- Traps against Bribe takers: salient feature
- Trap Success
- Trap Failure
- Trap Failure: follow up action?
- Loan theory
- Supreme Court on Trap failures
- Action against Bribe givers
- CBI FAQ on trap
- Case Studies
so far we’ve seen about
- conduct rules
- complaint: sources, types and actions
- Enquiries, investigation, Prevention of Corruption Act.
Now time to lay traps in bribery cases.
- CBI/ACB lays traps to catch bribe taker (and givers) red-handed.
- Benefit: The entire case unfolds by itself as the trap is laid and executed. CBI/ACB doesn’t need to make more efforts to gather additional evidences= less headache to collect evidence + high conviction rate.
Two prior-conditions for laying trap (against a bribe demanding public servant):
- Public servant (or a middle man/tout) has demanded bribe.
- Victim has given written complaint to CBI/ACB.
On other words,
- CBI/ACB cannot randomly lay traps against any public servant, just to check whether he is honest or not. Such “sting operation” or honey-trapping is legally forbidden.
- Just because CBI/ACB believes Mr.XYZ is in habit of taking bribes- they cannot set a trap on him, unless someone specifically complaints about him.
Besides, CBI/ACB can also raid a premise to catch both bribe giver and bribe taker. (without either of them complaining)
Just because someone gave a written complaint = doesn’t mean CBI/ACB immediately lays a trap. The standard operating procedure is following:
- CBI/ACB officer will ask the complainant to be ready with money and await further instructions. (yes the victim has to arrange money. CBI/ACB won’t help him arrange money)
- In the meantime, the officer will start a swift secret verification:
- To check background of the complainant.
- To check background of the public servant.
- To check complainant’s relation with the given public servant.
ok but WHY take above precautions?
- Once caught, corrupt officer usually makes “Loan theory” defense. In the court, he’d say “I had given loan to that complainant. But he doesn’t want to repay, so got me caught in this fake trap.”
- Sometimes, complainant himself is a dubious character. e.g. Contractor Prem Chopra had prior bribe relation with that Engineer Pran. But now Pran has mad new bribe arrangement with another contractor so Prem wants to take revenge.
- Sometimes, Officer is honest. Complainant is the bad guy- who wants revenge for some other matter (not giving illegal favours, property dispute, family dispute, love triangle etc.etc.) hence he is filling the fake bribe complaint just for mental harassment to honest officer.
let’s ignore CBI for a while and focus on ACB.
After the secret verification, ACB officer has found the complaint to be genuine. Still he cannot immediately lay trap. He has to get permission
|When complaint is against ___||need permission from ___ before laying trap|
|state-PSU/state service employee/private citizen||Director General (DG) of ACB|
|All India Service Officer (IAS, IPS, IFoS) under the state government|
These are safeguards in Andhra. Other states may have slight difference in the technicalities.
These safeguards are meant to prevent ACB from turning into Hitler’s Gestapo Police. But over the years, these safeguards have become shackles:
- sometimes petty employees in DG-ACB/Chief Secretary’s office (=clerks, peons, section officers) leak the information about the upcoming raid/trap to that corruption official for getting ‘bakshish’ (reward)
- Sometimes Chief Secretary / CM may not give permission because they themselves involved in the scam indirectly. Or because they don’t want to create a scene. e.g CM took money from the corrupt officer to get him transferred to that given plum-posting in the first place!
Similarly, CBI has to get central government’s permission before inquiring/ investigating any officers of joint Secretary level and above.
So far ACB officer has:
- received written complaint
- made secret verification, found the complaint to be genuine
- Got permission from Director General of ACB to lay the trap.
STILL he cannot lay the trap. Now he has to register a First Information Report (FIR). This F.I.R. together with the original complaint is sent to “Special” Judge for Anti-Corruption. (This is the same special judge we saw in previous article related to prevention of Corruption Act (PCA).
Special Judge has to keep this FIR secret in his personal custody until trap is executed.
After above technicalities are finished. ACB officer has to get :
- Trap cases need indepent person to witness the transaction +/- overhear the talk between victim and suspect public servant.
- So, ACB has to get one such witness to accompany victim to the trap scene.
- ACB officer can use private citizen / another government servant from a different Department to act as witness.
- Public servant, particularly gazetted officer, should assist as witness in a bribe trap, whenever CBI/ACB/Local police requests him.
- If he refuses=violation of conduct rules.
- However he should refuse to become witness, IF he knows the accused personally OR if he has already appeared as witness in another trap case. (Because otherwise defense lawyer may raise doubt on his credibility.)
Phenolphthalein is a light white powder and slightly soluble in water
- Phenolphthalein + acidic solution = colorless
- Phenolphthalein + neutral solution =colorless
- Phenolphthalein + alkaline/basic solution =pink color.
In ACB traps, currency notes are treated with phenolphthalein powder. This powder adheres to the notes’ surface but hardly visible to the naked eye.
If goods are demanded as bribe- they can also be coated with phenolphthalein powder. e.g. box of iphone /laptop/camera etc.
After corrupt official accepts (touches) those currency notes or goods=> following procedure is done
- ACB team prepares a solution of sodium carbonate (washing soda) in a tumbler.
- Then corrupt official is asked to dip his fingers inside this tumbler= solution becomes pink. Because washing soda=alkaline. And Phenolphthalein + alkaline medium=pink color. (by the way, once UPSC had asked this chemical principle in prelims MCQ).
- Normally an officer caught redhanded accepting bribe- he may be a habitual bribe-taker and possibly in possession of disproportionate assets.
- Therefore, ACB raids the house of the public servant and his relatives, in the presence of mediators and witnesses of the locality
- bank lockers, documents related to investment, currency notes, etc. are seized.
- The concerned department has to suspend the guilty official immediately. He is presented in the special court for anti-corruption. Judge decides whether he is guilty / how much jail time, as per the Prevention of Corruption Act.
- Parallel to that court proceeding, the department initiates its own departmental proceeding- to dismiss him and if he has retired then to withhold his entire pension and gratuity.
Nowadays, the corrupt officials have become cautious. They avoid touching Phenolphthalein coated currency notes by themselves. For example
- They ask the victim to place notes in a folder.
- They ask bribes in non-physical format e.g. mobile recharge.
- They get the notes exchanged. e.g. take victim to a shop. Ask him to give 1000 rupee note (Phenolphthalein coated) to that shopkeeper in exchange of two fresh notes of Rs.500.
- They ‘outsource’ bribe collection work to a middleman. e.g. junior staff/ peon/ some ‘dalal’ (agent) type unemployed person.
- If caught, they threaten, coerce, and harass the witnesses to change their testimony.
However these ‘dirty tricks’ don’t always protect them. In the absence of direct evidences- even circumstantial evidences can be used for corroboration and guilty can be punished. Even if all witnesses turn hostile. (Upheld by HCs and SC in many cases.)
Most Department / PSUs have following policy:
- Once ACB sends report to Head of Department that Mr.xyz is directly / indirectly caught accepting bribe. He is placed under suspension, irrespective of whether the phenolphthalein test yielded positive result or not.
- Even if trap completely fails (i.e. neither the accused nor his middlemen accepts notes), the accused official is transferred to a non-focus post, pending further inquiry by the department itself.
- As we saw earlier, an ACB/CBI officer has to seek so many permissions/precautions before laying a trap. So, if he got permission to lay the trap= indeed something was fishy about that accused official. Hence it is justified to transfer him to a non-focal post.
- (real case): official caught red-handed accepting bribe from a contractor. Got acquitted in court using the ‘loan theory’ i.e. Contractor wasn’t giving me bribe but he was repaying loan that I had given him earlier.
- But despite court acquittal, he had to face departmental inquiry for violating conduct rules i.e. officer should not lend money to people he has official dealings with.
- Subsequently he was removed from the government service.
- Art. 20 (Double jeopardy) doesn’t protect from departmental proceedings, even if a person is acquitted in court proceedings.
- SC has upheld the conviction against the official even when the complainant and witnesses turned hostile during court proceedings.
- SC has upheld conviction against official even when he used a middlemen to get the bribes and did not touch the notes by himself.
- SC has observed that circumstantial evidences can also be used for corroboration in bribe cases, if witnesses turn hostile. Direct evidences to link corrupt official with currency notes (phenolphthalein)= not always necessary to convict the accused.
so far we learned about Bribe takers but what about….
- Dishonest traders, contractors, power-brokers and jholachhap NGOs always attempt to bribe public servants to get illegal favors.
- Honest officers refuse bribes and think their duty is over. But that alone is not sufficient. Because the contractor might still bribe his junior / senior officer to get illegal favors.
- Therefore, when bribe is offered, honest officer should postpone the deal for some future time, and bring the matter to CBI/ACB officer, so that a trap can be laid and bribe giver can be apprehended red handed.
- If for some reasons, it is not possible to contact the CBI/ACB/ the local police authorities immediately, then what to do?
- Honest officer should ask the bribe-giver to wait for a short time and get any person nearby to witness the transaction and to overhear the conversation between the bribe giver and the public servant. Then he should call up CBI/ACB/ the local police authorities as soon as possible. (this is CVC directive.)
If such action is taken, other unscrupulous people will think twice before offering bribes to any public servant.
Before we see a few case studies, let’s check CBI’s official FAQ for traps- for some education/awareness:
Q. What is a ‘trap’? We often read in newspapers that CBI has caught a public servant in a trap.
The process of catching such corrupt public servants red handed while they demand and take bribes is popularly called the ‘trap’. It is not a legal term. A set procedure has been devised in CBI to lay a trap against a corrupt public servant.
Q. Who provides the money used for laying the trap?
The money has to be provided by the complainant and none else.
Q. What happens to the money of the complainant provided for laying trap?
- Such money is an important piece of evidence during court trial.
- We (CBI) put that money in court along with chargesheet.
- After completion of trial, court orders return of the money to the complainant.
- Thus eventually money returned to the complainant after completion of the trial.
- But keeping in view the hardships (in long pending cases)-we refund an equivalent amount of money to the victim after filing of the charge sheet.
Q. If the complainant is so poor that he cannot arrange bribe money, does it mean that no action can be taken against a corrupt public servant, who demands bribe?
- Certainly not. Action can be taken in such situations also.
- As per the Prevention of Corruption Act, 1988, sheer demand of bribe is a punishable offence.
- It is not necessary to prove that public servant accepted bribe. Even if it can be proved that public servant demanded bribe=>he can be convicted.
- Laying of trap is just a means of collection of evidence to prove the guilt. It is preferred because it facilitates collection of good evidence and makes a case full proof.
- In the absence of trap, it is difficult to collect evidence of demand of bribe. It, however, does not mean that laying of trap is mandatory and nothing can be done in the absence of a trap.
Q We have often heard that not only bribe taking but bribe giving is also an offence under the law. In that case is not the complainant who hands over the bribe amount to the accused for laying trap is also an accused?
- Certainly, bribe giving is also an offence as per of the Prevention of Corruption Act. But only when it is given voluntarily.
- if the victim comes to law enforcement agencies soon after demand of bribe by a public servant- he is protected from prosecution. (e.g. victim giving bribe to public servant during a trap=>victim is not committing crime)
Q. What should an honest public servant do, when he is offered bribe by a person?
- As mentioned in the previous answer, voluntarily giving or offering bribe is also a punishable offence under the Prevention of Corruption Act.
- In such a case the honest public servant should inform CBI as soon as such an offer is made by a person. In fact such a bribe giver can also be caught red handed by laying a trap on the complaint of the honest public servant.
- The honest public servant shall, therefore, take steps to get such persons punished, rather than ignoring or just reprimanding them. This will deter the unscrupulous elements from bribe giving.
Q. It is often heard, that public servants in higher positions don’t demand or take bribes directly but through the touts or middlemen. Does CBI take action against such touts or middlemen also?
- Most certainly. Prevention of Corruption Act, also provides punishment to such touts/middlemen and the public servants who employ such touts/middlemen.
- On getting information/complaints against such touts/middlemen, CBI lays trap against them with the help of the complainant or otherwise.
- CBI requests the general public to provide information about such known touts/middlemen, who are active in many public offices of the Central Government.
- CBI takes steps to verify such information at its own level and ensure action against such touts/middlemen even without a complainant.
Q. Are there cases, when CBI has simultaneously taken action against the willing bribe giver and the bribe taker?
Yes, there have been such cases. If CBI receives information about a willing bribe giver and bribe taker from any genuine source before the bribe is actually handed over, it verifies such information and lays a trap to catch both the bribe giver and bribe taker red handed.
DevAnand and GuruDutt are two CBI officials investigating the missing files in coal-gate. They suspect Joint Secretary Prem Chopra in coal ministry has hid/destroyed those files- or atleast he knows something. But so far, they’ve found no leads, tips, witnesses or evidences to link Prem Chopra with this crime.
CBI chief Pran humiliates them on daily basis for being lazy/idiots/incompetent etc. he has told them “I want result by ANY MEANS necessary, because Media has blown this news out of proportion. I don’t want any more negative publicity for CBI.”
Guru becomes restless and proposes following plan to DevAnand:
- I’ll get a friend of mine to pose as a canteen operator.
- He’ll approach Joint Secretary Prem Chopra with bribes to get the canteen contract for in coal ministry’s building.
- From what I’ve heard, Prem does accept bribes for canteen contracts, office stationary etc. So I’m damn sure Prem will accept the bribe, we’ll catch him red handed in the trap and use that to blackmail him to reveal everything he knows.
- We’ll also offer to make him government witness and immunity if he reveals where the files are hidden- so ‘carrot and sticks’ this will work and we’ll get our job done!
What should DevAnand do?
- To setup a trap, two conditions must be met:
- Public servant has demanded bribe
- victim has given written complaint.
(OR CBI has received credible information that bribe exchange is going to happen at xyz place.)
- Otherwise, CBI cannot randomly lay traps on a public servant merely out of suspicion or just to check his honesty.
So, Answer is No- Dev shouldn’t participate in this plan of GuruDutt. He should try to dissuade Guru from executing this plan. If Guru doesn’t listen then he should inform their superior officer.
btw, if Dev snitches about Guru to their boss- isn’t that ‘unethical / betrayal of trust”? No, because conduct rules demand that Dev should inform his superior about any wrongdoings going in the office. He too may face disciplinary action, if he passively allows Guru to continue with his plan.
Sunny Deol needs domicile certificate to apply in Indian Army as soldier.Tehsildar asks him to fillup a form and get certificate from local police that no criminal case is registered against him. Head Constable demands Rs.500 to get this work done. Sunny approaches local ACB officer DevAnand. A trap is laid and constable is caught red handed accepting the bribe. Dev starts the paperwork but suddenly leave the room to attend a phone call. Now only Sunny and HeadConstable are left in the room. Head Constable tells Sunny following:
- Listen son, I’ll give you 5000 rupees if you take back your complaint right now and I’ll also get you your domicile certificate immediately.
- And God forbid, if you fail in that soldier recruitment, I promise you, I’ll get you a job at my brother-in-law’s garment shop.
- If this matter goes to court, you’ll have to appear as witness every now and then. It’ll create lot of inconvenience to you, affect your studies for whatever other competitive exams you’re preparing for.
- I was merely following order of my boss. I don’t even get 50 rupees out of this 500. My daughter’s wedding upcoming, I’m about to retired. So please show mercy. I’m not the real bad guy here, but a victim of circumstances just like you’re.
- Besides, even if I’m convicted, this corruption will continue. Nothing will change. so please help me out.
- of course no. Once caught, all corrupt public servant make this type of emotional pleas. Sunny must help Dev to an example out of this head constable to deter others from participating in corruption of their bosses.
- Under Prevention of corruption Act, Courts have upheld conviction of corrupt public servants- even where witnesses/complainant turned hostile during court proceeding. This constable’s game is over- irrespective of what Sunny does.
- Besides, once convicted, he is unlikely to keep his ‘promise’ (of getting Sunny job in his brother in law’s garment shop). Therefore Sunny shouldn’t bother helping him.
DevAnand and Guru Dutt are two inspectors in ACB. One day, poor farmer visits their office complaining how a Patwari is demanding 100 rupee for land records, via a middleman. Guru gives him Rs.100 rupees note out of his own pocket, “give it to midleman and get your work done. We’ve not time for such small traps.” DevAnand is appalled, but Guru explains him following:
- you know it well the amount of technicalities and procedures to be followed if we want to lay a trap for this petty case of 100 rupees bribe.
- Secondly, this Patwari is not taking bribes by himself but has hired a middleman. Even if we catch this middleman red-handed, it’ll take a hell load of investigation and paperwork to corroborate his link with the official.
- Overall, we’d be occupied for no less than five months in this stupid case.
- Tax payer’s money is better spent IF we pour our time and effort in catching the bigger fishes instead- who demand thousands and lakhs of rupees as bribes.
- Still if you want to proceed then go ahead, do it on your own. I’ll not help in this stupid trap or investigation.
What should DevAnand do?
- GuruDutt’s logic is faulty. It is not just one case of 100 rupees. Patwari is demanding bribes from all farmers. And most probably other Patwaris in nearby villages also doing the same. so collectively the scam runs in lakhs of rupees + the amount of agony and hardship caused to poor farmers=you can’t put a price tag on everything.
- Dev should try to convince Guru why it is in public interest to chase even petty cases- to set fear in the hearts of all other petty officials who demand bribes.
- IF Guru doesn’t agree, Dev should initiate trap proceeding by himself and inform their boss about Guru’s approach towards work, conduct rules and [Ethics].