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November 1, 2000

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The CBI Report in Full -- Part 32


Thus said, the law relating to gambling in India may be looked into. As far back as in 1867, Public Gambling Act, (Central Act lll 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 Statute 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 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 extent to 6 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 the 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 to 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."

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 the these players vis--vis the Prevention of Corruption Act, 1988 is:- "In view of the their such employment, the above two players are undoubtedly 'public servants' with the meaning 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 fulfil 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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