State Of U.P. Through Prin. Secy. ... vs Sailesh Kumar Shukla & Another
2017 Latest Caselaw 2484 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 
Case :- SERVICE BENCH No. - 1812 of 2014
 
Petitioner :- State Of U.P. Through Principal Secretary Home Lucknow & 3 others
 
Respondent :- Sailesh Kumar Shukla & Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,Manish Mishra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. On a mere alleged sting operation, claimant-respondent was charge sheeted and without oral inquiry i.e examining any witness to prove charge after fixing date, time and place, the report was submitted holding charge proved solely relying upon sting operation which was telecast on T.V channels and claimant-respondent was punished with the order of punishment by stopping of two increments with cumulative effect and full salary for the period of suspension was also denied.

2. Tribunal has found that inquiry was not conducted before imposing major penalty and none proved charge at all. The sting operation was taken as self sufficient evidence to prove charge though there was no evidence to prove charge before inquiry officer and thus entire proceedings are vitiated in law.

3. Law is not well established that no major penalty can be imposed without holding oral inquiry. In the present case, proceedings are founded on sting operation. Commenting upon sting operation and dealing with historical backdrop, in Rajat Prasad Vs CBI (2014) 6 SCC 495, Court has said:-

"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 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 v. 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 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 for the unwary innocent and the trap for the unwary criminal" (per Chief Justice Warren in Sherman v. United States 356 US 359 (1958)) 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 v. United States 287 US 435 (1932)). 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. v. Regan 2002 1 SCR 297 (para 2)).

In R v. Mack (1988) 2 SCR 903, 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;

(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".

"13. In United Kingdom the defence of entrapment is not a substantive defence as observed in R v. Sang (1980) AC 402 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. Loosely (2001) UKHL 53 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. (para 16)

Entrapment is not a matter going only to the blameworthiness or culpability of the Defendant 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 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 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 Indian Penal Code or the offence of criminal conspiracy Under Section 120A of Indian Penal Code 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 Indian Penal Code 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 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-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". (emphasis added)

4. In departmental inquiry matter again Supreme Court considered the question, whether dispensation of inquiry under Article 311 (2)(b) is justified when action is founded on sting operation conducted by a Television Channel displaying alleged corruption of the person concerned, in Risal Singh Vs. State of Haryana and others AIR 2014 SC 2922, and did not approve order of punishment without inquiry.

5. In view of above, and, considering the fact that an inquiry prescribed under Rules having not been held by disciplinary authority and merely on the basis of sting operation not consistent with procedure laid down in the statutory Rules which are in observance and compliance of Article 311 (2) of the Constitution, punishment has been imposed which cannot be sustained.

6. Therefore, Tribunal has rightly set aside order of punishment. We find no manifest error or error apparent on the face of impugned judgment warranting interference.

7. Writ petition lacks merit. Dismissed.

8. Interim order, if any, stands vacated.

Order Date :- 18.7.2017

Pachhere/-