Sting operations by the enforcement agencies – Process yet to be experimented, tested and legally accepted in the Indian legal system
The Supreme Court in its recent decision took into consideration the aspect of “Sting Operation”. This was a case under the provisions of Prevention of Corruption Act wherein an action was initiated on the basis of a string operation carried out by journalist claiming to have been done for the purposes of public awareness and general interest.
On the subject of sting operation the Court observed that unlike the U.S. and certain other countries where sting operation is recognized as a legal method of law enforcement to some extent. However, the position is not so in India. Sting operations by the enforcement agencies are yet to be experimented and tested in India and also its legal acceptance by the Indian legal system is yet to be answered.
The question that arose in the present case was as to what would be the position of sting operations if conducted not by a State agency but by a private individual and the liability, instead of the principal offender targeted, of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender? Whether such sting operator can be held as criminally liable for commission of the offence inherent and inseparable from the process by which commission of another offence was sought to be established? Whether 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 sought to make, i.e. to expose the main offender of a serious crime injurious to public interest? Further, whether the commission of the initial offence by the sting operator can 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?
The Court held that answer to the above questions would depend 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. The criminal intent behind the commission of the act 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. Proof of intention or knowledge on the part of the accused has 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
What the accused asserted was 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’ 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 yet to come and hence such facts cannot be a matter of an assumption.
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.
[Rajat Prasad vs. C.B.I.]