CBI's Report on Cricket Match Fixing and Related Malpractices (Section 4)
IV
02-Nov-2000
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.