Punishment for match fixing in Cricket

Cricket, it is said, is a synonym for gentlemanliness which means discipline, fair play, modest and high standard of morality. The ever increasing interest in the game of Cricket in our country has raised issues of its regulation, control and management. In our country the Board of Control for Cricket in India (BCCI), a registered Society under the Societies Registration Act, 1860, exercises sufficient control on all aspects of game of Cricket and has framed various Code of Conduct for all who are associated with it. Highlighting the importance of BCCI, Justice T.S. Thakur, as he then was, in Board of Control for Cricket in India vs. Cricket Association of Bihar and others, (2015) 3 SCC 251, stated following:

“103. BCCI is a very important institution that discharges important public functions. Demands of institutional integrity are, therefore, heavy and need to be met suitably in larger public interest. Individuals are birds of passage while institutions are forever. The expectations of the millions of cricket lovers in particular and public at large in general, have lowered considerably the threshold of tolerance for any mischief, wrongdoing or corrupt practices which ought to be weeded out of the system.”

Judicial Review of Ban on playing:

Jurisdiction of the High Court under Article 226 is a supervisory jurisdiction and the High Court does not exercise a jurisdiction of an appellate court. The findings of the fact reached by a tribunal as result of the appreciation of the evidence cannot be questioned in the writ proceedings.

Constitutional court in exercise of jurisdiction of judicial review of disciplinary proceedings conducted under the Code of Conduct framed by the BCCI will interfere only when conclusions of the disciplinary committee are perverse or based on no evidence. On appreciation of evidence, it is not open for the High Court or this Court to substitute its own opinion based on the appreciation of material on record on the charges proved.

35. We, thus, are of the opinion that for the decision of the disciplinary committee holding charges under Articles 2.1.1., 2.1.2, 2.1.3 and 2.2.3 and Article 2.4.1. and 2.4.2 proved, there are no grounds for this Court to take a different view.

Just punishment for match fixing:

The principles of sentencing as applicable in offence under Indian Penal Code may not be strictly applicable to one of punishment/sanction under the Anti-Corruption Code but principles of sentencing as applicable in the criminal jurisprudence may be relevant for imposing sanction in Anti- Corruption Code. In the Criminal Procedure Code, 1973, there are no structured sentencing guidelines. In March, 2003, the Committee on Reforms of Criminal Justice System (the Malimath Committee), a body established by the Ministry of Home Affairs, issued a report that emphasized the need to introduce sentencing guidelines in order to minimise uncertainty in awarding sentences. The Indian Penal Code prescribe offences and punishments for the same. For many offences only the maximum punishment is prescribed and for some offences the minimum punishment is also prescribed. Various jurists and writers have tried to enumerate circumstances which may mitigate the gravity of offences. The Constitution Bench of this Court in Jagmohan Singh vs. The State of U.P., (1973) 1 SCC 20 held that law gives very wide discretion in the matter of punishment to the Judge. In paragraph 24 following has been laid down:

“24. The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of Criminal Breach of Trust punishable under Section 409 of the Indian Penal Code. The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day’s imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that section, that would be an impossible task. All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories—simple hurt and grievous hurt. Simple hurt is again sub-divided—simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence—Section 324. Where grievous hurt is caused by a lethal weapon, it is punishable under Section 326 and is a more aggravating form of causing grievous hurt than the one punishable under Section 325. Under Section 326 the maximum punishment is imprisonment for life and the minimum can be one day’s imprisonment and fine. Where a person by a lethal weapon causes a slight fracture of one of the un- important bones of the human body, he would be as much punishable under Section 326 of the Indian Penal Code as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment………”

44. On principles of sentencing Constitution Bench judgment of this Court in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684, is a locus classicus. The Constitution Bench speaking through Sarkaria, J. in paragraph 163 laid down following:

“163………The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.”

45. Further the Constitution Bench in Bachan Singh has emphasized that the sentencing principle may not only confine to the nature of the crime but may also focus on the criminal. In paragraph 201 following was laid down:

“201………As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man’………”

In Gopal Singh vs. State of Uttarakhand, (2013) 7 SCC 545, it was laid down that principle of just punishment is the bedrock of sentencing in respect of a criminal offence. In paragraph 18 following was laid down:

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.”

Court in Board of Control for Cricket in India(BCCI) (supra) has held that a zero tolerance towards any wrong-doing alone can satisfy the cry of clinching the Cricket. The Division Bench of the Kerala High Court while allowing the writ petition filed by the BCCI has also observed that Anti- Corruption Code of BCCI clearly envisaged zero tolerance to corruption. There cannot be any quarrel to the proposition as laid down by this Court as noted above. What was meant by the zero tolerance is that any offence committed within the meaning of Anti-Corruption Code cannot be ignored or to be leniently dealt with. Zero tolerance emphasis taking cognizance of such offences and awarding suitable punishment. However, zero tolerance approach cannot dilute consideration of relevant factors while imposing sanction under Article 6. In Board of Control for Cricket in India(BCCI) (supra) this Court has laid down that the quantum of sanction/punishment can vary depending upon the gravity of the misconduct of the persons committing the same.

If we look into Article 6, Article itself enumerates aggravating and mitigating circumstances. Article 6 contains a heading ‘Sanctions’. Para 6.1 provides that in order to determine the appropriate sanction that is to be imposed in each case, the disciplinary committee must first determine the relative seriousness of the offence, including identifying all relevant factors that it deems to. Article 6.1 is as follows:

“6.1 Where it is determined that an offence under this Anti-Corruption Code has been committed, the BCCI Disciplinary Committee will be required to impose an appropriate sanction upon the participant from the range of permissible sanctions described in Article 6.2. In order to determine the appropriate sanction that is to be imposed in each case, the BCCI Disciplinary Committee must first determine the relative seriousness of the offence, including identifying all relevant factors that it deems to:

6.1.1 aggravate the nature of the offence under this Anti-Corruption Code, namely 6.1.1.1 a lack of remorse on the part of the Participant;

6.1.1.2 whether the Participant has previously been found guilty of any similar offence under this Anti-Corruption Code and/or any predecessor regulations of the BCCI and/or the ICC Anti-Corruption Code and/or anti-corruption rules of other National Cricket Federation;

6.1.1.3 where the amount of any profits, winnings or other Reward, directly or indirectly received by the Participant as a result of the offence(s), is substantial and/or where the sums of money otherwise involved in the offence(s) are substantial;

6.1.1.4 where the offence substantially damaged (or had the potential to damage substantially) the commercial value and/or the public interest in the relevant match(es) or event(s);

6.1.1.5 where the offence affected (or had the potential to affect) the result of the relevant match(es) or event(s);

6.1.1.6 where the welfare of a participant or any other person has been endangered as a result of the offence;

6.1.1.7 where the offence involved more than one participant or other persons; and/or 6.1.1.8 any other aggravating factor(s) that the BCCI Disciplinary Committee considers relevant and appropriate.”

55. Further, Article 6.1.2 enumerates the mitigating circumstances. Articles 6.1.2, 6.1.2.1 to 6.1.2.9 are as follows:

“6.1.2 mitigate the nature of the offence under the Anti-Corruption Code, namely:

6.1.2.1 any admission of guilt (the mitigating value of which may depend upon its timing);

6.1.2.2 the participant’s good previous disciplinary record;

6.1.2.3 the young age and/or lack of experience of the participant;

6.1.2.4 where the participant has cooperated with the Designated Anti-Corruption Official (or his/her designee) and any investigation or demand carried out by him/her;

6.1.2.5 where the offence did not substantially damage (or have the potential to substantially damage) the commercial value and/or the public interest in the relevant match(es) or event(s);

6.1.2.6 where the offence did not affect (or have the potential to affect) the result of the relevant match(es) or event(s); 6.1.2.7 where the Participant provides Substantial Assistance to the Designated Anti-Corruption Official (or his/her designee), that result in the Designated Anti-Corruption Official (or his/her designee) discovering or establishing an offence under this Anti-Corruption Code by another Participant or another cricket Participant bound by such regulations or that results in a criminal or disciplinary body discovering or establishing a criminal offence or the breach of professional rules by another Participant or other third party; 6.1.2.8 where the participant has already suffered penalties under other laws and/or regulations for the same offence; and/or 6.1.2.9 any other mitigating factor(s) that the BCCI Disciplinary Committee considers relevant and appropriate.”

Conclusion by Supreme Court:

In view of the foregoing discussion we arrive on the following conclusions:

(1) In the disciplinary proceedings held against the appellant under the Anti-Corruption Code of BCCI the principles of natural justice were not violated.

(2) The conclusions drawn by the disciplinary committee of the BCCI on the basis of materials as referred to in paragraphs 12 and 13 of the order cannot be said to be suffering from any infirmity which may warrant judicial review by the constitutional courts. The constitutional courts in exercise of jurisdiction of judicial review will interfere only when conclusions of the disciplinary committee are perverse or based on no evidence. It is not open for the High Court or this Court to substitute its own opinion based on the materials on record on the proof of charges.

(3) The standard of proof in a disciplinary inquiry and in a trial of a criminal case are entirely different. In a criminal case it is essential to prove a charge beyond all reasonable doubt wherein in disciplinary inquiry under Anti-Corruption Code of BCCI the preponderance of probability is to serve the purpose.

(4) We although have upheld the decision of the disciplinary committee of the BCCI on proof of charges, which upholding of the decision of the disciplinary committee shall have no effect on the criminal appeal which is pending against the appellant against the discharge order. The conclusions and observations as recorded in the disciplinary committee under Anti-Corruption Code are entirely different from proof of criminal charges which require higher yardstick to prove.

(5) There was no legal impediment in Shri Srinivasan participating in the disciplinary committee proceedings dated 13.09.2013 as President. The appellant having not questioned the constitution of disciplinary committee even in the grounds of this appeal he cannot be allowed to challenge the constitution of disciplinary committee at this stage.

(6) Sanction under Article 6 of Anti-Corruption Code of BCCI is nothing but punishment on commission of the offences and akin to sentencing in criminal jurisprudence. The principles of sentencing as applicable in offence under the Indian Penal Code may not be strictly applicable to one of punishment/sanction under the Anti- Corruption Code but principles of sentencing as applicable in the criminal jurisprudence may be relevant for imposing sanction under the Anti-Corruption Code.

(7) In cases where offences under Article 2.1.1, 2.1.2, 2.1.3 and 2.1.4 are proved, the disciplinary committee is not obliged to award a life time ban in all cases where such offences are proved. When range of ineligibility which is minimum five years, maximum life time ban is provided for, the discretion to which, either minimum or maximum or in between has to be exercised on relevant facts and circumstances.

(8) The disciplinary committee order dated 13.09.2013 does not advert to the aggravating and mitigating factors as enumerated in Articles 6.1.1 and 6.1.2. Without considering the relevant provisions of Anti- Corruption Code, the disciplinary committee has imposed a life time ban on the appellant which sanction cannot be held to be in accordance with the Anti-Corruption Code itself.

(9) Due to subsequent events also, we are of the view that the disciplinary committee of BCCI should revisit the quantum of punishment/sanction to be imposed on the appellant.

Final Directions by Supreme Court:

61. In view of the foregoing discussion, we partly allow the appeal in the following manner:

(i) The order dated 13.09.2013 of the disciplinary committee only to the extent of imposing sanction of life time ban is set aside.

(ii) The disciplinary committee of the BCCI may reconsider the quantum of punishment/sanction which may be imposed on the appellant as per Article 6 of the Anti-Corruption Code. The appellant may be given one opportunity to have his say on the question of quantum of punishment/sanction.

(iii) The disciplinary committee may take decision as indicated above on the quantum of punishment/sanction at an early date preferably within a period of three months from today.

(iv) Appellant shall await the decision of the disciplinary committee and future course of action shall be in accordance with the decision of the disciplinary committee so taken. Parties shall bear their own costs.

[Source: S. Sreesanth vs The Board Of Control For Cricket In India decided by SC on 15 March, 2019]

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