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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 747 OF 2010
RAJAT PRASAD ... APPELLANT (S)
VERSUS
C.B.I. ... RESPONDENT (S)
WITH
CRIMINAL APPEAL NO. 748 OF 2010
J U D G M E N T
RANJAN GOGOI, J.
Citation;MANU/SC/0351/2014
1. The refusal of the Delhi High Court to exercise its inherent
jurisdiction under Section 482 Cr.P.C. to quash the criminal charges framed
against the accused-appellants has been challenged in the present appeals.
Specifically, the appellants, Rajat Prasad and Arvind Vijay Mohan who are
the sixth and fourth accused respectively in CC Case No. 28 of 2005
(hereinafter referred to as A-6 and A-4) in the Court of the learned
Special Judge, CBI, Delhi had assailed the order dated 24/25.04.2007 passed
by the learned Trial Court framing charges against them under Section 120-B
of the IPC read with Section 12 of the Prevention of Corruption Act, 1988
(hereinafter for short ‘the Act’) before the High Court. The High Court by
its order dated 30.05.2008 refused to interfere with the said order of the
learned Trial Judge. Hence, the present appeals by special leave.
2. The relevant facts which will require enumeration can be summed up as
follows.
On 16th of November, 2003 in the Delhi Edition of the Indian Express
a news item under the caption “Caught on Tape : Union Minister Taking Cash
saying money is no less than God” had appeared showing visuals of one Dalip
Singh Ju Dev, (deceased first accused) (A-1), the then Union Minister of
State for Environment and Forest, receiving illegal gratification from one
Rahul alias Bhupinder Singh Patel (third accused) (A-3) in the presence of
the Additional Private Secretary to the Minister one Natwar Rateria (second
accused) (A-2). Immediately on publication of the abovesaid news item a
preliminary enquiry was registered by the ACU-II of the Central Bureau of
Investigation, New Delhi and on conclusion of the said preliminary enquiry
FIR dated 19.12.2013 was filed alleging commission of offences under
Section 12 of the PC Act, 1988 read with Section 120-B IPC by the present
appellants (A-4 and A-6).
3. The aforesaid FIR was challenged in a proceeding before the Delhi
High Court registered and numbered as Crl. Misc. Case No. 59/2004. It
appears that there was no interim restraint on the investigation pursuant
to the FIR filed. While the investigation was in progress, Crl. Misc. Case
No. 59/2004 came to be dismissed by the Delhi High Court by order dated
10.11.2004. As against the said order dated 10.11.2004, SLP (Crl.) No.
6336 of 2004 was instituted by the 4th Accused as well as other accused
before this Court. However, as on completion of investigation chargesheet
had been filed on 5.12.2005, the aforesaid SLP was closed by order dated
23.11.2007 as having become infructuous.
4. From the chargesheet dated 05.12.2005 filed by the CBI before the
competent court, the gravamen of the allegations against the accused-
appellants appear to be that one Amit Jogi (accused No.5) (A-5) son of Ajit
Jogi, who was then the Chief Minister of the State of Chhatisgarh, had
hatched a conspiracy alongwith A-3 to A-6 to execute a sting operation
showing receipt of bribe by the Union Minister of State for Environment and
Forest (A-1) so as to discredit him on the eve of the elections to the
State Assembly of Chhatisgarh and thereby bring political advantage to Shri
Ajit Jogi who was a rival of the Union Minister. According to the
prosecution, as per the conspiracy hatched, A-5 alongwith other co-
conspirators had initially brought in one Manish Rachhoya (PW-23), a close
friend of A-5, as a representative of a Calcutta based mining company which
had pending work in the Ministry of Environment and Forest as one of the
conspirators. A-5 had requested one Shekhar Singh (PW-22) to introduce the
aforesaid Manish Rachhoya to A-1, which was agreed to. The said meeting
was to be held in Hotel Taj Palace, New Delhi and to effectuate the said
purpose A-6 had booked suite No. 151 in Hotel Taj Palace, New Delhi
in the fictitious name of Manish Sarogi. According to the prosecution,
Manish was introduced to Shekhar Singh. However, subsequently Manish
developed cold feet and decided to disassociate himself from the plan
hatched by A-5. However, on instructions of A-5, Manish had informed A-1
that as the deal had certain technical parameters, in future, his partner
Rahul (A-3) would be discussing the matter with A-1.
5. The further case of the prosecution, as alleged in the chargesheet,
is that at this stage Rahul alias Bhupinder Singh Patel (A-3) was roped
into the conspiracy. He stayed in suite No. 151 in Hotel Taj Palace, New
Delhi for a number of days and had meetings both with A-1 and A-2 on
several occasions in the said hotel and had successfully be-friended them.
According to the prosecution, on 5.11.2003, Rahul (A-3) had checked into
Room No. 822 in Hotel Taj Mahal, Man Singh Road, New Delhi which was booked
under the fictitious name of Raman Jadoja. It appears that on the same day
i.e. 5.11.2003, A-3 requested A-1 and A-2 to visit him in the said hotel
room. According to the prosecution, A-4 had arranged for installation of
hidden video recording equipment in the sitting room of the said suite in
Taj Mahal Hotel, Man Singh Road, New Delhi through one Manoj Hora, a dealer
in the electronic products. In the late evening of 5.11.2003 A-1 and A-2
reached the abovesaid hotel and went to Room No. 822. They were
entertained. Wide ranging discussions between A-3 and other two accused (A-
1 and A-2) were held in different matters including matters relating to
certain mining projects in the States of Orissa and Chattisgarh which were
pending in the Ministry. According to the prosecution, both A-1 and A-2
had assured A-3 that necessary assistance in getting the pending proposals
cleared will be offered. Thereafter, currency notes amounting to Rs. 9
lakhs were handed over by A-3 to A-1 who accepted the same and carried
the same out of the hotel in a laundry bag offered by A-3. The video
recording of the entire incident along with audio recording of the
conversations exchanged was secretly done and the same was subsequently
released to the media. The video and audio cassette recording of the event
was sent for analysis and report thereof was received from the FSL,
Hyderabad. It is on these facts that the prosecution had alleged
commission of the offence under Section 7 of the Act against A-1 and
offences under Section 120-B IPC read with Section 7 of the Act against A-
2. Insofar as the other accused including the present accused-appellants
are concerned, according to the prosecution, they had committed offences
punishable under Section 12 of the Act read with Section 120-B of the IPC.
As already noticed, pursuant to the aforesaid chargesheet filed, the
learned Trial Court had framed charges against the accused-appellants under
Section 120-B IPC read with Section 12 of the PC Act.
6. We have heard Shri Uday U. Lalit and Shri P.S. Narsimha, learned
senior counsels for the appellant in Criminal Appeal No. 747/2010 and
748/2010 respectively and Shri P.P. Malhotra, learned Addl. Solicitor
General for the respondent.
7. Learned counsels for the appellants have placed before us the
relevant part of the chargesheet mentioning the claim raised by A-3, during
investigation, that the act of payment of illegal gratification to A-1 and
the secret video recording of the same was prompted by a journalistic
desire to expose corruption in public life. It is contended that the
present case raises an issue of great public importance, namely, the
legality of a sting operation prompted by overwhelming public interest.
According to learned counsel, the said operation had been carried out to
reveal the murky deeds in seats of governmental power. If an intention to
commit any such criminal act is to be attributed to a citizen/journalist
who had undertaken a sting operation, public interest would be severely
jeopardized. It is also argued that in the chargesheet filed it is
mentioned that investigations had revealed that the entire operation was
carried out to disgrace the first appellant prior to the elections to the
Chhatisgarh State Assembly and that the motive behind the operation was to
derive political mileage in favour of the father of A-5 who was the then
Chief Minister of State of Chhatisgarh. It is contended that if the above
was the aim of the sting operation, surely, no offence under Section 12 of
the Act or 120-B IPC is even remotely made out against the accused-
appellants.
8. Learned counsels have elaborately laid before the Court the
ingredients of the offence of criminal conspiracy defined in Section 120-A
of the IPC to contend that there must be (1) commonality of object to be
accomplished; (2) a plan or scheme embodying means to accomplish; and (3)
an agreement or understanding between two or more persons whereby they
become committed to cooperate for accomplishment of the object by the means
embodied in the agreement. It is pointed out that going by the result of
the investigation mentioned in the chargesheet, as elicited earlier, namely
that the operation was aimed to disgrace A-1 and to derive political
mileage in favour of the father of A-5, the conspiracy, if any, is to
defame A-1 and not to commit any of the offences alleged in the
chargesheet. It is also argued that a reading of the chargesheet goes to
show that the conspiracy alleged against A-3 to A-6 is one against A-1 and
A-2 whereas the charge framed is for the offence of conspiracy to abet A-1
and A-2. The inherent contradiction behind the alleged intent of the
accused to trap and expose A-1 and A-2 and the charge of abetment to
facilitate the commission of the offence by A-1 is highlighted. According
to the appellants, the intention on their part as alleged by the
prosecution was not to aid, assist or facilitate A-1 and A-2 in committing
the offence but to expose A-1 and A-2 yet, the charge of abetment has been
levelled. It is also argued that there was no criminal intent behind the
giving of bribe and the absence of mens rea to commit the offences alleged
is ex-facie apparent. Learned counsels for the accused-appellants have, by
referring to the specific allegations mentioned in the chargesheet,
submitted that even if the said allegations are accepted to be correct no
criminal offence is made out against either of the accused-appellants. In
this regard it is pointed out by Shri Narasimha that except for the
allegation of arranging the video equipment which was installed in the
hotel room there is no other material against Accused A-4. The said fact,
by itself, is not enough to even prima facie attract the offence of
criminal conspiracy. Insofar as A-6 is concerned, Shri Lalit, learned
senior counsel has urged that the role attributed to the said accused is
only in respect of booking of the room in Hotel Taj Palace where Manish
Rachhoya (PW-23) had stayed. However, as the aforesaid Manish Rachhoya had
withdrawn from the plan and, thereafter, no specific role in the alleged
conspiracy is attributed to A-6, the prosecution insofar as A-6 is
concerned is wholly unsustainable.
9. In reply, Shri P.P. Malhotra, learned Addl. Solicitor General has
submitted that the sting operation involved the giving of bribe to A-1 who
was a Union Minister at the relevant point of time and in return certain
favours were sought. While the motive behind the act of videographing the
incident may have been to derive political mileage by discrediting A-1, the
giving of bribe amounts to abetment within the meaning of Section 107 of
the IPC. The said criminal act would not stand obliterated by what is
claimed to be the pious desire of the accused to expose corruption in
public life. Learned Addl. Solicitor General has further submitted that
the evidence in the case is yet to be recorded. Whether the exchange of
money for favours in mining projects in Orissa and Chhatisgarh was a
pretence or otherwise i.e. real and what were the true intentions behind
the operation carried out are matters which will be clear only after
evidence in the case is recorded. The aforesaid stage must be allowed to
be reached and completed, the learned Addl. Solicitor General has urged.
It is also urged that the power to quash a criminal charge ought to be
exercised within well defined parameters none of which exists in the
present case.
10. The expression ‘sting operation’ seems to have emerged from the title
of a popular movie called “The Sting” which was screened sometime in the
year 1973. The movie was based on a somewhat complicated plot hatched by
two persons to trick a third person into committing a crime. Being
essentially a deceptive operation, though designed to nab a criminal, a
sting operation raises certain moral and ethical questions. The victim,
who is otherwise innocent, is lured into committing a crime on the
assurance of absolute secrecy and confidentiality of the circumstances
raising the potential question as to how such a victim can be held
responsible for the crime which he would not have committed but for the
enticement. Another issue that arises from such an operation is the fact
that the means deployed to establish the commission of the crime itself
involves a culpable act.
11. Unlike the U.S. and certain other countries where a sting operation
is recognized as a legal method of law enforcement, though in a limited
manner as will be noticed hereinafter, the same is not the position in
India which makes the issues arising in the present case somewhat unique.
A sting operation carried out in public interest has had the approval of
this Court in R.K. Anand vs. Registrar, Delhi High Court[1] though it will
be difficult to understand the ratio in the said case as an approval of
such a method as an acceptable principle of law enforcement valid in all
cases. Even in countries like the United States of America where sting
operations are used by law enforcement agencies to apprehend suspected
offenders involved in different offences like drug trafficking, political
and judicial corruption, prostitution, property theft, traffic violations
etc., the criminal jurisprudence differentiates between “the trap for the
unwary innocent and the trap for the unwary criminal” (per Chief Justice
Warren in Sherman vs. United States[2]) approving situations where
government agents “merely afford opportunities or facilities for the
commission of the offense” and censuring situations where the crime is the
“product of the creative activity” of law-enforcement officials (Sorrell
vs. United States[3]). In the latter type of cases the defence of
entrapment is recognized as a valid defence in the USA. If properly
founded such a defence could defeat the prosecution.
12. A somewhat similar jurisprudence recognizing the defence of
entrapment in sting operations has developed in Canada where the defence
available under specified conditions, if established, may result in “stay”
of judicial proceedings against the accused the effect of which in the said
jurisdiction is a termination of the prosecution. [R vs. Regan[4] (para
2)].
In R vs. Mack[5], it has been explained by the Canadian Supreme Court
that entrapment occurs when (a) the authorities provide a person with an
opportunity to commit an offence without acting on a reasonable suspicion
that this person is already engaged in criminal activity or pursuant to a
bona fide inquiry, and, (b) although having such a reasonable suspicion or
acting in the course of a bona fide inquiry, they go beyond providing an
opportunity and induce the commission of an offence. The following factors
determine whether the police have done more than provide an opportunity to
commit a crime.
(1) The type of crime being investigated and the availability of
other techniques for the police detection of its commission.
(2) whether an average person, with both strengths and weaknesses,
in the position of the accused would be induced into the commission of
a crime;
(3) the persistence and number of attempts made by the police before
the accused agreed to committing the offence;
(4) the type of inducement used by the police including: deceit,
fraud, trickery or reward;
(5) the timing of the police conduct, in particular whether the
police have instigated the offence or became involved in ongoing
criminal activity;
(6) whether the police conduct involves an exploitation of human
characteristics such as the emotions of compassion, sympathy and
friendship;
(7) whether the police appear to have exploited a particular
vulnerability of a person such as a mental handicap or a substance
addiction;
(8) the proportionality between the police involvement, as compared
to the accused, including an assessment of the degree of harm caused
or risked by the police, as compared to the accused, and the
commission of any illegal acts by the police themselves;
(9) the existence of any threats, implied or express, made to the
accused by the police or their agents;
(10) whether the police conduct is directed at undermining other
constitutional values.
13. In United Kingdom the defence of entrapment is not a substantive
defence as observed in R vs. Sang[6] by the House of Lords:-
“The conduct of the police where it has involved the use of an agent
provocateur may well be a matter to be taken into consideration in
mitigation of sentence; but under the English system of criminal
justice, it does not give rise to any discretion on the part of the
judge himself to acquit the accused or to direct the jury to do so,
notwithstanding that he is guilty of the offence.”
However, a shift in judicial reaction appears to be emerging which is
clearly discernable in R v. Loosely[7] wherein the House of Lords found
that:-
“A prosecution founded on entrapment would be an abuse of the court’s
process. The court will not permit the prosecutorial arm of the state
to behave in this way.”
(para16)
“Entrapment is not a matter going only to the blameworthiness or
culpability of the defendant and, hence, to sentence as distinct from
conviction. Entrapment goes to the propriety of there being a
prosecution at all for the relevant offence, having regard to the
state’s involvement in the circumstance in which it was committed.”
(para 17)
14. Thus, sting operations conducted by the law enforcement agencies
themselves in the above jurisdictions have not been recognized as absolute
principles of crime detection and proof of criminal acts. Such operations
by the enforcement agencies are yet to be experimented and tested in India
and legal acceptance thereof by our legal system is yet to be answered.
Nonetheless, the question that arises in the present case is what would be
the position of such operations if conducted not by a State agency but by a
private individual and the liability, not of the principal offender honey
trapped into committing the crime, but that of the sting operator who had
stained his own hands while entrapping what he considers to be the main
crime and the main offender. Should such an individual i.e. the sting
operator be held to be criminally liable for commission of the offence that
is inherent and inseparable from the process by which commission of another
offence is sought to be established? Should the commission of the first
offence be understood to be obliterated and extinguished in the face of
claims of larger public interest that the sting operator seeks to make,
namely, to expose the main offender of a serious crime injurious to public
interest? Can the commission of the initial offence by the sting operator
be understood to be without any criminal intent and only to facilitate the
commission of the other offence by the “main culprit” and its exposure
before the public? These are some of the ancillary questions that arise
for our answer in the present appeals and that too at the threshold of the
prosecution i.e. before the commencement of the trial
15. The answer to the above, in our considered view would depend, as in
any criminal case, on the facts and circumstances thereof. A crime does
not stand obliterated or extinguished merely because its commission is
claimed to be in public interest. Any such principle would be abhorrent to
our criminal jurisprudence. At the same time the criminal intent behind
the commission of the act which is alleged to have occasioned the crime
will have to be established before the liability of the person charged with
the commission of crime can be adjudged. The doctrine of mens rea, though
a salient feature of the Indian criminal justice system, finds expression
in different statutory provisions requiring proof of either intention or
knowledge on the part of the accused. Such proof is to be gathered from
the surrounding facts established by the evidence and materials before the
Court and not by a process of probe of the mental state of the accused
which the law does not contemplate. The offence of abetment defined by
Section 107 of the IPC or the offence of criminal conspiracy under Section
120A of IPC would, thus, require criminal intent on the part of the
offender like any other offence. Both the offences would require existence
of a culpable mental state which is a matter of proof from the surrounding
facts established by the materials on record. Therefore, whether the
commission of offence under Section 12 of the PC Act read with Section 120B
IPC had been occasioned by the acts attributed to the accused appellants or
not, ideally, is a matter that can be determined only after the evidence in
the case is recorded. What the accused appellants assert is that in view
of the fact that the sting operation was a journalistic exercise, no
criminal intent can be imputed to the participants therein. Whether the
operation was really such an exercise and the giving of bribe to A-1 was a
mere sham or pretence or whether the giving of the bribe was with
expectation of favours in connection with mining projects, are questions
that can only be answered by the evidence of the parties which is yet to
come. Such facts cannot be a matter of an assumption. Why in the present
case there was a long gap (nearly 12 days) between the operation and the
circulation thereof to the public is another relevant facet of the case
that would require examination. The inherent possibilities of abuse of the
operation as videographed, namely, retention and use thereof to ensure
delivery of the favours assured by the receiver of the bribe has to be
excluded before liability can be attributed or excluded. This can happen
only after the evidence of witnesses is recorded. Also, merely because in
the charge-sheet it is stated that the accused had undertaken the operation
to gain political mileage cannot undermine the importance of proof of the
aforesaid facts to draw permissible conclusions on basis thereof as regards
the criminal intent of the accused in the present case.
16. An issue has been raised on behalf of the appellants that any finding
with regard to the culpability of the accused, even prima-facie, would
be detrimental to the public interest inasmuch as any such opinion of
the Court would act as an inhibition for enterprising and conscious
journalists and citizens from carrying out sting operations to expose
corruption and other illegal acts in high places. The matter can be
viewed differently. A journalist or any other citizen who has no
connection, even remotely, with the favour that is allegedly sought in
exchange for the bribe offered, cannot be imputed with the necessary
intent to commit the offence of abetment under Section 12 or that of
conspiracy under Section 120B IPC. Non applicability of the aforesaid
provisions of law in such situations, therefore, may be ex-facie
apparent. The cause of journalism and its role and responsibility in
spreading information and awareness will stand subserved. It is only in
cases where the question reasonably arises whether the sting operator
had a stake in the favours that were allegedly sought in return for the
bribe that the issue will require determination in the course of a full-
fledged trial. The above is certainly not exhaustive of the situations
where such further questions may arise requiring a deeper probe. As
such situations are myriad, if not infinite, any attempt at illustration
must be avoided.
17. The contention of the appellants that the materials/allegations
against the accused appellants in the charge-sheet filed do not make out
any criminal offence against them will not require a detailed probe and our
conclusion thereon at the present stage of the proceeding. Suffice it will
be to negative the said contention by holding that prima facie materials
are available for a fuller probe into the precise role of A-4 and A-6 in
the alleged conspiracy.
18. In view of the above discussion the order dated 30.05.2008 of the
High Court refusing to interfere with the charges framed against the
accused-appellants is fully justified. Accordingly, we dismiss the present
appeals and affirm the order dated 30.05.2008 passed by the High Court.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
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[1] (2009) 8 SCC 106
[2] [356 US 359 (1958)]
[3] [287 US 435 (1932)]
[4] [2002] 1 SCR 297
[5] ([1988] 2 SCR 903)
[6] [1980] AC 402
[7] ([2001] UKHL 53)
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