IV. THE LEGAL POSITION

The important question that arises now is whether the findings of the enquiry into allegations of match fixing and related malpractices connected with the game of cricket constitute any offences under the penal laws of India and whether facts as disclosed in the enquiry are sufficient to institute a case for any criminal offence.

This matter has been examined in detail within the CBI. The legal position arising out of the facts of enquiry was also discussed with Justice Monoj Kumar Mukherjee, former Judge, Supreme Court of India and with Shri Harish Salve, Solicitor General of India, and their written opinion has been obtained.

The Legal Adviser/CBI has analysed the provisions of section 120-A IPC dealing with criminal conspiracy and section 415 IPC dealing with cheating and has come to the conclusion that the facts of enquiry in the instant case do not constitute an offence under the aforesaid sections of law. He has also examined the possibility of application of provisions of Prevention of Corruption Act, 1998 and opined that technically a case u/s 13(1)(d)(i) (criminal misconduct) and section 13(1)(e) (disproportionate assets) can be made out against some of the players who are public servants.

Justice Monoj Kumar Mukherjee has discussed at length the provisions of various penal laws including the Indian Penal Code, the Public Gambling Act and the Prevention of Corruption Act, 1988, and the excerpts of opinion of Justice Mukherjee on aforesaid laws are as follows:

THE INDIAN PENAL CODE:

"To seek answers to the questions raised, the Indian Penal Code has to be first looked into. The only sections of the Code which need consideration are sections 415, 417 and 420. Section 415, which defines 'cheating' reads as under:-

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation - A dishonest concealment of facts is a deception within the meaning of this section.

On an analysis of the section, it is seen that it consists of two parts. First comes the main part which speaks of deceiving a person and is common to both the modes of deceiving as specified in the second part. The modes are: (i) by fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or (ii) by intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. It is thus seen that 'deceiving' is the quintessence of the offence of cheating; and, when a person deceives another person to induce him to act in any of the manners stated above, the offence is complete. To put it differently, the inducement must be by the deceit.

The words 'deceit' and deceive', however, have not been defined in the Penal Code and hence their dictionary meaning needs be looked into. Culling the meaning of the above words from the various dictionaries, it is seen that a false representation or a misleading statement, express or implied, pertaining to a present or past existing fact, is the sine qua non of 'deceit'. The deceit can be practised by expressly or impliedly making a false representation or misleading statement; (suggestio falsi), or by dishonest concealment of facts while making the representation/statement (suppressio veri), as explained in section 415, or by conduct. Needless to say, what will be sufficient to constitute deceit has got to be decided on the facts of a given case.

As noticed earlier, the offence of cheating encompasses cases in which there is delivery/retention of property as also cases in which there is no such element. Since section 417 provides for 'Punishment for cheating', it may apparently seem that it covers both those categories; but, as section 420 specifically provides for punishment of cases relating to delivery of property and to valuable security, it is to be legitimately inferred that the former relates to simple cases of cheating by the second mode enumerated in section 415. This inference is reinforced by the fact that whereas offence under 417 is non-cognizable and punishable with imprisonment for one year only or fine, section 420 is a cognizable offence and punishable with imprisonment for seven years and fine.

Judged in the light of the above principles of law, it is difficult to hold, on the basis of the materials collected during inquiry, that a case of cheating has been made out. There is no material from which it can be said, even prima facie, that the delinquent players induced the BCCI to select them, by practising deceit upon it in any of the manners enumerated earlier so as to bring them within the ambit of section 417. I am told that for selection of players, no prior declaration or undertaking relating to the code of conduct to be followed by them is taken. If it was so taken and if there was any misleading statement or false representation or suppression of relevant facts made by the player concerned therein, it might be said that the offence punishable under section 417 was made out. I hasten to add that offence under section 420 IPC would not have been still made out for the money (property) which the players received was for a consideration, that is, for participation in the tournament concerned. While on this point, it is pertinent to mention that in the letters intimating the players about their selection, the BCCI writes "we are sure, you will put up your best efforts in the interest of the country" and wilful non-performance/under performance inspite thereof amounts not only to breach of faith and of sporting ethics but also of undermining the prestige of the country and people at large. Nonetheless, however reprehensible the conduct of the players concerned may be, it cannot be brought within the parameters of 'cheating', as defined in the Code."

PUBLIC GAMBLING ACT 1867:

"Thus said, the law relating to gambling in India may be looked into. As far back as in 1867, Public Gambling Act, (Central Act III of 1867) was enacted to provide for the punishment of public gambling and keeping of common gaming houses. Though this antiquated law is still in the Statue Book, it has lost its utility as, later on, most of the States of India, including Bombay and Delhi, enacted their own laws for the self-same purpose. Since the provisions of the Bombay Prevention of Gambling Act, 1887 and the Delhi Public Gambling Act, 1955 are similar, reference to the relevant provisions of one of them will suffice.

In the Delhi Act, 'gaming' is defined in section 2(c) to include betting (except upon a horse race in certain contingencies) and 'common gaming house' in 2(iii) to mean any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which any instruments of gaming are kept or used for gaming purposes. Section 3 of the Act lays down the penalty for owning or keeping or having charge of a gaming house; and the penalty is imprisonment for a term which may extend to six months and a fine which may extend to one thousand rupees. Section 5 lays down that an officer below the rank of a Superintendent of Police needs a warrant or an authority to take into custody all persons found in a place used as common gaming house.

In the instant case, even if cogent materials are made available to prove that any of the persons arraigned is guilty of the offence under section 3 of the above Act or similar provision or other State Acts, and if it is decided to take steps for launching prosecution in a competent Court of Law, the following facts and circumstances need be considered:

(i) The question of limitation under Chapter XXXVI of the code of criminal procedure; and

(ii) The punishment provided for the offence is lenient and is not at all commensurate with the magnitude of the crime."

PREVENTION OF CORRUPTION ACT 1988:

As most of the players under scrutiny do not come within the definition of 'Public Servants' as defined in Section 2(c) of the Act, this law is not applicable to them. However, two of the cricketers under scrutiny, viz., Mohd. Azharuddin who is working with the State Bank of India and Ajay Sharma who is working with the Central Warehousing Corporation, are 'public servants' as defined in Section 2(c) of the Act. The opinion of Justice Monoj Kumar Mukherjee in respect of these players vis-a-vis the Prevention of Corruption Act, 1988 is :-

"In view of their such employment, the above two players are undoubtedly 'public servants' within the meaning of section 2(c) of the Act, but as they have accepted/obtained money by using/abusing their position as cricketers and not as 'public servants', they would not be liable for prosecution for those offences in which acceptance/obtainment of money by a public servant has a nexus with his official position/act/function; and these offences are enumerated in sections 7, 11 and 13 (1) (a), (b), (c) and d (ii). That necessarily means, those who offered money to them also cannot be prosecuted under section 12 of the Act, for abetment.

However, the other offences under the Act, namely, sections 13(1) (d) (i) and (iii) and 13(1)(e) do not lay down that in committing those offences the public servant has to use/abuse his official position. Indeed, simply being a public servant or while holding office as a public servant, he can be liable for prosecution if the acts mentioned therein are committed by him. This distinction can be best understood when section 13(1) (d)(i) is read in juxtaposition with section 13(1) (d)(ii). While, under the former, a 'public servant' becomes liable for prosecution for committing the offence of criminal misconduct if he obtains ...... (the subsequent words are identical in both clauses) 'by corrupt or illegal means', in the latter, 'by abusing his position as a public servant'. In view of the above provisions of the Act and the materials collected during enquiry, the two players may be said to have committed offences under section 13(1) (d)(i). Needless to say, the question whether the materials so far collected will/can be ultimately translated into legal evidence for a successful prosecution has to be kept in mind. For the self same reason, the two players concerned may also be proceeded against under section 13(1)(e) of the Act, if and when sufficient materials are collected to fulfill the requirements thereof."

This report was discussed in detail with the Solicitor General of India, Shri Harish Salve, who has scanned the evidence and is in broad agreement that no criminal charges under cheating or under the Gambling Act can be filed against anyone because of the nebulous position of law in this regard, as well as the improbability of investigating agency being able to obtain sufficient legal evidence.

Thus, from the opinions expressed above, it is evident that, the facts as disclosed in the enquiry do not constitute any offence under the provisions of Indian Penal Code. Similarly, it is not possible to prosecute anyone under the Public Gambling Act due to the restrictions imposed as per Sec. 468 of Chapter XXXVI of the CrPC. In so far as a case u/s 13(1)(e) (disproportionate assets) of the Prevention of Corruption Act, 1988 is concerned, it may be clarified that the CBI enquired only into the issue of match-fixing and related malpractices and did not conduct detailed investigation into the assets of the players. However, relevant information available with the CBI was shared with Income Tax authorities for appropriate action.

Technically, an offence u/s 13(1)(d)(i) and (iii) (criminal misconduct) of the Prevention of Corruption Act, 1988 can be registered against the two players (Mohd. Azharuddin and Ajay Sharma) answering the definition of public servants. However, looking at the issue in its totality, the question of registration of a case under the aforesaid sections of Prevention of Corruption Act is under evaluation.

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