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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.

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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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

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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)] 3 [287 US 435 (1932)]  4 [2002] 1 SCR 297

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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)

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(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.

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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 [1980] AC 402 7 ([2001] UKHL 53)

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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  

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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  

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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  

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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-

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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  

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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.

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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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