DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

LAW OF EVIDENCE

FINAL DRAFT

ADMISSIBILITY OF EVIDENCE GATHERED

THROUGH STING OPERATION

SUBMITTED TO: SUBMITTED BY: Dr. K. A. Pandey

Shubham Singh
Associate Professor (Law)  B.A. LL.B. (HONS.)
Dr. RMLNLU,Lucknow ROLL NO -133 Vth SEM Sec-B

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 Acknowledgement

I am thankful to my subject teacher, Dr. K.A.Pandey, for letting me take this important issue as my
project and also for guiding my way through it. I am also thankful to him for encouraging me to
make this with great zeal and enthusiasm.
I am also thankful to the library staff, and my college which has given me such a good and useful
library, which has helped me throughout the making of this project.
I would also like to present my hearties gratitude to my friends and classmates for their views and
support throughout the time.

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 INDEX

Introduction................................................................................................................................4
Entrapment….............................................................................................................................6
Inducement factor.......................................................................................................................7
Extra-judicial confessions........................................................................................................10
Position in Inida............................................................................................................11
Admissibility of evidence gathered through sting
operation.......................................................................................................................12
Conclusion................................................................................................................................14
Bibliography.............................................................................................................................15

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 INTRODUCTION
Sting operations can be classified into positive and negative sting operations based on
their purpose. Positive sting operation takes place in the interest of the society, which
helps to lift the purdah of the working of the government. On the other hand negative
sting operations harm the society and its individuals. It unnecessarily violates the
privacy of the citizens without any benefit to the society. Freedom of press in India
has been derived from freedom of speech and expression. Media has a right to impart
information to the public in a fair manner, thus playing an important role in a
democratic society. Journalism shall always be in public interest and sting operation
for exposing corruption serve public interest. A sting operation with genuine motive
to create awareness or bring forward the ongoing corruption should not be prohibited.
A line has to be drawn between sting operations that invade privacy and those which
exposes corruption and like others in order to protect the very essence of the
Constitution of India.  
The expression 'sting operation' essentially involves a somewhat complicated plot
hatched by a person or group of 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.
In Aniruddha Bahal v. State1 the Delhi High Court held that “it is built-in duties that
every citizen must strive for a corruption free society and must expose the corruption

1
2010 SCCOnLine Del 3365

4
whenever it comes to his or her knowledge and try to remove corruption at all levels
more so at higher levels of management of the State”. Thus, it said that conducting a
sting operation is a legitimate exercise by any citizen. The reasoning adopted by the
Court was that there is no explicit law which allows conducting of sting operations.
But the Court in the above stated case derived the right to conduct sting operation to
expose corruption under Article 51A (b) of the Constitution of India. The Article
provides that it is the duty of every citizen to cherish and follow the noble ideals that
inspired the national struggle for freedom. The Court opined that for fulfillment of
this duty there has to be corruption free India and if any sting operation is carried out
exposing any corruption then it is allowed. 
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, the same is not the
position in India. 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."2  In the case of R.K. Anand v. Registrar, Delhi High Court3, the
Supreme Court of India opined that the greater public interest lies in bringing out the
mischief in full public gaze rather than allowing the attempt to suborn a witness, with
the object to undermine a criminal trial, lie quietly behind the veil of secrecy.
The sting telecast by NDTV was indeed in larger public interest and it served an
important public cause. Apart from the legality of the operation and admissibility of
the evidence gathered, another unanswered question in this evolving concept of sting
operations is 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

2
Sherman v United States 356 US 359 (1958)
3
(2009) 8 SCC 106

5
the offence that is inherent and inseparable from the process by which commission of
another offence is sought to be established?

ENTRAPMENT

Legal and illegal entrapments:

Entrapment happens when:
 Law enforcement officials induce or persuade someone to commit a crime
 That the person (most likely) wouldn't have committed without being
persuaded to do so.

There are two kinds of traps 'a legitimate trap', where the offence has already been
born and is in its' course, and 'an illegitimate trap', where the offence has not yet been
born and a temptation is offered to see whether an offence would be committed,
succumbing to it, or not.4 Thus, where the bribe has already been demanded from a
man, and the man goes out offering to bring the money but goes to the police and the
magistrate and brings them to witness the payment, it will be 'a legitimate trap',
wholly laudable and admirable, and adopted in every civilized country without the
least criticism by any honest man.
A sting operation can constitute a legal entrapment only in certain cases. On the other
hand, where a man has not demanded a bribe, and he is only suspected to be in the
habit of taking bribes and he is tempted with a bribe, just to see whether he would
accept it or not and to trap him, if he accepts it will be a illegitimate trap. Such an act
unless authorized by an Act of Parliament will be an offence on the part of the persons
taking part in the trap. All such persons will be "accomplices" whose evidence will
have to be corroborated by other evidence before the bribe taker can be convicted.5
In cases of illegitimate trap, it will be an offence on the part of the persons taking part
in the trap we will all be "accomplices" whose evidence will have to be corroborated
by untainted evidence to a smaller or larger extent as the case may be before a

4
In re M.S. Mohiddin AIR 1952 Mad 561
5
Rao Shiv Bahadur Singh v State of Vindhya Pradesh AIR 1954 SC 322

6
conviction can be had under a rule of Court which has ripened almost into a rule of
law. But, in the case of a legitimate trap, the officers taking part in the trap, would in
no sense be "accomplices" and their evidence will not require under the law, to be
corroborated as a condition precedent for conviction though the usual rule of prudence
will require the evidence to be scrutinized carefully and accepted as true before a
conviction can be had.
In R v. Mack6 , 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.

INDUCEMENT FACTOR
A sting operation is, by its nature, based on deception and hence, the onus would be
heavy on the person behind the sting and publication/telecast of the sting materials to
establish his/her bona fide, apart from the genuineness and truthfulness of
the sting materials. In regard to sting operations bona fide could not be assumed.
A sting is based on deception and, therefore, it would attract the legal restrictions with
far greater stringency. S. 24 of the Indian Evidence Act deals with the effect of
inducement, threat or promise on the consequent confessions by a person. The
expression 'confession' holding that only a statement which was a direct
acknowledgement of guilt would amount to confession and did not include merely
admission which falls short of being admission of guilt. A confession must either
admit in terms the offence, or at any rate substantially all the facts which constitute
the offense. An admission of a gravely incriminating fact, even a conclusively

6
(1988) 2 SCR 903

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incriminating fact, is not of itself a confession.7 Section 24 lays down the obvious rule
that a confession made under any inducement, threat or promise becomes irrelevant in
a criminal proceeding. Such an inducement or any other vitiating factor need not be
proved to the hilt.
The expression ‘appears’ as used in the Section connotes that the Court need not go to
the extent of holding that the threat etc. has in fact been proved. If the facts and
circumstances emerging from the evidence adduced make it reasonably probable that
the confession could be the result of threat, inducement or pressure, the court will
refrain from acting on such confession or admission. However, confession leading to
the discovery of a fact under Section 27 is an exception to the rule of inadmissibility
of confessions made before a police officer.
In order to prove the applicability of this section, the inducement, threat, or promise
should have
a. Reference to the charge against the accused
b. Proceeded from a person in authority
c. Sufficiently given the accused person reasonable grounds for supposing that
by making the confession he would gain any advantage or avoid any evil of
temporal nature in reference to the proceedings against him.

In the case of Emperor v. Panchkowri Dutt8, it was held that the court will have to
perform a three-fold function. Firstly, it will have to determine the sufficiency of
inducement, threat or promise as affording certain grounds for giving the confession.
Secondly, it will have again to clothe itself with the mentality of the accused to see
whether the grounds would appear to the accused reasonable for a supposition that, by
making the confession, he would gain any advantage or avoid any evil of a temporal
nature in reference to the proceedings against him. Thirdly, it has to see if confession
appears to have caused in consequent of inducement, threat or promise. If the
circumstances would show anything ranging between the barest suspicion on one
hand or absolute certainty on the other hand, would be sufficient to satisfy the

7
Kanda Padayachi v State of Tamil Nadu AIR 1972 SC 66
8
(1925) Cal 587

8
requirements of this section.
The defense of entrapment was recognized by the U.S. Supreme Court in the case of
Sorrells v. United States where the Supreme Court ruled that entrapment occurs
“where the criminal design originates with the officials of the government and they
implant in the mind of an innocent person the disposition to commit the alleged
offence and induce its commission in order that the Government may prosecute. The
defense of entrapment therefore has two elements:
1. Improper government inducement of the crime
2. Lack of predisposition on the part of the defendant to engage in criminal
conduct.

The burden of proving such a defense would, obviously lie on the defendant to
establish the evidence of both the government’s improper inducement and the
defendant’s lack of predisposition to commit the alleged offence. The government
must then show readiness on the part of the defendant and that the “defendant was
poised, was likely, to engage in criminal activity. However, the mere fact that the
officer afforded the opportunity or the facility for the defendant to commit the crime
in order to obtain evidence does not constitute entrapment.
A sting operation is not improper inducement to commit a crime if it merely provides
an opportunity to commit a crime. However, proof of a sting operation that includes
additional conduct by police may amount to sufficient evidence to meet defendant’s
burden. Excessive urging, inducement, solicitation or temptation may amount to
additional conduct by the police officer. However, in United States v. McClelland9, it
was held that if the defendant is found to be predisposed to commit a crime, an
entrapment defense is unavailable regardless of the inducement. In the case of Nanhu
Goborya v. State10, it was held that where the accused confessed the guilt only when
he told him that he would not be harmed in any way. There was, therefore,
inducement by him, which made the accused make the confessional statement.
The rule of evidence, as stated in Emperor v. Bhagi11 is that if it appears that the
9
72 F.3d 717, 722 (9th Cir 1995)
10
AIR 1960 MP 132
11
(1906) 8 Bom LR 697

9
confession has been improperly induced, then the Court is bound to exclude it, no
matter how true it may. The typical scheme of a sting operation includes either
catching an official taking bribe on camera or recording or incriminating statements
made by an alleged offender in the form of confessions or admissions. While the
former may be concerned with the legitimacy or illegitimacy of the trap laid, judicial
thought must be given to the second case in light of the provisions of the Indian
Evidence Act, whether the admissions should be allowed in courts of law as a piece of
evidence or not, the reason here being that there is always some amount of
inducement involved on the part of the perpetrator of the sting operation while trying
to extract such incriminating statements from the defendant.

EXTRA JUDICIAL CONFESSIONS

Another facet of the problem is that the confessions in a sting operation are, by their
very nature, extra-judicial confessions. It is well established law that in the process of
proof of extra-judicial confession, the court is to be satisfied that it is not the result of
inducement, threat or promise. While appreciating it the court has to consider relevant
factors like:-
1. To whom it is made
2. The time and place of making it
3. The circumstances, in which it was made.

Extra judicial confessions are usually not considered with favor but it does not mean
that when a confession has come out from a person who has no reason to give the
statement falsely, and there are circumstances to support such a statement it should
not be disbelieved.12 An unambiguous extra judicial confession possesses high
probative value force as it emanated from the person who committed the crime and is
admissible in evidence provided it is free from suspicion and suggestion of any falsity.
However, before relying on the alleged confession, the Court has to be satisfied that it
is voluntary and is not the result of any inducement, threat or promise under Section

12
Ram Singh v State of U.P. AIR 1967 SC 152

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24 or brought about in suspicious circumstances to circumvent Sections 25 and 26.
The extrajudicial confession which is not obtained by coercion, promise of favor or
false hope or is plenary in character and voluntary in nature can be made the basis for
conviction, even without corroboration.13Prudence and caution however, may require
corroboration.14

POSITION IN INDIA
In India we don’t have a specific law governing sting operations but a person can go
to the court under different laws to protect his rights and freedom. A private action for
damages may lie for an unlawful invasion of privacy under Torts.  They also violate
the right to privacy guaranteed under Article 21 according to Supreme Court and such
a violation is protected under Article 19(2). A person who welcomes media interest in
his life will not be able to claim a right to privacy as easily as a private individual. The
apex court, however, has always upheld the importance of an informed citizenry.

The Indian position on entrapment and sting operations was explained by the Delhi
High Court in the case pertaining to a “Live India” sting operation15. Television news
channel “Live India” carried out a sting operation which showed Ms. Uma Khurana, a
teacher with a Delhi government school, purportedly forcing a girl student into
prostitution. Subsequent to the telecast, a crowd gathered around the school and
demanded for Ms. Khurana to be handed over to them. In the chaos that followed,
some persons physically attacked the teacher and even tore her clothes. When the
incident was published in popular newspaper Hindustan Times, the court drew up
proceedings on its own motion. The court ordered an investigation into the matter and
it was found that Ms. Khurana was not involved in any organized prostitution racket
involving school girls as shown in the sting operation and that a part of the sting
operation was stage managed.

13
Piara Singh v State of Punjab AIR 1977 SC 2274
14
Maghar Singh v State of Punjab AIR 1957 SC 1320
15
Court on its own motion v State 146 (2008) DLT 429

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The court observed that while there is no doubt or second opinion that the “truth”
should be shown to the public in public interest whether in the nature of a sting
operation or otherwise, but entrapment of any person should not be resorted to and
should not be permitted. In this connection, the Court referred to the decision of the
Supreme Court of the United States in Keith Jacobson v. United States (503 US 540).
In the said decision, it was held by the Supreme Court of the United States that “in
their zeal to enforce law, law protectors must not originate a criminal design, implant
in an innocent person’s mind a disposition to commit a criminal act, and then induce
commission of the crime so that the government may prosecute.”

ADMISSIBILITY OF EVIDENCE GATHERED

THROUGH STING OPRATION

One of the major issues we face today is whether or not evidence gathered by way of
sting operations is admissible. Some would argue that such evidence has been
acquired by way of inducement or in a sense, even by way of fraud and is hence
inadmissible. While there are others who believe that when there exists compelling
evidence against an accused or suspect the same must be admissible irrespective of
the method by which it is obtained. The position remains unclear as Indian courts
have adopted divergent views. Previously, the courts did not concern themselves with
the method by which the evidence in question was obtained. Their position was that
evidence remained evidence even if the methods prescribed in CrPC were not
complied with16. Of late, however, Indian courts have looked at evidence obtained
through sting operations with more caution. The general standard employed is to
disregard evidence if it has been obtained by luring the defendant into committing a
crime or incriminating himself. However, there have also been instances where courts
have admitted evidence against a person lured into committing an offence upon
observing that there would be an increase in corruption if people who help unravel

16
Pushpadevi M Jatia v M.L. Wadhawan AIR 1987 SC 1748

12
acts of corruption in an institution are prosecuted. In such cases courts have ignored
the factum of entrapment keeping in mind the larger public interest.

Evidence by way of sting operations has been treated as extra-judicial confession in

certain cases and thus, admissible. The extra-judicial confession cannot be sole basis
for recording the confession of the accused, if the other surrounding circumstances
and the materials available on record do not suggest his complicity. However, if it is
voluntary, truthful, reliable and beyond reproach, it is an efficacious piece of evidence
to establish the guilt of the accused, and it is not necessary that the evidence should be
corroborated on material facts.

In State of Haryana v. Ved Prakash17, Supreme Court held that tape-recording of

confession denotes influence and involuntariness and hence are inadmissible. In the
famous Godhra train carnage case, the court of Additional Sessions Judge P R Patel
observed that a sting operation carried out by a person without authority cannot be
accepted or permitted to be put as evidence especially when the Supreme Court has
deprecated such sting operations. Ashish Khaitan, a journalist working for Tehelka
magazine, had done a sting operation on many people, including witnesses of the
Sabarmati Express train carnage and people suspected to have played a role in the
communal riots of 2002. In the secretly recorded video, two star witnesses of the train
burning case, Prabhatsinh Patel and Ranjit Patel, were shown as saying that they were
given money to give a statement that six accused of the case had come to get loose
petrol from Kalabhai petrol pump on the night of February 26, 2002.

However, in the Naroda Patiya massacre case, the same sting operation by Ashish
Khaitan was considered as a reliable and valid piece of evidence.  In the opinion of
the Court, extrajudicial confession in this case possessed a high probative value as it
emanated from the person who commited a crime, which was free from every doubt.
Ashish Khaitan before whom the confession was given by Babu Bajrangi, Prakash
Rathore (21) and Suresh Richard (22) was an independent and disinterested witness

17
1994 Cr L J 140

13
who bore no eminence against any of the accused. This extra judicial confession, in
case of all the three accused was relevant and admissible in law under Sec.24 of the
Indian Evidence Act. Believing the footage of sting operation, which had
passed close scrutiny of the CBI and court through various FSL tests, the court used
the sting operation as evidence against all these.

CONCLUSION
Every liberty if left unchecked, can lead to disorder. Sting operations may be an
expression of freedom of press but carry an unavoidable duty to respect privacy of
others. TV channels in the bid of increasing their TRPs resort to sensationalized
journalism. Freedom of expression is not absolute but is qualified by certain clearly
defined limitations under Article 19(2). ‘Right to privacy’ is ceasing to have
pragmatic value where ‘sting operations’ define the order of the day. Despite the
growing invasion of privacy, there is no Indian legislation that directly protects the
privacy rights of individuals against individuals. The classic ethical problem which
haunts all sting operations is whether you can hold somebody liable for a crime that
he would not have committed if not encouraged. It may, hence, come under the
purview of Article 19(2) (public morality and decency). While it is not suggested that
the court disregard the evidence obtained through sting operations as such, discretion
should be exercised in the admission of such evidence, particularly by testing it on the
anvil of Indian Evidence Act. The courts need to be more precautious while deciding
such sensitive matters. In India, sadly, the Pre-natal Diagnostic Techniques Act is the
only legislative authority in place which discusses sting operations to a certain extent
and upholds the validity of the same for the purposes of the Act. Thus, a definite
statute or regulation must be enacted, setting out standards which must be followed by
the media, without affecting the freedom of press to a great extent. Courts must
formulate clear principles as to the admissibility of evidence in such cases, keeping in
mind the facts and circumstances. While there has been a fair degree of uncertainty,

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Indian courts, of late, seem to have taken the position that entrapment, in the event it
helps combat corruption, is not impermissible. While the ability of an entrapment to
give rise to legal (and in particular, criminal) proceedings needs to be reconsidered,
a more immediate concern is ensuring that certain procedural safeguards are
implemented to ensure that false and fabricated sting operations are not publicized. In
this regard, the Delhi High Court, in the Uma Khurana case, provided certain
guidelines for channels/newspapers proposing to publish sting operations:
 A channel proposing to telecast a sting operation should be required to obtain
a certificate from the person who recorded or produced it saying that it was
genuine to the best of his or her knowledge.
 The channel should also obtain permission from a committee appointed by the
Ministry of Information and Broadcasting to telecast the sting operation by
producing unedited tapes.
 Reports should not be such as to create alarm or panic or amount to incitement
to commit any crime and the media should avoid overplaying certain parts and
underplaying others.
Media is to observe general standards of decency, having regards of the sentiments of
viewers, particularly that of children. However, it becomes imperative that these
guidelines are carried out, in fact.

BIBLIOGRAPHY

Books:
 Phipson On Evidence (16th edn., Thomson Sweet and Maxwell, London) 2007
 M. Monir, Textbook on The Law of Evidence (8th edn. Universal Law
Publishing, New Delhi 2010)

Cases:
Aniruddha Bahal v State 2010 SCCOnLine Del 3365
Sherman v United States 356 US 359 (1958)

15
R.K. Anand v Registrar, Delhi High Court (2009) 8 SCC 106
R v. Mack (1988) 2 SCR 903
In re M.S. Mohiddin AIR 1952 Mad 561
Rao Shiv Bahadur Singh v State of Vindhya Pradesh AIR 1954 SC 322
Kanda Padayachi v State of Tamil Nadu AIR 1972 SC 66
Emperor v Panchkowri Dutt (1925) Cal 587
Court on its own motion v State 146 (2008) DLT 429
United States v. McClelland 72 F.3d 717, 722 (9th Cir 1995)
Nanhu Goborya v State AIR 1960 MP 132
Emperor v Bhagi (1906) 8 Bom LR 697
Ram Singh v State of U.P. AIR 1967 SC 152
Piara Singh v State of Punjab AIR 1977 SC 2274
Maghar Singh v State of Punjab AIR 1957 SC 1320
Pushpadevi M Jatia v M.L. Wadhawan AIR 1987 SC 1748
State of Haryana v. Ved Prakash 1994 Cr L J 140

16