SC sets aside BCCI’s lifetime ban imposed on Cricketer S. Sreesanth

.:: The Timeline of events ::.

Clean bowled!!!

Sreesanth, a registered player with Kerala Cricket Association affiliated to BCCI participated in an IPL match held at Mohali, Punjab on 09.05.2013.

He represented Rajasthan Royals against Kings XI Punjab.

The case Crime No.20 of 2013 dated 09.05.2013 was registered in the Special Cell of Delhi Police on a suo moto information provided by an Inspector of Special Cell.

Information was received by the Police regarding involvement of various persons in some sort of fixing in the ongoing Cricket matches of IPL with active participation of un-identified conduits based in Delhi.

Sreesanth was arrested by Delhi Police on allegation of spot fixing on 16.05.2013 and by an order dated 17.05.2013 the BCCI suspended him.

The Oneman Commission

On directions of the Supreme Court, the oneman Commission constituted by the BCCI was to submit its report to the Board within a period of 15 days indicating about the irregularities that were noticed during the IPL matches.

The Oneman inquiry Commission submitted Preliminary Report dated 05.06.2013 on the basis of video clipping and recordings of telephone conversation opining that there are sufficient evidence against S. Sreesanth to prove him guilty of various articles of Anti- corruption Code. Preliminary Report further stated that the Commissioner had no access to Sreesanth who was in police custody. It was opined that there are sufficient evidence available to proceed with the disciplinary proceedings against the suspended players.

Sreesanth, after being released from the custody appeared before oneman Commission and gave his statement dated 24.06.2013. He denied any spot fixing done by his friend Jiju, if at all, and he reiterated that he did not underperform the game. In his statement he further stated that he confessed certain things before the Delhi Police which was due to continuous torture and pressure.

After receiving this statement dated 24.06.2013, Supplementary Report dated 08.07.2013 was submitted by oneman Commission.

The Supplementary Report relied on the audio conversations between Sreesanth and Jiju Janardhan recorded on 06.05.2013 at 17:40 hrs. and 20:32 hrs. and on the basis of audio tapes and transcripts oneman Commission concluded that Sreesanth was a part of the spot fixing and earlier findings given by the Preliminary Report are confirmed.

BCCI’s Disciplinary Proceedings

After receipt of the report disciplinary proceedings were initiated by the disciplinary committee of BCCI against Sreesanth and a Show-cause notice dated 04.09.2013 was given to him.

The allegations made against Sreesanth in the show-cause notice were:

  • “On the morning of 16th May, 2013, it came to be widely reported in the media that the Delhi Police, Special Cell had arrested you along with other fellow players on suspicion of having indulged in spot fixing during certain matches of Rajasthan Royals with whom you are contracted to play for in the IPL. Reportedly at the time of your arrest, you were allegedly in the company of one Mr. Jiju Janardhan who according to Delhi Police is ad bookie.”
  • “It also came to be reported that the Delhi Police had also arrested a number of bookies on the same day, who were allegedly involved in conspiring with you and the other players to fix spots for personal financial gain.”
  • “Acting on the information that was provided by the police authorities to the media which was in turn reported across the country, the BCCI on 17th May, 2013, suspended you from all cricketing activities pending an inquiry into your actions by the BCCI. The BCCI appointed a Commissioner, Mr. Ravi Sawani, the head of the BCCI Anti-Corruption Unit, to conduct a preliminary inquiry and submit a report to the BCCI as to his findings.”

Sreesanth was accused of offences under Articles 2.1.1, 2.1.2 and 2.1.3, 2.2.3, 2.4.1. and 2.4.2 of Anti-Corruption Code of BCCI. He was asked to show-cause as to why action should not be taken against him under the Rules.

Date, 13.09.2013 was fixed for hearing and Sreesanth was asked to submit his written statement within a week.

Reply to show- cause notice was submitted by Sreesanth on 11.09.2013. In his reply, he denied his involvement in spot fixing. In his reply apart from stating other facts he stated:

  • “Fixing–There is absolutely no reliable material even to find out a charge of fixing against me. What is relied upon is the alleged conversation between my friend Shri Jiju Janardhan a follow cricketer and some others. Shri Jiju Janardhan is very much familiar with my mannerism and habit in the cricket field as he knows me from the age of 18. It is not uncommon to use a towel in afternoon matches particularly in a place like Mohali in the month of April-May. Enough photographs are there to show that in many of the earlier matches I played, white colour towel had been used by me. In fact even other well-known cricketers use white towel as a matter of habit. Even in the very same match towels were used by other players. Apart from a sheer coincidence nothing culpable can be attributed to me by reason of using a towel. The allegation that in the first over no towel was used cannot be correct.”
  • “What is alleged as warming up against me is not really warming up but a manner of play which I did in other plays also.”
  • “As regards conceding of 14 runs I may respectfully point out there was no guarantee that the Captain will ask me to bowl in a particular over and if so, depending on the field, the pitch, batsman etc. the bowler will have to bowl. It may be stated here that my bowling is considered pace bowling estimated at an average of 135 kms. per hour and there is no guarantee for a bowler regarding the runs he is likely to concede unless deliberately either a no ball or wide is bowled. Conceding runs therefore, cannot be manipulated as alleged. There is no allegation that in the concerned second over any wide or no ball was bowled.”
  • “As regards seeking, accepting, offering or agreeing to accept any bribe there is no trace of evidence pointing out to any such incident at all.”
  • “There had been no failure or refusal on my part to perform my abilities in the Matches as all the balls bowled by me will show that I have done my best in bowling on that day also.”

Sreesanth appeared on 13.09.2013 and was heard, the disciplinary committee communicated its decision dated 13.09.2013 vide letter dated 03.10.2013, with regard to him it was held that:

  • “We have considered the inquiry Report of the Commissioner, his written statement before the Inquiry Commissioner, his written reply to the Show Cause Notice and his oral defence before us.”
  • “The evidence against Sreesanth in relation to the charge comprises to two audio recordings which are recorded by the Delhi Police. The first of these audio recordings is a conversation between Jiju Janardhan, his close friend, and a bookie called CP (Chandresh Patel). Both have been arrested by the Delhi Police. In the said conversation Jiju Janardhan is said to be promising that in the second over to be bowled by Sreesanth 14 or more runs would be conceded by him. The consideration to be paid for such fixing would be Rs.10 Lacs.”
  • “ In his written reply before us Sreesanth has admitted the factum of the alleged conversation with Jiju Janardhan. The Delhi Police along with the charge sheet has given him a copy of the recorded transcripts. He states that he is a superstitious person and the use of the towel is due to the same. He, however, could not officer and explanation with regard to the content of the conversation which deals with conceding of 14 runs for a consideration. On the contrary, he argues that how many runs would be conceded would depend upon a large number of variable factors and not merely on the desire or the will of the bowler.”
  • “Even if Sreesanth wants to distance himself from the said audio recording which he was not privy, there is a cross reference to this conversation on record at 17.40 hours on 6.5.2013 between Jiju Janardhan and Sreesanth. In the said conversation, Jiju Janardhan admits being in possession of Sreesanth’s money Jiju Janardhan is head referring to receipt of Rs. 10 Lacs of which he would give 7 lacs to Sreesanth and retain 3 lacs for himself. Jiju Janardhan further proposes to use some money of Sreesanth for purchase of mobile phones. The circumstantial evidence clearly indicates that this Rs. 10 Lacs is part of the amount deposited with Jiju Janardhan for influencing Sreesanth for underperforming in the second over of the match.”
  • “The third piece of evidence is the actual conduct during the match itself where Sreesanth conceded 13 runs. The two tape recordings reveal facts which reasonably match with the actual developments in the second over on the field. The number of runs conceded is only one less than promised. The sum of Rs.10 Lacs being promised as a part of the transaction fixed by Jiju Janardhan is confirmed in the second audio recording. On being asked to explain about this Rs.10 Lacs lying with Jiju Janardhan as mentioned in the second audio recording, Sreesanth gave a vague explanationstating that this may be reference by way of a charity to an orphanage which he intended to be visiting. We are not inclined to accept the said explanation.”
  • “In view of the above, we are of the opinion that Sreesanth is guilty of corruption under Article 2.1.1, 2.1.2 and 2.1.3 of the Code. We also find him guilty under Article 2.2.3 for betting and Article 2.3.1 and Article 2.4.2 of the Code for bringing disrepute to the game of Cricket and failure to disclose to the ACU BCCI full details of any approaches or invitations to engage in conduct that would amount to breach of the Code. We also hold him guilty of misconduct under Article 32, of the BCCI Memorandum Rules and Regulations.”
  • “Sh. Shreesanth – In view of the allegations of match fixing and non-reporting of the offences, he is banned from playing or representing for life. He shall during this period not be entitled to be associated with any activities of the BCCI or its affiliates.”

The Criminal Case

In the criminal case chargesheet against Sreesanth and the other accused was submitted. He filed an application for discharge. The application for discharge was heard and by order dated 25.07.2015, he was discharged from the offences. Against the order of discharge an appeal has been filed which is pending, at present, before the Delhi High Court.

Re-knocking the doors of the Disciplinary Committee

After passing of the order of discharge, Sreesanth made a request before the disciplinary committee of BCCI to review its order. On 18.10.2015 disciplinary committee refused to review its earlier decision.

Sreesanth, through Kerala Cricket Association addressed an e-mail to BCCI requesting to issue No Objection Certificate to him to enable him to participate in the Scotland Premier League. The BCCI by the communication dated 12.01.2017 refused to issue No Object Certificate. Another e-mail was sent by him on 11.02.2017 praying to revoke the ban imposed on him and issue No Objection Certificate to him to participate in the Scotland Premier League. The BCCI reiterated its earlier stand.

Sree’s DRS Review – Taking the legal battle to the High Court Level

An Advocate’s notice was given by Sreesanth on on 16.02.2017 to BCCI and thereafter a Writ Petition No. 6925 of 2017 was filed before the Kerala High Court. In the writ petition, he prayed for quashing the proceedings of the disciplinary committee communicated by letter dated 03.10.2013 and also prayed for a mandamus or other writ or order commanding the BCCI and its Chairman to lift the ban imposed by the BCCI Committee by order dated 03.10.2013 so as to enable the appellant to participate in the Cricket matches both in national and international level. He also sought declaration that reports are illegal and they were prepared without due compliance of law.

The BCCI filed a counter-affidavit in the writ petition. The writ petition was heard and the learned Single Judge by order dated 07.08.2017 allowed the writ petition quashing the life ban and other punishment imposed on the appellant pursuant to the disciplinary committee proceedings. Learned Single Judge had observed that Sreesanth has suffered ban almost for four years and nothing more is required in the matter.

Aggrieved by the judgment of the learned Single Judge a writ appeal was filed before the Division Bench by the BCCI. The Division Bench of the High Court vide judgment dated 17.10.2017 allowed the writ appeal of the BCCI. It was held that Sreesanth was guilty and he cannot escape the punishment and it is not open for the High Court to substitute its own notion of justice.

The Third Umpire’s Verdict – The Supreme Authority of the Supreme Court

Aggrieved by the Division Bench judgment, Sreesanth filed an appeal in the Supreme Court. Where he was represented by Learned Senior Counsel, Sh. Salman Khurshid.

On the other side, Learned Senior Counsel, Shri Parag P. Tripathi appeared for the BCCI

Therefore, the Hon’ble Supreme Court, today i.e. on 15thMarch 2019, in the matter of S. Sreesanth v. The Board of Control for Cricket in India & Ors. pronounced that in the disciplinary proceedings held against Sreesanth under the Anti-Corruption Code of BCCI, the principles of natural justice were not violated. However the order dated 13.09.2013 of the disciplinary committee, only to the extent of imposing sanction of life time ban is set aside and the disciplinary committee of the BCCI may reconsider the quantum of punishment/sanction which may be imposed on Sreesanth as per Article 6 of the Anti-Corruption Code.  Furthermore, Sreesanth may also be given one opportunity to have his say on the question of quantum of punishment/sanction.

Reasons behind setting aside the life time ban

Without considering the relevant provisions of Anti-Corruption Code the disciplinary committee has imposed life time ban which sanction cannot be held to be in accordance with the Anti-Corruption Code itself.

The disciplinary committee had not even adverted to Article 6.1.1 and 6.1.2 which enumerates the aggravating and mitigating circumstances. When the Anti-Corruption Code itself mandates consideration of relevant factors

The subsequent conduct of Sreesanth also shows obedience to BCCI.

Few key observations of the Hon’ble Supreme Court

The sports occupy a prominent place in life of a man/woman and also in the life of a nation. It not only gives physical or moral strength to a personality but spread the message of goodwill and friendship. In the 21st Century the countries have come closer and nearer to each other and sports have become a medium of bonds. (Para 1)

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. (Para 3)

The disciplinary inquiry conducted by disciplinary committee of BCCI is akin to disciplinary inquiry conducted against a public servant under the relevant statutory rules except few distinctions. (Para 30)

In the disciplinary proceedings a delinquent has to explain circumstances and evidence relied against him. It is true that the charges have to be proved by the BCCI for taking any action under the Anti-Corruption Code. (Para 34)

A 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.(Para 34)

The initial burden of proof shall be on the Designated Anti-Corruption Official i.e. disciplinary committee which has to form its opinion about the commission of Designated Offences by the delinquent. Initial burden shall stand discharged when the allegation referring to materials and evidence are communicated to delinquent. Standard of proof is that the BCCI disciplinary committee is to be comfortably satisfied, bearing in mind the seriousness of the allegation that is being made, that the alleged offence has been committed. Of course, on mere doubt the disciplinary committee cannot hold offences proved there has to be a positive evidence and finding regarding the proof of offences.(Para 37)

There is a vast distinction in the scope of inquiry between a criminal trial on one hand and disciplinary inquiry against a public servant or disciplinary inquiry under Anti-Corruption Code of BCCI on other hand. (Para 38)

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 departmental inquiry preponderance of probability is to serve the purpose.(Para 39 and Para 60(3))

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. But the principles noticed pertaining to sentencing serve a safe guideline for exercise on jurisdiction under Article 6 of the BCCI’s Anti-Corruption Code. (Para 43)

Zero tolerance approach cannot dilute consideration of relevant factors while imposing sanction under Article 6. (Para 52)

The Anti-Corruption Code which has articles containing mitigating and aggravating circumstances are necessarily to be taken into consideration while imposing punishment/sanction under Article 6.(Para 56)

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 the Supreme Court to substitute its own opinion based on the materials on record on the proof of charges. (Para 60(2))

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. (Para 60(6))

In cases where offences under Article 2.1.1, 2.1.2, 2.1.3 and 2.1.4 of the BCCI’s Anti-Corruption Code 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.(Para 60(7))

Copy of judgement: Judgement_15-Mar-2019

-Tushar Kaushik

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