Defence Strategies in Trap cases: Part 1: Legitimate vs Illegitimate traps.

Welcome to today's blog post where I delve into a critical aspect of criminal defense law: understanding the distinction between illegitimate and legitimate trap cases. In the legal landscape, trap cases—where individuals are enticed or induced into criminal conduct by law enforcement—are subject to intense scrutiny and debate. However, not all trap cases are created equal. Some are executed within the bounds of legal and ethical guidelines, while others raise serious questions about justice and fairness.

Challenging the legitimacy of the complaint leading to the trap is a defence strategy seldom adopted by the defence lawyers as when a public servant alleges that a trap was illegitimate, the onus of proof shifts to the public servant to demonstrate that the complainant's motivations were solely focused on orchestrating the trap rather than genuinely reporting the crime of corruption. However, in a case wherein the demand and acceptance are established, or it cannot be disputed easily, the accused might have to tread the difficult task of challenging the legitimacy of the trap.

In simplest terms, the following are the ingredient of a legitimate trap:

• There is a demand for illegal gratification by a public servant.

• The Complainant lodges a complaint.

• CBI conducts verification on the complaint to establish that there was indeed a demand made by a public servant.

• The public servant whilst acting upon the previous demand accepts the bribe which is witnessed by CBI and the public servant is caught red handed.

Whereas an illegitimate trap generally has the following elements:

• The complainant is an interested party in success of the trap i.e. the complainant is to benefit from the success of the trap considering previous enmity, success in a tender etc.

• There is no previous demand, rather a demand is manufactured/created post the registration of complaint and rather a public servant is enticed to accept bribe.

• Absence of fair and effective verification proceedings.

Hon'ble Justice Panchapakesa Ayyar of Madras High Court as early in 1951 recognized the distinction between a legitimate and an illegitimate trap. In a celebrated judgement of M.S. Mohiddin vs State (1951 SCC OnLine Mad 278), Hon'ble Justice Ayyar has penned down as under:

"........But I have held in several cases already that 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. 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 with the least criticism by any honest man. But where a man has not demanded a bribe, 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, it will be an illegitimate trap, and unless authorised by an Act of Parliament it will be an offence on the part of persons taking part in the trap who 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 conviction can be had, under a rule of court which has ripened almost into a rule of law."

In conclusion, the distinction between legitimate and illegitimate trap cases underscores the complexity inherent in navigating the realms of criminal defense law. While legitimate traps serve to uncover and address existing corruption, illegitimate traps present ethical and legal quandaries, often blurring the lines between justice and entrapment.

As highlighted by the insightful observations of Hon'ble Justice Panchapakesa Ayyar, the legitimacy of a trap hinges on the circumstances surrounding its execution and the intentions driving its initiation. Recognizing these nuances is essential for defense counsels tasked with navigating the intricate terrain of trap cases. Ultimately, this discussion serves as a reminder of the critical importance of upholding ethical standards and procedural fairness within the criminal justice system. By understanding and engaging with the complexities of trap cases, legal professionals can strive to ensure that justice is pursued with integrity and diligence.

Stay tuned for more insights and analyses in future blog posts. Until then, may the pursuit of truth and justice guide our endeavors.