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Legal Position      

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, 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. 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".

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 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."

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 the these players vis-à-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.

V. FUNCTIONING OF THE BCCI:

The natural corollary to the fact that disclosures during the CBI enquiry have revealed a thriving player-bookie nexus in India for nearly a decade, begs the question: What was the BCCI doing all these years? CBI has enquired into the role and function of BCCI to evaluate whether it could have prevented the malpractices.

CBI enquiry into the affairs of the BCCI has not disclosed any direct evidence of nexus of any past or present office bearers of BCCI with the betting syndicate. However, a perusal of statements of present and past officials of the Board like S/Shri I.S. Bindra, Sunil Dev and Jaywant Lele has indicated that there were definite rumours/reports about match fixing and related malpractices from time to time. It is also quite clear that the BCCI never seriously addressed this problem till the lid was blown after Hansie Cronje affair.

It is obvious that, in spite of their public posturing now, all the office-bearers of BCCI over the past decade or so have been negligent in looking at this problem in spite of clear indications of this malaise making inroads into Indian Cricket. The primary reason behind this is the lack of accountability of the BCCI to anyone. The structure of BCCI is such that it is very difficult for any person who has not previously held a post in BCCI or affiliate units to get into Cricket administration in India. This not only prevents infusion of fresh blood and ideas but also perpetuates a system of self-aggrandisement. Even in the State Units, it is extremely difficult to become a Member or an Office-Bearer for any person even with good cricketing credentials.

Most of the state units are perpetually in control of a family or a group since its inception. A case in point is the Rajasthan Cricket Association which is being run by the family of Rungtas since its inception and, at present, even includes 10 employees of the Rungta's as Members of RCA. Such members are basically incorporated to ensure that the unchallenged supremacy of a particular group is not threatened during the elections. It is also interesting to note that one Ayub Gauri of Jaipur, with suspected underworld links, was in charge of security for a particular gate in a match between India and Pakistan at Sawai Mansingh Stadium, Jaipur in 1999.

One of the important sources of revenue of affiliate units is grant of in-stadia rights for advertising for domestic and international matches. In most instances, in-stadia rights are granted without following a uniform system, thus promoting arbitrariness. There is a need for greater transparency in this area. The system of zonal representation in BCCI and it's Selection Committee also needs to be reviewed since this basically attempts at disturbing the fishes and loaves of office which also breeds parochialism. The functioning of BCCI at present reflects a dichotomy between running the affairs of the Board and administering Cricket, in which only the first aspect receives overwhelming primacy.

There are quite a few who believe that the player selection at the lower levels, such as Under 19, Ranji Trophy, etc, is not always on merit. Patronage and nepotism operate rather blatantly. A more transparent system based on performance revealed by devices such as the Ceat rating and ratings as devised by ESPN would greatly enhance the cricket administration's credibility in respect of promotion of talent.

There is no transparency even in the appointment of Coaches, Managers, Physiotherapists, etc. who are elected in the AGM after their names are suggested by some of the members. There is no panel available with BCCI, from which names can be discussed and thereafter ratified on merit. Basically, these appointments are an extension of patronage system to persons who curry favour with the office bearers of BCCI.

CBI enquiry has disclosed that, consequent to the commercial success of Reliance World Cup in 1987, the coffers of the Board started overflowing with big money coming in through sponsorship and television rights. A perusal of the Board's financial statement discloses that from a profit of Rs 5.06 lakhs in financial year 1987-88, the profits soared to Rs. 8.37 crores in the financial year in 1998-99. In normal circumstances, this happy situation should have been reflected in the performance of the Indian team in the international arena. The argument here is that swelling coffers of BCCI should have resulted in better coaching facilities, better maintenance of cricket stadiums, infusion of more money into domestic matches, building up of a reserve pool of players and use of professionals like sports physicians, dieticians, etc.

This has not, however, happened in the Indian context. On the other hand, BCCI started a process of commercialisation of cricket without any vision as to how this money could be ploughed back to ensure better performance on the field.

Some of the policies of BCCI during the past decade which have directly contributed to match fixing and related malpracticies are - (a) frequent tours to controversial venues like Sharjah, Singapore, Toronto, etc; (b) thoughtless increase in One Day Internationals.

CBI enquiry into match-fixing allegations has indicated that matches in non-regular venues such as Toronto and Singapore may be more prone to fixing/betting as there is carnival-like atmosphere of non-seriousness at these venues. India is the only country, which plays regularly in these arenas even at the cost of not touring regular test playing nations like Australia, West Indies, South Africa, etc. which makes more sense in cricketing terms.

The ostensible reasons put forth by BCCI for touring these lesser venues is globalisation of cricket. It is difficult to understand why India should shoulder this burden when countries with a longer cricketing history like England and Australia are not doing so. In addition to this is the disproportionate increase in one-day matches being played by India vis-à-vis other Test-playing nations. For example, in 1999 India played nearly 40 ODIs and is scheduled to play 53 ODIs in the first 13 months of year 2000-2001, which is one of the highest by a Test-playing nation.

The aforesaid factors have contributed to malpractices in two ways: (a) the players are more exposed to betting syndicates in no-regular venues; and (b) a surfeit of ODIs result in lower levels of motivation for players who may get a feeling that there is nothing wrong in throwing an occasional match.

Moreover, due to the extremely busy schedule charted out for the national players, they hardly get any time to participate in domestic cricket matches. This has led to a decline in the standards of domestic cricket, as a result of which hardly any players of international standards are being thrown up. The off-shoot is that the reserve strength of the Indian bench is pathetic when compared to countries like Australia who can put up a world class side from their reserve strength itself. With their positions strength or fresh talent, it is only natural for members of the Indian team to become complacent and more susceptible to the lure of match fixing, etc as their position would not be under threat for lack of performance in a few matches.

During this enquiry, no evidence has come forth to prove that office-bearers of the BCCI over the years have received any money to ensure India's participation in any tournament. However, a study of guarantee money received by BCCI in some of the tournaments shows an interesting trend, which indicates that it is not commensurate with India's standing in the cricketing world. Today, every second person in the world watching cricket 'live' on television is probably an Indian which gives an enormous clout in financial terms to the BCCI.

In view of this, BCCI can fix its own terms to tour any country to ensure its participation in an event since the television rights for any tournament featuring India can be sold for a very heavy amount. But this position is not reflected in the guarantee money received by BCCI as illustrated below:

Guarantee Money Received by BCCI Money received by Hosts for TV rights over India for the series ICC Wills Cup, 1998, Bangladesh Rs. 46 lakhs Rs. 35 crores Coca Cola Cup, 1998, Sharjah Rs. 68 lakhs Rs. 17 crores World Cup, 1999, UK Rs. 1.5 crores Rs. 26 crores These figures are self-explanatory and indicate that India has undersold itself due to reasons not satisfactorily explained by BCCI office-bearers during their examination by CBI. This enquiry has not looked into the matter of grant of television rights since this issue is being dealt with separately.

Tournament Guarantee Money Received by BCCI Money received by Hosts for TV rights over India for the series ICC Wills Cup, 1998, Bangladesh Rs. 46 lakhs Rs. 35 crores Coca Cola Cup, 1998, Sharjah Rs. 68 lakhs Rs. 17 crores World Cup, 1999, UK Rs. 1.5 crores Rs. 26 crores

In conclusion, the BCCI has been negligent in not preventing match-fixing and related malpractices in cricket in spite of clear signals about the malaise. This is mainly due to the fact that, for most office-bearers of BCCI, running the Board is an end in itself and the future of cricket is only incidental. However, the solution does not lie in the creation of a new administrative structure or overriding bureaucratic control on the existing structure. It, perhaps, lies in making the functioning of BCCI more professional, transparent and accountable to a non-bureaucratic autonomous authority.

VI. CONCLUSIONS

The enquiry conducted by CBI has disclosed the following:

Small scale betting on cricket matches has been taking place in India for a long time. Betting on a major scale started only after India won the world Cup in 1983.

Betting on cricket matches has been on the upswing ever since live telecast of cricket matches stated on a regular basis.

Betting on cricket matches has been on the upswing ever since live telecast of cricket matches started on a regular basis.

Betting on cricket matches in India has attained as measure of sophistication and it has spread across the length and breadth of the country. The use of computer and mobile phone has given a manor fillip to this racket.

Betting on cricket in India, in terms of monetary turnover and volume of transactions, is perhaps the biggest organised racket. According to rough estimates, the turnover, on account of betting on any One-Day International match anywhere in the world, runs into hundreds of crores.

There are clear signals that the underworld mafia has started taking interest in the betting racket and can be expected to take overall control of this activity, if not checked immediately with a firm hand. It does appear that what may have been small-time wagering (which to some extent is inevitable) has now been replaced by an organised syndicate, and this syndicate has started interfering with the purity of the sport. It has been the negligence of the police and the other regulatory authorities, that has allowed wagering to turn into an organised racket, particularly with the involvement of the underworld mafia. The game has lost a considerable degree of its credibility already, and it will be a matter of national shame if the problems which are, to some extent apparent form the evidence gathered and narrated in the report, are not immediately and decisively resolved.

With a large amount of money at stake in the betting racket on cricket, it makes sense for both bookies and punters to manipulate results of cricket matches. This has resulted in their developing a close and unholy relationship with cricketers.

Ajay Sharma introduced Md. Azharuddin, Majoj Prabhakar and Ajay Jadeja to Bookie Mukesh Kr. Gupta @ M.K. @ John. He also intrduced Mohd. Azharuddin to big time punter Ajay Gupta. Ajay Sharma received lakhs of rupees from M.K. and Ajay Gupta & Associates for this service. He also provided information regarding matches to M.K.Gupta and was also instrumental in getting a tailor-made pitch prepared for a Test Match on the instructions of M.K. for monetary considerations.

The difficulties in gathering any concrete evidence to establish any of these facts in a court of law has been considerably accentuated by the lapse of time between the events and the investigation. If the matters had been investigated contemporaneously, perhaps far more effective results could have been attained.

Manoj Prabhakar is close to a number of bookies and punters, namely, Mukesh Kr. Gupta @ John, Tipu Kohli, Anand Saxena, Rajesh Kalra, Sanjeev Chawla, Sunil Dara and Mashal, etc. He introduced a number of foreign players and also provided 'information' about Test Matches, One-Day Internationals, one Ranji Trophy Match to bookie M.K. Gupta @ John. For introducing the foreign players and providing 'information' regarding matches, he received large sums of money form M.K. and Tipu Kohli.

Md. Azharuddin has fixed matches/performance for a bookie 'M.K.' @ 'John' and big time punters Ajay Gupta and Associates, with the help of Ajay Jadeja and Nayan Mongia. He has also received large sums of money running into lakhs from M.K. Gupta and Ajay Gupta and Associates directly and also on a number of occasions through Dr. Ali Irani, who was well aware of the activities of Md. Azharuddin and the reason for the payments. The involvement of the Captain of the cricket team is qualitatively different form the involvement of stray players, such as Ajay Sharma or even other important players.

It is the Captain of the team who has to keep the closest watch on the game on the field. Besides, the involvement of the Captain, particularly in efforts to underperform, destroys the very ethos of the team event.

Ajay Jadeja is very close to some bookies and big time Punters, namely, Uttam Chand @ Topi, Rattan Mehta, Rajesh Kalra, Krishan Kumar (implicated in the Hansie Cronje case). He gave 'assessment' of cricket matches to Rattan Mahta, a big time punter. He also passed on 'information' to bookie Uttam Chand @ Topi, for monetary considerations. He also met M.K. Gupta and offered his services for fixing matches and also received money from M.K. at this meeting. He is also named by Md. Azharuddin as one of the players who was with him in fixing matches.

Nayan Mongia has been by Md. Azhuruddin as one of the players involved with him in fixing matches.

Dr. Ali Irani was aware of the activities of Md. Azharuddin in fixing matches and also acted as a conduct for receiving payments on behalf of Azharuddin from M.K. & Associates. Azharuddin also paid him money on each occasion that he received payments on his behalf.

A number of foreign players were introduced by Manoj Prabhakar to bookie M.K. Gupta @ M.K. @ John who either offered or paid money to them. Some of them are: (i) Alec Stewart

(ii) Brian Lara

(iii) Mark Waugh

(iv) Dean Jones

(v) Hansie Cronje

(vi) Arvinda D'Silva

(vii) Arjuna Ranatunga

(viii) Martin Crowe

(ix) Salim Malik

Asif Iqbal, former Cricket Captain of Pakistan, is close to Anil Steel, bookie of Mumbai. Asif Iqbal has, on occasions, provided information about cricket matches to Anil Steel and has also received gifts from him.

Big time punter Rattan Mehta is extremely close to the entire Pakistan team who have even visited his restaurant in Vasant Vihar. He claims he is particularly close to Wasim Akram, Waqar Younis, Inzamam-ul-Haq and Saeed Anwar. He also claims to have received opinion on matches from them and also having given 'small gifts' to Pakistan players on a few occasions.

The 'bona fides' of the allegation of Manoj Prabhakar that he was offered Rs. 25 lakhs by Kapil Dev to underperform in a cricket match against Pakistan during Singer Cup in Sri Lanka in 1994 has not been established.

The BCCI has been the single biggest beneficiary of the enormous commercial success of the sport. It is a matter of record that the BCCI earns substantial sums from media exposure of the game - which media exposure is in fact responsible for the qualitative change that has come about in the entire scenario. It would be the elementary duty of anybody purporting to be the apex regulatory body of a sport, to keep a close watch on the performance of the team, and to thoroughly investigate into the slightest gossip, leave alone suspicion, of any malpractice.

The BCCI, however, did not care to even investigate allegations which were bound to have been within their knowledge (for example, where there was a serious controversy over a slowdown in the run rate in the Kanpur one-dayer, 1994). Although there is no concrete evidence to suggest the direct involvement of any of the members of the BCCI in match fixing, their resolute indifference does give rise to suspicion that there was perhaps more than that meets the eye. It defies credulity to believe that the apex body was oblivious to such rampant match fixing and, therefore, did not find the need to investigate thoroughly the results of matches which are patently questionable.

The appointments of professionals like coaches, physiotherapists, selectors are made more or less in an arbitrary manner. Names are suggested by the members of the BCCI and its affiliate units whose knowledge and insight into cricket is questionable.

Although the BCCI today is cash rich, it does appear that, over the years, it has undersold Indian Cricket with regard to guarantee money, etc. BCCI is in control of huge amounts of public funds without any concomitant rules, regulations/laws that govern the manner in which public funds are to be utilised. There is no accountability of any office-bearer of the BCCI similar to the one imposed on public servants when dealing with public funds.

There are many facets of match fixing and related malpractices in cricket which need further investigation. In order to unravel the entire sordid nexus between the cricket players, bookies and punters, the CBI enquiry will continue.

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They says

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