Download Power of High Courts to issue certain writs and appeal provisions under CRPC and more Summaries Law in PDF only on Docsity!
4 th^ AMITY INTERNATIONAL MOOT COURT COMPETITION 2016
BEFORE THE HONOURABLE HIGH COURT OF GODAM
In the matter of, Sections 107, 120A, 204, 302, 415 of the Godam Penal Code, 1860 Sections 7, 13 of the Prevention of Corruption Act, 1988 Sections 3 of Prevention of Money Laundering Act, 2002
PETITION FILED UNDER ARTICLE 226, CONSTITUTION OF GODAM
WRIT PETITION NO. ________/
Hank Jefferson & Liam Jackson v. International Federation of Cricket & Others
ALONG WITH
PETITION FILED UNDER ARTICLE 226, CONSTITUTION OF GODAM
WRIT PETITION NO. ________/
Mandeva Kites v. International Federation of Cricket & Others
ALONG WITH
APPEAL FILED UNDER SECTION 374, CRIMINAL PROCEDURE CODE OF GODAM, 1973
CRIMINAL APPEAL NO. ________/ 2014
IN THE MATTER OF:
Xerxese, B.C.CGo & Others v. Central Authority of Investigation
BEFORE SUBMISSION TO
THE HON’BLE JUDGES OF
THE HON’BLE HIGH COURT OF GODAM
MEMORANDUM ON BEHALF OF THE APPLICANTS
AIM 036
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – (AIM 036)
MEMORIAL FILED ON BEHALF OF THE APPLICANTS ii
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................................................... II
LIST OF ABBREVIATIONS ............................................................................................................III
INDEX OF AUTHORITIES .............................................................................................................. IV
STATEMENT OF JURISDICTION ................................................................................................ VI
STATEMENT OF FACTS ............................................................................................................... VII
STATEMENT OF ISSUES ............................................................................................................. VIII
SUMMARY OF ARGUMENTS ....................................................................................................... IX
WRITTEN ARGUMENTS................................................................................................................... 1
I.WHETHER THE APPLICANTS WERE RIGHTLY SUSPENDED ON THE CHARGES OF
MATCH FIXING AND SPOT FIXING ............................................................................................... 1
A. The principle of fair hearing was not followed before suspending the Applicants ................... 1 B. The Applicants are not guilty of match fixing and spot fixing ................................................... 2 B.1 Entrapment by the news channel ............................................................................................ 2 B.2 Newspaper Article by Altaf Aslam is an inadmissible evidence ............................................ 3 II.WHETHER APPELLANTS ARE LIABLE FOR MURDER OF PETER WOODFORD ................ 4 A. B.C.C.Go, as a legal entity, cannot be held liable for murder .................................................. 4 B. Xerxese and Sweat Equity Owners are not liable under the Alter Ego & Attribution Theory .. 5 C. There is no common intention between the parties ................................................................... 5 D. There are no merits to the conviction ........................................................................................ 6 D.1 There is no proven motive ...................................................................................................... 6 D.2 There is no Circumstantial Evidence ...................................................................................... 6 D.3 Reports suggested that it could not be murder ....................................................................... 6 III.WHETHER XERXESE AND B.C.CGO SHOULD BE ACQUITTED FOR CORRUPTION, MATCH-FIXING AND SPOT FIXING............................................................................................... 7 A. Appellants are not liable for action under Prevention of Corruption Act, 1988....................... 7 B. Appellants are not liable under the Penal Code of Godam, 1860 ............................................. 8 B.1 Cheating u/s 415 ..................................................................................................................... 8 B.2 Criminal Conspiracy u/s 120A ............................................................................................... 9 B.3 Abetment u/s 107 .................................................................................................................... 9 C. B.C.CGo is not liable for money laundering ........................................................................... 10 D. Xerexese Morrenio cannot be held liable under the cricket regulations................................. 10 IV.WHETHER MANDEVA KITES WERE RIGHTLY RESTRICTED BY THE INTERNATIONAL FEDERATION OF CRICKET .......................................................................... 11 A. The Principles of Natural Justice was not followed by IFC .................................................... 12 B. Applicant falls under the exclusive jurisdiction of B.C.C.Go and not IFC ............................. 13 C. Applicant took action against the corrupt players .................................................................. 14 D. Restriction amounts to restrain of trade to the rest of the team .............................................. 15 PRAYER ............................................................................................................................................... XI
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – (AIM 036)
MEMORIAL FILED ON BEHALF OF THE APPLICANTS iv
INDEX OF AUTHORITIES
- Australian Securities Commission v. Multiple Sclerosis Society of Tasmania (1993) 10 ACSR International Cases
- Baird v. Wells [1890] 44 Ch. D.
- Breen v. Amalgamated Engineering Union and others [1971] 1 All E. R. 1148 (C.A.)
- Ceylon University v. Fernando (1960) 1 WLR
- El-Ajou v. Dollar Land Holdings Plc. ; [1994] 2 All E.R
- Elliot v. Piersol , 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
- Holstein v. City of Chicago, 803 F.Supp.
- Keith Jacobson v. United States 503 US 540 (1992)
- Keith Jacobson v. United States 503 US 540(1992)
- Lee v. Showmen’s Guild of Great Britain [1952] 2 All E.R. 1175 (C.A.)
- Mrs. Razia Satter v. Mr. Azizul Huq and others 2006 26 BLD
- Mulcahy v. Reg (1868) L.R. 3 H.L.
- N.Y. Cent. & Hudson River R.R. v. United States , 212 U.S. 481, 494 (1909)
- Navarro v. Spanish-Australian Club of Canberra ACT Inc (1987) 87 FLR 390......................
- Oleg Oriekhov v. UEFA CAS 2010/A/2172
- PC Local Govt. Board v. Arlidge (1915) AC
- Queen Empress v. Hoshhak, 1941 All ALJR
- Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087,
- Ridge v. Baldwin (1964) AC
- Sherman v. United States 356 US 359 (1958)...........................................................................
- Sorrell v. United States 287 US 435 (1932)..............................................................................
- S t Johnston Football Club Ltd. v. Scottish Football Association Ltd 1965 SLT
- State Of Haryana And Others vs Ch. Bhajan Lal And Another , AIR 1993 SC
- State v. Hutter , 18 N.W.2d
- Sunil Ramdas Kotkar And Ors. v. State Of Maharashtra And Ors. , 2005 (4) BomCR
- Ajay Jadeja v. Union of India & Ors 2002 (61) DRJ Indian Cases
- Court on its own motion v. State 2008 (100) DRJ
- Eradu v. State of Hyderabad AIR 1956 SC
- Firozuddin Basheeruddin & Ors v. State Of Kerala, 2001) 7 SCC
- G.V. Raovs L.H v Prasad &Ors, (2000) 3 SCC
- Gullapalli Nageswara Rao v. Andra Pradesh State Road Transport Corporation AIR 1959 SC
- Hukam Singh v. State of Rajasthan (1977) 2 SCC
- Lallan Rai and Others v. State of Bihar (2003) 1 SCC 268.....................................................
- Pakkirisamy v. State of T.N. (1997) 8 SCC
- Priya Bal Ghosh v. Suresh Chandra Ghosh AIR 1971 SC
- Punjab SEB v. Ashwini Kumar (1997) 5 SCC
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – (AIM 036)
MEMORIAL FILED ON BEHALF OF THE APPLICANTS v
Ravji alias Ram Chandra v. State of Rajasthan AIR 1996 SC 787 .......................................... 6 Sri Umesh Kumar Ips v. The State Of Andhra Pradesh, 2012(4)ALT437 ............................... 8 Standard Charted Bank v. Directorate of Enforcement (2005) 4 SCC 50................................ 5 Thaman Kumar v. State of UT Chandigarh AIR 2003 SC 3975 .............................................. 6 Yunis v. State of Madhya Pradesh AIR 2003 SC 539 ............................................................... 6
Regulations
BCCI Code of Conduct for Participants ................................................................................................. 12 ICC Anti-Corruption Code ....................................................................................................................... 2 ICC Anti-Corruption Code For Participants .......................................................................................... 15 Operational Rules for the 2013 Indian Premier League ..................................................................... 2, 15 Articles
Hilary A. Findlay, “ Rules of a Sport-Specific Arbitration Process as an Instrument of Policy Making ” (2005)..................................................................................................................................... 2 Books
Adam Lewis and Jonathan Taylor , SPORT: LAW AND PRACTICE, (Butterworth LexisNexis Publication, 2003) .......................................................................................................... 12, 15 CK Thakker , ADMINISTRATIVE LAW, Eastern Book Co, 1992 ........................................ 12 DeSmith , JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 1980 ........................... 12 Len Sealy & Sarah Worthington , CASES AND MATERIALS IN COMPANY LAW, 8 th^ ed., Oxford University Press, 2007 ........................................................................................................... 5 Ratanlal & Dhirajlal , THE INDIAN PENAL CODE 71 (31st ed. 2006) ................................ 4 Wade , ADMINISTRATIVE LAW (8th^ edn, 2000, Oxford) at page 278-285 ......................... 12
Statutory Legislations
Evidence Act, 1872 ................................................................................................................................................. 6 Godam Penal Code, 1860........................................................................................................................................ 7 Prevention of Corruption Act, 1988 ........................................................................................................................ 7 Prevention of Money Laundering Act, 2002............................................................................................... 7, 10, 11
Lexicons
Blacks' Law Dictionary (9th^ Edition)……………………………………………….…………………..
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – (AIM 036)
MEMORIAL FILED ON BEHALF OF THE APPLICANTS vii
STATEMENT OF FACTS
I. BACKGROUND: GODAM PREMIER LEAGUE
Godam Premier League (GPL) is a form of cricket tournament launched in 2009 by Board of Cricket Control of Godam (B.C.C.Go). In its 5th^ edition, one team Kondra Ranges (KR) was found guilty of match-fixing. DESCRIPTION OF CONCERNED PARTIES B.C.C.Go : B.C.C.Go is the body responsible for all the activities related to cricket in Godam. Xerxese : Xerxese was the commissioner of GPL and the business development manager of B.C.CGo. Mandeva Kites : MK had entered GPL in its 6th^ edition. The major shareholders of KR were the sweat equity shareholders of the new ‘ Mandeva Kites’ i.e Zia Kuriet, Kaifi Shaik and Gogo Morennio. Two of its players Hank Jefferson and Liam Jackson, were found guilty of match fixing and spot fixing in the 6th^ edition of GPL. II. PETER WOODFORD FOUND DEAD When KR was dissolved after the 5th^ edition, its coach Peter Woodford was found dead in his hotel room with his belongings. He had made several calls before his death, including those to Zia Kuriet and Xerxese. III. ALLEGATIONS OF CORRUPTION IN 6TH^ EDITION OF GPL MK lost in the semi-finals in the 6th^ edition of GPL. There were allegations of match fixing and spot fixing made on MK and its two players, Liam Jackson and Hank Jefferson. Subsequently, players were suspended by MK. Also MK was restricted by IFC to take part in any world event. These orders were confirmed by the Anti-Corruption Unit Tribunal of International Federation of Cricket (IFC). IV. EPILOUGE Altaf Aslam filed a PIL in Supreme Court, which ordered B.C.CGo to look into the matter and to submit detailed reports. Committee Reports were rejected by the Supreme Court and an order was passed directing CIA Special court to look into the matter. CIA Court found Xerxese, B.C.C.Go and three sweat equity owners as guilty of corruption, match fixing, spot fixing murder and other offences. The parties went in appeal to the High Court of Godam. The two suspended players and Mandeva Kites have also approached the High Court challenging the orders imposed on them. The matters have been consolidated by the High Court of Godam.
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – (AIM 036)
MEMORIAL FILED ON BEHALF OF THE APPLICANTS viii
STATEMENT OF ISSUES
ISSUE I:
Hank Jefferson & Liam Jackson v. B.C.CGo & Others
WHETHER THE APPLICANTS WERE RIGHTLY SUSPENDED ON THE CHARGES OF MATCH FIXING AND SPOT FIXING.
ISSUE II:
Xerxese, B.C.CGo and Others v. Central Agency of Investigation WHETHER APPELLANTS CAN BE LIABLE FOR MURDER OF PETER WOODFORD.
ISSUE III:
Xerxese & B.C.CGo v. Central Authority of Investigation WHETHER XERXESE AND B.C.CGO SHOULD BE ACQUITTED FOR CORRUPTION, MATCH-FIXING AND SPOT FIXING.
ISSUE IV
Mandeva Kites v. International Federation of Cricket WHETHER MANDEVA KITES WERE RIGHTLY RESTRICTED BY THE INTERNATIONAL FEDERATION OF CRICKET.
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – (AIM 036)
MEMORIAL FILED ON BEHALF OF THE APPLICANTS x
the franchises or other stakeholders of GPL. The applicants have not disguised or gained any pecuniary benefit and therefore can’t be held liable u/s 3 of Prevention of Money Laundering Act, 2002. There was also no agreement to commit a crime nor was there any circumstances to establish a common intention u/s 120A, therefore, since the applicants are not liable under any of the above provisions, the offence of abetment cannot be upheld.
ISSUE IV Mandeva Kites v. International Federation of Cricket WHETHER MANDEVA KITES WERE RIGHTLY RESTRICTED BY THE INTERNATIONAL FEDERATION OF CRICKET.
It is humbly contended that that the restriction imposed on Mandeva Kites by the International Federation of Cricket was erroneous, because IFC violated the principles of Natural Justice. IFC does not have jurisdiction over MK. Action was already taken by MK against the players who were found guilty of match-fixing and spot fixing and that the restriction of the team amounts to restraint of trade.
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 1
WRITTEN ARGUMENTS
ISSUE I
Hank Jefferson & Liam Jackson v. B.C.CGo & Others
WHETHER THE APPLICANTS WERE RIGHTLY SUSPENDED ON THE CHARGES OF MATCH FIXING AND SPOT FIXING.
- It is humbly contended before the Hon’ble High Court of Godam that the applicants were wrongly suspended from the Godam Premier League (herein after referred to as ‘GPL). The applicants were expelled by the management of their team on the charges of match fixing and spot fixing and the expulsion order was approved by B.C.CGo and IFC. The contention of wrongful suspension is two- fold: firstly , the principle of fair hearing was not followed before suspending the Applicants [A] and secondly, the Applicants were not guilty of match fixing and spot fixing [B]. A. The principle of fair hearing was not followed before suspending the Applicants
- The principle of fair hearing ( audi alteram partem ) is a central principle of natural justice, which requires that no person is condemned unheard.^1 A person to be affected by an order has a right to be heard in his own defence^2 and to correct or contradict any relevant statement to his prejudice.^3 The authorities after hearing the parties and considering their objections should pass a reasoned order.^4
- It is judicially recognized that courts can interfere with a sport organisation’s decision when the principles of natural justice are not followed.^5 Even though sports federations derive their powers from the Code which regulates the relationship between the players and the federation, yet they are subjected to control by courts.^6 The tribunals within these federations are imposed with limitations of public
(^1) Grayson, 2000; Parpworth, 1996; Boyes 2000
Navarro v. Spanish-Australian Club of Canberra ACT Inc (1987) 87 FLR 390......................
Multiple Sclerosis Society of Tasmania 3 (1993) 10 ACSR 489 at 515. 4 Ceylon University^ v.^ Fernando^ (1960) 1 WLR 223, 232;^ PC Local Govt. Board^ v.^ Arlidge^ (1915) AC 120
Punjab SEB v. Ashwini Kumar (1997) 5 SCC
Ajay Jadeja v. Union of India & Ors 2002 (61) DRJ Indian Cases
Ltd 1965 SLT 171; Navarro v. Spanish-Australian Club of Canberra ACT Inc (1987) 87 FLR 390; Ambalal Sarabhai v. Phiroz H. Antia 6 AIR 1939 Bom 35 Lord Denning, M.R. in Breen v. Amalgamated Engineering Union and others [1971] 1 All E. R. 1148 (C.A.)
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 3
- The criminal jurisprudence differentiates between ‘the trap for the unwary innocent’ and ‘the trap for the unwary criminal’^14 and the operations concerning the former, where the crime is the ‘product of the creative activity’ should be censored.^15 While artifice is employed to catch those who are engaged in criminal enterprises, it has to be established beyond reasonable doubt that the person had a predisposition to commit the said criminal act prior to being approached by the enforcement agencies.^16
- In the present case, a news agency conducted a sting operation on the Applicants using a bookmaker, named as Abu Zawahar, wherein they recorded their conversations, on the basis of which players were held guilty by the news channel.^17
- It is contended that the news agency entrapped the Applicants by its fabricated sting operation, which induced them into committing an act which they otherwise would not have attempted. The operation implanted in the mind of innocent persons a disposition to commit an offence.
- To hold the Applicants liable under the charges of match-fixing and spot-fixing, there is thus a need to establish beyond reasonable doubt that they were going to commit the offence without being approached by the news agency. As no such proof has been made, it is submitted that the Applicants were entrapped by the news agency and therefore, cannot be held guilty on the alleged charges. B.2 Newspaper Article by Altaf Aslam is an inadmissible evidence
- Newspaper is not a document by which an allegation of fact can be proved.^18 The presumption of genuineness attached to a newspaper report cannot be treated as proved of the facts reported therein.^19 A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.^20
- A confessional statement cannot be acted upon when it is not put by accused in his examination-in- chief.^21 Moreover, where there is any extrajudicial confession, it must be corroborated with circumstantial evidence.^22
Sherman v. United States 356 US 359 (1958)...........................................................................
Sorrell v. United States 287 US 435 (1932)..............................................................................
(^16) Keith Jacobson v. United States 503 US 540 (1992) (^17) Refer to Paragraph 12, Page 5, Moot Proposition
Sunil Ramdas Kotkar And Ors. v. State Of Maharashtra And Ors. , 2005 (4) BomCR
State Of Haryana And Others vs Ch. Bhajan Lal And Another , AIR 1993 SC
2021 Sunil Ramdas Kotkar And Ors. v. State Of Maharashtra And Ors. , 2005 (4) BomCR 117
Priya Bal Ghosh v. Suresh Chandra Ghosh AIR 1971 SC
Pakkirisamy v. State of T.N. (1997) 8 SCC
2010 SC 2977
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 4
- In the present case, Altaf Aslam wrote a newspaper article stating the Applicants confessed to him towards admitting the offence of match fixing and spot fixing and further extending the liability to other cricket officials and the B.C.CGo.
- It is contended that any confession of an offence, such as the one to the Altaf Aslam, is considered as an extrajudicial confession. The Applicants cannot be convicted on the basis of such a confession, unless such a confession is also made during the examination-in-chief or there is corroborative circumstantial evidence to prove the same.
- It is humbly submitted that the suspension order of the Applicants should be quashed as they were not given a fair hearing by B.C.CGo and IFC, and evidence procured through entrapment and extrajudicial statements are not admissible as evidence against the Applicants for the offences of match fixing and spot fixing.
ISSUE II
Xerxese, B.C.CGo and Others v. Central Agency of Investigation
WHETHER APPELLANTS ARE LIABLE FOR MURDER OF PETER WOODFORD.
- In the instant matter, the Central Authority of Investigation (CIA) Court convicted Xerxese, B.C.C.Go and three sweat equity owners for the offence of murder of the Peter Woordford. The prima facie evidence presented before the criminal court is insufficient and inconclusive evidence to show that the Appellants can be made even accused for the aforementioned offence; and the appeal has been filed for the setting aside the conviction order_._ The arguments of the Appellants are as follows: A. B.C.C.Go, as a legal entity, cannot be held liable for murder B. Xerxese and Sweat Equity Owners are not liable under the Alter Ego & Attribution Theory C. There is no common intention between the parties D. There are no merits to the case A. B.C.C.Go, as a legal entity, cannot be held liable for murder
- Murder is defined as the unlawful killing of a human being by another with malice aforethought, either express or implied.^23 There are some crimes, which in their nature cannot be committed by corporations, such as murder, rape etc.,^24 i.e. those punishable with mandatory imprisonment,^25 unless the charge is against a specific person within the entity.^26
(^23) Black’s Law Dictionary, 4th edition, 1891; State v. Hutter , 18 N.W.2d 203, 206 (^24) Ratanlal & Dhirajlal, The Indian Penal Code 71 (31st ed. 2006)
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 6
the coach of a team in GPL.^35 There is nothing that shows the common intention of the accused parties to murder the deceased with such certainty to their guilt. D. There are no merits to the conviction
- It is contended that the present conviction is erroneous as it had been done without having any merits. This is contended on the basis of three grounds: D.1 There is no proven motive
- Mens rea is one of basic requirements which leads to determine homicidal character of offence under Section 302 GPC.^36 In the present case, it is given that in a talk show, the deceased did not comment on any question which projected his difference towards the organising committee of GPL.^37 It is contended that such incidents does not prove any motive to murder the victim. D.2 There is no Circumstantial Evidence
- In cases where motive is absent, the role of the accused in committing the offence should be fully established and ocular motive should be clear and convincing.^38 The chain of circumstantial evidence should be clearly established to such an extent that an irresistible conclusion about the guilt of the accused can be safely drawn.^39 In the present case, the deceased had made phone calls to several people on the day of his death including the Appellants.^40 However, this is not a trustworthy evidence to establish a chain of circumstances that could link the Appellants with the murder. D.3 Reports suggested that it could not be murder
- In a case concerning another cricket coach, Bob Woolmer, who died in a manner very similar to the present case, the ICC had confirmed that he had died of natural causes and that his death was not related to various on-going speculations such as murder, suicide or corruption.^41
- In the present case, the autopsy report states that the deceased could not have died due to strangulation as his hiod bone was intact.^42 After a detailed report, death by natural causes was the only plausible conclusion.^43
(^35) Refer to Paragraph 11, Page 5, Moot Proposition (^36) Ravji alias Ram Chandra v. State of Rajasthan AIR 1996 SC 787; State of Orissa v. Wateka Mani 2009 (2) OLR 403 (^37) Refer to Paragraph 11, Page 5, Moot Proposition (^38) Yunis v. State of Madhya Pradesh AIR 2003 SC 539; Thaman Kumar v. State of UT Chandigarh AIR 2003 SC 3975 (^39) Section 8 Evidence Act, 1872; Bhag Chand v. State of Rajasthan 2006 (18) CriCC 598; Gulab Chand v. State Of Madhya Pradesh 40 1995 (3) SCR 27; Abdul Ghani v. State of Uttar Pradesh AIR 1973 SC 264 41 Refer to Paragraph 11, Page 5, Moot Proposition 42 http://jis.gov.jm/statement-from-icc-cwc-wi-2007-inc-following-announcement-that-bob-woolmer-died-of-natural-causes/ Refer to Para 11, Page 5, Moot Proposition.
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 7
- On the basis of the above contentions that B.C.C.Go, as a legal entity, cannot be held liable for murder, Xerxese and sweat equity owners are not liable under the alter ego & attribution theory, there was no common intention between the parties and that there were no merits to the conviction, it is humbly submitted that the conviction order be set aside by the Hon’ble High Court.
ISSUE III
Xerxese & B.C.CGo v. Central Authority of Investigation
WHETHER XERXESE AND B.C.CGO SHOULD BE ACQUITTED FOR CORRUPTION, MATCH-FIXING AND SPOT-FIXING.
- It is humbly contended before this Hon’ble Court that Xerxese and B.C.CGo have been wrongly convicted by the Central Authority of Investigation (hereafter referred to as CAI). The contention put forth is three fold: firstly , Appellants are not liable under Prevention of Corruption Act, 1988 (herein after referred to as POCA) [A]; secondly , Appellants are not liable under the Godam Penal Code, 1860 [B] and thirdly , the offence of laundering money against Appellants is false in nature under Prevention of Money Laundering Act, 2002 (herein after referred to as PMLA) [C] and fourthly , Xerxese cannot be held liable under the cricket regulations [D]. A. Appellants are not liable for action under POCA, 1988
- Corruption is defined as a fraudulent and vicious intention to evade the prohibitions of law; it is the illegal act of the public servant who abuses his position to procure benefit for himself.^44
- Under Section 7 of POCA, 1988 if a public servant accepts gratification for himself as a motive or reward for doing or forbearing to do an official act by showing favour or disfavour to any person, he can be held liable for illegal gratification.
- Under Section 13(d) of POCA, 1988 where there is no unerring certainty in the circumstantial evidence that would lead to the belief that the accused acted with the dishonest intention, corrupt motive or abused their position, they cannot be held guilty. B.C.C.Go
- B.C.C.Go is the parent body of cricket in Godam and accordingly, was responsible for all the operation of GPL.^45 When the speculations of corruptions arose, Appellant appointed two committees in association with IFC to inquire and prepare detailed reports on the matter.^46
(^43) Refer to Para 14, Page 7, Moot Proposition and Refer to Para 22, Page 9, Moot Proposition. (^44) Black Law’s Dictionary, 9th (^) edition.
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 9
- B.C.C.Go is committed to take every such step in its power to prevent any act which undermines the integrity of sports.^54 In respect of this, it has curbed all acts of corruption as and when possible. On the other hand, Xerxese was the commissioner of GPL, a potent business entity who motivated many business federations to invest into the game of cricket.^55 He gave it world-class exposure.^56
- For the offence of cheating to be established there needs to be an element of deception, but in the current case, there is no evidence to prove that B.C.C.Go or Xerxese have induced anyone to do or omit to do anything, that is likely to cause damage or harm to any person. Appellant has not deceived the franchise owners, players or the public. Instead they have upheld the spirit of the game in all instances. Thus, it is contended that the Appellants are not guilty of cheating u/s 415 of the Penal Code. B.2 Criminal Conspiracy u/s 120A
- Criminal conspiracy is the act of doing an unlawful act by unlawful means.^57 Section 120A of Penal Code says that when two or more person agree to do or cause to do an illegal act, they shall be liable for criminal conspiracy in the eyes of law. Agreement to commit an illegal act is the quintessence of conspiracy. 58
- Even though, the evidence of such agreement need not be proved, however under Section 10 of the Evidence Act, 1872, the circumstantial evidence for the same should have a reasonable ground to prove that a common intention existed between all the conspirators. Such evidence should fully establish the hypothesis of guilt. 59
- In the present case, the act of organizing the cricket matches was the only duty that was done by Appellants.^60 This act of Appellants does not satisfy the essential conditions laid down under Section 120A of IPC as there was no illegal act performed by it, and also, there is no sufficient circumstantial evidence to convict Appellants with conspiracy. B.3 Abetment u/s 107
- Section 107 of IPC lays down the offence of abetment to mean that when a person engages with one or more than one person in any conspiracy for the doing of that thing, if an act or illegal omission takes place in these events shall be held liable under this section.
(^54) Article 1.1.5 BCCI Anti-Corruption Code for Participants (^55) Refer to Para 5, Page 2, Moot proposition. (^56) Refer to Para 5, Page 2, Moot proposition.
Mulcahy v. Reg (1868) L.R. 3 H.L.
Firozuddin Basheeruddin & Ors v. State Of Kerala, 2001) 7 SCC
Queen Empress v. Hoshhak, 1941 All ALJR
(^60) Refer to Para 2, Page 2, Moot proposition.
4 TH^ AMITY INTERNATIONAL MOOT COURT COMPETITION, 2016 – AIM 36
MEMORIAL FILED ON BEHALF OF THE APPLICANTS 10
- In the present case, Appellants are not liable under Section 107 of IPC as it has already been established that they weren’t involved in any of the alleged offences. 61 Therefore, Appellants are not liable for under Section 107 of IPC. C. B.C.CGo is not liable for money laundering
- According to Section 3 of PMLA, 2002 says that whoever indulges directly or indirectly with the proceeds of the crime, including its concealment, possession, acquisition or use and projecting or claiming it, as untainted property shall be guilty of offence of money laundering.^62 To prove the offence of money laundering, it has to be established that the money involved was due to a criminal activity relating to a schedule offence.^63
- In the present case, B.C.C.Go was the governing body for all cricket activities in Godam and GPL was its brainchild.^64 When asked to look into the anti-sport activities by IFC, B.C.C.Go asked MK to show cause.^65 It also appointed two Committees to look into all the corruption matters that were going around.^66
- In 2010, even though a complaint was filed in Enforcement Directorate against Xerxese under PMLA and several allegations of underworld money was made, yet there was no evidence for the same. He was given a clean chit by B.C.C.Go after the players imposed liability on him.^67
- Thus it is contended that B.C.C.Go did everything it could to uphold the spirit of cricket in Godam and that it was not related to any money laundering activity. The offences related to criminal conspiracy, cheating and other penal provisions have already been disproved against the Appellants.^68 Therefore, there is no offence of PMLA is established in relation to the schedule offences and hence Appellant cannot be held liable under the same.
- In the light of the above contentions, it is humbly submitted that the Appellants were wrongly convicted by CAI Court and hence they should be acquitted by the High Court of Godam. D. Xerexese Morrenio cannot be held liable under the cricket regulations
- It is contended that Xerxese Morrenio is not subjected to the cricket regulations which are Codes of Conduct and Anti-Corruption Codes of IFC and B.C.C.Go on four grounds:
(^61) Under Issue III, B.1 and B. (^62) Section 3 of of Prevention of Money Laundering Act, 2002. (^63) Section 2(1) (y) of Prevention of Money Laundering Act, 2002. (^64) Refer to Para 2, Page 2, Moot proposition. (^65) Refer to Para 12, Page 6, Moot proposition. (^66) Refer to Para 17, Page 8, Moot proposition. (^67) Refer to Para 15, page 7, Moot proposition. (^68) Refer to Issue III B
