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Report No. 69

VI. Entrapment

73.21. An important point connected with the subject of accomplices is that concerning "traps". The subject of trap witnesses from the point of view of the law of evidence has been thus dealt with1 by the Supreme Court:

"The correct rule is that if such witnesses are accomplices who are particeps criminis, their evidence must be treated in the same way as that of accomplices; if they are not accomplices but are partisan or interested witnesses concerned in the success of the trap, their evidence must be treated in the same way as other interested evidence by the application of diverse considerations, and in a proper case the court may even look for independent corroboration. To convict upon such partisan evidence is neither illegal nor imprudent, but inadvisable."2

1. S. v. Basawan, AIR 1958 SC 500; also see AIR 1969 SC 17.

2. Ramchand v. S., AIR 1958 Born 287.

73.22. Traps.-

In some countries, the use of traps has repercussions on substantive liability and "entrapment" may even constitute a defence to criminal liability. Though we are not concerned with the question of substantive criminal liability. It will not be improper to refer to the cases relating to the effect of entrapment on substantive liability. It is settled in the U.S.A. that if the police or other government agents act as agents provocateurs-that is, going, beyond mere infiltrators affording the opportunity or facility for criminal activity-the defence of "entrapment" may be raised in defence of any subsequent prosecution. This was clearly established by the Supreme Court in Sorrel v. United States, 77 Laywers' Edn., 413 (416). In the lower federal courts, it had clearly been the practice for some time.1

1. Article Entrapment, 1974 New LJ 1072.

73.23. In Sorrel, Chief Justice Hughes commented:

"It is well settled that the fact that officers or employees of a government merely afford opportunity or facility for the commission of the offence does not defeat the prosecution A different question is presented when the criminal design originates with the officials of the government, and they implant into the minds of an innocent person the disposition to commit the alleged offence and induce its commission in order that they may prosecute."

73.24. The facts of the later Supreme Court decision in Sherman v. U.S., Lawyers' Edn. 2d 848 (850, 855). illustrate the problem. In August 1951, K., a narcotics informer met S. at a doctor's office, where, apparently, both men were being treated for drug addiction. From that time K, and S, met frequently at that same office and at the pharmacy. At these "accidental" meetings, conversation ensued. After some time K, asked S, if S, knew of a source of drugs as K, said he was not responding to the treatment. S, tried to avoid the issue, but after a number of requests he gave way and on several occasions following S, obtained drugs and shared them with K, who contributed to the cost, K, then informed the police and on three subsequent occasions in November the police observed S, giving drugs to K.

73.25. In the Supreme Court, Chief Justice Warren drew a distinction between infiltration and the manufacture of 'criminal' activity and made the following observations:

"To determine whether entrapment has been established a line must be drawn between a trap for the unwary innocent and a trap for the unwary criminal."

In a separate judgment, Frankfurter, J. stated the policy underlying the defence of entrapment in these words:

"The courts refuse to convict an entrapped defendant not because his conduct falls outside the prescription of status, but because even if his guilt be admitted the methods employed on behalf of the government to bring about a conviction cannot be countenanced."

Warren, C.J. elucidated the aspect of manufacturing a crime in these words:1

"The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Though stealth and strategy are necessary weapons in the arsenal of a police officer for detecting criminal activity, these become objectionable police methods if the criminal design originates with the officers of the Government and is implanted into the mind of an innocent person."

Chief Justice Warren further observed that such objectionable police methods are in the same category as coerced confessions or unlawful search. To quote the Chief Justice:

"Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations."

Mr. Justice Frankfurter while dismissing the indictment (when the case was remanded), examined the principle of entrapment and observed:

"No matter what the defendant's (accused person's) past record and present inclination to criminality or the depths to which he has sunk in the estimation of the society, certain police conduct to en snare him into further crime is not to be tolerated by an advanced society The possibility that no matter what his past crime and general disposition the defendant might not have committed the particular crime unless confronted with inordinate inducements, must not be ignored. Past crimes do not for ever outlaw the criminal and open him to police practices aimed at .securing his repeated conviction from which the ordinary citizen is protected. The whole ameliorative hopes "of modern penology and prison administration strongly counsel against such a view."

1. Sherman v. United States, (1958) 356 US 369.

73.26. While recognising that it is the obligation of the police to detect those engaged in criminal conduct and ready and willing to commit further crimes, should the occasion arise, Frankfurter J. further observed:

"It does not mean that in holding out inducements they should act in such manner as is likely to induce to the commission of crime only those persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations The power of Government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who left to themselves might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without Government adding to them and generating crime."

73.27. English law as to entrapment.-

The English approach to the problem, starting from Brannan v. Peek, 1948 KB 69: (1947) 2 All ER 572, this has been reviewed by the Court of Appeal in a number of cases. The Court of Appeal has refused to accept the proposition that "entrapment" can amount to a defence, but observed that it may be a proper matter to be taken into account when assessing sentence.

73.28. Thus, no defence of "entrapment" is available in English law-as it is in America-to one who has been led by the police into committing a crime. It has been held in England1 that while it is wrong for the police to encourage the commission of an offence which otherwise might not be committed, they may, in order to trap the criminal, participate in an offence which has already been "laid on" and is going to be committed in any event.2

Entrapment is, however, a matter which, may be taken into account in fixing the sentence in England. Thus, where there was possibility that a theft might not have been committed but for a police trap, the accused was sentenced as if he had been convicted of a conspiracy to steal, rather of actual theft.3

1. Birtles, (1969) 2 All ER 1131, note.

2. McCann, (1971) 56 Cr App R 359.

3. McCann, (1971) 56 Cr App R 359.

73.29. The case of Birtles1 illustrates this. In that case Lord Parker observed:

"there is, as it seems to this court, a real likelihood that he would not have committed he had previously remarked that there was (appellant) was encouraged to commit an offence which otherwise he a real possibility that the appellant was encouraged by the informer and indeed by the police officer concerned. A five year sentence was consequently, reduced to one of three years. However, although the appeal had originally been against conviction and sentence, the appeal against conviction was abandoned at the hearing and so no argument was heard on the point of guilt.

1. Birtles, (1969) 53 Cr App R 469.

73.30. These were cases of public servants laying traps. A private citizen cannot take it upon himself to instigate crime. This is clear from the case of Smith1 where a private citizen took it upon himself to instigate a crime though with the object of procuring a conviction, and was himself convicted.

1. Smith, (1960) 2 QB 423: (1960) 1 All ER 256.

73.31. Although English law on this important topic is not very definite, it appears that from case law the following propositions may, according to one article,1 be deduced.

(1) There is a dividing line between permissible police practice and acting as agent provocateur.

(2) If the police or their informers act as agents provocateur, such evidence may be excluded in the discretion of the trial judge.

(3) If such evidence is not excluded and the defendant is convicted, the sentence imposed may still be mitigated in its severity.

In the same article,2 it is stated:

"Clearly, proposition (2) has the least authority to support it. However, it would, in this writer's view, be prudent policy, if imperfect jurisprudence, to allow the exercise of judicial discretion to exclude such evidence as appears to have been illegally or unfairly obtained in such circumstances, and thereby putting clear restraints on how far legitimate police 'investigation' may go."

1. Article Entrapment in 1974 New LJ 1973.

2. Article Entrapment in 1974 New LJ 1973.

73.32. Indian cases.-

ln India also, judicial decisions have unanimously condemned the use of illegitimate traps to secure evidence against an accused.1

1. (a) AIR 1938 Mad 893: (b) AIR 1968 Ker 60.

73.33. In the Supreme Court1, this question came up for consideration in a case reported in 1954, where the following observations occur:-

"It may be that the detection of corruption may sometimes call for the laying of traps, but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the giver where he has neither got it nor has the capacity to find it for himself. It is the duty of the police authorities to prevent crimes being committed. It is no part of their business to provide the instruments of the offence."

1. AIR 1954 SC 332.

73.34. Having passed strictures on the action of the Additional District Magistrate, their Lordships further stated that they would completely eliminate from consideration the evidence of the Additional District Magistrate, Shantilal Ahuja, who was the principal trap witness to prove the illegitimate trap. In the well-known case of Ram Janam Singh v. State of Bihar, AIR 1956 SC 643, their Lordships expressed themselves in more sympathetic terms against the laying of illegitimate traps. To quote their Lordships:

"that this was not a case of laying a trap, in the usual way, for a man who was demanding bribe, but of deliberately tempting a man to his own undoing after his suggestion about breaking the law had been finally and conclusively rejected with considerably emphasis and decision.

Whatever the criminal tendencies of a man may be, he has a right to expect that he will not be deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law; and more particularly by those who are the guardians and keepers of the law. 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 man have moments of weakness and temptation, and even the worst times when they repent on an evil thought and are given an inner strength to set Satan behind him; 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 wrong doing, it behaves society and the State to protect them and help them in their good resolve; not to place further temptation in their way and start a fresh a train of criminal thought which had been finally set aside. This is the type of cases to which the strictures of this Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322: 1954 SCR 1098, apply."

In Shiv Bahadur Singh, the Supreme Court had set aside the order of the High Court and restored the order of the trying court acquitting the accused.

Indian Evidence Act, 1872 Back

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