Consider this. An employee of your company has run off with your confidential documents and takes up employment with a competitor. You need to act fast and get a court injunction that prevents him from sharing your valuable trade secrets with your rivals.

The company needs evidence to prove the theft. You immediately decide to conduct a sting through a representative of your company with a voice recorder and try to surreptitiously secure an admission from this former employee. But before you do, you may wonder: is this legal?

Whenever evidence is secured through a procedure of dubious illegality, prickly questions emerge regarding the legality of the act and the admissibility of the evidence. Are such sting operations a legitimate means of gathering evidence in support of crime, or are they entrapment or even inducement to crime?

Sting and the Police

No court has laid down any regulations concerning sting operations. Judicial authorities have reacted differently. On balance, the judicial dictates largely consider sting operations as valid, while select few have questioned it for its infringement of the right to privacy and possible incitement to crimes.

In 2007, for example, the Delhi High Court in the case of Sri Bhardwaj Media Pvt Ltd v. State accepted the legality of a recording from a sting operation that captured Members of Parliament taking bribes, in wider public interest. When it came to wiretaps, however, the apex court held that wiretaps are “significant violation of the privacy of a person.” Still, the Court laid down comprehensive directions that must be followed if the government intends to use wiretaps, in People’s Union for Civil Liberties v. Union of India.

Conversely, we may keep in mind that under the Indian Evidence Act, evidence illegally secured is admissible in court if it is 'relevant' to the case and the admission of such evidence has not been barred by the Constitution or any other law. The Supreme Court, as far back as 1973, in the case of RM Malkani v. State of Maharashtra, upheld the admissibility of a tape recording of a conversation that took place on the telephone. Indeed, a careful reading of the Indian Evidence Act reveals that there is no provision that confers power on the court to exclude evidence that is illegally or improperly secured.

For this reason, in 1983, the Law Commission of India in its 94th Report recommended that the legislature amend the Indian Evidence Act to confer on the court discretion to exclude evidence obtained illegally or improperly, if in the circumstances of the case, the admission of such evidence would bring the administration of justice into disrepute. Till date, no such law has been passed or found traction among the legal community.

That does, however, open a person disclosing such evidence vulnerable to prosecution in relation to any crimes committed in securing the evidence. At the end, if evidence is ‘illegally’ secured, a legal right has been violated, and someone must be liable. The Delhi High Court, in RK Anand v. Registrar, put it thus: anyone facing a crime cannot plead any alleged wrongdoing by the person that exposes the crime. If the sting operation preceding it, in any way, violated the rights of the subjects of the stings, that would be an issue to be dealt with separately. It is always open to the aggrieved person to seek remedies under civil and/or criminal law.

Viewed in this way, individuals, companies, and investigative agencies are at liberty to execute sting operations, and secure whatever evidence is necessary in the circumstance, if they are willing to bear the consequences of their actions and potential prosecution for violations of law.

Courting justice

So, how are individuals who ‘illegally’ secure evidence liable to prosecution? In principally three ways: They may be prosecuted for an invasion to privacy; for the commission of a criminal offence; or as a result of unintended consequences.

Take privacy. The fundamental ‘Right to Life’ under Article 21 includes the right to privacy. Sting operations may result in legal issues around invasion of privacy depending on the manner in which they are conducted. This is still a young area of development since we didn’t even know we had a right to privacy till as late as 2018.

Equally, the person acquiring any evidence may commit crimes in doing so. For instance, a person may be liable if he steals documents from a particular place in order to produce it before a judicial authority (theft under Section 378, IPC) or dishonestly converts to his own use documents that were entrusted to him by another individual (criminal breach of trust under Section 405, IPC).

Finally, there is the law of unintended consequences. Back in 2008, a sting operation was once broadcasted by ‘Live India’. This sting showed Uma Khurana, a government teacher, as being involved in a prostitution racket. In the confusion that followed, some men violently attacked her and ripped her clothes off. The courts took suo motu cognizance of the matter and ultimately found that she was innocent. Subsequently, she sued the TV channel for defamation. Ultimately, the matter was settled for what was likely a very large financial payoff by the channel.

There are concerns around public morality too. Sting operations sometimes encourage an individual to commit a crime by giving him a bribe for violating the rule, for example, and then hold him responsible for taking the bribe. This ethical dilemma has made the person conducting the sting liable to prosecution under Section 108 of IPC, which criminalised abetment or inducement to commit a crime. A person essentially abets an offence if he instigates another individual to commit a crime, regardless of whether the individual agrees or refuses.

In the United States of America and other similar Western countries, an “exclusionary rule” applies: when authorities secure evidence of a crime by illegal means, the evidence is usually inadmissible in court. This rule, an extension of the country’s constitutional bar on “unreasonable searches and seizures”, deters the police from infringing citizens’ constitutional rights when conducting criminal investigations.

Indian courts are yet to find sympathy with this view. Evidence is evidence, whatever be the procedure by which it is obtained. The words of Justice Crompton, an English Judge of the Queen’s Bench, in R v. Leathem thus continue to echo through India’s jurisprudence, “it matters not how you get it, if you steal it even, it would be admissible in evidence”.

Rohin Dubey is a practicing lawyer at the Gurgaon based law firm N South, Advocates.