Developing a Structure for Adjudicating Entrapment Claims in India

• Author: Nikunj Kulshreshtha
• Position: Jindal Global Law School, OP Jindal Global University Sonipat, India
• Pages: 339-362

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2018 e Institute for Migrant Rights Press

I wish to thank Professor Mark DSouza, Professor James Chalmers, Professor

Khagesh Gautam, Abhinav Sekhri, Sebastien Lafrance, Priya Sunder and the editors

of the Indonesian Journal of International and Comparative Law for their helpful

comments on the earlier drafts of this paper. I would also like to thank Shambhavi

Srivastava for her research assistance. All errors in this paper are solely mine.

dEvEloPinG a struCturE for

adjudiCatinG EntraPMEnt ClaiMs in

india

Nikunj Kulshreshtha

Jindal Global Law School, OP Jindal Global University

Sonipat, India

E-mail: nkulshreshtha@jgu.edu.in

e purpose of this paper is to develop a structure for adjudicating entrapment

claims (or sting operations) by private and state parties in India. e aim is

to discourage charging entrappers as abettors to the oence, especially in the

context of crimes of private nature. is will be accomplished by recommend-

ing legislative and judicial sanction for excluding entrapment defence in cases

where the crime is in attempt stage. e paper begins by tracing the history and

development of the law on entrapment in India. ereaer, it engages in a crit-

ical assessment of the entrapment defence and its consequences in England &

Wales, where it has been debated amongst policy makers, judges and academics

for several decades. Finally, it contextualises the need for dening a structure to

allow passive entrapment by referring to crimes of private nature. It concludes

by providing a struc ture for determining entrapment claims by establishing a

test to determine whether criminality was ongoing or not.

Keywords: Entrapment, Sting Operation, Policing, Indian Evidence Law

VIII Indonesian Journal of International & Comparative Law 339-64 (July 2021)

340

Kulshreshtha

INTRODUCTION

When an accused claims entrapment as defence in a criminal case, he

is contending that the policing agency induced him into committing a

crime, which he was neither predisposed towards nor overtly engaged

in committing it. However, if the accused is predisposed to, or mak-

ing an overt attempt to commit the oence, then merely providing an

opportunity to commit the crime would not amount to inducement.

is would also be within permissible limits of policing behaviour. e

former is known as active entrapment and the latter is known as pas-

sive entrapment. is distinction in the Indian legal system was rst

explained in the case of Re Lakshminarayana Aiyer by Justice Sadasiva

Aiyar.1 Justice Aiyar also mentioned that it would not be possible to de-

termine whether the entrapping act by the policing agency amounted

to enticement or not at the preliminary stage.2 erefore, the entrapper

would be charged as an abettor to the crime and a full-edged trial

would be conducted.3 If bona de intentions of the police ocer are

determined later through trial of all the accused persons, then prosecu-

tion may be withdrawn or lenient punishment may be awarded against

such police ocers.4 erefore, the court laid the foundation for a dis-

tinction between active and passive forms of entrapment. e former is

as an act of enticing or inducing a crime when it is in the intention or

preparation stage, whereas the latter is merely providing the accused an

opportunity to commit the crime while remaining a passive observer.

e author believes that this rationale has its foundation in the

theory of stages of crime. Common law gave birth to the theory of

stages of crime to decide criminalisation of a particular act. e

Supreme Court of India in Sagayam v. State of Karnataka explained

that there are four stages in the commission of a crime—Intention,

Preparation, Attempt and Accomplishment.5 At the intention stage, the

crime has been conceived in the mind of the oender. Conception of a

1. Re Lakshminarayana Aiyer, (1917) 6 LW 677, 681.

2. Id. at 681.

3. Id.

4. Id.

5. Sagayam v. State of Karnataka, (2000) 4 SCC 454.