CricketCountry has always stood for the game in all its purity. In pursuance of that approach, CricketCountry joins hands with gamechangerindia.com to produce a blueprint on what needs to be done by the powers that be to not just clean-up the much-maligned sport of cricket but also introduce fresh measures that will help Indian cricket emerge stronger and wiser from this crisis. In the second part of the series titled ‘Fight against Fixing’, Professor Mrinal Satish examines the ‘crime’ of spot-fixing and sheds light on why our current criminal laws are ill-equipped to prosecute persons for indulging in match/spot-fixing.
Within a few days of the Delhi police arresting three Rajasthan Royals players, the Union Law Minister Kapil Sibal announced that the Government proposes to enact a new law to deal with the issue of match/spot fixing in sports. Mr. Sibal argued that it is not possible to effectively prosecute a person for match/spot fixing under the existing criminal law framework. Hence, the need for a special law.
At the same time, the Delhi police registered cases against the arrested cricketers under Sections 420 (cheating) and 409 (criminal breach of trust by public servant, banker, merchant or agent) of the Indian Penal Code, 1860 (“IPC“), and under the Maharashtra Control of Organised Crime Act, 1999.
This article dwells whether spot-fixing falls within the definition of cheating and/or criminal breach of trust, and therefore whether or not a special law is needed. It is difficult to bring the current situation within the existing Indian Penal Code (IPC) framework, because of the manner in which the offences are defined in the IPC. For example, “property” is a crucial ingredient of the offences of criminal breach of trust and cheating. The framers of the IPC never contemplated “property” as extending beyond money or other movable property. Although the Supreme Court has broadened the definition of this term, even this expanded definition might not be sufficient to convict a person for match/spot fixing.
Criminal Breach of Trust
The offence of criminal breach of trust is defined in Section 405 of the IPC, which reads “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates that property…or willfully suffers any other person so to do, commits “criminal breach of trust.” For a person to be found guilty of criminal breach of trust, the crucial element to be proved by the prosecution is that “property” was entrusted to the accused. Once this is proved, the prosecution has to establish that the person dishonestly misappropriated such property. The term “dishonestly” is defined in the IPC (Section 24) to mean the intention to cause “wrongful gain to one person or wrongful loss to another.” “Wrongful gain” and “wrongful loss” are defined in Section 23 of the IPC. Wrongful gain is gaining property that the person is not entitled to, by using unlawful means; wrongful loss is causing a person to lose property that he/she is legally entitled to.
Hence, there are various complicated elements that the prosecution has to prove to establish the offence of criminal breach of trust. In the context of spot-fixing, the prosecution would have to prove that “property” was entrusted to the player, which he then dishonestly misappropriated. The question is, what constitutes “property” in this context. The Supreme Court in R.K. Dalmia v. Delhi Administration  ruled that the term “property” should not be given a restricted meaning. The test should be whether “that particular kind of property can be subject to the acts covered by that section.” This was subsequently reiterated by the Supreme Court in Common Cause v. Union of India , where the Court ruled that the term “property” covers only property of the kind against which the offence of “criminal breach of trust” can be committed. As is evident from these rulings of the Court, the decision would depend on the interpretation given by a court to the term “property.” In the context of a player’s contractual obligations with a franchise, it may be argued that certain elements of the contract entrust “property” to the player, which he dishonestly misappropriated by entering into a conspiracy, and committing spot-fixing. It is certainly a difficult legal argument to make, and might not be successful. The question then is whether it is easier to bring spot-fixing within the offence of “cheating.”
Cheating is defined in Section 415 of the IPC, which reads “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 person 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“. The section further says that “dishonest concealment of facts” constitutes “deception” for the purposes of the section.
This definition has two parts to it. The first part (which is not in bold), requires the delivery of property. If property is actually delivered, the offence falls under Section 420. If not, it falls under Section 417, for which the maximum punishment is one year’s imprisonment. If we assume that it is not possible to establish that “property” is involved in the current situation, the second part of Section 415 (which is in bold) is of relevance. Here, the prosecution has to prove that the accused deceived the victim, and intentionally led that person to do or omit to do something that he/she would, or would not have otherwise done. For instance, it can be argued that if the franchise/captain were aware that the player would indulge in spot-fixing, he/she would not have offered a contract to such player, or made him part of the playing eleven. The accused player, by representing to the franchise that he would play honestly, and to the best of his abilities, deceived the franchise into entering into a contract with him. However, the crucial element for the offence of cheating to be constituted is that the intention to deceive ought to be present before the victim acted/did not act on the basis of such deception. This complicates matters. The prosecution will have to prove that at the time of entering into the player contract, the player already had the intention of indulging in spot-fixing.
An alternate and relatively less complicated argument would be that the player deceived the captain into picking him for a particular match, in which he had agreed with third parties to indulge in spot-fixing. Once these elements have been proved, the prosecution also needs to prove that the act/omission of the victim led or was likely to cause damage or harm to the victim’s body, mind, reputation, or property. In the context of the Indian Premier League (IPL), proving that the action caused damage to the franchise’s reputation should be fairly easy. Further, proving damage to the victim’s mind, and/or property might also be possible. Unlike in criminal breach of trust, the interpretation of “property” is not the crucial element for the offence of cheating. The crucial element is proving that intention to deceive preceded the victim’s act or omission. This, in my opinion, is the only way in which spot-fixing can be brought within the ambit of the IPC.
Convicting a person for the offence of spot-fixing under the IPC will be a challenging and complicated exercise. The odds (pun intended) of the player being acquitted are much higher than of his being convicted, primarily because the manner in which the relevant sections are worded. Hence, the need for a special law to cover fixing in sports, one that expressly deals with the situation, and does not require broad and innovative interpretations to secure a conviction for match/spot fixing in sports.
(Mrinal Satish is an Associate Professor of Law, National Law University, Delhi)
Part 1: Fight against fixing in cricket – Why BCCI needs to implement globally-adopted norms on agent-accreditation