For accepting bribe, a case is registered under Sections 7, 11, 13(1) (a) and 13(1) (b) of PC Act, 1988.

Transcription

1 12TRAP CASES Trap means nabbing a public servant for demanding and accepting illegal gratification (say bribe). The term public servant is defined in Section 2(c) of Prevention of Corruption Act of To prevent corruption, a trap is laid to apprehend public servant red-handed while demanding and accepting bribe. Illegitimate trap is the one of the traps where money is not demanded but he/she is only suspected to be habitual of taking bribe and is tempted with bribe just to verify (M.S. Mohiudin AIR 1952 Mad 561, (1952) 2 MLJ 11). For accepting bribe, a case is registered under Sections 7, 11, 13(1) (a) and 13(1) (b) of PC Act, Section 7: Public servant taking gratification other than legal remuneration in respect of an official act. Section 11: Public servant obtaining valuable things, without consideration from a person concerned in proceeding or business transacted by such public servant. Section 13(1) (a): A public servant is said to commit the offence of criminal misconduct if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7 of the PC Act. Section 13(1) (b): A public servant is said to commit the offence of criminal misconduct if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned. 275

2 Section 13(1) (e): A public servant is said to commit the offence of criminal misconduct if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Against a bribe giver, the case can be registered under Section 12 of PC Act, Section 12: (Reverse trap): Punishment for abetment of offences defined in Section 7 or 11. A case is registered against a tout under Sections 8 and 9 of PC Act, Section 8: Taking gratification, in order by corrupt or illegal means, to influence public servant is 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 is 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. Section 9: Taking gratification, for exercise of personal influence with a public servant is 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. Section 17: Persons authorized to investigate Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank: (a) (b) (c) In the case of the Delhi Special Police Establishment, of an Inspector of Police; In the metropolitan areas of Bombay, Calcutta, Madras and Ahmadabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973, of an Assistant Commissioner of Police; Elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest thereof without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make arrest therefore without a warrant: 276

3 Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Section 18: Power to inspect bankers books. Section 19: Previous sanction necessary for prosecution. No court shall take cognizance trapping of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction from the competent authority. Methods of Trap There are different methods of trap but phenolphthalein and sodium carbonate is most commonly used Phenolphthalein powder (which is colourless) is smeared on currency notes provided by the complainant and these are handed over to the bribe taker by the complainant on demand. Trap team catches the public-servant for taking bribe red-handed when the currency notes are delivered to the accused public servant by the complainant on specific demand. According to Locard s principle, when two materials come in contact with each other, there is always some transfer of material. Phenolphthalein powder gets transferred from currency notes to the hands of the accused upon handling the currency notes or transferred to other items which come in contact with currency notes such as drawer, file, table, briefcase, pocket, etc. Hands of the accused are then washed in 2 3per cent of sodium carbonate solution. Sodium carbonate solution colour changes from colourless to pink when phenolphthalein is present Pre-trap Preparation Complainant is first asked to lodge a written complaint mentioning the money demanded, the date, time and place of demand and the motive/reward for demanding bribe by the public servant. 277

4 (v) (vi) (vii) (viii) Complainant is not willing to pay the demanded bribe and requests the police authorities to take legal action against the suspected public servant. Then after verification of demand of bribe as motive/reward by the public servant, a FIR is lodged to set the law in motion in order to catch the public servant red-handed while accepting the demanded bribe amount. Two independent witnesses are arranged, who ordinarily must not be from the same department to which the accused belongs. The complainant is asked to arrange the Government Currency (GC) notes which are to be delivered to the accused public servant as bribe. The independent witnesses are introduced with the complainant by the Trap Laying Officer (TLO). The facts of the complaint are also narrated to the witnesses by the TLO. The trap kit is bought from the Malkhana of the ACB branch. Phenolphthalein powder is also brought separately. Demonstration of the use of phenolphthalein powder and the reaction of such item smeared with phenolphthalein powder when it comes in contact with sodium carbonate is given by a police officer. The solution which turned to pink in colour and the cotton swab is thrown away/destroyed. Denominations and serial numbers of government currency notes produced by the complainant are noted down. Then such government currency notes are smeared with phenolphthalein powder by the same police officer and then these tainted notes are kept in an empty pocket of the complainant by the same officer. The excess of powder is removed so that the powder is not visible on currency notes. It may be added that before keeping the said tainted notes, the personal search of the complainant is carried out by one of the witnesses and descriptions of minimum articles carried by him are also noted down. Phenolphthalein powder is immediately returned to Malkhana and stored in safe custody. The police officer who gives demonstration should not be a member of the trap team and he/she should remain in the office. Complainant is asked to meet public servant with the shadow witnesses for delivering the demanded bribe. A micro tape recorder having a brand new cassette is also placed before the person of the complainant in a concealed manner so that the conversation between the accused and the complainant about the demand, acceptance and motive/ reward for such bribe is recorded. 278

5 (ix) (x) (xi) The TLO gives directions to the shadow witness to over-hear the conversation between the complainant and the accused public servant. He also briefs the complainant to give the specific signal as decided (like wiping his mouth with handkerchief, combing hair with hands, giving missed call, etc.). He also briefs the team for taking position nearby the spot in a discreet and scattered manner. The team should wash its hands with soap before leaving. A pre-trap memorandum/panchnama narrating the sequence of events is prepared which is duly signed by the panch witnesses, complainant and other trap team officers Trap Kit A trap kit should contain: (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) Sodium carbonate-laboratory/analytical grade. Currency notes smeared with phenolphthalein powder. The denomination and serial numbers of GC notes are already noted down in a pre-trap panchnama. Bottle containing distilled/mineral water (2 500 ml.). Tea spoon, beakers (2 500 ml.). Glass bottles with leak-proof lids (minimum150 ml.). Paper envelopes for keeping currency notes and marking cloth for sealing exhibits. Labels for sticking on bottles, carbon paper, paper, candle and match box. Laptop. Cotton roll and disposable gloves. Sealing wax and seal of the IO. Equipments for video recording and voice recorder. TLO should carry a mobile phone with him for videography / photography. One set of (free size) clothes for the accused depending on whether male/female Team Required for Handling a Crime Scene TLO is leader of the team, i.e. Deputy Superintendent/Assistant Commissioner/ Inspector of Police and other police personnel. 279

6 Complainant and two independent witnesses. If the suspect is female, then female witnesses to be arranged. One or two teams with independent witnesses should be kept as standby in ACB office or in the vicinity of the residential premises of the accused public servant so that immediately after the acceptance of the demanded bribe amount, search can be conducted which may result into registration of a separate offence, i.e. disproportionate assets case against such public servant Actual Trap/Post Trap Panchnama/Memorandum After reaching the spot, the complainant along with shadow witness, i.e. Panch No. 1 goes to the office of the accused public servant. Simultaneously, the TLO along with Panch No. 2 takes position in a scattered and discreet manner in the vicinity of the office premises of the accused public servant and waits for a pre-decided signal regarding acceptance of bribe amount by the accused public servant. On receiving the pre-decided signal from the complainant, the TLO along with Panch No. 2, i.e. recovery witness and other team members rush towards the office of the accused public servant. Then the TLO introduces himself, witnesses, etc., to the accused public servant. He challenges the accused public servant for having demanded and accepted the bribe money from the complainant. His reaction/explanation/conduct is noted down. His hands are caught hold of from the wrists by the team members. Both the hands are washed one by one and the wash of each hand is collected separately. The solution, which was otherwise colourless, turns to pink colour. It is kept in separate glass bottles, duly labelled and sealed, under the signatures of both the Panch witnesses and the TLO. The tainted bribe amount is recovered from the accused or from the place he kept the same in the presence of the recovery witnessess. The denomination and serial numbers of the same are tallied with those mentioned in a pre-trap panchnama and noted down in recovery memo which is part of the post trap panchnama. Tainted GC notes are kept and sealed in a separate envelope under the signatures of both the panch witnesses and the TLO. The narrations of the complainant and the shadow witnesses are also noted down one by one in the post trap panchnama about the events that took place after they met the accused public servant. 280

7 (v) (vi) (vii) (viii) (ix) (x) (xi) The cassette recorder is also taken out and the recorded conversation is listened to by playing the recorder and the relevant gist (if feasible, complete conversation) of the same is mentioned in the panchnama. Then, the cassette is sealed in a separate envelope under the signature of the Panch witnesses. The concerned file for which bribe was demanded and accepted, if found, in the office of the accused, should be seized on the spot vide post trap panchnama or separate seizure memo. The site plan of the scene of offence/office of the accused is prepared on the spot under the signatures of both the panch witnesses and the TLO. The facsimile of the seal used for sealing the exhibits during trap proceedings should also be taken on a separate sheet on the spot under the signatures of both the panch witnesses and the TLO. The seal should be given to one of the two witnesses for safe custody under proper acknowledgement. The accused should be arrested vide separate arrest cum personal search memo by following the guidelines as described in the D.K. Basu Case. The controlling officer of the arrested public servant should also be informed about the events. The post trap panchnama should contain the chain of events right from reaching the spot until the team leaves the spot for office/police station. These events are relevant and admissible under Sections 6 and 157 of the Indian Evidence Act. The conduct/ reaction of the accused should be specifically mentioned in the panchnama which would be relevant and admissible under Section 8 of the Indian Evidence Act Search for Evidences (a) (b) (c) (d) (e) GC notes-their denomination and serial number are again noted down. The TLO should be satisfied that the currency is genuine. Hand wash of bribe taker on which phenolphthalein got transferred. Wash of pocket of shirt/pants/coat/other clothes in which currency notes are kept. Wash of table/drawer of table, file or paper on which GC notes are kept. Videography, voice recorder for recording of conversation between the accused and the complainant on the day of the trap and before the time of trap. 281

8 12.6 Collection of Evidence (v) (vi) (vii) (viii) (ix) Use fresh disposable hand gloves while collecting each individual evidence to avoid any contamination so that the accused should not take this defence in trial. Wash both the hands of the accused separately in 2 3 per cent sodium carbonate solution prepared in distilled/mineral water. The colourless solution changes to pink colour due to presence of phenolphthalein powder. Note down whether the hand wash is of left or right hand which was otherwise colourless has turned to pink colour or faint pink. The pink solution is transferred to a transparent glass bottle and labelled under the signatures of both the witnesses. The GC notes smeared with phenolphthalein are recovered and taken in possession from the place where the same are kept by the accused like in the pocket of a shirt/coat, drawer/briefcase/file paper of a drawer or table wherein contact has taken place. Voice recording of details of conversation of accused with the complainant at the time of demanding money and at the time handing over the money should be videographed, if feasible. The traces of phenolphthalein from the suspected surface may be lifted using a cotton swab soaked in sodium carbonate solution, squeeze out the solution in a clean glass bottle and put the swab in the same bottle duly sealed. Photographs may also be taken. Figure 13.1: Hand wash of the accused being taken in sodium carbonate solution; pink colour developed showing the presence of phenolphthalein residues Control/specimen voice sample of accused should be taken as early as possible before he consults with any advocate because he cannot be compelled to give his specimen voice. The sealed cassette having questioned voice of the accused and complainant along with the specimen/sample voices of both the accused and the complainant duly sealed along with the facsimile of the seal, questionnaire should be sent to CFSL/FSL within one week or as early as possible. 282

9 (x) The premises (office and residence) of the accused should be thoroughly searched for assets and incriminating documents. Figure 13.2: Swab being taken from the place where the currency notes were kept by the accused; Pink colour developed indicates the presence of phenolphthalein 12.7 Packaging and Forwarding of Evidences (a) (b) (c) (d) (e) The above solutions of hand, wash, pocket wash clothes and swab taken in sodium carbonate solution are transferred separately into narrowmouthed leak proof bottles of glass labelled with description as given below-name of accused, date, time and place, police station, crime number, name and signature of witnesses, complainant and TLO along with the colour of the solution. Figure 13.3: Small window showing the colour of the solution First, cover the bottles completely with white cloth and then seal properly while leaving a small window to see pink coloured solution. Write all the description again on the cloth. The currency notes are sealed properly in a paper envelope, labelled with descriptions as above and their serial numbers, denomination and total amount is noted. The cloth/coat/kurta/shirt or their pockets where the currency notes were kept is marked, packed in good quality polythene packets and the package is sealed in a cloth and a detailed description is written on it. Briefcase/file paper of a drawer or the table on which currency notes were kept are packed properly and sealed while properly maintaining the chain of custody. 283

10 (f) (g) (h) The bottles containing the hand wash/pocket wash are properly sealed, labelled and are sent to laboratory for chemical analysis along with package of cloth and the envelope containing the currency notes. Voice recording with control sample of voices are kept in box, labelled and sealed. All the exhibits must be sent for analysis within 72 hours of seizure or as early as possible in order to get the best evidence Seizure List (v) (vi) (vii) (viii) (ix) (x) (xi) Pink coloured hand wash of the bribe taker in sealed bottle (minimum 150 ml.). Pink coloured solution of pocket of clothes (minimum 150 ml.). Briefcase/file paper of a drawer or on table where currency notes are kept. Envelope containing currency notes. Clothes of accused from which GC notes are recovered. Briefcase in which GC notes were kept. File/paper on table or from drawer on which notes were kept. Voice recording and standard sample/specimen of voice. Video recording of trap on date, time and place. Relevant documents relating to the case pending with accused public servant or in his office for which he has demanded and accepted bribe as a reward or motive. File/document such as appointment/posting letter in order to prove his official position Queries from Forensic Laboratory (a) (b) (c) (d) (e) (f) (g) Whether phenolphthalein and sodium carbonate are present in the hand wash of the accused. Whether phenolphthalein and sodium carbonate are present in the wash from the pocket of the cloth. Whether phenolphthalein powder is present on the currency notes and on the file/paper sheet submitted for examination. Whether traces of phenolphthalein are present in the pockets of coat/shirt/pant and briefcase when the wash is not taken and these are directly sent for examination. Whether the writing material matches with the standard writing of the accused. Whether voice recorded is identical with standard samples/specimen of voice of accused, complainant and witness. Whether any residue of phenolphthalein is present on other exhibits. 284

11 12.10 Do s and Don ts 285

12 Note: 1. Sometimes, the pink colour of the solution becomes light or the solution becomes colourless with passage of time as the stability of the pink colour decreases because of degradation of phenolphthalein due to chemical changes. 2. Intensity of pink colour depends on the amount of phenolphthalein transferred in the sodium carbonate solution. 3. While transporting the exhibits, the seal should remain intact otherwise it would lead to break in chain of custody and thus affects the case. Figure 13.4: Phenolphthalein in Sodium Bicarbonate solution gives no colour Information Revealed After Forensic Examination Establish the presence or absence of phenolphthalein and sodium carbonate in the pink solution. Presence of phenolphthalein on currency notes. Presence/absence of phenolphthalein residue in the pockets of clothes, briefcase, etc. 286

13 12.12 Case Study Source: CBI Bulletin, vol.-xxii, April-June S I Source: CBI Bulletin, vol. XXII, April June 2014 References 1. Prevention of Corruption Act 1988, Delhi, Reading material on Trap, Central Bureau of Investigation Academy, U.P. 3. M.B. Rao, Handbook on Forensic Science for Police Officers, Sardar Vallabhbhai Patel National Police Academy, Hyderabad, Handbook of Forensic Services, CFSL-CBI,