IMPORTANT POINT
There is distinction between a continuing offence and a repeat offence.

JUDGMENT

Sanjiv Khanna, J.

Delay condoned.

2. Two primary questions, in a way interconnected, have been referred by the Referral judgment and order dated 14th March, 2016 passed in Siddharth Chaturvedi vs. Securities and Exchange Board of India, (2016) 12 SCC 119. The correctness of the view expressed on the said two questions by a numerical smaller bench of this Court in Securities and Exchange Board of India through its Chairman vs. Roofit Industries Limited, (2016) 12 SCC 125 would coincidentally arise. The questions referred can be enumerated and summarized as follows:

(i) Whether the conditions stipulated in clauses (a), (b) and (c) of Section 15-J of the Securities and Exchange Board of India Act, 1992 (hereinafter referred to as "SEBI Act") are exhaustive to govern the discretion in the Adjudicating Officer to decide on the quantum of penalty or the said conditions are merely illustrative?

(ii) Whether the power and discretion vested by Section 15-J of the SEBI Act to decide on the quantum of penalty, regardless of the manner in which the first question is answered, stands eclipsed by the penalty provisions contained in Section 15-A to Section 15-HA of the SEBI Act?

3. The SEBI Act, as the object of its enactment would indicate, was enacted "to provide for the establishment of a Board to protect the interests of investors in securities and to promote the development of, and to regulate, the securities market and for matters connected therewith or incidental thereto."

4. For the purposes of the present reference, we may proceed to consider the provisions contained in Chapter VI-A of the SEBI Act. Sections 15-A to 15-HA are the penalty provisions whereas Section 15-I deals with the power of adjudication and Section 15-J enumerates the "factors to be taken into account by the Adjudicating Officer" while adjudging the quantum of penalty.

5. Section 15-A, illustratively, as existing prior to its amendment by Act No. 59 of 2002, as amended by Act No. 59 of 2002 and thereafter as amended by Act No. 27 of 2014 and Section 15-J are required to be specifically noticed at this stage.

Section 15A as existing prior to Amendment Act No. 59 of 2002

"15A. Penalty for failure to furnish information, return, etc. -If any person, who is required under this Act or any rules or regulations made thereunder, -

(a) to furnish any document, return or report to the Board, fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;

(b) to file any return or furnish any information, books or other documents within the time specified therefor in the regulations, fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day, during which such failure continues;

(c) to maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues."

Section 15A as amended by Act No. 59 of 2002

"15A. Penalty for failure to furnish information, return, etc. -If any person, who is required under this Act or any rules or regulations made thereunder, -

(a) to furnish any document, return or report to the Board, fails to furnish the same, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less;

(b) to file any return or furnish any information, books or other documents within the time specified therefor in the regulations, fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less;

(c) to maintain books of account or records, fails to maintain the same, he shall be liable to a penalty of one lakh rupees for each day during which such fail