Defence Strategies in Trap Cases: Part 2: Sanction for Prosecution and CBI Manual.

In part 2 of the blog series, I will focus on the principles of challenging Sanctions for prosecution and the non-compliance of the mandatory provisions of the CBI Manual during the trial of a trap case. 

Sanction for Prosecution under Section 19 of PC Act, 1988:

Every public servant has a safeguard in the form of a pre-prosecution Sanction passed by the relevant Sanctioning Authority. A Sanctioning Authority in most general terms is a person who has the authority to appoint or discharge the public servant from his public duties. 

Before initiating prosecution against a public servant, the investigating authority must seek a Sanction for prosecution from the Sanctioning Authority. A lawful Sanction includes the following essentials: 

• All the material (both exculpatory and inculpatory) collected during the investigation is placed before the Sanctioning Authority. 

• Sanction order reflects due application of mind which is further corroborated by the evidence tendered by the Sanctioning Authority himself/herself during the trial. 

For defence, in appropriate cases, it is essential to prove during the trial that firstly, the investigating agency did not place the relevant material (focusing on exculpatory evidence) before the Sanctioning Authority thereby reflecting that the Sanction Order has been procured through concealment and misrepresentation of facts and secondly, by effectively cross-examining the Sanctioning Authority to prove that the Sanction Order has been passed without due application of mind. 

Non-Compliance of the CBI Manual:

The Hon'ble Supreme Court of India in the famous landmark judgement of Vineet Naryan vs CBI 1998 (1) SCC 226 has emphasized the importance of compliance with the CBI Manual and has stated that its compliance is 'mandatory'. There are several judgements after that from different High Courts as well as the Hon'ble Supreme Court wherein even the FIR has been quashed for non-compliance with the mandates of the CBI Manual by CBI officers. 

During the trial, it is imperative for the defence to be firstly aware of the provisions of the CBI Manual and to establish through cross-examination that the relevant CBI officers (like Verifying officer, Trap Laying officer, IOs etc.) have failed to comply with mandatory provisions of CBI Manual and such non-compliance has caused prejudice to the Accused or has jeopardized the investigation process. 

It is imperative to understand that acquittal in trap cases is rare and the burden to rebut presumption under Section 20 of the PC Act, 1988 lies heavily on the defence. Due to the nature of a trap case’s trial, it becomes of utmost importance to effectively cross-examine the witnesses whose testimony goes on to the root of the inception of the investigation. Such witnesses include, the Verifying Officer, Trap Laying Officer, Investigating Officer, Sanctioning Authority etc. 

Breaking a trap case is a step-by-step procedure and requires clarity in the defence strategy. The above two examples of possible strategies target the technical aspects of Section 7 prosecutions, and it is essential for a defence counsel to explore the same depending upon the facts of the case. 

Stay connected for further strategies in Trap cases. Feel free to reach out. Suggestions, discussions, and constructive criticism are welcomed.