Rule of Law jolted in Cricketers case

Rule of Law in rude jolt-Cricketers Case at Delhi In a sensational twist to the saga of Sreesanth and 22 others facing certain sections of the Indian Penal Code before the Chief Judicial Magistrate, Delhi, MOCCA was added, which resulted in transfer of the case automatically to the Sessions. While the bail petitions of Sreesanth was to be heard by the Judicial First Class Magistrate, the case was made more forceful by applying the provisions of MOCCA passed by the Maharashtra Assembly which also was made effective in the state of Delhi from January 2002 by appropriate notification. No other state, it need to be emphasized, has made provisions of MOCCA applicable within their territorial jurisdiction. The Police officer attached to the Delhi Police made a comment that there was enough proof of evidence with them to impose sections that were there in MOCCA applicable to the accused. Just before the bail application was to be heard, without even informing the trial court in advance, the Police presumably, because two accused facing similar charges in Mumbai were let on bail, applied stringent sections of MOCCA and adding them to First Information Report already filed, to prevent Sreesanth to get bail. Obviously, it is the view of the Delhi police, if Sections under MOCCA were invoked the accused cannot be released on bail. Supreme Court in State of Maharashtra Vs Bharat Shanti Lal Shah and Others (SC 2009) struck down as unconstitutional Sec 21(5) of MOCCA stating that “The provision of denying his right to seek bail is not even in consonance with the object sought to be achieved by the Act, on the face of provisions, this is an excessive restriction”. It concurred with the High Court of Bombay judgment in the Criminal Writ petition 1738/2002 and 110/2003 filed by Bharat Shah, stating that restrictions on the power to grant bail should not be pushed too far, and it should be left to the discretion of the Court to arrive at a just conclusion based on the omissions and commissions of the crime and the evidence available before him. If the Court is satisfied that a person can be granted bail, power to grant bail rests on him”. Delhi Police officer was off the mark in his knowledge of MOCCA provisions in the light of clear SC ruling in two cases. The Delhi Police Officer further said that they had irrefutable evidence to link the accused to organized crime rackets, even though their acts fall under cheating, and criminal breach of trust, if proved beyond doubt. The statement attributed to the Police officer that let the accused prove they are innocent is full of flaw, as the SC had ruled unambiguously that in a “criminal case, the onus lies on the prosecution to prove affirmatively the guilt of the person. Further, action of one accused cannot be used as evidence against another”, as done by the Delhi Police. This is against the fundamental Rule of Law. As per MOCCA, the cricketers have abeted, facilitated, organized crime, and accumulated unaccounted wealth. MOCCA seeks to prevent to control disruptive activities. But they need evidence of nexus of the accused with the commission of crime.SC has held that “conspiracy is not a term of act. It has a definite connotation. In any criminal activity, mens rea (criminal intention) is a necessary ingredient for commission of a Crime under any Law including MOCCA. ‘Statement of objects and Reasons background of MOCCA should be looked into under the doctrine of pith and substance’ (SC Appeal 523 of 2005 dated 7 April 2005 Justices NS Hegde, B Singh, S Sinha)(Ranjitsing Brahmajeetsingh Sharma Vs State of Maharastra)(SCC 294) In AIR 1975 SC 1975), SC held that abettor should have intentionally aided in the commission of the Crime. Mere proof that the crime charged could not have been committed intrerpositively of alleged abet or enough compliance with the requirements of Sec 107 of the Indian penal Code read with sub section ‘2’ of Sec 3 of MOCCA. Criminal Appeal 2008 before SC State of Maharashtra Vs Bharat Shanti Lal Shah & Others (Bench: Altamas Kabir and Markandey Kunju) where constitutional validity of 2(d), e,f,Sec 3 and Sec 4 which was held unconstitutional vis-à-vis Art 14 and 21 of the Indian Constitution upheld by Bombay High Court was challenged. SC held that Sec 21(5) was unconstitutional- refusal for grant of bail. A statute, it is a trite, should not be interpreted in such a manner as would lead to absurdity, SC had warned. For want of a nail, a battle was lost, there is a saying. Cricketers who took money to bowl in a particular over as pre-determined by bookies during IPL matches were sought to be depicted as having league with notorious anti social elements is farfetched. Srisanth’s cricketing career is as good as over. The timing of his arrest leads to suspicion. That his arrest was made in such a hurry, spontaneously, without caring to recover all the articles which were in his room, further aggravates the suspicions. Srisanth did not have peers both in the cricketing administration and in the political high ups is self evident that he alone is made a victim of this unsavory saga. Delhi Police have a design. Time alone will prove what it is. The ever ebullient channels, vying with each other as espousing public cause, have imposed their stoic silence over the clamping of the charges by the Delhi Police on the cricket trio at Delhi.