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Sunday, April 27, 2014

Quashing of CRIMINAL CASE - STING OPERATION - 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. - High court dismissed the petition for quash - Apex court confirmed the same = RAJAT PRASAD ... APPELLANT (S) VERSUS C.B.I. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41457

   Quashing of  CRIMINAL CASE - STING OPERATION - 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. - High court dismissed the petition for quash - Apex court confirmed the same = 

 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.=      
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). =
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.=

 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.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41457
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

                     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.


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.
-----------------------
[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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