A. Muhamed Mustaque, J.Crickets exponential growth into revenue generating sports has been shaped by the evolution of broadcasting live matches. This turned cricket as part of the largest sports industry in the world. Of course, money does not grow over 22-yard cricket pitch. It comes out of the hands of millions who are passionately entertained through the game. That interest of sports lovers seems to have an overriding concern for the cricket organisers now, more than cricket itself. Anything that befalls as good on the people is because cricket still continues to be a game; anything that befalls as bad because of commercial interest of players and organisers. This case depicts a case of the betting scandal affecting the morale of the sports and confidence of the millions who follow the game.

2. This writ petition is originated from disciplinary proceedings initiated against S.Sreesanth, a registered player with the Kerala Cricket Association, an affiliate of Board of Cricket Control of India (BCCI), the national body for organising cricket in India. Sreesanth suffered an ignominious exit from all format of the cricket, nationally and internationally due to his alleged involvement in the allegations of corruption. He was arrested in a case registered by the Delhi Police. Later he was discharged from the crime as it was found that no offence would lie against him under the law. His alleged involvement is precisely depicted by reproduction of allegations in the disciplinary proceedings, which resulted in his exit from playing cricket or representing any team for life. He was also restricted from being involved in any activities of the BCCI or its affiliates. The relevant portion of the allegations in the order which is impugned in this writ petition filed by Sreesanth reads as follows:

" (i) In relation to the match played on 9th May, 2013 between Rajasthan Royals and Kings XI Punjab at Mohali, it is alleged that in exchange for a sum of Rs. 10,00,000/-, you had agreed to concede 14 or more runs in the second over of your bowling spell in the Match. In order to confirm that the fix was on you were required to place a small hand towel in your visible pocket while ensuring that there was no such towel during the first over. In support of these allegations audio-tapes of telephonic conversations between Mr Jiju Janardhan and bookie Chandresh Chandubhai Patel (alias Chand) are said to be in the possession of the police. The contents of the said conversation are corroborated by the fact that you had bowled your first over in that match without a towel in your pocket and had bowled the second over with a towel in your pocket. It is also on record that you did concede 13 runs in your second over. It is also alleged that, at the request of the bookies, did some warm up exercises before starting the over, in order to give the bookies enough time to take bets."

3. The decision of the BCCI was rendered after affording an opportunity of hearing to Sreesanth by a disciplinary committee constituted to enter into the allegations. It is pertinent to note that BCCI had formulated anti-corruption codes to ensure that action or conduct of players did not bring disreputation to the game or the BCCI. The charges levelled against Sreesanth are in relation to violations of anti-corruption codes. These codes were specifically designed for the Indian Premier League, a professional Twenty-20 cricket league constituted by teams representing Indian cities. This regulation, in fact, is moulded to sustain the confidence of the public at large in the transparency of the outcome of the game. The relevant part of the charges will be dealt in the later part of this judgment. Like many other cases, the BCCI defended this case also challenging the maintainability of the writ petition. Perhaps that issue requires serious consideration, in the light of the facts that the disciplinary proceedings are initiated against an individual player by a private body; whether it can be entertained by this court invoking the jurisdiction of Article 226 of the Constitution has to be decided at the first instance. That a private body performing a public function is also amenable to the jurisdiction of this court under Article 226, is a settled proposition of law now even in the matter of the BCCI as well. However, it has often perplexed the court to identify the activities which are subjected to the public law. Often, this was answered with reference to the source of power and the nature of the impact of that power on the aggrieved. The debate to interpret the term "other authorities" as referred in Article 12 of the Constitution started off with a decision of the Honble Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal and others [AIR 1967 SC 1857 [LQ/SC/1967/107] ] and; later, in Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another [AIR 1975 SC 1331 [LQ/SC/1975/80 ;] ">AIR 1975 SC 1331 [LQ/SC/1975/80 ;] [LQ/SC/1975/80 ;] ]. Perhaps, the dissenting judgment of the Honble Mr.Justice K.K.Mathew had a profound impact on the later judgments of the Honble Supreme Court while defining "public function". The relevant paragraphs of the judgment in Sukhdev Singhs case are as follows:

"92. Generally speaking, large corporations have power and this power does not merely come from the statutes creating them. They acquire power because they produce goods or services upon which the community comes to rely. The methods by which these corporations produce and the distribution made in the course of their production by way of wages, dividends and interest, as also the profits withheld and used for further capital progress and the manner in which, and the conditions under which they employ their workmen and staff are vital both to the lives of many people and to the continued supply line of the country. Certain imperatives follow from this. Both big business and big labour unions exercise much quasi public authority. The problem posed by the big corporation is the protection of the individual rights of the employees. Suggestions are being made that the corporate organisations of big business and labour are no longer private phenomena; that they are public organisms and that constitutional and common law restrictions imposed upon State agencies must be imposed upon them.

93. The governing power wherever located must be subject to the fundamental constitutional limitations. The need to subject the power centers to the control of constitution requires an expansion of the concept of State action. The historical trend in America of judicial decisions has been that of bringing more and more activity within the reach of the limitations of the Constitution. "The next step would be to draw private governments into the tent of state action This is not a particularly startling proposition, for a number of recent cases have shown that the concept of private action must yield to a conception of state action where public functions are being performed"**

(** see Arthur S. Miller: "The Constitutional Law of the Security State 10 Stanford Law Rev. 620, at 664) ...

97. Another factor which might be considered whether, the operation is an important public function, The combination of state aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of state financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion,

98. The State may aid a private operation in various ways other than by direct financial assistance, It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes, All these are relevant in making an assessment whether the operation is private or savours of State action.*

(* See generelly "the meaning of state Action", Lx columbia Law Rev .1083)"

4. It is to be noted that the dissenting judgment in Sukhdev Singhs case (supra), is more relevant upon the onset of globalisation. The concept of sovereignty of the State, entailing absolute authority over its community within political boundaries has withered away in the era of globalisation. The domestic policy of the State is determined by super norms of international bodies, and the State started withdrawing from its conceived role to create a welfare State by entrusting the task to the private players. Many of the directive principles under Part IV of the Constitution are now being implemented through private bodies. The growing need of the State is discharged through private bodies. Therefore, the traditional view of interpreting "other authorities" in Article 12 has got its own implications and interpretations in the era of globalisation. It is appropriate in this context to refer to the book "Law in a Changing Society" (2nd edn.) written by W.Friedmann. The relevant discussion is as follows:

"... Only a generation ago advocates of pluralism, such as Figgis or Laski, pleaded for more recognition of the social groups within the state - trade unions, churches and others - in mitigation of the legal and ideological glorification of the state. A generation later, the question must be raised in all seriousness whether the over mighty subjects of our time - the giant corporations, both of a commercial and non-commercial character, the labour unions, the trade associations, farmers organizations, veterans legions and some other highly organized groups - have taken over the substance of sovereignty. Has the balance of pressures and counter-pressures between these groups left the legal power of the state as a mere shell If this is a correct interpretation of the social change of our time, we are witnessing another dialectic process in history: the national sovereign state - having taken over effective legal and political power from the social groups of the previous age - surrenders its power to the new massive social groups of the industrial age..." (Chapter 9, pages 321 and 322)

5. The State is an organised power of its citizens. A body corporate or a private individual does not wield any such power conferred upon them by the community of citizens. The authority or power of the body corporate or private individual arises from the command of their own volition. Over the years, taking note of the nature of the impact of such private bodies upon the life and liberty of individuals and society by the exercise of power akin to the State, these bodies are also found to be performing public functions. These functions are traditionally exclusively reserved for the State. The public function is essentially understood as an action for the collective good of the society in common, in the spheres of political, social, economic activities of the people comprised therein. {see the judgment of this court in Inter Media Publishing Ltd. v. State of Kerala [2015 (4) KLT 868 [LQ/KerHC/2015/1518] ]}

6. Sport in its origin was considered as a leisure activity. The States, taking note of the fact that sports can play a vital role in improving the lives of individuals through both mental and physical well-being, started viewing sports with evinced interest. At the community level either locally or internationally, sports can benefit social relations and the life in society. Today, in sports, the larger public interest is involved. I have not come across in any jurisdiction, recognising a Right to sport nor treating it as a part of human right law, though, International Charter of Physical Education and Sport (ICPES) (adopted by the General Conference at 12th Session of UNESCO), refers to the right of human being to have access to practice of physical education and sport. In Article (1) therein, it provides that every human being has a fundamental right of access to physical education and sport which are essential for the full development of his personality. This Charter and greater public interest in the sports allude that the State has a larger stake in the field of sports. It is for these reasons that the modern Governments have provided larger infrastructure and facilities for development of the sport. Thus, the sport is a field in which the State has a field of legislative interest. In the Constitution, under List II Entry 33, legislatives of states have the power to legislate in the field of sport. Today, most states allow autonomous bodies to engage in the sphere of sports. It is for the obvious reason that most sports activities have been expanded beyond the boundaries of the State and on account of restrictions placed by the International bodies against Governmental interference, that States are not interfering with sports activities.

7. It is not essentially the source of power that matters to determine whether it is a public function or not. What is important to determine is whether functions discharged by a private body have any impact on the liberty of a human as a commune or such action has any public element, either good or bad. The public element is also identifiable with reference to the source of legislative power under the Constitution. If the Constitution obliges the State to make law, and State allows the private body to act as a substitute, the court would be justified in its approach of conceiving a public element in respect of an action to preserve public interest or for the collective benefit of the public.

8. The BCCI is a member of the International Cricket Council, a body corporate, incorporated in the Territory of the British Virgin Islands. Article 2.4.D of the Memorandum of Association and Articles of Association of the International Cricket Council Limited stipulates as follows:

"(D) manage its affairs autonomously and ensure that there is no government (or other public or quasi-public body) interference in its governance, regulation and/or administration of Cricket in its Cricket Playing Country (including in operational matters, in the selection and management of teams, and in the appointment of coaches or support personnel);

In the light of the restrictions as above, the BCCI will have to be considered and treated as the "de facto agent" of the State in as much as they represent the State in the international body and also in international cricket. The Indian states, therefore, cannot interfere with the BCCIs autonomy in the matter of regulating its affairs. Thus, they can also discharge public functions and public duties that could have been undertaken by the State itself.

9. In that background of the structure of the BCCI, this court will have to examine the extent of public function discharged by the BCCI. "Public function is something to achieve some collective benefit for the people or a section of the public, and is accepted by the public or that section of the public as the authority to do so; and this may happen in variety of ways; for instance, when it provides public goods, or other collective services such as health care, education and personal social services etc." (see Judicial Review of Administration Action by De Smith Woolf and Jowell 5th edn. pages 167 and 168). In Binny Ltd. v. V. Sadasivan, [(2005) 6 SCC 657] [LQ/SC/2005/784] , the Honble Supreme Court, in fact, relied upon the public function doctrine as expounded by De Smith Woolf and Jowell. This court in Karthikeya Varma v. Union of India [2015 (3) KLT 424 [LQ/KerHC/2015/1714] ] in para.42 observed as follows:

"42. Law making is a sovereign power and a State function. It denotes "power" vested with the State to regulate men under juridical laws. Wesley N. Hohfeld a renowned author of "Fundamental Legal Conceptions as Applied in Judicial Reasoning" classifies that jural correlative of power is liability. Thus, someone who holds the power can control, reduce and expand the entitlement of the men upon whom the power is imposed. The men bears liability and exposed to exercise of such power. In a Constitutionally governed State, ordinarily, this power to make law, derives from the Constitution. However, due to expansion of State activities, as seen from the judgments afore-noted, certain activities of the private body or Corporation are also capable to control, reduce or expand the entitlements. These exercises of power could be classified as a sovereign or State function."

10. As seen from the discussions as above, public function in the realm of governance of the subjects in the State has to be understood as activities of public nature by a private body. In the field of cricket, this may arise due to monopoly power of the body organising cricket.

11. The BCCI is the sole authority in the country to regulate the affairs of the cricket. Merely because the BCCI dominates and has a monopoly over cricket in India will not make every action of the BCCI amenable to the jurisdiction of this court. The majority judgment in Zee Telefilms Ltd. and another v. Union of India and others [(2005) 4 SCC 649] [LQ/SC/2005/123] and in Board of Control for Cricket v. Cricket Association of Bihar & Ors. [(2015) 3 SCC 251] [LQ/SC/2015/112 ;] ">[(2015) 3 SCC 251] [LQ/SC/2015/112 ;] [LQ/SC/2015/112 ;] of the Honble Supreme Court emphasise that the nature of the duties performed by BCCI as a public function alone are answerable to the standards applicable for the judicial review of the State action. The BCCI discharges three types of functions vis-a-vis contractual, regulatory and public functions. In both contractual and regulatory matters, the power may be overlapping with that of public functions. The task of the court is to find out whether the power exercised by the BCCI in any of the domains as referred above, have the characteristics of public function or not. In contractual matters like remuneration payable to the player, breach by a player on account of violation of not wearing sponsors logo, violation of the code of conduct in a match, etc. cannot be said to having a public law element even if this can be a subject matter of disciplinary proceedings. In one of the judgments relied upon by Shri Sunil Shanker, the learned Standing Counsel for the BCCI, in Shalabh Srivastava v. Union of India and others of the High Court of Allahabad, it was held that if the livelihood is dependent upon terms of service contract or other forms of contract, every breach of such service contract or other contract cannot be accepted as a violation of right to life guaranteed by Article 21 of the Constitution of India. In fact, this was a case arising from disciplinary proceedings initiated against a cricket player and pursuant to that, he was barred from playing any cricket match for five years. That writ petition was dismissed holding that it was not maintainable. It is to be noted therein, the allegation against that player was similar to the allegations set out against Sreesanth. However, the High Court of Allahabad had not examined the public function doctrine in the perspective this court proposes to do. The minor premise on which it was concluded in Shalabh Srivastavas writ petition was not maintainable was on the ground that there was no infraction of any fundamental right and duty exercised by BCCI is not a public duty. If an individual, who was subjected to disciplinary proceedings by the BCCI claims infraction of his right on account of such action, in the absence of any fundamental right being conferred upon him, he can impugn such action only under public law on parameters of judicial review, if such action arises in discharge of a public function. Right to sport is yet to be treated as a Fundamental Right. Thus, the court need not venture upon deciding whether it would affect the Right to livelihood or Right to life. However, a decision yet may be amenable for judicial review if such decision falls within frontiers of a public function of the BCCI. In Zee Televisions case (supra), the Honble Supreme Court rejected a claim based on a right to practice a profession or trade as referred to under Article 19(1)(g) of the Constitution as the BCCI is not a State within the Article 12 of the Constitution (see para.28 of the judgment). In Anil Chintaman Khare v. President, Vidarbha Cricket Association [2013 (2) Mh.L.J. 235], relied by Shri Sunil Shanker, learned counsel for the BCCI, the Division Bench of Mumbai High Court, Nagpur Bench in the matter of discontinuation of ex gratia payment to an ex-Ranji cricket player took the view that there is no legal or constitutional obligation for State Cricket Association to make such payment and therefore, there is no violation of any constitutional right. These all are the cases where the aggrieved persons sought public law remedies either premising their claim as a fundamental right or based on the claim of public duty discharged by the cricket body. In the realm of jural postulates, public duty presupposes the existence of public right as jural correlative. There is a subtle distinction between public function and public duty. In every public duty, there is a public function and not vice-versa. The public function may either fall in the category of State function or public duty. The public duty is a legal obligation discharged by a public servant under the command of public right. Therefore, to claim an action that falls within public duty, it must be shown that there is the existence of a positive law or valid Governmental directions. (See paras.43 and 44 of the judgment of this court in Karthikeya Varmas case [2015 (3) KLT 424 [LQ/KerHC/2015/1714] ].) In regulatory matters also like regulation relating to matches, types of the stadium, preparing panels, umpires, selection of teams, selection of coaches, etc., it cannot be said there is a public element, though this was done for cricket. In a sense, to say that an action has a public element, the court has to look around and find the dominant interest of such action. If an impugned action was in immediate relation to subserve public good or preserve public interest, the court need not hesitate to hold it as a public function.

12. Cricket is a game in which the public has a large interest. Action to bring transparency in the outcome of the game, action to maintain the integrity of the game, action to weed out corruption, scandals and fraud are all to be treated as the action in public interest. Therefore, an action initiated against an individual player by the BCCI in that context has to be treated as an action to preserve public interest. It is to be noted that in the absence of the BCCI, these functions would have been the subject matter of legislation by the State.

13. The BCCI initiated disciplinary proceedings against Sreesanth consequent upon his arrest along with other two IPL players by Delhi police in Mumbai. They were arrested allegedly having involved in sport fixing during certain matches played by Rajasthan Royals in Indian Premier League in the year 2013. Sreesanth was a player with Rajasthan Royals. Police registered as crime as crime No.20/2013. The charges in the disciplinary proceedings framed against Sreesanth and others are alleging breach of the BCCI anti-corruption code. The above code defines corruption, betting etc. Sreesanth and others were alleged to have committed following offences as referred in the code:-

"Article 2.1: Corruption

(i) Article 2.1.1. Fixing or contriving in any way or otherwise influencing improperly, or being a party to any effort to fix or contrive in any way or otherwise influence improperly, the result, progress, conduct or any other aspect of any Match or Event.

(ii) Article 2.1.2. Seeking, accepting, offering or agreeing to accept any bribe or other Reward to fix or to contrive in any way or otherwise to influence improperly the result, progress, conduct or any other aspect of any Match or Event.

(iii) Article 2.1.3. Failing or refusing for reward to perform to ones abilities in a Match.

Article 2.2: Betting

(iv) Article 2.2.3 Ensuring the occurrence of a particular incident in a Match or Event , which occurrence is to the Participants knowledge the subject of a Bet and for which he/she expects to receive or has received any Reward.

Article 2.4: General

(v) Article 2.4.1: Providing or receiving any gift, payment or other benefit (whether of a monetary value or otherwise) in circumstances that the Participant might reasonably have expected could bring him/her or the sport of Cricket into disrepute.

(vi) Article 2.4.2 Failing or refusing to disclose to the ACU BCCI (without undue delay) full details of any approaches or invitations received by the Participant to engage in conduct that would amount to a breach of this Anti-Corruption Code."

14. It is to be noted that a public interest litigation was filed when match fixing allegations broke out in the news before the Honble Supreme Court by one Sudarsha Awasthi seeking a writ of mandamus to constitute a special investigation team to enquire into irregularities of Indian Premier League. Noting the importance of the responsibilities of the BCCI to maintain and sustain the standards and reputation of the game, the Honble Supreme Court directed to constitute a one-man commission by the Board to take immediate steps to eradicate irregularity found out and to restore the reputation of the game. The very context in which these directions were issued would clearly indicate that the Honble Supreme Court seized of the matter as amenable to its jurisdiction, as matters like this would be in the domain of public function being discharged by the BCCI. Even though the action now initiated against Sreesanth is disciplinary proceedings; nevertheless, this action essentially arose out of the necessities as pointed out by the Honble Supreme Court to restore the reputation of the game. Thus, this court cannot view the action now initiated against Sreesanth as a mere action for breach of obligations under the contract by a player entered with the BCCI. This court, therefore, has to treat disciplinary action in the discharge of public function by the BCCI. All the more important in that context is another judgment of the Honble Supreme Court in Board of Control for Cricket case [(2015) 3 SCC 251] [LQ/SC/2015/112 ;] ">[(2015) 3 SCC 251] [LQ/SC/2015/112 ;] [LQ/SC/2015/112 ;] wherein the Honble Supreme Court, taking note of the allegations of sporting frauds like match fixing and betting which dented the image of the BCCI, ordered to constitute a committee comprising of the Honble Mr.Justice R.M.Lodha, Former Chief Justice of India, as the Chairman. The question that was considered by the Honble Supreme Court was that whether the BCCI can afford to see the game lose its credibility in the eyes of those who watch it. These directions would also go to show that Honble Supreme Court taking note of the public function discharged by the BCCI, constituted a committee for the reforms of the body. Thus, it is clear that any action of the Board to preserve the reputation of the game and to uphold the confidence of the public would fall in the area of public function. The action impugned before this court by Sreesanth therefore, cannot be isolated or divorced from the above background. The impugned action is a result of the decision of the BCCI to preserve public confidence in the game of cricket, though, jurisdiction to take such action against Sreesanth might have been authorised from a contract entered with him. The offence committed by Sreesanth by violating the anti-corruption code as above was prepared and formulated by the BCCI in the larger public interest of the game. It is to be noted that a life ban has been imposed on Sreesanth from playing cricket in any format nationally and internationally.

15. The learned counsel for the petitioner, Shri Sivan Madathil relied upon the judgment of Delhi High Court in Ajay Jadeja v. Union of India [LAWS (DLH) 2001 (9) 39] deciding maintainability of a writ petition challenging the imposition of a ban on Ajay Jadeja, a national player, by the BCCI. The Delhi High Court, after adverting to various judgments including Administrative Law 8th Edition by H.W.R.Wade held that the writ petition is maintainable when a body discharges duties of public nature and acting upon the public interest. In Wade Administrative Law, the learned author discussed the difference of opinion in a different jurisdiction for seeking public law remedy against a private body in relation to regulation of sport. It is appropriate to refer the said discussion, which reads as follows:

"...The courts, however, have almost uniformly declined to regard bodies controlling sport as coming within public law. In one case, where the disciplinary committee of the Jockey Club had disqualified a steward from acting as chairman of boards of inquiry, the High Court was sympathetic to judicial review but held that it was bound by authority rejecting review of the National Greyhound Racing Club. In a later decision the Court of Appeal refused review of a decision of the disciplinary committee of the Jockey Club disqualifying a racehorse and fining its trainer, when both owner and trainer were in contractual relationship with the Chub. The decisive factor was that the powers of the Jockey Club were in no sense governmental, but derived from the consent of racehorse owners to be bound by its rules. A complaint of unfair procedure could not therefore be remedied by judicial review, though it might still be remediable by an action for breach of contract. The High Court similarly declined to review a decision of the Football Association to establish a premier league for football, holding that the Association was a domestic body existing in private law only and that it would be a quantum leap to bring it within the law for controlling government organs. But Scots law has made that leap without difficulty and so, it seems, has the law in New Zealand and in Canada. And in one English case, where a rugby football disciplinary committee had suspended a player for fighting, the High Court granted an interim injunction to lift the suspension until it could be determined whether the proceedings lacked basic fairness, the judge observing that sport was now big business and that it was naive to pretend that it could be conducted as it was not many years ago. This decision, though out of line with the authorities, is surely likely to outlive them."

16. It may be difficult to draw what would attract public law jurisdiction and what would not attract. The decisive factor that is already adverted to is the public interest in such action.

17. In view of the discussions as above, I will have to answer that the writ petition is amenable questioning decision imposing life ban on Sreesanth as such decision was taken in larger public interest to maintain the reputation of the game.

18. Judicial review is designed to check abuse of power of public functionaries and ensure that such functionaries act within the bounds of law. In that process, the role of the court is to find out and ascertain that power was invoked to achieve the purpose for which it was conferred on such public functionaries. The court cannot substitute the views that could have been taken by the public functionaries. The court has to examine a reasonable and rational link between decision and materials relied on for such decision. If there are materials on record to justify the decision, the court will stop its inquiry further.

19. In this case, the BCCI imposed extreme punishment of life ban on Sreesanth upon finding him guilty of corruption and guilty for betting. It was also found that Sreesanth failed to disclose full details of any approaches or invitation that would amount to breach of anti-corruption code. The BCCI relied on two sets of evidence collected by the police during course of investigation against Sreesanth. This evidence comprises of an audio recording a conversation between a close friend of Sreesanth, Jiju Janardhanan and a bookie called Chandresh Chandubhai Patel. It appears that the police had recorded the conversation between the duo by taping phone calls. The second set of evidence is the confession of Sreesanth before the police. It is appropriate to refer to the evidence as above to find whether the BCCI is justified in imposing extreme punishment of life ban on Sreesanth.

20. Before referring to the evidence, it may be worth to mention about Jiju Janardhanan. Jiju Janardhanan, admittedly, is a close friend of Sreesanth. They played together for a Club. They trained together in a Gym. It also appears that Jiju Janardhanan represented Kerala. It was also admitted that Jiju Janardhanan had accompanied Sreesanth from Jaipur to Mumbai after the match with the Mumbai Indians at Jaipur. This was on 13.5.2013. They also stayed in Hotel Sofitel. Both the rooms were booked by Sonu Lakhwani of Carving Dreams Company. The incident, in relation to the betting scandal that broke out, was in respect of a match played between Rajasthan Royals, the team of which Sreesanth was the player, and the Kings XI Punjab at Mohali on 9.5.2013. The conversation between Sreesanth and Jiju Janardhanan recorded at 17.40 hours on 6.5.2013 is the main plank of evidence relied on against Sreesanth. In that conversation, it appears that Jiju Janardhanan admitted in possession of Rs.10 lakhs belonging to Sreesanth. However, Sreesanth had denied having such conversation with Jiju Janardhanan in reply to the show cause notice.

21. The confession of Sreesanth before the police officer while he was in custody, is explained by Sreesanth. It is his case that he was tortured to admit his guilt. Shri Sunil Shanker, learned counsel for the BCCI would argue that though such confession is inadmissible in a court of law, nevertheless, it can be relied upon in disciplinary proceedings. The law discards acceptance of confession made before the police while in custody not for any reason of involving technicality in admitting the same but for the reason that placing reliance to such confession is against the conscience of a civilized society. It is not an admission of any other aspects relating to the matter, in fact, it was an admission of the guilt of offence itself. The law envisages the exclusion of such evidence with a view to avoid malpractices of the police officers in extorting the confession from an accused person. Therefore, such confession made before the police is against the very ethos of a civilized society governed by the rule of law. If such exclusion is to uphold the fundamental values of a civil society, certainly, it cannot be relied upon in parallel proceedings before the disciplinary authority. Some of the judgments of the Apex Court distinguished the probative value of evidence based on confession, between criminal cases and departmental proceedings. The proposition as laid down in those cases would go to show that the strict rule of Indian Evidence Act not being applicable to departmental proceedings, there is no embargo in placing reliance on such confession. After surveying all those judgments, the Apex Court in Roop Singh Negi v. Punjab National Bank & Ors, [(2009) 2 SCC 570] [LQ/SC/2008/2569] succinctly held in paras.14 and 15 as follows:

"14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.

15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."

In the light of the judgment Roop Singh Negis case (supra) without any evidence to prove that confession was voluntary, no reliance can be placed on such confession in disciplinary proceedings. There was no attempt made to prove that the confession was voluntary, by the BCCI.

22. Before initiating disciplinary proceedings against Sreesanth, an inquiry report was submitted by Shri.R.N.Sawani IPS (retd.) before the BCCI. The inquiry was constituted as noted earlier, pursuant to the direction of the Honble Supreme Court in a PIL filed by Sudarsha Awasthi. The inquiry report mentions that there is sufficient evidence against Sreesanth to prove his guilt. However, it was reported that the inquiry officer did not have any access to Sreesanth, as he was in custody, to corroborate or contradict the evidence collected by him. It is the precise case of the police that in exchange of Rs.10 lakh, Sreesanth agreed to concede 14 runs or more in his second over and in order to confirm that the fix was on, Sreesanth was requested to place a small hand towel in his visible pocket. Sreesanth bowled first over without a towel and second over with a towel in his pocket. Sreesanth conceded 13 runs in the second over. It is the case of the police that in the conversation, Sreesanth and Jiju Janardhanan refers to a sum of Rs.10 lakhs. It is also the case of the police that Jiju Janardhanan, in a conversation made on 6.5.2013 with Sreesanth admits being in possession of Sreesanths money. It is also stated that Jiju Janardhanan agreed to give Rs.7 lakhs to Sreesanth and to retain Rs.3 lakhs for himself. It is to be noted that in the criminal case registered under the Maharashtra Control of Organized Crime Act (MCOCA) against Sreesanth, Jiju Janardhanan and others, the alleged conversations have been produced. The content of conversation of Sreesanth and Jiju Janardhanan on 6.5.2013 was reproduced in the judgment of the MCOCO court, as follows:

"3 chahiye, OK, Mein dekhta hoon ... baki laga dega ... paisa kyon kharch karna hain ... Abhi das hai ... teen leta hoon ... 7 yahi rakha hai, 7 tere ko de dunga, kab chahiye batana."

23. After adverting to the above conversation, the MCOCO court came to the following conclusion at para.202:

"202 The only implication that can be drawn from these conversations is that P. Jiju Janardanan @ Jiju was having ostensibly Rs. 10 Lakhs from which he agreed to bring Rs. 3 Lakhs for making purchases including that of three mobile phones that were requested to be purchased by S. Sreesanth. While he agreed to retain seven lakhs to be given subsequently. The maximum inference that can be drawn is that P. Jiju Janardanan @ Jju was having only Rs. 10 Lakhs, out of which he agreed to make purchases from 3 Lakhs while Rs. 7 Lakhs were to be retained for the future. This in itself does not remotely show that P.Jiju Janardanan @ Jiju had accepted Rs. 10 Lakhs for and on behalf of S. Sreesanth for the purpose of match fixing. The evidence against P. Jiju Janardanan @ Jiju neither shows that he was involved in fixing S. Sreesanth or of accepting Rs. 10 Lakhs from any bookie. There is absolutely no evidence against P.Jiju Janardanan @ Jiju to show that he was involved or was a conduit in fixing S. Sreesant to play a fixed match. Also, there is no nexus shown of P. Jiju Janardanan @ Jiju with any of the bookies who were allegedly in touch with Doctor Javed Chutani, who was a part of the alleged organized crime syndicate of Dawood or chotta Shakeel. Neither the offence under MCOCA or under any section of IPC or any other Law is prima-facie is made out against P. Jiju Janardanan@ Jiju."

24. The corroborative factors like inserting towel and conceding 13 runs would be used as inculpatory evidence if the telephonic conversation as such would reveal any such sport fixing by Sreesanth. There is no embargo or legal impediment in placing reliance on the telephonic conversation in disciplinary proceedings, even if such telephonic conversation was intercepted unauthorisedly. Shri Sivan Madathil, learned counsel for the petitioner, asserted before this court that in the disciplinary proceedings, Sreesanth was not served with transcription of the telephonic conversation. It may be true that Sreesanth was not given such a copy. However, Sreesanth cannot pretend ignorance to the contents of the telephonic conversation, as the contents of it have been exhaustively considered in a discharge application filed by him before the Pattiala House Courts, New Delhi (MCOCO court). Therefore, the question whether the conversation as such would pinpoint guilt of Sreesanth is the matter to be considered by this court. It is to be noted that the disciplinary committee had never chosen to confront Sreesanth with the transcription of the conversation recorded especially when the conversation as such did not disclose the direct involvement of Sreesanth in sport fixing or betting. As seen from the inquiry report and the proceedings of the disciplinary authority, the conversation of Jiju Janardhanan and Chandresh Chandubhai Patel are relied upon as incriminating evidence against Sreesanth. An amount of Rs.5.5 lakhs was recovered from Abhishek Shukla, a friend of Sreesanth. This recovery is alleged to have been made based on the confession of Sreesanth and Jiju Janardhanan. The conversation, particularly made on 9.5.2013 between Chandresh Chandubhai Patel and Jiju Janardhanan have been adverted by the MCOCA court. In that conversation, Jiju Janardhanan appears to have responded to Chandresh Chandubhai Patel telling that Sreesanth was not willing to fix the over since he had come to play the game after a long time and was not willing to take the risk.

25. It is to be noted that Sreesanth admittedly could not give 14+ runs to which he allegedly agreed. Recovery of Rs.5.5 lakhs was effected from Abhishek Shukla after 13.5.2013 allegedly based on the confession of Sreesanth. Police never bothered to monitor the subsequent conversation between the parties. Once the sport fixing deal did not materialize, it is unbelievable that the bookie did not demand the return of the amount after the match on 9.5.2013. The MCOCO court also referred to the conversation between Chandresh Patel and Jiju Janardhanan. In such conversation it appears, the parties agreed that the deal will be cancelled if less than 14 runs were conceded. Given the allegation that bookies are part of large organized crime Syndicate, it is impossible to believe bookies never asked for the return of the amount. On the other hand, the conversation between Jiju Janardhanan and Chandresh Patel clearly, indicates that Sreesanth was not willing for sport fixing. The learned judge of MCOCO court also observed that after the scanning evidence against Sreesanth in para.204 concluded as follows:

"204 The entire evidence as placed against Jiju Janardhan, Sreesanth and Abhishek Shukla only shows that Sreesanth was approached by Jiju Janardhan to play a fixed over at the behest of Chandresh Patel but the same did not happen and Sreesanth had also refused to play the fixed over. No evidence whatsoever is placed on record to show that they were in communication with or associated with organized crime syndicate and were the abettors of the crimes allegedly being committed by the syndicate."

26. It is to be noted that there are no incriminating evidence to pinpoint Sreesanths involvement in sport fixing deal. Having considered the nature of the deal made between Jiju Janardhanan and Chandresh Patel, money could not have been retained with Jiju Janardhanan. Therefore, it is clear that something would have been transpired between Chandresh Patel and Jiju Janardhanan after the match. It is impossible in such circumstances for Sreesanth and Jiju Janardhanan to retain Rs.5.5 lakhs. The BCCI referred to the conversation, selectively, as against Sreesanth. When evidence is in the nature of circumstantial evidence, that evidence ought to have been appreciated as a whole. Dissecting evidence in such manner suited to the disciplinary committee resulted in losing its dimension to find out the truth. If the evidence as a whole is appreciated, it can easily be concluded that Sreesanth had no direct link in sport fixing or betting.

27. All that would show that Jiju Janardhanan was attempting to capitalize his friendship with Sreesanth and the deal could not be materialized as Sreesanth was not willing to fix the over. The question in such circumstances is whether Sreesanth had any knowledge of occurrence of the subject of the betting The evidence as such clearly does not indicate whether Jiju Janardhanan had approached Sreesanth or not. It is to be noted that under the BCCI anti-corruption code, if the player has the knowledge of the subject of the bet, he is bound to report to the authority (Article 2.2.3). Assuming that Sreesanth had knowledge of such betting, this court is of the view that the punishment already suffered by him of 4 years of the ban from all format of the cricket, nationally and internationally, is sufficient to meet ends of justice. It is equally important to note that Sreesanth never attempted to dissociate himself with Jiju Janardhanan after the sport fixing scandal broke out in the news. As adverted earlier, Jiju Janardhanan had an active role in the sport fixing and betting. Sreesanths role is ruled out because there is nothing to connect him. However, Sreesanth having come to know that his own close friend had dragged his name into betting scandal and sport fixing, he should have publicly taken exception to the conduct of Jiju Janardhanan. In fact, the impassive conduct of Sreesanth made suspicious about his role and to conclude by the disciplinary committee that circumstantial evidence fingers a point to him. Complacency in the matter on the part of Sreesanth is really condemnable. To uphold the dignity of the game he should have publicly disapproved the conduct of Jiju Janardhanan, especially when his name was dragged into controversy. Anyhow, having suffered ban now almost for four years, nothing further is required in this matter.

28. As adverted above, there were no materials or evidence before the disciplinary committee to conclude that Sreesanth was guilty of the violation of the anti-corruption code formulated by the BCCI. The disciplinary committee relied on circumstantial evidence. The BCCI ought to have found that there was no circumstantial evidence to indicate that Sreesanth had agreed to sport fixing. The disciplinary committee ought to have been careful in analysing evidence, especially when the deal itself had failed to work out. The only probability in such circumstances that can be pinpointed against Sreesanth is based on his knowledge on the subject of the bet. No doubt, even if the deal did not work out, if Sreesanth had agreed for sport fixing, the BCCI could have imposed the extreme punishment now imposed. The entire evidence, no doubt, clearly points out that the betting Syndicate and other mafia have encircled the gentlemans game cricket as well. The BCCI in its earnest efforts to extinguish such bad elements should have separated the wheat from the chaff. The BCCIs efforts to weed out corruption and to uphold the dignity of the game while needs to be emphasized, that should not be by overzealously reacting to it. It must be remembered in every disciplinary action related to a player of national repute, the player suffers his repute and confidence which he built through hardwork. It is the duty of the BCCI to safeguard such interest of the player without compromising the purity and integrity of the game.

29. In the result, the writ petition is allowed. The life ban and other punishment imposed on Sreesanth pursuant to the disciplinary proceedings against Sreesanth stand quashed and is set aside. No costs.