(Prayer: This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to set aside the order dated 26.7.2016 passed by the XXIII Additional City Civil and Sessions Judge, Special Judge, Bangalore Urban District (CCH-24), Bangalore City in Spl.C.C.No.249/2015, in the case ordering framing of charges against them.)
1. The petitioners herein were arraigned as accused before the Court of the XXIII City Civil and Sessions Judge and Special Judge, Bangalore Urban District in case No.Spl.CC 249/2015, for an offence punishable under Section 12 of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the PC Act , for brevity) and for offences punishable under Sections 120-B, 114 and 419 read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the IPC , for brevity).
2. The petitioners herein had filed an application seeking their discharge from the case and the said application having been rejected, the present petition is filed.
3. Petitioners no.2 and 3 are said to be news Reporters working for a Kannada Television News Channel, known as TV-9 Karnataka . In the course of their duties, with an intention to expose corruption in public life, the said petitioners had posed as representatives of a company namely, M/s Energo Power Company, based in London, and are said to have contacted the complainant, who is presently the Minister for Energy in the Government of Karnataka and had expressed that they were interested in setting up a power generation project and that they wanted to meet him in this regard and they had contacted him on more than one occasion on the proposed meeting.
It transpires that on 10.3.2014, at about 9 a.m., when the petitioners again contacted the complainant, he is said to have become suspicious of their bona fides and while inviting them to meet him, is also said to have informed the higher Police authorities of the proposed meeting. In this regard, a senior Police Officer is said to have come to his residence in plain clothes and stationed himself in an adjoining room, before the petitioners no.2 and 3 are said to have met the complainant at about 4.30p.m. and when they broached the subject of bribing him for official favours with regard to setting up of a power generation project, he is said to have sent them into the adjoining room, where they were told a person would discuss the matter further with them. The Police Officer waiting in the next room is said to have immediately apprehended the petitioners, on their producing the bribe amount and a First Information Report was lodged by the Sadashivanagar Police Station for offences punishable under Sections 9 and 12 of the PC Act in Crime No.45/2014 and thereafter, a charge sheet is said to have been filed, under Section 173 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the CrPC , for brevity) against the said petitioners, including petitioner no.1, who was the Director and Head of the Television News Channel. It is in this background that the petitioners had filed an application seeking discharge before the court below, contending that from the circumstances of the case, they were merely seeking to carry out a sting operation to expose the complainant, as it was their suspicion that he was susceptible to accepting bribe to extend official favours and that they were only doing their duty in all earnestness and had not indulged in any corrupt activity nor was it their intention to commit any such offence. That application having been rejected, the present petition is filed.
4. The learned Senior Advocate, Shri C.V.Nagesh, appearing for the Counsel for the petitioners, would contend that the basic essential ingredients, which would constitute the commission of offences punishable under Section 12 of the PC Act or under the provisions of the IPC, are found lacking in the evidence which the Investigating Officer had collected in the course of investigation. The court below has failed to view the material placed on record in its proper perspective. It is pointed out that it is not evident that the first petitioner was in any way involved in the incident. He was certainly not present at the scene. Therefore, merely by the fact that he was the Director and Head of the Television News Channel, by itself, would not be sufficient to frame any charges against him. it is also seen that it was not the jurisdictional Police, who were involved in apprehending the petitioners while they allegedly sought to tender the bribe amount, but a Police Officer from some other jurisdiction who is said to have come there. And it is only his statement that certain money, which is alleged to be the bribe amount has been seized, apart from other electronic equipment from the custody of the petitioners. Therefore, the case sought to be foisted against the petitioners would fail on this ground as well, as any such investigation or preparation to apprehend the petitioners, which was arranged well in advance, could only have been through the jurisdictional Police and not otherwise, though it is quite possible that at a later stage in a given case, the investigation could be entrusted to any other officer in terms of Section 173(8) of the CrPC. The learned Senior Advocate would also point out that none of the petitioners are public servants and therefore, the PC Act or any provisions thereunder could not have been invoked to prosecute the petitioners. The petitioners being accused of an offence punishable under Section 12 of the PC Act is also not possible, for unless there is an offence committed by a public servant under Section 7 or 11 and if the petitioners could be said to have abetted such offence, it is only then that Section 12 could be invoked and not otherwise. The public servant involved in the present case is the complainant himself. It is his case that petitioners no.2 and 3 made an attempt to bribe him and therefore, at his instance, they have been apprehended for an offence of abetment, punishable under Section 12, which is wholly illogical and cannot be sustained. The learned Senior Advocate therefore seeks that the impugned order passed by the court below be set aside.
5. On the other hand, the learned Senior Advocate, Shri B.V.Acharya, appearing for the Counsel for the respondent- complainant, would contend that a charge sheet has been filed against the petitioners for offences punishable under sections 114, 116, 120-B, 419 and 468 read with Section 34 of the IPC and Section 12 of the PC Act. The primary ground raised by the petitioners that an offence under Section 12 of the PC Act has not been made out is not tenable. The assertion of the petitioners that the episode was a sting operation is not admitted by the respondent -complainant. In the course of arguments, it may be a defence put forward by the accused, which requires to be established at the trial. The reference to such a defence in the charge sheet could not be termed as an admitted case of the prosecution. Whether or not it was a sting operation can only be decided by the Special Judge, after a full-fledged trial. Shri Acharya would submit that Section 12 of the PC Act, on a plain reading, would independently make abetment of an offence under Section 7 of the PC Act as a distinct offence. He would elaborate that in terms of Section 107 of the IPC, instigating any person to do a thing also amounts to abetment. If any person instigates a public servant to agree to receive illegal gratification, the offence under Section 12 of the PC Act is complete, whether ultimately, a public servant agrees to receive the bribe or not. It would be relevant whether there was instigation to make him agree. It is plain from the material available on record that the accused did instigate or persuade the complainant, a public servant, to agree to receive illegal gratification and therefore an offence under Section 12 of the PC Act has been made out.
Reliance is placed on the following authorities in support of the above propositions and incidental issues:-
a) Rajat Prasad vs. Central Bureau of Investigation, (2014)6 SCC 495;
b) State through Central Bureau of Investigationvs. Parmeshwaran Subramani, (2009)9 SCC 729
c) Bhupinder Singh Patel vs. CBI, Criminal Revision Petition Appeal Nos.472 of 2007, 546 of 2007, 506 of 2007, 584 of 2007
It is also pointed out that the court below has framed charges against the petitioners. However, the petitioners have not chosen to challenge the framing of charges and hence, seeking to question the dismissal of the application under Section 239 CrPC is an exercise in futility, without also seeking to question the charges now framed.
It is further pointed out that insofar as petitioner no.1 is concerned, though no charge for an offence punishable under Section 12 of the PC Act is framed against him as the head of the Television Channel, without whose tacit authority and his approval, it was not possible for petitioners no.2 and 3 to have ventured in approaching the complainant in their attempt to instigate the complainant to agree to accept the illegal gratification. Therefore, he would be equally culpable and there is no infirmity committed by the court below in not having framed the charge under Section 12 of the PC Act. Hence, the learned Senior Advocate seeks dismissal of the petition.
6. By way of reply, Shri Nagesh would emphasize that Section 12 of the PC Act clearly contemplates that either an offence punishable under Section 7 or 11 should be committed or an attempt should have been made to commit such offence to attract the section and it cannot be construed as an independent provision which makes abetment of an offence under Section 7 as a distinct offence. Especially, when a public servant is not one of the accused, the provisions of the PC Act would not be attracted and this is an elementary aspect on which there can be no two opinions. He also draws attention to Section 24 of the PC Act, which lays downs that a statement by a bribe giver to the effect that he offered or agreed to offer any gratification to a public servant cannot be prosecuted under Section 12 of the PC Act. He would also seek to point out that reliance placed on Rajat Prasad s case cannot be applied to the present case on hand, as a public servant was indeed one of the accused in that case and other judgments cited are as regards incidental issues and may not be wholly relevant for the case on hand.
7. In the light of the above rival contentions, as regards the question whether Section 12 of the PC Act could be independently invoked against petitioners no.2 and 3, alleging that they had instigated or abetted the complainant, a public servant, to agree to receive illegal gratification and whether they could be prosecuted for an offence punishable under the said section is concerned, it is relevant to first note the tenor and language of Section 12 of the PC Act, which reads as follows:
12. Punishment for abetment of offences defined in section 7 or 11 - Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
From a reading of the above, it is clear that the provision is intended to prosecute and punish a bribe giver, who instigates a public servant to receive illegal gratification irrespective of whether the public servant receives or agrees to receive such illegal gratification or not and whether an offence under Section 7 of the PC Act was committed or not. It would then follow that it is possible to prosecute petitioners no.2 and 3.
Further, though petitioner no.1 was not present at the scene of commission of the offence, he is undisputedly the head of the Television channel, wherein petitioners no.2 and 3 were employed and apparently, the actions of petitioners no.2 and 3 were tacitly approved and they were acting under his authority and the substantial bribe amount would also have been supplied by him. The offence sought to be urged, namely, that the bribe amount was not in respect of a genuine transaction and is only used as bait to trap the complainant, who was said to be routinely accepting such bribe amounts in other transactions and therefore they had not committed any offence, may not be a valid defence at this stage.
The Supreme Court in Rajat Prasad s case, in addressing the question as to what would be the position when such a so called sting operation is conducted 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, has held thus:-
19. 7he 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 criminaljurisprudence. 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 IPC or the offence of criminal conspiracy under Section 120A of IPC 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 120P IPC 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.
20. What the appellant-accused 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-l 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.
In the light of the above observations, the present petitioners would have to await the completion of the trial, in order that the question where there was any criminal intent or not on their part to be determined
Reference to Section 24 of the PC Act by Shri Nagesh would not be relevant in the present case, as it is obviously a provision to protect the informant bribe giver, at whose instance the law enforcing agency may set up a trap and in the course of which, any statement made by die so called bribe giver, it is laid down under the said provision, cannot be held against him.
For otherwise, it would lead to an absurd result of nullifying the offence punishable under Section 12 of the PC Act.
Further, though the charges have been framed against the accused-petitioners by the court below, even before the present petition was filed, the petitioners' purpose would be served if the impugned order is set aside and it was not also necessary for the petitioners to have challenged the charges that have been framed pursuant to the impugned order. Therefore, the contention in this regard by Shri Acharya may not be entirely correct.
It is also to be noticed that if petitioners no.2 and 3 cannot be prosecuted under Section 12, there is no other penal provision under which they could be prosecuted, for having instigated a public servant to receive illegal gratification.
Insofar as the provisions of the IPC that are invoked would be relevant only if the said petitioners could be prosecuted for an offence punishable under Section 12 of the PC Act and this would be even more so insofar as petitioner No.1 is concerned, against whom, there is no charge for an offence under Section 12 of the PC Act. In other words, the prosecution against petitioner no.1 can be sustained only if the prosecution against petitioners no.2 and 3 for an offence punishable under Section 12 does survive.
Insofar as the contention of Shri Nagesh that in Rajat Prasad s case, the public servant was one of the accused and hence the said case could be distinguished, is concerned, it is to be noticed that the said public servant had died during the pendency of the case, but the case was continued for prosecution of the offence under Section 12 of the PC Act against other private individuals.
Insofar as certain other procedural lapses which are sought to be highlighted by Shri Nagesh are concerned, the same could be raised at the trial to strengthen the defence of the accused on merits and cannot be grounds on which the impugned order could be set aside.
Accordingly, the petition lacks merit and is dismissed.