Whether person conducting sting operation can be prosecuted?

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.
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

cause of journalism and its role and responsibility in
spreading
subserved.
information
and
awareness
will
stand
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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 747 OF 2010
RAJAT PRASAD
VERSUS
C.B.I.
Citation; ALLSCR233

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Whether sting operation by private person is justified?

In important remarks made in April, the Supreme Court said that if there is no public interest behind a sting operation, it is unjustifiable. A sting operation has serious legal implications. If it exposes the corruption of a public servant, the journalist or citizen journalist responsible for it wins popularity. If not, it exposes him/her to criminal charges. Many people are unaware that Article 19 (2) states that freedom of expression is not available when a person misuses it to incite a crime. Both bribe giving and taking are criminal wrongs.

In a sting operation where a person lures another to accept a bribe while secretly video recording the act, it is entrapment, which could be legal or criminal depending on the intention and motive of the bribe giver and all those who supported the operation.

The case that was before the Supreme Court last April needs to be understood by journalists for it lays out the legal implications and risks involved in a sting operation. The Supreme Court explained these issues in Rajat Prasad v CBI which involved a sting operation. A news item in the Indian Express on November 16, 2003 said that Dalip Singh Judeo, Union Minister of State for the Environment and Forests (deceased) accepted a bribe of Rs 9 lakhs.

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When sting operation is not permissible?

 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 Indian Penal Code. 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 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 747 OF 2010
RAJAT PRASAD

VERSUS
C.B.I.

RANJAN GOGOI, J.
Dated;APRIL 24, 2014.
Citation: 2014 (85) ALLCC 993, II(2014)CCR528(SC), 2014CriLJ2941, 2014(2)JCC1376, (2014) 3 MLJ(Crl) 81 (SC), 2014(1)N.C.C.691, 2014(2)RCR(Criminal)690, 2014(5)SCALE574, (2014)6SCC495, 2014 (5) SCJ 47

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Guidelines by delhi high court on sting operation

The said proposed guidelines are as follows:
1. A channel proposing to telecast a sting operation shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge.
2. There must be concurrent record in writing of the various stages of the sting operation.
3. Permission for telecasting a sting operation be obtained from a committee appointed by the Ministry of Information and Broadcasting. The said committee will be headed by a retired High Court Judge to be appointed by the Government in consultation with the High Court & two members, one of which should be a person not below the rank of Additional Secretary and the second one being the Additional Commissioner of Police. Permission to telecast sting operation will be granted by the committee after satisfying itself that it is in public interest to telecast the same. This safeguard is necessary since those who mount a sting operation themselves commit the offences of impersonation, criminal trespass under false pretence and making a person commit an offence.
4. While the transcript of the recordings may be edited, the films and tapes themselves should not be edited. Both edited and unedited tapes be produced before the committee.
5. Sting operation shown on TV or published in print media should be scheduled with an awareness of the likely audience/reader in mind. Great care and sensitivity should be exercised to avoid shocking or offending the audience.
6. All television channels must ensure compliance with the Certification Rules prescribed under the Cable Television Network (Regulation) Act 1995 and the Rules made there under.
7. The Chief Editor of the channel shall be made responsible for self regulation and ensure that the programmes are consistent with the Rules and comply with all other legal and administrative requirements under various statutes in respect of content broadcast on the channel.
8. The subject matter of reports or current events shall not:
(a) Deliberately present as true any unverified or inaccurate facts so as to avoid trial by media since a "man is innocent till proven guilty by law";
(b) Present facts and views in such a manner as is likely to mislead the public about their factual inaccuracy or veracity;
(c) Mislead the public by mixing facts and fiction in such a manner that the public are unlikely to be able to distinguish between the two;
(d) Present a distorted picture of reality by over-emphasizing or under-playing certain aspects that may trivialise or sensationlise the content;
(e) Make public any activities or material relating to an individual's personal or private affairs or which invades an individual's privacy unless there is an identifiable large public interest;
(f) Create public panic or uncessary alarm which is likely to encourage or incite the public to crime or lead to disorder or be offensive to public or religious feeling.
9. Broadcasters/Media shall observe general community standards of decency and civility in news content, taking particular care to protect the interest and sensitivities of children and general family viewing.
10. News should be reported with due accuracy. Accuracy requires the verification (to the fullest extent possible) and presentation of all facts that are necessary to understand a particular event or issue.
11. Infringement of privacy in a news based/related programme is a sensitive issue. Therefore, greater degree of responsibility should be exercised by the channels while telecasting any such programmes, as may be breaching privacy of individuals.
12. Channels must not use material relating to persons' personal or private affairs or which invades an individual's privacy unless there is identifiable larger public interest reason for the material to be broadcast or published.

Delhi High Court
Court On Its Own Motion vs State on 14 December, 2007
Equivalent citations: 146 (2008) DLT 429

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