Of Entrapment and Agent Provocateurs - Part I

Few things capture the public's imagination like a Sting Operation. X goes undercover and acquires the target's confidence, after which the target is induced to commit illegal acts or confess to the occurrence of alleged improprieties. If X is a police officer, then an arrest usually follows. If X is a journalist, then the footage is broadcast through news items labelled The Truth [about so and so]. A fiery debate rages on TV about the veracity of these claims and the propriety of such inducements. The society's moral dilemmas in accepting such sting operations is reflected in the criminal law as well, where for several years jurisdictions have debated how Eve and the Snake should be treated for biting the forbidden fruit [a reference used by the House of Lords in R v. Sang, [1980] AC 402]. The Indian experience is discussed here

The Snake

Our temptress, the Biblical Snake, is evocatively labelled an Agent Provocateur in the criminal law [so evocative, that perhaps for the first time the law shares names with lingerie]. I won't press the Biblical reference for long though, as the Madras High Court painstakingly illustrated in Re Ambujam Ammal [AIR 1954 Mad 326] that these agents of deception were well-embraced by historical texts in India. For removal of doubts, I make it clear that my idea of an Agent Provocateur is as defined by the Royal Commission on Police Powers & Procedure (1929): "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence."

Important questions emerge. Should these persons be tried for abetting an offence, or lauded for their covert investigation? Should the evidence be regarded circumspect, or enough to secure convictions? Does the identity of the person - private or state agent - matter?

In that order, we proceed.

Finding Crime or Abetting its Creation?

The judicial treatment of this issue depicts a curious state of affairs. In 1917, Aiyar J. of the Madras High Court in Re Lakshminarayana Aiyar [42 Ind Cas 989] unequivocally held that an Agent Provocateur could be guilty of abetment, while laudable motives may prompt the State to withdraw the case. Nearly a century later the Delhi High Court faced a similar issue in Aniruddha Bahal v. State [2010 172 DLT 269], where those who offered bribes to ministers to catch them in the act were chargesheeted. The Single Judge regarded exposing corruption as part of Fundamental duties under the Constitution. More importantly, he held that "in order to expose corruption at higher level and to show to what extent the State managers are corrupt, acting as agent provocateurs does not amount to committing a crime". 

But in 2014, the Supreme Court appeared to have reversed this dictum in Rajat Prasad v. CBI [(2014) 6 SCC 495]. The case was nearly identical to Aniruddha Bahal: a minister was caught on tape accepting bribes by journalists who were then accused as abettors [nearly, for in Aniruddha Bahal the journalists were accused as principals with no complaint against the ministers]. The Court held that whether journalists could be liable was a question for trial, and no blanket rule could be imposed in such cases. However, the Court said that "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". It remains to be seen in what circumstances would this test of 'no remote connection' will be satisfied.

Questionable Accomplice or Star Witness? 

Less confusion prevails here. The testimony of an Agent Provocateur is admissible and can be relied upon, but Courts have differed in their treatment of such evidence. Nor would such persons be considered accomplices and thus their testimony is not affected by the presumption against such evidence under Section 114 of the Evidence Act 1872. But the Supreme Court in Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762] held that such witnesses were nevertheless interested and thus their testimony requires corroboration. Like any other question of evidence, treatment of such evidence also remains highly contingent on the facts and circumstances of the case.

Public or Private Agents

The Supreme Court in Rajat Prasad observed that operations akin to sting operations by state agents were "yet to be experimented and tested in India legal acceptance thereof by our legal system is yet to be answered". This, I'm afraid, is blatantly incorrect. The Police have engaged in these measures for the longest time, and Courts have been unequivocal in expressing their disapproval of such practices. In 1954, the Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322] condemned the police for supplying bribe money and a magistrate for participating as a witness for a trap. Subsequently, in 1956 the same Court decided Ramnajam Singh v. State of Bihar [AIR 1956 SC 643] and its observations warrant reproduction in full: 

"However regrettable the necessity of employing agents provocateurs may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.

The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve : not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside."

This issue of the Agent Provocateur being a State agent also bears importance for the next post, where we discuss the position of Eve, the tempted.