In R v. Mack, (1998) 2 SCR 903 (Can SC), 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.
In the United Kingdom, the defence of entrapment is not a substantive defence as observed in R. v. Sang, 1980 AC 402, 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 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 discernible in R v. Looseley, (2001) 1 WLR 2060, 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.
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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 747 OF 2010
RAJAT PRASAD
VERSUS
C.B.I.
RANJAN GOGOI, J.
Citation;(2014) 6 SCC 495.
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
Page 2
3
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.
Page 3
4
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
Page 4
5
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
Page 5
6
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
Page 6
7
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.
accused
including
concerned,
the
according
present
to
the
Insofar as the other
accused-appellants
prosecution,
they
are
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
Page 7
8
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.
chargesheet filed
It is also argued that in the
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
Page 8
9
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
Page 9
1
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
Page 10
1
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
Page 11
1
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
Page 12
1
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 Court1 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,
1
(2009) 8 SCC 106
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
States2) 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 States3).
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.
Regan4 (para 2)].
2
[356 US 359 (1958)]
[287 US 435 (1932)]
4
[2002] 1 SCR 297
3
1
In R vs. Mack5, 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;
5
([1988] 2 SCR 903)
(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.
Page 16
1
13. In United Kingdom the defence of entrapment is not a
substantive defence as observed in R vs. Sang6 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. Loosely7
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
6
7
[1980] AC 402
([2001] UKHL 53)
Page 17
1
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
circumstance
in
state’s
which
involvement
it
was
in
the
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-
Page 21
2
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
Page 22
2
cause of journalism and its role and responsibility in
spreading
subserved.
information
and
awareness
will
stand
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.
Page 23
2
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.
Page 24
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