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TMI Blog2014 (4) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 sub-served. It is only in cases where the question reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding 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 ₹ 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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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[(2009) 8 SCC 106] 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 sub-served. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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