Report No. 42
Entrapment is broadly divided into two classes (1) legitimate entrapment, and (2) illegitimate entrapment. In the penal law of U.S.A. the expression "Entrapment" is used in the narrower sense of illegitimate entrapment.
2. It is recognised throughout the civilised world that certain offences cannot be detected easily without taking help from agent provocateurs and decoys or trap witnesses. But judicial decisions both in the west and in India have repeatedly laid down a sharp distinction between the legitimate method of utilising the services of such witnesses and illegitimate or objectionable and unethical method. As pointed out in Perkins 'Criminal Law,' 1957 Edn. "It is not the entrapment of a criminal upon whom the law frowns; but the seduction of innocent people into a criminal career by its officers is what is condemned and will not be tolerated."
If the authorities who are engaged in the duty of enforcing law themselves instigate the commission of crime by implanting criminal ideas on innocent minds and thereby bring about the commission of offences which otherwise would not have been perpetrated such an entrapment is considered as illegitimate. As one Judge of the United States put it "Decoys are permissible to entrap criminals but not to create them" (United States v. Healy, referred to in Perkins Criminal Law, page 523, Footnote 12.). Illegitimate trap consists in the conception and planning of an offence by a law enforcing officer or his agent and the procurement of the commission of the offences by a person who would not have perpetrated it except for trickery, persuasion or fraud of the officer.
3. Legitimate trap, on the other hand, comes under the category of what is known as detection of an offence. Traps may be laid or decoys employed to secure the conviction of those bent on crime. The distinction between legitimate and illegitimate traps arises mainly as regards the point of origin of the criminal intent. If the intention to commit the crime originates in the mind of the accused and the enforcement agency merely places himself in a position to apprehend the accused by laying a trap for him, his action will not be blameworthy. But if the intention to commit the offence originates in the mind of the public official and the accused is lured into the commission of the offences for the purpose of prosecuting him thereafter, such a method may be highly objectionable and unethical.
4. In U.S.A. such illegitimate traps are now universally condemned as contrary to public policy and as operating as estoppel "Just as no other plaintiff is entitled to judgment (except against his agent) based upon harm of which his agent was the instigating cause, so it has been held that the acts of its officers estop the Government to prove the offence." (Perkins ibid, p. 925).
In a decision Cox v. Louisiana, (1965) 379 US 559, the Supreme Court of the United States reversed the conviction of the lower court in a case where the police officers first permitted demonstrations in the vicinity of the court-house and thereby gave consent to such demonstration, but subsequently prosecuted the demonstrators for picketing near a court with intent to obstruct justice. The Supreme Court observed that such prosecution was violation of 'due process' and that it constituted an 'indefensible sort of entrapment by the, State'.
5. The leading decision on the doctrine of Entrapment in the United States in Sherman v. United States, 356 US 369 (1958) where Chief Justice Warren of the Supreme Court of America, after citing with approval Sorrels v. United States, 287 US 435 observed:
"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 said 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 pointed out:
"No matter what the defendant's (accused person's) past record and present inclinations to criminality or the depths to which he has sunk in the estimation of the society, certain police conduct to ensnare 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."
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 a 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."
6. It seems to be thus clear that in U.S.A entrapment is a sufficient ground for the court to quash the conviction of an accused even though he may be guilty of the offence. The 'due process' clause of the Constitution has been applied for this purpose, even in those States where there is no statute law on the subject. In the American Model Penal Code also a provision (section 2.13) has been made for quashing the criminal proceedings initiated against the victim of such illegitimate entrapment. In the New York Penal Law, Article 35.40, the following provision is found:
"In any prosecution for an offence, it is an affirmative defence that the defendant engaged in the prescribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offence would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offence means .active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offence does not constitute entrapment."
7. In Britain though there is no statutory law allowing an accused to plead successfully that he was the victim of an illegitimate trap for the purpose of quashing a conviction, nevertheless judicial decisions have expressed strong disapproval of this type of entrapment. I need only refer to the recent judgment of the Court of Appeal in Regina v. Birtles (1 Weekly LR 1969, p. 1047) where Paker, C. J. observed: "It is one thing for the police to make use of information concerning an offence that is already laid on. In such a case the police are clearly entitled, indeed it is their duty to mitigate the consequences of the proposed, offence, for example, to protect the proposed victim, and to that end it may be perfectly proper for them to encourage the informer to take part in the offence or indeed for a police officer himself to do so.
But it is quite another thing, and something of which this court thoroughly disapproves, to use an informer to encourage another to commit an offence or indeed an offence of a more serious character, which he would not otherwise commit, still more so if the police themselves take part in carrying it out." In Brannan v. Peek (1947) 2 All ER 572, where a police officer committed a crime with a view to detect a crime Goddard C. J. observed:
"I hope the day is far distant, when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone."
8. In India also judicial decisions have unanimously condemned the use of illegitimate traps to secure evidence against an accused. I may refer to AIR 1938 Mad 893 and AIR 1968 Ker 60.
In the Supreme Court this question came up for consideration in AIR 1954 SC 332. To quote their Lordships at p. 334: "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."
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 Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 their Lordship 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 considerable 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 provocaters may be (and he realises 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 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 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 is the type of case to which the strictures of this Court in Shia Bahadur Singh v. State of Vindhya Pradesh apply," [AIR 1954 SC 322 (334): 1954 SCR 1098].
In that case they set aside the order of the High Court and restored the order of the trying court acquitting the accused. In 1958 SC 500, their Lordships pointed out that as the law stands in India, such trap witnesses, though they may be considered as partisan or interested witnesses could not in law be treated as accomplices. This was reiterated in AIR 1969 SC 17.
10. The question for consideration by the Law Commission is whether in view of the aforesaid strictures passed by the Courts against laying of illegitimate traps, statutory protection should be given to the victim of an illegitimate trap in the Penal Code or else whether the law as laid down by the Supreme Court should be left for due implementation by authorities concerned.
11. In my opinion, the Legislature should step in and make a special provision in the Penal Code enabling a court to quash the criminal proceedings against an accused who is the victim of illegitimate traps. As the law now stands, though Courts may pass severe strictures on the methods used by the police, nevertheless, they have no other alternative but to convict the accused, even though it may be apparent that he would not have committed the offence but for the instigation and facilities provided by the police themselves. Strictures passed by courts even of a serious nature remain generally as pious observations which the prosecuting agency may or may not care to follow.
On the contrary, if the law provides for quashing such proceedings, illegitimate traps will disappear altogether from the country. I am fully aware that in view of the wide prevalence of corruption especially amongst public officials laying of traps for detection of corruption cannot be avoided. But it must be done in a manner recognised as proper in all civilized countries. To quote Mr. Justice Holmes (277 US 438):
"It is desirable that criminals should be detected and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is also to be obtained... For my part I think it a less evil that some criminals should escape than that the government should play an ignoble part."
I would specially emphasise the words underlined which should be the object of the jurists and Law Reformers in India.
12. My colleagues consider that legislation on the subject is unnecessary and that the prosecuting agency may be trusted to follow the principles laid down by the Supreme Court and avoid laying illegitimate traps. With great respect, I am unable to take such an optimistic view. Not infrequently the observations of the Court will be ignored and illegitimate traps laid. In such instances, the Court will have no discretion to quash the proceedings and can only insist on adequate corroboration of the evidence of the trap witness.
The 'due process' clause in the American Constitution which enables a court to quash a conviction based on indefensible entrapment is not available here. I consider that in a country where rule of law prevails, a person who was the prime instigator and active helper of a person who would not have committed the crime but for such instigation and help, should not be permitted to successfully prosecute his victim. Any proposal for penal reform should in the Code itself provide for the quashing of the conviction of the victim of an illegitimate trap. This is the only effective way of eradicating this evil in this country and it will also correct a glaring omission in the Penal Code.
13. I, therefore, recommend the addition of a new section at the end of Chapter 4 on the lines of the New York Penal Code (see para. 5) with suitable drafting modifications.