RAJAT PRASADversusC.B.I

                                          ..
                            [2014) 8 S.C.R. 636

 A                           RAJAT PRASAD
                                    V.
                                C.B.L
                  {Criminal Appeal No. 747 of 2010)
                             APRIL 24, 2014
 B
           {P. SATHASIVAM, CJI, RANJAN GOGOi AND
                    · N.V. RAMANA, JJ.]

          Prevention of Coffuption Act, 1988 - s~ 12 - Penal Code,
 C   1860 - s. 1208 - Conspiracy to execute sting operation
     involving the giving of bribe to a Union Minister in retum for
     certain favours so as to discredit him on the eve of State
    Assembly elections and thereby bring political advantage to
   . a rival of the Union Minister - Criminal charges against
 D appellants - Quash;ng of - Refusal by High Court - Propriety
    - Held: Whether commission of offence uls.12 of the PC Act
     rlw s. 1208 /PC hacl been occasioned by acts attributed to the
     appellants or not, ideally, is a matter that can be determined '
     on/9 after evidence in the case is recorded - Whether the
 E operation was really a journalistic exercise and giving of bribe
     to A-1. was a mere sham or pretence or whether 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
 F cannot be a. matter of an assumption - Why in the present
     case thety was a long gap (nearly 12 days) between the sting
     operation and  the .circulation thereof to the public is another
     relevant iacet of the case that would require examination .-
     1nherent possibilities. of abuse of the operqtion as
 G 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-
. H                                 636
                RAJAT PRASAD v. C.B.I.                      637

sheet it is stated that the accused had undertaken the A
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 - Prima facie materials
available for fuller probe into the precise role of appellants in · B
the alleged conspiracy - Order of the High Court refusing to
interfere with the charges framed against the accused- .
appellants therefore fully justified.

     Criminal Law - Crime detection - Proof of criminal acts
- Sting operation - ff recognized as a legal method of law C
 enforcement - Position in India and in certain foreign
jurisdictions discussed.

       The appellants (A-6 and A-4) were accused in a
  complaint case in the Court of the Special Judge, CBI, D
  Delhi. The gravamen of the allegations against the
·accused-appellants was that one ·Amit Jogi (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 E
  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 St~te Assembly of Chhatisgarh and
  thereby bring political advantage to Ajit Jogi who wa~ a
· rival of the Union Minister. Currency notes amounting to F
: 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 G
· same was subsequently released to the media.

    The prosecution alleged commission of the offence
under Section 7 of the of the. Prevention of Corruption Act,
1988 against A-1 and offences under Section 120-B IPC
                                                                  ·H
    638     SUPREME COURT REPORTS              [2014] 8 S.C.R.

A   read with Section 7 of the Act against A-2. Insofar as the'
    other accused including the 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.
B
       The appellants assailed the order passed by the Trial
  Court framing charges against them under Section 120·
  B of the IPC read with Section 12 of the Prevention of
  Corruption Act, 1988 before the High Court. The High
  Court refused to interfere with the order of the Trial Judge.
C The refusal of the High Court to exercise its inherent
  jurisdiction under Section 482 Cr.P.C. to quash the
  criminal charges framed against the accused-appellants
  was challenged in the present appeals.

D        In the instant appeals, the questions that arose for
    consideration was what would be the position of sting
    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
E   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.

       Some ancillary questions that arose for
  consideration were: 1) Should such an individual i.e. the
F 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; 2) Should
  the commission of the first offence be understood to be
G 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 pubiic interest; and 3) Can the commission
  of the initial offence by the sting operator be understood
H
              RAJAT PRASAD v. C.B.I.                   639

to be without any criminal intent and only to facilitate the A
commission of the other offence by the "main culprit" and
its exposure before the public.

    Dismissing the appeals, the Court
                                                            8
     HELD:1.1. The expression 'sting operat1on' 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 C
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 D
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. E
[Para 1O] [650-C-F]

     1.2. 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, the same is not F
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 case though it will be difficult to
understand the ratio in the said case as an approval of G
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, H
     640       SUPREME COURT REPORTS             [2014] 8 S.C.R.

A    property theft, traffic violations etc., the criminal
     jurisprudence differentiates between "the trap for the
     unwary innocent and the trap for the unwary criminal"
     approving situations where government agents "merely
     afford opportunities or facilities for the commission of the
B    offense" and censuring situations where the crime is the
     "product of the creative activity" of law-enforcement
     officials. 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
c    prosecution. [Para 11) [650-F-G; 651-A-C]

       1.3. 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"
D of judicial proceedings against the accused the effect of
  which in the said jurisdiction is a termination of the
  prosecution. [Para 12) [651-D-E]

         1.4. In United Kingdom the defence of entrapment is
E    not a substantive defence. However, a shift in judicial
     reaction appears to be emerging. [Para 13) [653-A, CJ ·

          1.5. Thus, sting operations conducted by the law
     enforcement :agencies themselves in the above
     jurisdictions have not been r:ecognized as absolute
F    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. [Para
     14) [653-G]
·G
         R.K. Anand vs. Registrar, Delhi High Court (2009) 8 SCC
     106: 2009 (11) SCR 1026 - referred to.

            Sherman vs. United States 356 US 359 (1958); Sorrell.
H    VS.   United States 287 us 435 (1932); R VS. Regan [2002) 1
              RAJAT PRASAD v. C.B.I.                     641


SCR 297; R vs. Mack [1988] 2 SCR 903; R vs. Sang [1980] A
AC 402 and R v. Loosely [2001] UKHL 53 - referred to.

     2. The answer to the ancillary questions posed for
consideration in the present appeals would depend, as
in any criminal case, on the facts and circumstances             B
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          C
established before the liability of the person charged with
the commission of crillle 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                D
knowledge on the part of the accused. Such· proof is to
be gathered from ttie 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           E
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        F
proof from the surrounding fact:; established by the
materials on record. Therefore, whether the commission
of offence under Section 12 of the PC Act read with
Section 1208 IPC had been occasioned by the acts
attributed to the accused appellants or not, ideally, is a       G
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       H
    642     SUPREME COURT REPORTS                [2014] 8 S.C.R.

A   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
B   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
c   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 state.d that'the accused
0
    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. [Para 15) [653-F-H; 654-A-H]
E
       3. 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
F 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 matt.er can be viewed differently. A
  journalist or any other citizen who has no connection,
G 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 1208 IPC.
  Non applicability of the aforesaid provisions of law in such
H situations, therefore, may be ex-facie apparent. The cause
               RAJAT PRASAD v. C.B.I.                   643

of journalism and its role and responsibility in spreading     A
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.   B
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. [Para 16] [656-A-
~                                                              c
     4. 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     D
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.
The order of the High Court refusing to interfere with the
charges framed against the accused-appellants is fully         E
justified .. [Paras 17, 18]
                    Case Law Reference :
   2009 (11) SCR 1026          referred to      P<!ra 11
                                                               F
   356 us 359 (1958            referred to      Para 11
   287 us 435 (1932            referred to      Para 11
   [2002] 1 SCR 297            referred to      Para 12
   [1988] 2 SCR 903            referred to      Para .12       G

   [1980] AC 402               referred to      Para 13
   [2001] UKHL 53              referred to      Para 13

                                                               H
    644      SUPREME COURT REPORTS                [2014] 8 S.C.R.

A      CRIMINAL APPELLATE JURISDICTION : CRIMINAL
    APPEAL NO. 747 OF 2010

       From the Judgment and Order dated 30.05.2008 of the
  High Court of Delhi at New Delhi in Criminal Revision No. 472
B of 2007.

                                   WITH

    Criminal Appeal No. 748 of 2010.

C        P. P. Malhotra, ASG, U. U. Lalit, P. S. Narasimha, Haris
    Beeran, Mushtaq Salim, Radha Shyam Jena, Rohit Rao N., ·
    Ananga Bhattacharyya, Ritesh K. Chowdhary, S. Nagarajan,
    Dinesh Kothari, Yasir Rauf, B. Krishna Prasad for the appearing
    parties.

D         The Wdgment of the Court was delivered by

        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 ag~inst the accused-
E 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
F 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
G Judge. Hence, the present appeals by special leave.

       2. The relevant facts which will require ~numeration can be ·
    summed up as follows.

H         On 16th of November, 2003 in the Delhi Edition of the·
     RAJAT PRASAD v. C.B.I. [RANJAN GOGOi, J.]                 645


  Indian Express a news item under the caption "Caught on Tape         A
  : 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)          B
  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-11 of the Central
 ·Bureau of Investigation, New Delhi and on conclusion of the said     c
  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            D
 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           E
 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              F
 23. ~ 1.2007 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             G
 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
                                                                       H
    646     SUPREME COURT REPORTS                [2014] 8 S.C.R.


A 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 t~e prosecution, as per
  the conspiracy hatched, A-5 alongwith other co-conspirators
  had initially brought in one Manish Rachhoya (PW-23), a close
B 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 Sl-it::khar Singh (PW-22) to introduce the
  aforesaid Manish Rachhoya to A-1, which was agreed to. The
c 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
D 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.

E      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
F in the said hotel and had succes$fully be-friended them.
  According to the prosecution, on 5.1.1.2003, 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 Rar:nan Jadoja. It appears that on the same day i.e.
G 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
H products. In the late evening of 5.11.2003 A-1 and A-2 reached
    RAJAT PRASAD v. C.B.I. [RANJAN GOGOi, J.]                647


the abovesaid hotel and went to Room No. 822. They were              A
entertained. Wide ranging discussions between A-3 and other
two accused (A-1 and A-2) were held in different matters
includil1g 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         B
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        c
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      0
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 I PC. As already noticed,
pursuant to the aforesaid chargesheet filed, the learned Trial
Court had fr~med charges against the accused-appellants
under Section 120-B IPC read with Section 12 of the PC Act.
                                                                     F
    6. We have heard Shf.l. 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 Addi. Solicitor·General for the respondent.
                                                                     G
      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                 H
    648     SUPREME COURT REPORTS                  [20_14] 8 S.C.R.


A 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
B power. If an intention to commit any such criminal act is to be
  attributed to a cltizen/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
c 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
0
  Act or 120-B IPC is even remotely made out against the
  accused-appellants.

       8. Learned counsels have elaborately ~id before the Court
  the ingredients of the offence of criminal conspiracy defined in
E 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
F 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
G 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
H
    RAJAT PRASAD v. C.B.I. [RANJAN GOGOi, J.]                 649


and A-2. The inherent contradiction behind the alleged intent         A
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 highlig~ted. 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        B
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     c
mentioned in the chargesheet, submitted that even if the said
allegations are accepted to be correct no criminal offence is
made out againsteither 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
                                                                      0
hotel room there is .no   other material against Accused A-4. The
said fact, by itself, is notenough 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       E
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 specitrc role in the
alleged conspiracy is attributed to A-6, the prosecution insofar
as A-6 is concerned is wholly unsustainable.
                                                                      F
       9. In reply, Shri P.P. Malhotra, learned Addi. 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         G
'.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 Addi.          H
    650     SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A 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.
B only after evidence in the case i!? recorded. The.aforesaid stage•
  must be allowed to be reached and completed, the learned.
  Addi. Solicitor General bas 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 ..
c       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
D 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 circumstan~s raising the potential question
E 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 mean~ deployed to esteblish the commission of the crime
  itself involves a culpable act.
F
        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)s not the position in India which makes.
  the issues arising in the present case somewhat unique. A sting·
G 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
H 1. c2009} s sec 100.

                                                           ....
      RAJAT PRASAD v. C.B.I. [RANJAN GOGOi, J.]                 651


of law enforcement valid in all cases. Even in countries like the       A
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       B
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         c
creative activity" of law-enforcement officials (Sorrel/ 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              D
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        E
(para 2)].

       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             F
.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              G
  offenc~. The following factors determine whether the police

2.   [356 us 359 (1958].
3.   [287 us 435 (1932)].
4.   ([2002] 1 SCR 903).
5.   ([1988] 2 SCR 903).                                                H
    652      SUPREME COURT REPORTS                   [2014) 8 S.C.R.


A 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.
B         (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
c         police before the accused agreed to committing the
          offence;

          (4) the type of inducement used by the police including:
          deceit, fraud, trickery or reward;

D         (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
E         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;
F
          (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
G         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
H         other constitutional values.
     RAJAT PRASAD v. C.B.I. tRANJAN GOGOi, J.]               653

     13. In United Kingdom the defence of entrapment is not a        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       8
      into consideration in mitigation of sentence; but U!1der 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."
                                                                     c
     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              o
       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,           E
      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).                                     F

     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         G
enforcement agencies are yet to be experimented and tested
in India and legal acceptance thereof by our legal system is yet

6.   [1980] AC 402.
7.   ([2001] UKHL 53.                                                H
    654     SUPREME COURT REPORTS                   [2014) 8 S.C.R.,


A 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
s 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
c 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
  se13ks 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
0
  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
E 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
  circumstan"ces thereof. A crime does not stand obliterated or
F 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 1·
  occasioned the crime will f'lave to be established before the !
G 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
H
      RAJAT PRASAD v. C.B.I. [RANJAN GOGOi, J.]                   655


  gathered from the surrounding facts established by the                  A
  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 c:;onspiracy under
   Section 120A of IPC would, thus, require criminal intent on the        B
   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 1208          c
   IP_C 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
                                                                          0
   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         E
   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            F
   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        G
   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.
                                                                          H
     656      SUPREME COURT REPORTS                   [2014] 8 S.C.R.


 A        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
 B 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
 c 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
.D 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 .returri 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
 E further questions may arise requiring a deeper probe. As such ·
     situations are myriad, if not infinite, iiilY attempt at illustration
     must be avoided. · · ·

           17. The contention of the appellants thatthe niaterialsf
 F   allegations against t~e accused appellants in the charge-sheet
     filed do not,inake out any criminal offence against them will not·
     require a detaiied probe and our conclusion thereon at the
     present stage of the proceeding. ·suffice it will be to negativ~
     the said contention. by holding that prima facie materials are
 G   available for afuller probe into the precise role of A-4 and A-6'"
     in the alleged conspiracy.

         18. · 1n view of the above discussion the order dated
     30.05.2008 of the High Court refusing to interfere with the

 H
    RAJAT PRASAD v. C.8.1. [RANJAN GOGOi, J.]               657


charges framed against the accused-appellants is fully justified.   A
Accordingly, we dismiss the present appeals and affirm the
order dated 30.05.2008 passed by the High Court.

Bibhuti Bhushan Bose                           Appeals dismissed.