S. SREESANTH versus THE BOARD OF CONTROL FOR CRICKET IN INDIA & ORS.

[2019] 4 S.C.R. 765

S. SREESANTH

THE BOARD OF CONTROL FOR CRICKET IN INDIA & ORS.

(Civil Appeal No. 2424 of 2019)

MARCH 15, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Cricket: Spot fixing – Ban for life – Plea of violation of rulesof natural justice – In the instant case, appellant was registeredplayer and participated in IPL match – Allegation against theappellant was that in the match played on 09.05.2013 betweenRajasthan Royals and Kings XI Punjab at Mohali, in exchange ofRs.10 lakh, he agreed to concede 14 or more runs in the secondover of bowling spell – One-man Commission which wasconstituted by BCCI on direction of Supreme Court submitted aPreliminary report – The report relied on the video clipping andrecordings of telephone conversation and opined that there wassufficient evidence against the appellant to prove him guilty ofvarious Articles of Anti-Corruption Code of BCCI – The report alsostated that the Commissioner had no access to the appellant as hewas in police custody – After the appellant was released frompolice custody, he appeared before the Commissioner and gave hisstatement – Thereafter the Commissioner submitted Supplementaryreport accusing the appellant of offences under theAnti-Corruption Code – Disciplinary Committee heard theappellant and communicated its decision of banning him fromplaying or representing for life – Appellant raised plea thatprinciples of natural justice was violated as the transcripts oftelephone conversation relied by the Disciplinary Committee of theBCCI was not provided to him and further he was not confrontedwith transcript of the telephone conversation relied on by it –Held: The transcripts of telephone conversations were received bythe appellant from the Police much before issuance of theshow-cause notice by the Disciplinary Committee – The submissionof Preliminary Report without taking statement of the appellantwas in the circumstances that the appellant was in the Policecustody and under the order of Supreme Court, the Commissioner

Ahad to submit report within 15 days – When the appellant wasreleased from the custody, his statement was duly taken and afterconsidering his statement further Supplementary Report wassubmitted – In the show-cause notice with respect to the materialrelied by the Disciplinary Committee, the appellant was given fullopportunity to have his say – Thus, there was no violation ofBprinciples of natural justice by the Disciplinary Committee –Doctrines/Principles – Natural Justice.

Cricket: BCCI – Anti-Corruption Code – Allegation ofbetting, bringing disrepute to the game and failure to disclose tothe ACU BCCI full details of any approaches and invitations toCengage in conduct that amounted to breach of the Code – WhetherDisciplinary Authority was right in holding that there weresufficient materials to hold the appellant guilty of offences ofcorruption under various articles of Anti-corruption Code – Held:There being specific allegations made against the appellant in theDshow-cause notice, it was incumbent on the appellant to haveexplained the evidence and circumstances which were sought to berelied against the appellant – In the disciplinary proceedings adelinquent has to explain circumstances and evidence relied againsthim – It is true that the charges have to be proved by the BCCI for

taking any action under the Anti-Corruption Code – TheEDisciplinary Committee of the BCCI had jurisdiction to form its ownopinion after considering the evidence on record including thetelephonic conversation and other evidence on the record – Theconclusion drawn by the Disciplinary Committee on the basis of thematerial cannot be said to be suffering from any infirmity whichFmay warrant judicial review by the constitutional courts – JudicialReview.

Cricket: BCCI – Anti-Corruption Code – Article 3.1 – Whetherthe Disciplinary Committee has rightly placed burden of proof onthe appellant whereas according to Anti-Corruption Code underGArticle 3.1, the burden of proof was on the designatedAnti-Corruption Official and whether by wrongly placing theburden of proof the Disciplinary Committee has erred in recordingits conclusion – Held: Article 3.1 deals with burden of proof andstandard of proof – The initial burden of proof is on the DesignatedAnti-Corruption Official i.e. Disciplinary Committee which has toH

form its opinion about the commission of designated offences bythe delinquent – Before taking the decision when show-causenotice is served on the appellant making allegations and referringto relevant materials in support of the said allegation, it wasincumbent on the appellant to have satisfactorily explained eachand every circumstances or evidence referred to and relied – Whenthe explanation submitted by the appellant was not foundsatisfactory, he having not been able to satisfactorily explain theallegations which were noticed from the telephone conversationbetween the appellant and the bookie, it cannot be said that theburden of proof was wrongly placed on the appellant – Initialburden as referred to in Article 3.1 stood discharged when theallegation referring to materials and evidence are communicated todelinquent – Standard of proof as referred to in Article 3.1 is thatthe 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 meredoubt the Disciplinary Committee cannot hold offences proved, therehas to be positive evidence and finding regarding the proof ofoffences – The burden of proof was not wrongly placed on theappellant.

Cricket: BCCI – Anti-Corruption Code – Burden of proof,standard – The standard of proof in disciplinary inquiry and in atrial of criminal case are entirely different – In criminal case itis essential to prove charge beyond all reasonable doubt whereasin disciplinary inquiry under Anti-Corruption Code of BCCI thepreponderance of probability is to serve the purpose.

Cricket: BCCI – Anti-Corruption Code – Criminal case –Discharge of appellant from the criminal case – Whether thedischarge order has any effect on the disciplinary proceeding ofBCCI under Anti-Corruption Code – Held: There is vastdistinction in the scope of inquiry between criminal trial on onehand and disciplinary inquiry against public servant ordisciplinary inquiry under Anti-Corruption Code of BCCI on otherhand – The question before the Sessions Court was whether theappellant was guilty of offences under the criminal statutes –Sessions Court had not to deal with the question whether theappellant was guilty of violating Anti-Corruption Code of BCCI –

AThe clauses which the appellant breached under theAnti-Corruption Code of BCCI were entirely different from theoffences under which the appellant had been charged before theSessions Court – The ingredients required to establish breach ofthe BCCI Code are also distinct and separate from the ingredientsrequired to prove offences under the penal statutes – TheBconclusions and observations as recorded in the disciplinaryproceedings under Anti-Corruption Code were entirely different fromproof of criminal charges which are on higher yardstick to prove –Thus, the discharge order had no effect on the disciplinaryproceeding of BCCI under Anti-Corruption Code.CCricket: BCCI – Anti-Corruption Code – Imposition ofmaximum sanction of life time ban by Disciplinary Committee oncharges under Article 2.1.1 to 2.1.4 of the Anti-Corruption Code –Propriety of – Held: Sanction under Article 6 of Anti-CorruptionCode of BCCI is nothing but punishment on commission of theDoffences and akin to sentencing in criminal jurisprudence – Theprinciples of sentencing as applicable in offence under the IndianPenal Code may not be strictly applicable to one of punishment/sanction under the Anti-Corruption Code but principles of sentencingas applicable in the criminal jurisprudence may be relevant forimposing sanction under the Anti-Corruption Code – In cases whereEoffences under Article 2.1.1, 2.1.2, 2.1.3 and 2.1.4 are proved, theDisciplinary Committee is not obliged to award life time ban in allcases where such offences are proved – When range of ineligibilitywhich is minimum five years, maximum life time ban is provided for,the discretion to which, either minimum or maximum or in betweenFhas to be exercised on relevant facts and circumstances – No doubt,Anti-Corruption Code of BCCI envisages zero tolerance tocorruption – However, zero tolerance approach cannot diluteconsideration of relevant factors while imposing sanction underArticle 6 – Disciplinary Committee’s order did not advert to theaggravating and mitigating factors as enumerated in Articles 6.1.1Gand 6.1.2 – Without considering the relevant provisions ofAnti-Corruption Code, the Disciplinary Committee imposed lifetime ban on the appellant which sanction was not in accordancewith the Anti-Corruption Code itself – Sentence/Sentencing.

Disciplinary Committee: Constitution of – Propriety chal-lenged – Whether the constitution of Disciplinary Committee wasvitiated by including Shri Srinivasan as President who had alreadystepped down on 02.06.2013 resulting in vitiation of entireproceedings – Held: There was no legal impediment in ShriSrinivasan participating in the Disciplinary Committee in themeeting of 13.09.2013 as President – The appellant having not takenthis ground even in the grounds of appeal is not allowed toquestion the constitution of Disciplinary Committee at this stage.

Administrative Law: Disciplinary proceedings – Judicialreview, scope of interference – Constitutional court in exercise ofjurisdiction of judicial review of disciplinary proceedings conductedunder the Code of Conduct framed by the BCCI to interfere onlywhen conclusions of the Disciplinary Committee are perverse orbased on no evidence – On appreciation of evidence, it is not openfor the High Court or Supreme Court to substitute its own opinionbased on the appreciation of material on record on the chargesproved – Cricket.

Partly allowing the appeal, the Court

HELD:1. The present is not case where telephone con-versations have been referred without they not being availableto the appellant. The transcripts of telephone conversations werereceived by the appellant from the Police much before issuanceof the show-cause notice issued by the disciplinary committee.The appellant in his reply has not made any complaint of non-receipt of transcripts. When the appellant was released fromthe custody, his statement was taken and after considering hisstatement further Supplementary Report was submitted. Therewas no violation of principles of natural justice by the disciplinarycommittee of the BCCI. [Paras 23, 25] [788-E-F; 789-B-C]

2.1 The disciplinary inquiry conducted by disciplinarycommittee of BCCI is akin to disciplinary inquiry conductedagainst public servant. There being specific allegations madeagainst the appellant in the show-cause notice, it was incumbenton the appellant to have explained the evidence andcircumstances which were sought to be relied against theappellant. In the disciplinary proceedings delinquent has to

770SUPREME COURT REPORTS

Aexplain circumstances and evidence relied against him. It is truethat the charges have to be proved by the BCCI for taking anyaction under the Anti-Corruption Code. The disciplinarycommittee of the BCCI had jurisdiction to form its own opinionafter considering the evidence on record including the telephoneconversation and other evidence on the record. The conclusionBdrawn by the disciplinary committee on the basis of the materialcannot be said to be suffering from any infirmity which may warrantjudicial review by the constitutional courts. Constitutional courtin exercise of jurisdiction of judicial review of disciplinaryproceedings conducted under the Code of Conduct framed byCthe BCCI will interfere only when conclusions of the disciplinarycommittee are perverse or based on no evidence. It is not openfor the High Court or this Court to substitute its own opinionbased on the appreciation of material on record on the chargesproved. For the decision of the disciplinary committee holdingcharges under Articles 2.1.1., 2.1.2, 2.1.3 and 2.2.3 and ArticleD2.4.1. and 2.4.2 proved, there are no grounds for this Court totake different view. [Paras 30, 34, 35][790-F-G; [794-G-H;795-A-B, D-E]

State of Andhra Pradesh v. Chitra Venkata Rao(1975)2 SCC 557 : [1976] 1 SCR 521;Union of India andEOthers v. P. Gunasekaran(2015) 2 SCC 610;CentralIndustrial Security Force and Others v. Abrar Ali(2017) 4 SCC 507 – relied on.

3. Article 3.1 deals with burden of proof and standard ofproof. The initial burden of proof shall be on the Designated Anti-FCorruption Official i.e. disciplinary committee which has to formits opinion about the commission of Designated Offences by thedelinquent. Before taking the decision when show-cause noticeis served on the appellant making allegations and referring torelevant materials in support of the said allegation, it wasGincumbent on the appellant to have satisfactorily explained eachand every circumstances or evidence referred to and relied. Whenthe explanation submitted by the appellant was not foundsatisfactory, he having not been able to satisfactorily explain theallegations which were noticed from the telephone conversationbetween the appellant and the bookie, it cannot be said that theH

burden of proof has wrongly been placed on the appellant. Initialburden as referred to in Article 3.1 shall stand discharged whenthe allegation referring to materials and evidence arecommunicated to delinquent. The burden of proof was notwrongly placed on the appellant. [Para 37] [796-B-F]

4.1 There is vast distinction in the scope of inquirybetween criminal trial on one hand and disciplinary inquiryagainst public servant or disciplinary inquiry under Anti-Corruption Code of BCCI on other hand. The ingredientsrequired to establish breach of the BCCI Code are also distinctand separate from the ingredients required to prove offencesunder the penal statutes in question. The standard of proof in adisciplinary inquiry and in trial of criminal case are entirelydifferent. In criminal case it is essential to prove charge beyondall reasonable doubt wherein in departmental inquirypreponderance of probability is to serve the purpose.[Paras 38,39] [796-G; 797-B-C]

Commissioner of Police, New Delhi v. Narender Singh,(2006) 4 SCC 265 : [2006] 3 SCR 872 – relied on.

4.2 The conclusions and observations as recorded in thedisciplinary proceedings under Anti-Corruption Code are entirelydifferent from proof of criminal charges which are on higheryardstick to prove. It is well settled principle that criminalcharge must be proved beyond reasonable doubt which is notapplicable in disciplinary proceedings initiated by the disciplinarycommittee of the BCCI. [Para 40] [797-F-G]

5. There was no legal impediment in Shri Srinivasanparticipating in the disciplinary committee in the meeting of13.09.2013 as President. The appellant having not taken thisground even in the grounds of this appeal, he cannot be allowedto question the constitution of disciplinary committee at this stage.[Para 41] [798-D-E]

6.1 The Anti-Corruption Code uses the word “offences”and offences are enumerated under the Code for which sanctionis provided in Article 6. Sanction under Article 6 is nothing butpunishment on commission of the offences and akin to sentencing

Ain the criminal jurisprudence. The principles of sentencing asapplicable in offence under Indian Penal Code may not be strictlyapplicable to one of punishment/sanction under theAnti-Corruption Code but principles of sentencing as applicablein the criminal jurisprudence may be relevant for imposingsanction in Anti-Corruption Code. In the Criminal ProcedureBCode, 1973, there are no structured sentencing guidelines. InMarch, 2003, the Committee on Reforms of Criminal JusticeSystem (the Malimath Committee), body established by theMinistry of Home Affairs, issued report that emphasized theneed to introduce sentencing guidelines in order to minimiseCuncertainty in awarding sentences. The Indian Penal Codeprescribe offences and punishments for the same. For manyoffences only the maximum punishment is prescribed and for someoffences the minimum punishment is also prescribed. Variousjurists and writers have tried to enumerate circumstances whichmay mitigate the gravity of offences. [Para 43] [801-F-H;D802-A-B]

Jagmohan Singh v. The State of U.P.,(1973) 1 SCC20 : [1973] 2 SCR 541;Bachan Singh v. State ofPunjab(1980) 2 SCC 684 – followed.

E6.2 zero tolerance towards any wrong-doing alone cansatisfy the cry of clinching the Cricket. Anti-Corruption Code ofBCCI clearly envisaged zero tolerance to corruption. What wasmeant by the zero tolerance is that any offence committed withinthe meaning of Anti-Corruption Code cannot be ignored or to beleniently dealt with. Zero tolerance emphasis taking cognizanceFof such offences and awarding suitable punishment. However,zero tolerance approach cannot dilute consideration of relevantfactors while imposing sanction under Article 6. [Para 52][807-B-D]

6.3 Article 6 itself enumerates aggravating and mitigatingGcircumstances. Article 6 contains heading ‘Sanctions’. Para 6.1provides that in order to determine the appropriate sanction thatis to be imposed in each case, the disciplinary committee mustfirst determine the relative seriousness of the offence, includingidentifying all relevant factors that it deems to. Further, Article6.1.2 enumerates the mitigating circumstances. The Anti-HCorruption Code which has articles containing mitigating and

aggravating circumstances are necessarily to be taken intoconsideration while imposing punishment/sanction underArticle 6. [Paras 54, 55, 56] [808-C-D; 809-C; 810-C]

Shailesh Jasvantbhai and Another v. State of Gujaratand Others(2006) 2 SCC 359 :[2006] 1 SCR 477 ;Gopal Singh v. State of Uttarakhand(2013) 7 SCC 545: [2013] 4 SCR 104 ;Mukesh and Another v. State(NCT of Delhi) and Others(2017) 6 SCC 1 : [2017] 6SCR 1 – relied on.

7.1 In the instant case, life ban was imposed on the appellanton offences under Article 2.1.1., 2.1.2, 2.1.3 and 2.14 (corruption),for which as per second column minimum of five years andmaximum of life time ineligibility is provided for. Life ban cannotbe imposed in all cases where such offences are proved. Whenrange of ineligibility which is minimum five years, maximum lifeban is provided for, the discretion to choose either minimum ormaximum or in between has to be exercised on relevant factorsand circumstances. [Para 57] [811-A-B]

7.2 The disciplinary committee’s order dated 13.09.2013did not advert to the aggravating and mitigating factors asenumerated in Article 6.1.1. and 6.1.2. Without considering therelevant provisions of Anti-Corruption Code the disciplinarycommittee has imposed life time ban which sanction cannot beheld to be in accordance with the Anti-Corruption Code itself.The disciplinary committee of the BCCI is empowered to imposeappropriate sanction in terms of Article 6 of the Code uponconsideration of relevant factors, without considering the relevantfactors imposition of maximum punishment cannot be sustained.Apart from these factors, the subsequent conduct of the appellantalso shows obedience to BCCI. Initially when the life time banwas imposed on 13.09.2013, appellant has not even challengedthe said order, it was only after the appellant was discharged fromthe criminal case on 25.07.2015 and when the appellant gotopportunity to play and participate in the Scotland Premier Leagueon e-mail was sent through Kerala Cricket Association on11.01.2017. It was only thereafter when No Objection Certificatewas not granted to the appellant and the BCCI refused to modify

EFG

Athe ban, writ petition was filed in the Kerala High Court. In so faras charges proved under Article 2.2.3, 2.4.1 and 2.4.2, themaximum sanction is of 5 years, the award of punishment of fiveyears shall also satisfy the requirement under Code, which needno separate consideration for the purposes of this case. As perArticle 6.3.2 all sanction imposed on appellant shall runBconcurrently. As on date the period of 5 years sanction has cometo an end. The order dated 13.09.2013 of the disciplinarycommittee only to the extent of imposing sanction of life timeban is set aside. The disciplinary committee of the BCCI mayreconsider the quantum of punishment/sanction which may beCimposed on the appellant as per Article 6 of the Anti-CorruptionCode. The appellant may be given one opportunity to have hissay on the question of quantum of punishment/sanction. Thedisciplinary committee may take decision on the quantum ofpunishment/sanction at an early date. Appellant shall await thedecision of the disciplinary committee and future course of actionDshall be in accordance with the decision of the disciplinarycommittee so taken. [Paras 58, 59, 61] [811-C-H; 812-A;813-G-H; 814-A-B]

Board of Control for Cricket in India v. CricketAssociation of Bihar and Others(2015) 3 SCC 251 :E[2015] 1 SCR 165 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2424of 2019.

From the Judgment and Order dated 17.10.2017 of the High Courtof Kerala at Ernakulam in W.A. No. 1909 of 2017

Salman Khurshid, Sr. Adv., Krishnamohan K. Menon,Vikramaditya Singh, Zafar Khurshid, Ms. Dania Nayyar, Ms. ParulSachdeva, Ms. Alisha Pande, Advs. for the Appellant.

Tushar Mehta, SG, Parag P. Tripathi, Sr. Adv., Ms. Gauri Rasgotra,Vikash Kumar Jha, Ms. Gathi Hari Prakash, Ms. Nikitha Shenoy, RishabhKapur (for M/s Cyril Amarchand Mangaldas), Ms. Shraddha Deshmukh,Ms. Alka Aggarwal, Raj Bahadur, Advs. for the Respondents.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J. The sports occupy prominent placein life of man/woman and also in the life of nation. It not only givesphysical or moral strength to personality but spread the message ofgoodwill and friendship. In the 21[st] Century the countries have comecloser and nearer to each other and sports have become medium ofbonds. United Nations Educational and Cultural Organisation adopted inthe General Conference at the twentieth session, Paris, 21[st] November,1978 an International Charter of physical education and sports. TheCharter contains following:

Convinced that to preserve and develop the physical. intellectualand moral powers of the human being improves the quality of lifeat the national and the international levels,

Believing that physical education and sport should make moreeffective contribution to the inculcation of fundamental humanvalues underlying the full development of peoples,

Stressing accordingly that physical education and sport should seekto promote closer communion between peoples and betweenindividuals. together with disinterested emulation, solidarity andfraternity, mutual respect and understanding, and full respect forthe integrity and dignity of human beings, ………”

A2. Article 10 of the Charter recognizes the importance of Nationalinstitutions in sports. Article 10 states:

“Article 10. National institutions play major role inphysical education and sport

10.1. It is essential that public authorities at all levels and specializednon-governmental bodies encourage those physical education andsport activities whose educational value is most evident. Theiraction shall consist in enforcing legislation and regulations, providingmaterial assistance and adopting all other measures ofencouragement. stimulation and control. The public authorities willalso ensure that such fiscal measures are adopted as mayencourage these activities.

10.2. It is incumbent on all institutions responsible for physicaleducation .and sport to promote consistent, overall anddecentralized plan of action in the framework of lifelong educationso as to allow for continuity and co-ordination between compulsoryphysical activities and those practised freely and spontaneously.”

3. Cricket, it is said, is synonym for gentlemanliness which meansdiscipline, fair play, modest and high standard of morality. The everincreasing interest in the game of Cricket in our country has raised issuesEof its regulation, control and management. In our country the Board ofControl for Cricket in India (BCCI), registered Society under theSocieties Registration Act, 1860, exercises sufficient control on all aspectsof game of Cricket and has framed various Code of Conduct for all whoare 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.FCricket Associationof Bihar and others, (2015) 3 SCC 251, statedfollowing:

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

4. The present is an appeal filed by an acclaimed cricketer ofIndia against whom proceedings were drawn by BCCI and life banwas imposed on the appellant by the BCCI which was unsuccessfullychallenged before the Kerala High Court and aggrieved by the DivisionBench judgment of the High Court the appellant has filed this appeal.

5. Background facts giving rise to this appeal need to be notednow:

The appellant, registered player with Kerala Cricket Associationaffiliated to BCCI participated in an IPL match held at Mohali, Punjabon 09.05.2013. The appellant represented Rajasthan Royals against KingsXI Punjab. The case Crime No.20 of 2013 dated 09.05.2013 wasregistered in the Special Cell of Delhi Police on suo moto informationprovided by an Inspector of Special Cell. Information was received bythe Police regarding involvement of various persons in some sort offixing in the on going Cricket matches of IPL with active participation ofun-identified conduits based in Delhi. The appellant was arrested byDelhi Police on allegation of spot fixing on 16.05.2013. By order dated17.05.2013 BCCI suspended the appellant. In the Writ Petition (C)No.318 of 2013 Sulaxsha Awasthi vs. Union of India, this Court directedthe oneman Commission constituted by the BCCI to submit its report tothe Board within period of 15 days indicated about the irregularitiesthat is noticed during the IPL matches. Oneman inquiry Commissionsubmitted Preliminary Report dated 05.06.2013 on the basis of videoclipping and recordings of telephone conversation opining that there aresufficient evidence against the appellant to prove him guilty of variousarticles of Anti-corruption Code. Preliminary Report further stated thatthe Commissioner had no access to the appellant who was in policecustody. It opined that there are sufficient evidence available to proceedwith the disciplinary proceedings against the suspended players. Theappellant after being released from the custody appeared before onemanCommission and gave his statement dated 24.06.2013. He denied anyspot fixing done by his friend Jiju, if at all, and he reiterated that he didnot under perform the game. In his statement he further stated that heconfessed certain things before the Delhi Police which was due tocontinuous torture and pressure. After receiving the statement dated24.06.2013, Supplementary Report dated 08.07.2013 was submitted byoneman Commission. The Supplementary Report relied on the audioconversations between Sreesanth and Jiju Janardhan recorded on

A06.05.2013 at 1740 hrs. and 2032 hrs. and on the basis of audio tapesand transcripts oneman Commission concluded that the appellant waspart of the spot fixing and earlier findings given by the Preliminary Reportare confirmed. After receipt of the report disciplinary proceedings wereinitiated by the disciplinary committee of BCCI against the appellant.Show-cause notice dated 04.09.2013 was given to the appellant.BFollowing allegations in show-cause notice were made against theappellant in paragraphs 3, 4 and 5:

“3. On the morning of 16[th] May, 2013, it came to be widely reportedin the media that the Delhi Police, Special Cell had arrested youalong with other fellow players on suspicion of having indulged inCspot fixing during certain matches of Rajasthan Royals with whomyou are contracted to play for in the IPL. Reportedly at the timeof your arrest, you were allegedly in the company of one Mr. JijuJanardhan who according to Delhi Police is ad bookie.

4. It also came to be reported that the Delhi Police had also arrestedDa number of bookies on the same day, who were allegedly involvedin conspiring with you and the other players to fix spots for personalfinancial gain.

5. Acting on the information that was provided by the policeauthorities to the media which was in turn reported across theEcountry, the BCCI on 17[th] May, 2013, suspended you from allcricketing activities pending an inquiry into your actions by theBCCI. The BCCI appointed Commissioner, Mr. Ravi Sawani,the head of the BCCI Anti-Corruption Unit, to conduct preliminaryinquiry and submit report to the BCCI as to his findings.”F

6. The appellant 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.The appellant was asked to show-cause as to why action should not betaken against him under the Rules. Date, 13.09.2013 was fixed for hearingand appellant was asked to submit his written statement within week.GReply to show-cause notice was submitted by the appellant on 11.09.2013.In his reply the appellant denied his involvement in spot fixing. In hisreply apart from stating other facts following was stated:

i) Fixing – There is absolutely no reliable material even to find outa charge of fixing against me. What is relied upon is the alleged

conversation between my friend Shri Jiju Janardhan followcricketer and some others. Shri Jiju Janardhan is very muchfamiliar with my mannerism and habit in the cricket field as heknows me from the age of 18. It is not uncommon to use atowel in afternoon matches particularly in place like Mohali inthe month of April-May. Enough photographs are there to showthat in many of the earlier matches I played, white colour towelhad been used by me. In fact even other well known cricketersuse white towel as matter of habit. Even in the very samematch towels were used by other players. Apart from sheercoincidence nothing culpable can be attributed to me by reasonof using towel. The allegation that in the first over no towelwas used cannot be correct.

ii) What is alleged as warming up against me is not really warmingup but manner of play which I did in other plays also.

iii) As regards conceding of 14 runs I may respectfully point outthere was no guarantee that the Captain will ask me to bowl ina particular over and if so, depending on the field, the pitch,batsman etc. the bowler will have to bowl. It may be statedhere that my bowling is considered pace bowling estimated atan average of 135 kms. per hour and there is no guarantee fora bowler regarding the runs he is likely to concede unless delib-erately either no ball or wide is bowled. Conceding runs there-fore, cannot be manipulated as alleged. There is no allegationthat in the concerned second over any wide or no ball wasbowled.

iv) As regards seeking, accepting, offering or agreeing to acceptany bribe there is no trace of evidence pointing out to any suchincident at all.

v) There had been no failure or refusal on my part to perform myabilities in the Matches as all the balls bowled by me will showthat I have done my best in bowling on that day also.”

7. The appellant appeared on 13.09.2013 and was heard, thedisciplinary committee communicated its decision dated 13.09.2013 videletter dated 03.10.2013, with regard to appellant in paragraph 9 to 14following was held:

A“9. We have considered the inquiry Report of the Commissioner,his written statement before the Inquiry Commissioner, hiswritten reply to the Show Cause Notice and his oral defencebefore us.

10. The evidence against Sreesanth in relation to the chargeBcomprises to two audio recordings which are recorded by theDelhi Police. The first of these audio recordings is conversationbetween Jiju Janardhan, his close friend, and bookie calledCP (Chandresh Patel). Both have been arrested by the DelhiPolice. In the said conversation Jiju Janardhan is said to bepromising that in the second over to be bowled by Sreesanth 14Cor more runs would be conceded by him. The consideration tobe paid for such fixing would be Rs.10 Lacs.

11. In his written reply before us Sreesanth has admitted the factumof the alleged conversation with Jiju Janardhan. The DelhiPolice along with the charge sheet has given him copy of theDrecorded transcripts. He states that he is superstitious personand the use of the towel is due to the same. He, however, couldnot officer and explanation with regard to the content of theconversation which deals with conceding of 14 runs for aconsideration. On the contrary, he argues that how many runsEwould be conceded would depend upon large number ofvariable factors and not merely on the desire or the will of thebowler.

12. Even if Sreesanth wants to distance himself from the saidaudio recording which he was not privy, there is crossreference to this conversation on record at 17.40 hours onF6.5.2013 between Jiju Janardhan and Sreesanth. In the saidconversation, Jiju Janardhan admits being in possession ofSreesanth’s money Jiju Janardhan is head referring to receiptof Rs. 10 Lacs of which he would give 7 lacs to Sreesanth andretain 3 lacs for himself. Jiju Janardhan further proposes to useGsome money of Sreesanth for purchase of mobile phones. Thecircumstantial evidence clearly indicates that this Rs. 10 Lacsis part of the amount deposited with Jiju Janardhan forinfluencing Sreesanth for underperforming in the second overof the match.

13. The third piece of evidence is the actual conduct during thematch itself where Sreesanth conceded 13 runs. The two taperecordings reveal facts which reasonably match with the actualdevelopments in the second over on the field. The number ofruns conceded is only one less than promised. The sum of Rs.10Lacs being promised as part of the transaction fixed by JijuJanardhan is confirmed in the second audio recording. On beingasked to explain about this Rs.10 Lacs lying with Jiju Janardhanas mentioned in the second audio recording, Sreesanth gave avague explanation stating that this may be reference by way ofa charity to an orphanage which he intended to be visiting. Weare not inclined to accept the said explanation.

14. In view of the above, we are of the opinion that Sreesanth isguilty of corruption under Article 2.1.1, 2.1.2 and 2.1.3 of theCode. We also find him guilty under Article 2.2.3 for bettingand Article 2.3.1 and Article 2.4.2 of the Code for bringingdisrepute to the game of Cricket and failure to disclose to theACU BCCI full details of any approaches or invitations toengage in conduct that would amount to breach of the Code.We also hold him guilty of misconduct under Article 32, of theBCCI Memorandum Rules and Regulations.”

8. On quantum of punishment following was directed:

“Sh. Shreesanth – In view of the allegations of match fixing andnon-reporting of the offences, he is banned from playing orrepresenting for life. He shall during this period not be entitled tobe associated with any activities of the BCCI or its affiliates.”

9. In the criminal case chargesheet against the appellant and theother accused was submitted. The appellant filed an application fordischarge. The application for discharge was heard and by order dated25.07.2015, the appellant was discharged from the offences. Againstthe order of discharge an appeal has been filed which is pending, atpresent, before the Delhi High Court. After passing of the order ofdischarge, appellant made request before the disciplinary committeeof BCCI to review its order. On 18.10.2015 disciplinary committeerefused to review its earlier decision. The appellant through Kerala CricketAssociation addressed an e-mail to BCCI requesting to issue No

AObjection Certificate to him to enable him to participate in the ScotlandPremier League. The BCCI by the communication dated 12.01.2017refused to issue No Object Certificate. Another e-mail was sent by theappellant on 11.02.2017 praying to revoke the ban imposed on him andissue No Objection Certificate to him to participate in the Scotland PremierLeague. The BCCI reiterated its earlier stand.

10. An Advocate’s notice was given by the appellant on 16.02.2017to BCCI and thereafter Writ Petition No. 6925 of 2017 was filed beforethe Kerala High Court. In the writ petition, the petitioner has prayed forquashing the proceedings of the disciplinary committee communicatedby letter dated 03.10.2013 and also prayed for mandamus or other writor order commanding the BCCI and its Chairman to lift the ban imposedby the BCCI Committee by order dated 03.10.2013 so as to enable theappellant to participate in the Cricket matches both in national andinternational level. The appellant has also sought declaration that reportsare illegal and they were prepared without due compliance of law.

11. The BCCI filed counter-affidavit in the writ petition. Thewrit petition was heard and the learned Single Judge by order dated07.08.2017 allowed the writ petition quashing the life ban and otherpunishment imposed on the appellant pursuant to the disciplinarycommittee proceedings. Learned Single Judge had observed that theEappellant has suffered ban almost for four years and nothing more isrequired in the matter. Aggrieved by the judgment of the learned SingleJudge writ appeal was filed before the Division Bench by the BCCI.The Division Bench of the High Court vide judgment dated 17.10.2017allowed the writ appeal of the BCCI. The Division Bench held that theHigh Court under Article 226 exercises the jurisdiction of judicial reviewFand does not sit in appellate jurisdiction. It is held that there cannot bereappraisal of the evidence. Learned Single Judge being of the opinionthat the appellant was guilty, the appellant cannot escape the punishmentand it is not open for the High Court to substitute its own notion ofjustice. Aggrieved by the Division Bench judgment the appellant hasGfiled this appeal in this Court.

12. We have heard Shri Salman Khurshid, learned senior counsel,appearing for the appellant. Shri Parag P. Tripathi, learned senior counselhas appeared for the BCCI.

13. Shri Salman Khurshid submits that in the disciplinary enquiryheld against the appellant principles of natural justice have been breached.It is submitted that the disciplinary committee never confronted theappellant with the telephone conversation relied by it for proving thecharge. The appellant never agreed and was not part of spot fixing norever received amount of Rs.10 lakh as alleged. In the match played on09.05.2013, the appellant played his normal game. There were no loosebowls which is clear from cricket commentary broadcasted on that day.It was alleged against the appellant that he fixed for conceding 14 runsin the second over, which never happened. There are no evidence toprove against the appellant something which never happened. In theevent any money was received by the appellant there has to be someevidence of asking to return the money. The Preliminary Report wasprepared ex parte which ought not to have been relied. Copies of thetranscripts relied in the Supplementary Report as well as by thedisciplinary committee were never made available to the appellant norhe at any stage was confronted with the aforesaid transcripts so as togive his version. The burden of proof was wrongly placed on the appellantwhere as per Article 3.1. of the Anti-Corruption Code, the burden ofproof shall be on the designated Anti-Corruption Official and for seriousoffences proof beyond reasonable doubt was required. The allegationthat the appellant conceded 14 runs in the second over having not beenproved the entire charge has to fall. The bowler cannot always controlthe runs which can be taken by batsman more so when batsman of acalibre, Gilchrist was playing. The telephone conversation of 06.05.2013at 1740 hrs. and 2032 hrs with Jiju does not indicate that the appellantwas part of any spot fixing. Shri Khurshid has also challenged theconstitution of disciplinary committee. It is submitted that Shri Srinivasanhad stepped down as the President of the BCCI on 13.06.2013 andthereafter Shri Jagmohan Dalmia took as the President. The disciplinarycommittee not being properly constituted, the entire proceeding is vitiated.

14. Shri Parag P. Tripathi, learned senior counsel appearing forthe BCCI submits that the appellant was given full opportunity bydisciplinary committee. Show-cause notice contained the detail of chargesand the appellant was asked to reply. The allegations which were madeagainst the appellant that he was part of the spot fixing, that in secondover, the appellant was to concede 14 runs and under the deal he shall

Atuck white towel in his visible pocket which actually he did in his secondover is ample proof of his complicity. The conversation dated 06.05.2013which is brought by the appellant between Jiju Janardhan and ChandreshPatel @ Chand clearly proves that deal was made for spot fixing whichwas fixed. The appellant in his reply to show-cause has not explainedthe amount of Rs. 10 lakh as referred to conversation dated 06.05.2013Bat 1740 hrs between himself and Jiju Janardhan.

15. When the specific allegation was made against the appellantit was his duty to speak and he having not satisfactorily explained theallegations, disciplinary authority was fully entitled to confirm theproceedings. No proper answer has been given with regard to the tuckingCof towel in the second over. His answer that he is superstitious was notthere in original reply. Answer relating to amount of Rs.10 lakh to charityis not complete answer to dispel the charge. The disciplinary proceedingsare in the nature of departmental inquiry against public servant. Thedecision of disciplinary authority on proof of charge is not to be interferedDin exercise of judicial review by the constitutional courts. The judicialreview of the disciplinary proceedings is not an appellate jurisdiction soas to enable the Court to substitute its opinion. The para meters ofjudicial review are well settled. The interference with the disciplinaryproceedings by the High Court under Article 226 and this Court under

Article 32 cannot be on the basis of reappreciation of evidence. TheECourt cannot go on the sufficiency and reliability of the evidence. TheCourt shall not interfere if there are some legal findings.

16. Shri Parag Tripathi further submitted that the Discharge Orderhas no bearing on the disciplinary proceedings which are subject matterof the present petition. It is trite law that proceedings by disciplinaryFcommittee must be treated differently from trial in criminal case. It issubmitted that there is vast distinction in the scope of inquiry between acriminal proceeding and departmental inquiry. The question before theSessions Court was whether appellant is guilty of offences under theaforementioned criminal statutes. On appreciation of the evidence, itGmay have been open for the Sessions Court to discharge the appellantunder those specific statutes. The Sessions Court, however, did not dealwith the question whether the appellant is guilty of violating the BCCICode. In contrast, the scope of inquiry in the disciplinary proceedingsinitiated by respondent No.1 against the petitioner was entirely differentas it was restricted to an examination of whether the appellant hadH

breached the BCCI Code. The clauses which the appellant breachedunder the BCCI Code are entirely different from the offences underwhich the appellant had been charged before the Sessions Court. Theingredients required to establish breach of the BCCI Code are alsodistinct and separate from the ingredients required to prove offencesunder the aforementioned penal statutes. Furthermore, in criminal case,a defendant has right to remain silent. However, on issuance of theSCN, the appellant had duty to appear before the disciplinary committeeand answer all relevant questions, to the satisfaction of the disciplinarycommittee.

17. Respondent No.1 further submits that the standard of proof inrecording finding of conviction in criminal proceeding is distinct anddifferent from departmental proceeding.

18. It is submitted that the appellant has raised the issue ofjurisdiction of the disciplinary committee alleging that Shri Srinivasancould not be member of the disciplinary committee at the relevanttime. AT the outset, it is submitted that this argument being raised forthe very first time before this Court at the stage of the appellant filing arejoinder to respondent No.1’s counter affidavit and the same ought notbe allowed by this Court. The appellant had the option of challenging theconstitution of the disciplinary committee before the disciplinarycommittee itself, or at the least at the stage of filing the writ petition/writappeal or even at the stage of filing SLP. However, the fact that the saidargument is being raised for the first time at such belated stage of theproceedings only goes to prove that the argument is mere afterthought.

19. Without prejudice to the aforesaid, it is submitted that theminutes of the Emergent Working Committee meeting held on July 28,2013 clearly record that the probe committee had submitted its reportand Shri Srinivasan could resume charge as the President of respondentNo.1. Further, the minutes of the Emergent Working Committee meetingheld September 01, 2013 prove that Shri Srinivasan attended the saidmeeting as the President of respondent No.1.

20. It is submitted that even the orders dated September 27, 2013and October 8, 2013 placed on record and relied upon by the appellantdo not suggest that this Court removed Shri Srinivasan from the post ofPresident of respondent No.1. By the order dated September 27, 2013,this Court only ordered that the AGM of respondent No.1 scheduled on

ASeptember 29, 2013 and the scheduled election can proceed. With respectto Shri Srinivasan, this Court held that if he is elected as President (in theelection to be conducted) he will not take charge until further orders.The same was reiterated in the order dated October 8, 2013 passed bythis Court. Both these orders were admittedly passed after the disciplinarycommittee passed its order on September 13, 2013 and, therefore, contraryBto the appellant’s submissions the composition of the disciplinarycommittee was in accordance with the BCCI Code.

21. Shri Salman Khurshid, learned senior counsel for the appellantin his rejoinder submits that till 29.09.2013, Shri Srinivasan was not thePresident and he could not function as President. Replying the submissionCof Shri Tripathi that charge has been proved against the appellant it issubmitted that BCCI placed wrong burden of proof on the appellant.The appellant has answered the allegations and burden was on the BCCIto prove the charges. In any view of the matter, at best, the appellantcould have been charged with not disclosing to the BCCI of anyDinformation. Shri Khurshid submits that punishment of life ban wasexcessive and maximum, the punishment which could have been imposedon the appellant was upto five years. The appellant has always givendue respect and regard to the BCCI and always obeyed its instructionsand commands. The appellant has been acclaimed cricket player, whose

bright career has been cut short. The present is not the case where lifeEban ought to have been imposed. This Court may exercise its equitablejurisdiction in interfering with the punishment awarded to the appellant.

22. From the submissions made by the learned counsel for theparties and the materials on records following issues arise for considerationin this appeal:F

(1) Whether the disciplinary committee of the BCCI in passingthe order dated 13.09.2013 violated the principles of naturaljustice in not providing the transcripts of telephone conversationrelied by it and further in not confronting the appellant withtranscript of the telephone conversations relied on by it?G(2) Whether the disciplinary committee was right in its conclusionthat there are sufficient materials on the record to hold theappellant guilty of offences of corruption under Articles 2.1.1,2.1.2, 2.1.3 of betting, under Article 2.2.3 and Article 2.4.1,2.4.2 of the Anti-Corruption Code for bringing disrepute to the

game and failure to disclose to the ACU BCCI full details ofany approaches and invitations to engage in conduct that wouldamount to breach of the Code?

(3) Whether there were sufficient grounds for the High Courtwhile exercising judicial review jurisdiction under Article 226to hold that charges against the appellant were established andBproved on the basis of materials on record?

(4) Whether the disciplinary committee has rightly placed burdenof proof on the appellant whereas according to Anti-CorruptionCode under Article 3.1. the burden of proof was on thedesignated Anti-Corruption Official and by wrongly placing theburden of proof the disciplinary committee has erred inrecording its conclusion?

(5) Whether the discharge order dated 25.07.2015 has any effecton the disciplinary proceeding of BCCI under Anti-CorruptionCode culminating in order dated 13.09.2013?

(6) Whether the constitution of disciplinary committee was vitiatedby including Shri Srinivasan as President who had alreadystepped down on 02.06.2013 resulting in vitiation of entireproceedings?

(7) Whether disciplinary committee while imposing sanction underArticle 6 has considered the relevant para meters as laid downin paragraphs 6.1.1. and 6.1.2?

(8) Whether the disciplinary committee erred in imposing maximumsanction of life time ban on charges under Article 2.1.1 to 2.1.4of the Anti-Corruption Code?

(9) The relief to which, if any, the appellant may be entitled.

ISSUE NO.1

23. The Supplementary Report dated 08.07.2013 submitted byCommissioner of Inquiry, BCCI refers to two audio conversationsbetween Sreesanth and Jiju Janardhan recorded on 06.05.2017 at 1740hrs. and 2032 hrs. The Commissioner in his Report has referred totranscripts of two audio conversations received from Delhi Police copy

Aof which was annexed to the Report. along with the show-cause noticeboth Preliminary as well as Supplementary Reports were enclosed. Asnoted above, the Supplementary Report has referred to two conversationsbetween Sreesanth and Jiju Janardhan dated 06.05.2013. Reference oftelephonic conversation between Jiju and Chandresh Patel was also madein paragraph 8(1) of the show-cause notice. Reply to the said show-Bcause notice was submitted by the appellant on 11.09.2013. It is relevantto note that in the reply appellant did not complaint of not providing copyof transcripts of telephone conversations. Violation of principles of naturaljustice by the Commissioner while submitting the Preliminary Reportwas alleged on behalf of the appellant. The Commissioner in theCPreliminary Inquiry Report has clearly mentioned that he has not beenable to question the appellant since he was in the Police Custody andwhen the appellant was released from the Police Custody his statementwas taken by the Commissioner on 24.06.2013 and after considering thestatement of the appellant, Supplementary Report was submitted by theCommissioner on 08.07.2013. Before us additional documents have beenDfiled by the appellant as Annexure A1 by which the transcripts oftelephone conversation between Sreesanth and Jiju dated 06.05.2013 at1740 hrs. and 2032 hrs. has been brought on the record. Anotherconversation dated 09.05.2013 at 12.30 p.m. with Jiju Janardhan andChandresh Patel has also been taken on the record. The appellant doesEnot deny that the above transcripts of the telephone conversations weregiven to the appellant by the Police when chargesheet was submitted inthe criminal case in FIR No.20 of 2013. The present is not case wheretelephone conversations have been referred without they not beingavailable to the appellant. The transcripts of telephone conversationswere received by the appellant from the Police much before issuance ofFthe show-cause notice issued by the disciplinary committee. The appellantin his reply has not made any complaint of non-receipt of transcripts.

24. Learned Single Judge in paragraphs 3 and 24 of his judgmenthas made following observations:

G“3. The decision of BCCI was rendered after affording anopportunity of hearing to Sreesanth by disciplinary committeeconstituted to enter into the allegations……”

“24……However, Sreesanth cannot pretend ignorance to thecontents of the telephonic conversation, as the contents of it have

been exhaustively considered in discharge application filed byhim before the Patiala House Courts, New Delhi (MCOCOcourt)…………”

25. The submission of Preliminary Report without taking statementof the appellant was in the circumstances that the appellant was in thePolice custody and under the order of this Court the Commissioner hadto submit report within 15 days. The Commissioner himself has notedthat he has not confronted the appellant because of the above fact.When the appellant was released from the custody, his statement wastaken and after considering his statement further Supplementary Reportwas submitted. In the show-cause notice with respect to the materialrelied by the disciplinary committee, the appellant was given fullopportunity to have his say. We are not in agreement with the submissionof the appellant that there was any violation of principles of natural justiceby the disciplinary committee of the BCCI.

ISSUE NOS. 2 AND 3

26. Both the issues being inter-related, are taken together.

27. In the show-cause notice the charge which was levelled onthe appellant of spot fixing and other allegations have been noticed. Theallegations made against the appellant as contained in paragraph 8 hasalready been extracted above. In the substance, the allegation was thatin the match played on 09.05.2013 between Rajasthan Royals and KingsXI Punjab at Mohali in exchange of sum of Rs.10 lakh, the appellantagreed to concede 14 or more runs in the second over of bowling spelland in order to confirm the fix, appellant was required to place handtowel in his visible pocket while ensuring there was no such towel duringthe first over. In support of this, audio conversation between Jiju Janardhanand Chandresh Patel was referred to in the Preliminary andSupplementary Reports. It is on the basis of the conversations betweenJiju Janardhan and Sreesanth dated 06.05.2013 at 1740 hrs. and 2032hrs., the allegation of charge of receipt of Rs. 10 lakh was sought to beproved. The conversation between Sreesanth and Jiju which took placeon 06.05.2013 where Jiju on telephone informed that Rs.10 lakh wasavailable out of which Rs.7 lakh will be given to the appellant, has notbeen satisfactorily explained by the appellant before the disciplinarycommittee. The disciplinary committee in its order has relied on the

Atelephone conversation between Jiju Janardhan and Sreesanth dated06.05.2013. It was also noted that Delhi Police along with the chargeshad given copy of the transcripts to the appellant. In paragraph 12 of theorder the disciplinary committee has come to the following conclusion:

“12. Even if Sreesanth wants to distance himself from the saidBaudio recording which he was not privy, there is cross referenceto this conversation on record at 17.40 hours on 6.5.2013 betweenJiju Janardhan and Sreesanth. In the said conversation, JijuJanardhan admits being in possession of Sreesanth’s money JijuJanardhan is head referring to receipt of Rs. 10 Lacs of which hewould give 7 lacs to Sreesanth and retain 3 lacs for himself. JijuCJanardhan further proposes to use some money of Sreesanth forpurchase of mobile phones. The circumstantial evidence clearlyindicates that this Rs. 10 Lacs is part of the amount depositedwith Jiju Janardhan for influencing Sreesanth for underperforming

in the second over of the match.”D28. The explanation given by the appellant with regard to Rs. 10lakh laying with Jiju Janardhan was found to be vague and was notacceptable. The disciplinary committee on the basis of the evidenceavailable before it was entitled to draw its own conclusion.

29. The disciplinary committee, under the relevant Anti-CorruptionECode, is primarily entrusted with the duty, after considering the reply ofshow-cause notice and hearing the appellant was entitled to give decisionon various allegations made against the appellant.

30. The disciplinary inquiry conducted by disciplinary committeeof BCCI is akin to disciplinary inquiry conducted against public servantFunder the relevant statutory rules except few distinctions which we shallnotice later. This Court has time and again considered the scope of judicialreview in reference to departmental inquiry conducted against the publicservant. This Court in State of Andhra Pradesh vs. Chitra VenkataRao, (1975) 2 SCC 557, had laid down the para meters of judicialreview. In paragraph 21 following has been laid down:G

“21. The scope of Article 226 in dealing with departmental inquirieshas come up before this Court. Two propositions were laid downby this Court in State of A.P. v. S. Sree Rama Rao. First, there isno warrant for the view that in considering whether public officeris guilty of misconduct charged against him, the rule followed inH

criminal trials that an offence is not established unless proved byevidence beyond reasonable doubt to the satisfaction of the Courtmust be applied. If that rule be not applied by domestic tribunalof inquiry the High Court in petition under Article 226 of theConstitution is not competent to declare the order of the authoritiesholding departmental enquiry invalid. The High Court is not acourt of appeal under Article 226 over the decision of the authoritiesholding departmental enquiry against public servant. The Courtis concerned to determine whether the enquiry is held by anauthority competent in that behalf and according to the procedureprescribed in that behalf, and whether the rules of natural justiceare not violated. Second, where there is some evidence which theauthority entrusted with the duty to hold the enquiry has acceptedand which evidence may reasonably support the conclusion thatthe delinquent officer is guilty of the charge, it is not the functionof the High Court to review the evidence and to arrive at anindependent finding on the evidence. The High Court may interferewhere the departmental authorities have held the proceedingsagainst the delinquent in manner inconsistent with the rules ofnatural justice or in violation of the statutory rules prescribing themode of enquiry or where the authorities have disabled themselvesfrom reaching fair decision by some considerations extraneousto the evidence and the merits of the case or by allowingthemselves to be influenced by irrelevant considerations or wherethe conclusion on the very face of it is so wholly arbitrary andcapricious that no reasonable person could ever have arrived atthat conclusion. The departmental authorities are, if the enquiry isotherwise properly held, the sole judges of facts and if there issome legal evidence on which their findings can be based, theadequacy or reliability of that evidence is not matter which canbe permitted to be canvassed before the High Court in proceedingfor writ under Article 226.”

31. This Court further held that jurisdiction of the High Courtunder Article 226 is supervisory jurisdiction and the High Court doesnot exercise jurisdiction of an appellate court. The findings of the factreached by tribunal as result of the appreciation of the evidence cannotbe questioned in the writ proceedings. In paragraph 23 of the judgmentfollowing has been laid down:

ABC

A“23. The jurisdiction to issue writ of certiorari under Article 226is supervisory jurisdiction. The Court exercises it not as anappellate court. The findings of fact reached by an inferior courtor tribunal as result of the appreciation of evidence are notreopened or questioned in writ proceedings. An error of law whichis apparent on the face of the record can be corrected by writ,Bbut not an error of fact, however grave it may appear to be. Inregard to finding of fact recorded by tribunal, writ can beissued if it is shown that in recording the said finding, the tribunalhad erroneously refused to admit admissible and material evidence,or had erroneously admitted inadmissible evidence which hasCinfluenced the impugned finding. Again if finding of fact is basedon no evidence, that would be regarded as an error of law whichcan be corrected by writ of certiorari. finding of fact recordedby the Tribunal cannot be challenged on the ground that the relevantand material evidence adduced before the Tribunal is insufficientor inadequate to sustain finding. The adequacy or sufficiency ofDevidence led on point and the inference of fact to be drawnfrom the said finding are within the exclusive jurisdiction of theTribunal. See Syed Yakoob v. K.S. Radhakrishnan.”

32. This Court again in Union of India and others vs. P.Gunasekaran, (2015) 2 SCC 610, reiterated the same principlesEregarding judicial review of disciplinary proceedings. In paragraphs 12and 13 following has been laid down:

“12. Despite the well-settled position, it is painfully disturbing tonote that the High Court has acted as an appellate authority in thedisciplinary proceedings, reappreciating even the evidence beforeFthe enquiry officer. The finding on Charge I was accepted by thedisciplinary authority and was also endorsed by the CentralAdministrative Tribunal. In disciplinary proceedings, the High Courtis not and cannot act as second court of first appeal. The HighCourt, in exercise of its powers under Articles 226/227 of theGConstitution of India, shall not venture into reappreciation of theevidence. The High Court can only see whether:

(a) the enquiry is held by competent authority;

(b) the enquiry is held according to the procedure prescribed inthat behalf;H

(c) there is violation of the principles of natural justice inconducting the proceedings;

(d) the authorities have disabled themselves from reaching fairconclusion by some considerations extraneous to the evidenceand merits of the case;

(e) the authorities have allowed themselves to be influenced byirrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary andcapricious that no reasonable person could ever have arrivedat such conclusion;

(g) the disciplinary authority had erroneously failed to admit theadmissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmis-sible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the HighCourt shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the samehas been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findingscan be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks itsconscience.”

33. To the same effect is the decision of this Court reported inCentral Industrial Security Force and others vs. Abrar Ali, (2017)4 SCC 507. In paragraphs 13 and 14 following has been laid down:

“13. Contrary to findings of the disciplinary authority, the HighCourt accepted the version of the respondent that he fell ill and

Awas being treated by local doctor without assigning any reasons.It was held by the disciplinary authority that the unit had bettermedical facilities which could have been availed by the respondentif he was really suffering from illness. It was further held that thedelinquent did not produce any evidence of treatment by localdoctor. The High Court should not have entered into the arena ofBfacts which tantamounts to reappreciation of evidence. It is settledlaw that reappreciation of evidence is not permissible in the exerciseof jurisdiction under Article 226 of the Constitution of India.

14. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya,this Court held as follows: (SCC p. 587, para 7)

“7. It is now well settled that the courts will not act as anappellate court and reassess the evidence led in the domesticenquiry, nor interfere on the ground that another view is possibleon the material on record. If the enquiry has been fairly andproperly held and the findings are based on evidence, theDquestion of adequacy of the evidence or the reliable nature ofthe evidence will not be grounds for interfering with the findingsin departmental enquiries. Therefore, courts will not interferewith findings of fact recorded in departmental enquiries, exceptwhere such findings are based on no evidence or where theyEare clearly perverse. The test to find out perversity is to seewhether tribunal acting reasonably could have arrived at suchconclusion or finding, on the material on record. The courtswill however interfere with the findings in disciplinary matters,if principles of natural justice or statutory regulations have beenviolated or if the order is found to be arbitrary, capricious, malaFfide or based on extraneous considerations. (Vide B.C.Chaturvedi v. Union of India, Union of India v. G.Ganayutham, Bank of India v. Degala Suryanarayana andHigh Court of Judicature at Bombay v. Shashikant S.Patil.)””

G34. There being specific allegations made against the appellant inthe show-cause notice as noticed above it was incumbent on the appellantto have explained the evidence and circumstances which were soughtto be relied against the appellant. In the disciplinary proceedings adelinquent has to explain circumstances and evidence relied against him.

It is true that the charges have to be proved by the BCCI for taking anyaction under the Anti-Corruption Code. The disciplinary committee ofthe BCCI had jurisdiction to form its own opinion after considering theevidence on record including the telephone conversation betweenSreesanth and Jiju Janardhan and other evidence on the record. Theconclusion drawn by the disciplinary committee on the basis of the materialwhich is recorded in paragraphs 12 and 13 as noted above cannot besaid to be suffering from any infirmity which may warrant judicial reviewby the constitutional courts. The learned Single Judge held that “If theevidence as whole is appreciated, it can easily be concluded thatSreesanth had no direct link in spot fixing or betting”. Further, learnedSingle Judge held that “Assuming that Sreesanth had knowledge of suchbetting, this Court is of the view that the punishment already suffered byhim of 4 years of the ban from all format of the cricket, nationally andinternationally, is sufficient to meet ends of justice”. As noted aboveconstitutional court in exercise of jurisdiction of judicial review ofdisciplinary proceedings conducted under the Code of Conduct framedby the BCCI will interfere only when conclusions of the disciplinarycommittee are perverse or based on no evidence. On appreciation ofevidence, it is not open for the High Court or this Court to substitute itsown opinion based on the appreciation of material on record on thecharges proved.

35. We, thus, are of the opinion that for the decision of thedisciplinary committee holding charges under Articles 2.1.1., 2.1.2, 2.1.3and 2.2.3 and Article 2.4.1. and 2.4.2 proved, there are no grounds forthis Court to take different view. Issue Nos. 2 and 3 are answeredaccordingly.

ISSUE NO. 4

36. One of the submissions which has been made by the learnedcounsel for the appellant is that the disciplinary committee has wronglyplaced the burden of proof on the appellant. Learned counsel for theappellant has relied on Article 3.1 in this context. Article 3.1 is as follows:

“STANDARD OF PROOF AND EVIDENCE

3.1 Unless otherwise described herein the Designated Anti-Corruption Official(or his/her designee) and the standard of proofin all cases brought under this Anti-corruption Code shall be

Awhether the BCCI Disciplinary Committee is comfortably satisfied,bearing in mind the seriousness of the allegation that is being made,that the alleged offence has been committed. This standard ofproof in all cases shall be determined on sliding scale from, at aminimum, mere balance of probability (for the least seriousoffences) up to proof beyond reasonable doubt (for the mostBserious offences).”37. Article 3.1 deals with burden of proof and standard of proof.The initial burden of proof shall be on the Designated Anti-CorruptionOfficial i.e. disciplinary committee which has to form its opinion aboutthe commission of Designated Offences by the delinquent. Before takingCthe decision when show-cause notice is served on the appellant makingallegations and referring to relevant materials in support of the saidallegation, it was incumbent on the appellant to have satisfactorily explainedeach and every circumstances or evidence referred to and relied. Whenthe explanation submitted by the appellant was not found satisfactory,Dhe having not been able to satisfactorily explain the allegations whichwere noticed from the telephone conversation between the appellantand Jiju Janardhan, it cannot be said that the burden of proof has wronglybeen placed on the appellant. Initial burden as referred to in Article 3.1shall stand discharged when the allegation referring to materials andevidence are communicated to delinquent. Standard of proof as referredEto in Article 3.1 is that the BCCI disciplinary committee is to becomfortably satisfied, bearing in mind the seriousness of the allegationthat is being made, that the alleged offence has been committed. Ofcourse, on mere doubt the disciplinary committee cannot hold offencesproved there has to be positive evidence and finding regarding theFproof of offences. We are, thus, not persuaded to accept the submissionof the learned counsel for the appellant that burden of proof was wronglyplaced on the appellant.

ISSUE NO.5

38. There is vast distinction in the scope of inquiry between aGcriminal trial on one hand and disciplinary inquiry against public servantor disciplinary inquiry under Anti-Corruption Code of BCCI on otherhand. We find substance in the submission of Shri Parag P. Tripathi thatquestion before the Sessions Court was whether the appellant is guiltyof offences under the criminal statutes and on appreciation of evidence,

it may have been open for the Sessions Court to discharge the appellantunder the specific statutes. The Sessions Court had not to deal with thequestion whether the appellant is guilty of violating Anti-Corruption Codeof BCCI. The clauses which the appellant breached under the Anti-Corruption Code of BCCI are entirely different from the offences underwhich the appellant had been charged before the Sessions Court. Theingredients required to establish breach of the BCCI Code are alsodistinct and separate from the ingredients required to prove offencesunder the penal statutes in question. We record our agreement to theabovenoted submissions.

39. The standard of proof in disciplinary inquiry and in trial ofa criminal case are entirely different. In criminal case it is essential toprove charge beyond all reasonable doubt wherein in departmentalinquiry preponderance of probability is to serve the purpose. This Courtin Commissioner of Police, New Delhi vs. Narender Singh, (2006)4 SCC 265, following has been stated in paragraph 12:

“12. It is not in dispute that the standard of proof required inrecording finding of conviction in criminal case and in adepartmental proceeding are distinct and different. Whereas in acriminal case, it is essential to prove charge beyond all reasonabledoubt, in departmental proceeding preponderance of probabilitywould serve the purpose. (See Kamaladevi Agarwal v. State ofW.B., 2002 (1) SCC 555.)”

40. caveat needs to be put to whatever has been said above.We have upheld the decision of disciplinary committee of the BCCI onproof of charges which upholding of the decision of the disciplinarycommittee shall have no effect in the criminal appeal which is pendingagainst the appellant against the discharge order. The conclusions andobservations as recorded in the disciplinary proceedings under Anti-Corruption Code are entirely different from proof of criminal chargeswhich are on higher yardstick to prove. It is well settled principle thatcriminal charge must be proved beyond reasonable doubt which is notapplicable in disciplinary proceedings initiated by the disciplinary committeeof the BCCI. We, thus, clarify that any observation in this judgment shallhave no effect on the criminal appeal which is pending against theappellant pertaining to discharge order.

AISSUE NO. 6

41. The argument pertaining to proper constitution of disciplinarycommittee was not raised before the High Court by the appellant at anystage neither in his reply to show-cause nor before the High Court anyground was taken that disciplinary committee was illegally constituted.BIn this context, we, however, have noted submission made by the appellantregarding Constitution of the disciplinary committee and reply given bythe learned counsel for the BCCI regarding constitution of disciplinarycommittee. The appellant’s case is that on 02.06.2013, Shri Srinivasanstepped down from the office of President, BCCI and one Shri JagMohan Dalmia took over as the Acting President. Shri Parag TripathiCreplying his submission submitted that although Shri Srinivasan steppeddown on 02.06.2013 but the working committee meeting held on28.07.2013 clearly record that the probe committee has submitted itsreport that Shri Srinivasan could resume charge as the President of BCCI,Shri Srinivasan was again re-elected on 29.09.2013 as President. We

Dare satisfied that there was no legal impediment in Shri Srinivasanparticipating in the disciplinary committee in the meeting of 13.09.2013as President. The appellant having not taken this ground even in thegrounds of this appeal, he cannot be allowed to question the constitutionof disciplinary committee at this stage. Issue No.5 is answeredaccordingly.E

ISSUE NOS.7, 8 AND 9

42. All these issues are being taken together. Article 2(OffencesUnder this Anti-Corruption Code), of the Anti-Corruption Codeprovides for different offences which are as follows:-F“ARTICLE 2

OFFENCES UNDER THIS ANTI-CORRUPTION CODE

The conduct described in Articles 2.1 – 2.4, if committed by aParticipant, shall amount to an offence by such Participant underthis Anti-Corruption Code:

2.1 CORRUPTION:

2.1.1 Fixing or contriving in any way or otherwise influencingimproperly, or being party to any effort to fix or contrive inany way or otherwise influence improperly, the result,Hprogress, conduct or any other aspect of any Match or Event.

2.1.2 Seeking, accepting, offering or agreeing to accept any bribeor other Reward to fix or to contrive in any way or otherwiseto influence improperly the result, progress, conduct or anyother aspect of any Match or Event.

2.1.3 Failing or refusing, for Reward, to perform to one’s abilitiesin Match.

2.1.4 Soliciting, inducing, enticing, instructing, persuading,encouraging or facilitating (a) any Participant to commit anoffence under any of the foregoing provisions of this Article2.1 and/or (b) any other person to do any act that would bean offence if that person were Participant.

2.2 BETTING:

2.2.1 Placing, accepting, laying or otherwise entering into any Betwith any other party (whether individual, company orotherwise) in relation to the result, progress, conduct or anyother aspect of any Match or Event.

2.2.2 Soliciting, inducing, enticing, instructing, persuading,encouraging, facilitating or authorising any other party to enterinto Bet for the direct or indirect benefit of the Participantin relation to the result, progress, conduct or any other aspectof any Match or Event.

2.2.3 Ensuring the occurrence of particular incident in Matchor Event, which occurrence is to the Participant’s knowledgethe subject of Bet and for which he/she expects to receiveor has received any Reward.

2.3 MISUSE OF INSIDE INFORMATION:

2.3.1 Using, for Betting purposes, any Inside Information.

2.3.2 Disclosing Inside Information to any person (with or withoutReward) before or during any Match or Event where theParticipant might reasonably be expected to know thatdisclosure of such information in such circumstances couldbe used in relation to Betting.

NOTE:Any potential offence under this Article will beconsidered on its own set of facts and the particularcircumstances surrounding any relevant disclosure. For

Example, it may be an offence under this clause to discloseinside information. (a) to journalists or other membersof the media; and/or (b) on social networking websiteswhere the Participant might reasonably be expected toknow that disclosure of such information in suchcircumstances could be used in relation to Betting.However, nothing in this Article is intended to prohibitany such disclosure made within personal relationship(such as member of the Participant’s family) where it isreasonable for the Participant to expect that suchinformation can be disclosed in confidence without beingsubsequently used for Betting.

2.3.3 Soliciting, inducing, enticing, persuading, encouraging orfacilitating (a) any Participant to commit an offence underany of the foregoing provisions of this Article 2.3 and/or(b) any other person to do any act that would be anoffence if that person were Participant.

2.4 GENERAL:

2.4.1 Providing or receiving any gift, payment or other benefit(whether of monetary value or otherwise) in circumstancesEthat the Participant might reasonably have expected couldbring him/her or the sport of cricket into disrepute.

NOTE:This Article is only intended to catch ‘disrepute’ thatwhen considered in all relevant circumstances, relatesF(directly or indirectly) to any of the underlying imperativesof and conduct prohibited by this Anti-Corruption Code(including as described in Article 1.1)

Where any substantial gift payment or other benefit isreceived by any Participant from an unknown person ororganization and/or for no apparent reason, such Participantis advised to report such receipt to the Designated Anti-Corruption Official (or his/her designee). Where suchParticipant does not make such report, then it is likely toconstitute strong evidence of the commission of this offence.

2.4.2 Failing or refusing to disclose to the ACU BCCI (withoutundue delay) full details of any approaches or invitationsreceived by the Participant to engage in conduct that wouldamount to breach of this Anti-Corruption Code.

2.4.3 Failing or refusing to disclose to the ACU BCCI (withoutundue delay) full details of any incident, fact, or matter thatcomes to the attention of Participant that may evidence anoffence under this Anti-Corruption Code by third party,including (without limitation) approaches or invitations thathave been received by any other party to engage in conductthat would amount to breach of this Anti-Corruption Code.

NOTE: All Participants shall have continuing obligation toreport any new incident fact, or matter that may evidencean offence under this Anti-Corruption Code to the ACUBCCI even if the Participants’ prior knowledge hasalready been reported.

2.4.4 Failing or refusing, without compelling justification, tocooperate with any reasonable investigation carried out bythe Designated Anti-Corruption Official (or his/herdesignee) in relation to possible offences under this Anti-Corruption Code, including failure to provide any informationand/or documentation requested by the Designated Anti-Corruption Official (or his/her designee) (whether as partof formal Demand pursuant to Article 4.3 or otherwise)that may be relevant to such investigation.”

43. The Anti-Corruption Code uses the word “offences” andoffences are enumerated under the Code for which sanction is providedin Article 6. Sanction under Article 6 is nothing but punishment oncommission of the offences and akin to sentencing in the criminaljurisprudence. The principles of sentencing as applicable in offence underIndian Penal Code may not be strictly applicable to one of punishment/sanction under the Anti-Corruption Code but principles of sentencing asapplicable in the criminal jurisprudence may be relevant for imposingsanction in Anti-Corruption Code. In the Criminal Procedure Code, 1973,there are no structured sentencing guidelines. In March, 2003, theCommittee on Reforms of Criminal Justice System (the Malimath

ACommittee), body established by the Ministry of Home Affairs, issueda report that emphasized the need to introduce sentencing guidelines inorder to minimise uncertainty in awarding sentences. The Indian PenalCode prescribe offences and punishments for the same. For manyoffences only the maximum punishment is prescribed and for someoffences the minimum punishment is also prescribed. Various jurists andBwriters have tried to enumerate circumstances which may mitigate thegravity of offences. The Constitution Bench of this Court in JagmohanSingh vs. The State of U.P., (1973) 1 SCC 20 held that law givesvery wide discretion in the matter of punishment to the Judge. Inparagraph 24 following has been laid down:

C“24. The policy of the law in giving very wide discretion in thematter of punishment to the Judge has its origin in the impossibilityof laying down standards. Take, for example, the offence ofCriminal Breach of Trust punishable under Section 409 of theIndian Penal Code. The maximum punishment prescribed for theDoffence is imprisonment for life. The minimum could be as low asone day’s imprisonment and fine. It is obvious that if any standardswere to be laid down with regard to several kinds of breaches oftrust by the persons referred in that section, that would be animpossible task. All that could be reasonably done by theLegislature is to tell the Judges that between the maximum andEminimum prescribed for an offence, they should, on balancing theaggravating and mitigating circumstances as disclosed in the case,judicially decide what would be the appropriate sentence. Takethe other case of the offence of causing hurt. Broadly, that offenceis divided into two categories—simple hurt and grievous hurt.FSimple hurt is again sub-divided—simple hurt caused by lethalweapon is made punishable by higher maximum sentence—Section 324. Where grievous hurt is caused by lethal weapon, itis punishable under Section 326 and is more aggravating formof causing grievous hurt than the one punishable under Section325. Under Section 326 the maximum punishment is imprisonmentGfor life and the minimum can be one day’s imprisonment and fine.Where person by lethal weapon causes slight fracture ofone of the un-important bones of the human body, he would be asmuch punishable under Section 326 of the Indian Penal Code as aperson who with knife scoops out the eyes of his victim. It willbe absurd to say that both of them, because they are liable underHthe same section should be given the same punishment………”

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

“163………The present legislative policy discernible from Section235(2) read with Section 354(3) is that in fixing the degree ofpunishment or making the choice of sentence for various offences,including one under Section 302 of the Penal Code, the court shouldnot confine its consideration “principally” or merely to thecircumstances connected with the particular crime, but also givedue consideration to the circumstances of the criminal.”

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

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

46. Before the Constitution Bench various mitigating factors weresuggested. After noticing the various mitigating factors suggested by thecounsel the Constitution Bench laid down following in paragraphs 207and 209:

“207. We will do no more than to say that these are undoubtedlyrelevant circumstances and must be given great weight in thedetermination of sentence. Some of these factors like extremeyouth can instead be of compelling importance. In several Statesof India, there are in force special enactments, according to whicha “child”, that is, “a person who at the date of murder was lessthan 16 years of age”, cannot be tried, convicted and sentencedto death or imprisonment for life for murder, nor dealt with

Aaccording to the same criminal procedure as an adult. The specialActs provide for reformatory procedure for such juvenileoffenders or children.

209. There are numerous other circumstances justifying the passingof the lighter sentence; as there are countervailing circumstancesBof aggravation. “We cannot obviously feed into judicial computerall such situations since they are astrological imponderables in animperfect and undulating society.” Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors inthe area of death penalty must receive liberal and expansiveconstruction by the courts in accord with the sentencing policyCwrit large in Section 354(3)…………”

47. Justice Arijit Pasayatspeaking for this Court in ShaileshJasvantbhai and another vs. State of Gujarat and others, (2006) 2SCC 359, held that the practice of punishing all serious crimes withequal severity is now unknown in civilized societies. This Court furtherDheld that disproportionate punishment has some very undesirable practicalconsequences. In paragraph 10 following has been laid down:

“10. Proportion between crime and punishment is goal respectedin principle, and in spite of errant notions, it remains stronginfluence in the determination of sentences. The practice ofEpunishing all serious crimes with equal severity is now unknownin civilised societies, but such radical departure from the principleof proportionality has disappeared from the law only in recenttimes. Even now for single grave infraction, drastic sentencesare imposed. Anything less than penalty of greatest severity forFany serious crime is thought then to be measure of tolerationthat is unwarranted and unwise. But in fact, quite apart from thoseconsiderations that make punishment unjustifiable when it is outof proportion to the crime, uniformly disproportionate punishmenthas some very undesirable practical consequences.”

G48. This Court in Gopal Singh vs. State of Uttarakhand, (2013)7 SCC 545, laid down that principle of just punishment is the bedrock ofsentencing in respect of criminal offence. In paragraph 18 followingwas laid down:

“18. Just punishment is the collective cry of the society. Whilethe collective cry has to be kept uppermost in the mind,H

simultaneously the principle of proportionality between the crimeand punishment cannot be totally brushed aside. The principle ofjust punishment is the bedrock of sentencing in respect of criminaloffence. punishment should not be disproportionately excessive.The concept of proportionality allows significant discretion tothe Judge but the same has to be guided by certain principles. Incertain cases, the nature of culpability, the antecedents of theaccused, the factum of age, the potentiality of the convict tobecome criminal in future, capability of his reformation and tolead an acceptable life in the prevalent milieu, the effect —propensity to become social threat or nuisance, and sometimeslapse of time in the commission of the crime and his conduct inthe interregnum bearing in mind the nature of the offence, therelationship between the parties and attractability of the doctrineof bringing the convict to the value-based social mainstream maybe the guiding factors. Needless to emphasise, these are certainillustrative aspects put forth in condensed manner. We may hastento add that there can neither be straitjacket formula nor solvabletheory in mathematical exactitude. It would be dependent on thefacts of the case and rationalised judicial discretion. Neither thepersonal perception of Judge nor self-adhered moralistic visionnor hypothetical apprehensions should be allowed to have anyplay. For every offence, drastic measure cannot be thought of.Similarly, an offender cannot be allowed to be treated with leniencysolely on the ground of discretion vested in court. The realrequisite is to weigh the circumstances in which the crime hasbeen committed and other concomitant factors which we haveindicated hereinbefore and also have been stated in number ofpronouncements by this Court. On such touchstone, the sentencesare to be imposed. The discretion should not be in the realm offancy. It should be embedded in the conceptual essence of justpunishment.”

49. three-Judge Bench in Mukesh and another vs. State(NCT of Delhi)and others, (2017) 6 SCC 1, to which one of us,(Ashok Bhushan, J.) was also member, has reviewed the principle ofsentencing as was noticed and elaborated in different judgments of thisCourt. Justice Dipak Misra, as he then was, speaking for the Benchreferred to the aggravating circumstances and mitigating circumstances

Aas noted by the Constitution Bench in Bachan Singh (supra). Referringto Bachan Singh following was held in paragraph 343:

“343. In Bachan Singh case, the Court has also held thus: (SCCp. 751, para 209)

“209. … It is, therefore, imperative to voice the concern thatcourts, aided by the broad illustrative guidelines indicated byus, will discharge the onerous function with evermore scrupulouscare and humane concern, directed along the highroad oflegislative policy outlined in Section 354(3) viz. that for personsconvicted of murder, life imprisonment is the rule and deathsentence an exception. real and abiding concern for the dignityof human life postulates resistance to taking life through law’sinstrumentality. That ought not to be done save in the rarest ofrare cases when the alternative option is unquestionablyforeclosed.””

D50. Justice R. Banumathi delivering her concurring opinion inparagraph 486 has laid down following:

“486. Question of awarding sentence is matter of discretionand has to be exercised on consideration of circumstancesaggravating or mitigating in the individual cases. The courts areEconsistently faced with the situation where they are required toanswer the new challenges and mould the sentence to meet thosechallenges. Protection of society and deterring the criminal is theavowed object of law. It is expected of the courts to operate thesentencing system as to impose such sentence which reflects thesocial conscience of the society. While determining sentence inFheinous crimes, Judges ought to weigh its impact on the societyand impose adequate sentence considering the collectiveconscience or society’s cry for justice. While considering theimposition of appropriate punishment, courts should not only keepin view the rights of the criminal but also the rights of the victimand the society at large.”

51. In the above noted cases this Court has laid down that awardingsentence is matter of discretion of the Judge which has to be exercisedon consideration of circumstances aggravating or mitigating in theindividual cases. As observed above, the principle of sentencing asapplicable in the criminal cases may not be strictly applicable for

considering the issue of punishment/sanction under the Anti-CorruptionCode but the principles noticed pertaining to sentencing serve safeguideline for exercise on jurisdiction under Article 6 of the Anti-CorruptionCode.

52. We may notice that this Court in Board of Control forCricket in India(BCCI) (supra) has held that zero tolerance towardsany wrong-doing alone can satisfy the cry of clinching the Cricket. TheDivision Bench of the Kerala High Court while allowing the writ petitionfiled by the BCCI has also observed that Anti-Corruption Code of BCCIclearly envisaged zero tolerance to corruption. There cannot be anyquarrel to the proposition as laid down by this Court as noted above.What was meant by the zero tolerance is that any offence committedwithin the meaning of Anti-Corruption Code cannot be ignored or to beleniently dealt with. Zero tolerance emphasis taking cognizance of suchoffences and awarding suitable punishment. However, zero toleranceapproach cannot dilute consideration of relevant factors while imposingsanction under Article 6. In Board of Control for Cricket inIndia(BCCI) (supra) this Court has laid down that the quantum ofsanction/punishment can vary depending upon the gravity of themisconduct of the persons committing the same. In paragraph 116following has been laid down:“116…………We have also while answering those questions heldthat the misconduct against these two individuals is actionable asper the relevant rules to which we have referred in detail. Notonly that, we have held that action under the Rules can also betaken against the franchisees concerned. We have noticed thatthe quantum of sanction/punishment can vary depending upon thegravity of the misconduct of the persons committing the same.”

53. Further, in paragraph 63 this Court has clearly laid down thatdisciplinary committee of the BCCI is empowered to impose anappropriate sanction in terms of Article 6 of the Code upon considerationof relevant factors. Paragraph 63 of the judgment is as follows:

“63. In terms of Article 6 of the Code, upon consideration ofrelevant factors the Disciplinary Committee of BCCI is empoweredto impose an appropriate sanction upon the delinquent havingregard to the provisions of Article 6.2 and the Table appearingthereunder. There is, therefore, no manner of doubt that even

808SUPREME COURT REPORTS

under the Anti-Corruption Code for Participants, any act like bettingcan attract sanctions not only for the person who indulges in suchconduct but also for all those who authorise, cause, knowinglyassist, encourage, aid, abet, cover up or are otherwise complicit inany act of omission or commission relating to such activity.”

B54. We, thus, have to look into Article 6 to find out the manner andprocedure for imposing punishment/sanction by disciplinary committeeof the BCCI. We have noticed that various mitigating and aggravatingcircumstances have been noticed by this Court in different judgmentswhile considering the sentencing policy under criminal jurisprudence. Ifwe look into Article 6, Article itself enumerates aggravating and mitigatingCcircumstances. Article 6 contains heading ‘Sanctions’. Para 6.1 providesthat in order to determine the appropriate sanction that is to be imposedin each case, the disciplinary committee must first determine the relativeseriousness of the offence, including identifying all relevant factors thatit 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 DisciplinaryCommittee will be required to impose an appropriate sanction uponthe participant from the range of permissible sanctions describedin Article 6.2. In order to determine the appropriate sanction thatEis to be imposed in each case, the BCCI Disciplinary Committeemust 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 lack of remorse on the part of the Participant;

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

6.1.1.3 where the amount of any profits, winnings or otherReward, directly or indirectly received by the Participant as aresult of the offence(s), is substantial and/or where the sums ofmoney otherwise involved in the offence(s) are substantial;

6.1.1.4 where the offence substantially damaged (or had thepotential to damage substantially) the commercial value and/orthe 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 participant or any other personhas been endangered as result of the offence;

6.1.1.7 where the offence involved more than one participant orother persons; and/or

6.1.1.8 any other aggravating factor(s) that the BCCI DisciplinaryCommittee 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-CorruptionCode, namely:

6.1.2.1any admission of guilt (the mitigating value of whichmay 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 DesignatedAnti-Corruption Official (or his/her designee) and any investigationor demand carried out by him/her;

6.1.2.5 where the offence did not substantially damage (or havethe 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 toaffect) the result of the relevant match(es) or event(s);

6.1.2.7 where the Participant provides Substantial Assistance tothe Designated Anti-Corruption Official (or his/her designee), thatresult in the Designated Anti-Corruption Official (or his/herdesignee) discovering or establishing an offence under this Anti-Corruption Code by another Participant or another cricketParticipant bound by such regulations or that results in criminal

810SUPREME COURT REPORTS

[2019] 4 S.C.R.

Aor disciplinary body discovering or establishing criminal offenceor the breach of professional rules by another Participant or otherthird party;

6.1.2.8 where the participant has already suffered penalties underother laws and/or regulations for the same offence; and/or

B6.1.2.9 any other mitigating factor(s) that the BCCI DisciplinaryCommittee considers relevant and appropriate.”

56. The Anti-Corruption Code which has articles containingmitigating and aggravating circumstances are necessarily to be takeninto consideration while imposing punishment/sanction under Article 6.CArticle 6.2 contains table in three columns, (i) Anti-Corruption Code ofOffence; (ii) Range of permissible period or ineligibility and (iii) additionaldiscretion to impose fine. It is useful to extract entire Article 6.2 to thefollowing effect:

6.2 Having considered all of the factors described in Articles 6.1.1Dand 6.1.2, the BCCI Disciplinary Committee shall then determine,in accordance with the following table, what the appropriatesanction(s) should be:

57. In the present case life ban has been imposed on the appellanton offences under Article 2.1.1., 2.1.2, 2.1.3 and 2.14(corruption), forwhich as per second column minimum of five years and maximum oflife time ineligibility is provided for. Whether in case where offence underArticle 2.1.1, 2.1.2, 2.1.3 and 2.1.4 is proved, the disciplinary committeeis obliged to award life time ban. The answer has to be that life bancannot be imposed in all cases where such offences are proved. Whenrange of ineligibility which is minimum five years, maximum life ban isprovided for, the discretion to choose either minimum or maximum or inbetween has to be exercised on relevant factors and circumstances.58. The disciplinary committee’s order dated 13.09.2013 does notadvert to the aggravating and mitigating factors as enumerated in Article6.1.1. and 6.1.2. Without considering the relevant provisions of Anti-Corruption Code the disciplinary committee has imposed life time banwhich sanction cannot be held to be in accordance with the Anti-Corruption Code itself. The disciplinary committee had not even advertedto Article 6.1.1 and 6.1.2 which enumerates the aggravating and mitigatingcircumstances. When the Anti-Corruption Code itself mandatesconsideration of relevant factors and this Court in Board of Controlfor Cricket in India (supra) had laid down that the disciplinary committeeof the BCCI is empowered to impose appropriate sanction in terms ofArticle 6 of the Code upon consideration of relevant factors, withoutconsidering the relevant factors imposition of maximum punishmentcannot be sustained. Apart from factors as noted above the subsequentconduct of the appellant also shows obedience to BCCI. Initially whenthe life time ban was imposed on 13.09.2013, appellant has not evenchallenged the said order, it was only after the appellant was dischargedfrom the criminal case on 25.07.2015 and when the appellant gotopportunity to play and participate in the Scotland Premier League on e-mail was sent through Kerala Cricket Association on 11.01.2017. It wasonly thereafter when No Objection Certificate was not granted to theappellant and the BCCI refused to modify the ban, writ petition wasfiled in February 28, 2017 in the Kerala High Court.

59. In so far as charges proved under Article 2.2.3, 2.4.1 and2.4.2 the maximum sanction is of 5 years, the award of punishment offive years shall also satisfy the requirement under Code, which need noseparate consideration for the purposes of this case. As per Article 6.3.2

Aall sanction imposed on appellant shall run concurrently. As on date theperiod of 5 years sanction has come to an end.

60. In view of the foregoing discussion we arrive on the followingconclusions:

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

(2) The conclusions drawn by the disciplinary committee of theBCCI on the basis of materials as referred to in paragraphs12 and 13 of the order cannot be said to be suffering fromCany infirmity which may warrant judicial review by theconstitutional courts. The constitutional courts in exercise ofjurisdiction of judicial review will interfere only whenconclusions of the disciplinary committee are perverse orbased on no evidence. It is not open for the High Court orDthis Court to substitute its own opinion based on the materialson record on the proof of charges.

(3) The standard of proof in disciplinary inquiry and in trial ofa criminal case are entirely different. In criminal case it isessential to prove charge beyond all reasonable doubtEwherein in disciplinary inquiry under Anti-Corruption Codeof BCCI the preponderance of probability is to serve thepurpose.

(4) We although have upheld the decision of the disciplinarycommittee of the BCCI on proof of charges, which upholdingFof the decision of the disciplinary committee shall have noeffect on the criminal appeal which is pending against theappellant against the discharge order. The conclusions andobservations as recorded in the disciplinary committee underAnti-Corruption Code are entirely different from proof ofcriminal charges which require higher yardstick to prove.

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

(6) Sanction under Article 6 of Anti-Corruption Code of BCCI isAnothing but punishment on commission of the offences andakin to sentencing in criminal jurisprudence. The principlesof sentencing as applicable in offence under the Indian PenalCode may not be strictly applicable to one of punishment/sanction under the Anti-Corruption Code but principles ofBsentencing as applicable in the criminal jurisprudence may berelevant for imposing sanction under the Anti-CorruptionCode.

(7) In cases where offences under Article 2.1.1, 2.1.2, 2.1.3 and2.1.4 are proved, the disciplinary committee is not obliged toCaward life time ban in all cases where such offences areproved. When range of ineligibility which is minimum fiveyears, maximum life time ban is provided for, the discretionto which, either minimum or maximum or in between has tobe exercised on relevant facts and circumstances.

(8) The disciplinary committee order dated 13.09.2013 does notadvert to the aggravating and mitigating factors as enumeratedin Articles 6.1.1 and 6.1.2. Without considering the relevantprovisions of Anti-Corruption Code, the disciplinary committeehas imposed life time ban on the appellant which sanctioncannot be held to be in accordance with the Anti-CorruptionCode itself.

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

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

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

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

A(iii) The disciplinary committee may take decision as indicatedabove on the quantum of punishment/sanction at an early datepreferably within period of three months from today.

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

Devika Gujral

Appeal partly allowed.