Supreme Court that the authority is required to record reasons as to why it was not reasonably practicable to hold regular departmental enquiry and if not reason is assigned, then the order is bad. I also find it necessary here to quote the entire impugned order passed by the authority on 07.09.2023 the English translation runs as under: " During the period of Constable No. 2031/ 152330811 Ankit Baliyan being posted at Police Station Rabupura Greater Noida District Gautam Buddh Nagar video audio clipping was viral through social media handle on 07.09.2023along with an application for request in which the applicant Waseem s/o Babu r/o Azad Nagar Kasba and Police Station Rabu Pura District Gautam Buddh Nagar was charging Ankit Baliyan for extracting from him Rs. 25,000/- per month for the previous two years and through whatsapp calls further demanded Rs. 1,00,000/- as illegal gratification else he will be falsely implicated the members of the family of the applicant. As per the report of the Deputy Commissioner of Police and Assistant Commissioner of Police-IV greater Noida on 07.09.2023 prima facie voice in the audio clipping appears to be of constable No. 2031 Ankit Balyan. The charges against the constable are of serious nature which has tarnished the image of police department in the general public.

2. Since the charges have been found proved against the constable by ACP-IV Greater Noida and Deputy Police Commissioner in there report dated 07.09.2023 it required no further enquiry.

3. Accordingly I Madan Ram Singh Deputy Police Commissioner, Gautam Buddh Nagar who is the appointing authority on the post of constable dismiss Constable No. 2031/ 152330811 Ankit Baliyan from service exercising power under Section 8(2) (b) of the U.P. Police Subordinate Rank Officials (Punishment and Appeal) Rules, 1991. September 7, 2023.”

7. It has been pleaded in the petition that petitioner had been falsely implicated in the case and he was innocent and never indulged in any such activity and he had unblemished service record of previous nine years to his credit and yet he had been dismissed from service without giving him a chance to face the departmental enquiry. Pleadings raised in paragraphs 15, 16 and 17 though have been denied in paragraph-14 of the counter affidavit but there is not specific avernment coming up regarding any blot in the service carrier of the petitioner in previous years. The question, therefore, arises how the audio and video clippings have been adjudged to be containing the voice of the petitioner being put to lab test. Nothing has come in the impugned order that the committee that furnished the report did conduct any lab test of the audio clippings. Under the circumstances, therefore the Court finds that the committee ex parte conducted enquiry believing that the audio clipping contained the voice of the petitioner.

8. In such circumstances, therefore, both for not getting the audio clipping tested through the Forensic Science Laboratory merely on the subjective presumption of the officer that the petitioner was involved that impugned order has come to be passed. Interestingly none of the recitals contained in the impugned order as quoted above reflect that there was any satisfaction recorded by the authority that it was reasonably practicable to hold enquiry. No reason has been assigned as to why it was not reasonably practicable to hold enquiry.

9. In the circumstances, therefore, on the touchstone of the principles laid down by the Supreme Court in the case of Reena Rani the order cannot be sustained.

10. Insofar as the judgment that has been cited by learned Additional Chief Standing Counsel in the case of Neeraj Dutta's case is concerned, that relates to a case where the court had recorded findings to the effect that even where the witness has gone hostile ipso facto the prosecution cannot be said to have failed to establish the charge. The Court was to evaluate the evidence and then to come to a conclusion. In my considered view the point that has been raised here in this case regarding the satisfaction to be recorded by the authority by assigning the reason as to why it was not reasonable practicable to hold enquiry, the said issue was not involved in the case of Neeraj Dutta. Thus, the judgment in the case of Neeraj Dutta would not be of any help to the respondent authorities.

11. In view of the above the writ petition succeeds and is allowed. The orders dated 07.09.2023 and appellate order dated

14.12.2023 as well as revisional order dated 26.12.2023 are hereby quashed with all consequential benefits.

12. However it is left upon for the authorities to proceed afresh in accordance with Rules 14 of the, 1991 Rules if they are so advised or if they so desire. Order Date :- 5.5.2025 Nadeem NADEEM AHMAD High Court of Judicature at Allahabad