The important question that arises now is whether the findings of the enquiry into the 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 the aforesaid laws are as follows:
The Indian Penal Code: "To seek answers to the questions raised, he Indian Penal Code has to be first looked into. The only sections of the code which need consideration are sections 415, 417 and 420. Sections 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 persons 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 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 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 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 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 both 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-cognisable and punishable with imprisonment for one year only or fine, section 420 is a cognisable offence and punishable 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 the 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 in spite 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".
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Mail Cricket Editor