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2008 Supreme(Bom) 51
2008 (1) Bom. C.R.(Cri.) 724
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.H. MARLAPALLE, J.
Videocon International & ors. - Applicants
Versus
Securities & Exchange Board of India and ors. - Respondents
Criminal Application No.2238 of 2007 With
Criminal Application No.2239 of 2007 With
Writ Petition No.338 of 2007 With
Criminal Writ Petition No.1154 of 2007 With
Criminal Writ Petition No.1557 of 2007 With
Criminal Writ Petition No.1598 of 2007 With
Criminal Writ Petition No.1611 of 2007 With
Criminal Writ Petition No.1773 of 2007
Decided On : 16-1-2008
Headnote:Securities and Exchange Board of India Act, 1992 - Section 11-C, 24, 26 and 27 (as amended on 29.10.2002)-Criminal Procedure Code, 1973, Sections 482, 209, 208, 200, 260, 397 and 392-Committal order passed without application of mind-Acquittal order set aside.-The committal order does not speak about the compliance of Section 208 of Cr PC which undoubtedly is the condition precedent for passing the committal order. No application was moved by the SEBI for committal of these complaints from the Court of Metropolitan Magistrate to the Sessions Court and in fact it is not proper to say that a Special Court was constituted for trial of these complaints. The complaints are required to be tried as per Section 26 by the Court of Session and not by a Special Court. As a specific Sessions Court has been designated to try these complaints, perhaps, the learned Magistrate referred to the same as a Special Court. The nomenclature as "Special Court" does not have support even in the amended SEBI Act. The fact remains that the order of committal has been obviously passed without application of mind and this is one more reason to quash and set aside the order of acquittal. At the same time the issue as to whether the Session Court had the powers to adjudicate upon the committal order was not raised.
1. Heard the learned counsel for the respective parties. Rule. With the consent of the parties, the petitions / applications have been finally heard at length.
2. This group of petitions / applications filed under Article 227 of the Constitution and/or under Section 482 of Cr.P.C. raise a common grievance viz. that the complaints filed against the petitioners / applicants for the offences punishable under Section 24 read with Section 27 of the Securities Exchange Board of India Act, 1992 ("the SEBI Act" for short) ought to be tried by the Court of Chief Metropolitan/Additional Chief Metropolitan / Metropolitan Magistrate in Mumbai rather than being committed to the Court of Sessions for Greater Mumbai, despite the SEBI (Amendment) Act, 2002 having been brought into force with effect from 29th October 2002 whereunder only the Court of Session can try the said offences and hence they have been heard together and are being decided by a common judgment. The details of the complaints giving rise to these petitions / applications are set out in the following tabular form:
Sr. Petition Complaint Offences Date of
No. Appli- Number under SEBI commit-
cation Act tal order
Number
1. App/2238/07 142/S/2003 12,24(1) & 27 14/6/2007
2. App/2239/07 142/S/2003 12,24(1) & 27 14/6/2007
3. WP/338/07 793/W/2003 24(1) & 27 5/10/2006
4. WP/1154/07 3877/2003 24(1) Not com-
mitted
5. WP/1557/07 3952/W/2003 12, 24(1) & 27 15/6/07
6. WP/1598/07 3952/W/2003 12, 24(1) & 27 15/6/07
7. WP/1773/07 304/W/2003 24(1) & 27 Not com-
mitted
8. WP/1611/07 460/S/2003 24(1) & 27 11/10/06
3. On perusal of the R. & P. called from the Court of the Metropolitan Magistrate / Sessions Court the following admitted position emerges:
(a) The complaints have been filed on behalf of the SEBI (Securities and Exchange Board of India) by the authorised officer under a specific order passed by the Chairman of SEBI and the said officer is the Legal Manager / Asst. Legal Manager.
(b) In all the complaints the cause of action is prior to 29/10/2002, but some of them have been filed prior to 29/10/2002 and the remaining have been filed thereafter and even the complaints filed after 29/10/2002 pray for the conviction and sentence of the accused by the learned Metropolitan / Additional Chief Metropolitan / Chief Metropolitan Magistrate.
(c) In some complaints SEBI has even engaged a private advocate rather engaging the services of the Public / Asst. Public Prosecutor.
(d) Along with the complaint, though the list of witnesses has been filed, no statements of any witnesses as recorded by the Investigating Officer / Authorised Officer, on oath or otherwise, have been placed on record by the complainant and obviously the investigation as per Section 11C of the SEBI Act was not conducted before the complaints were filed after 29/10/2002.
(e) Though the complaints were pending anywhere from three to six years, at no point of time even after 29th October 2002 the SEBI filed an application for committal of the complaints under Section 209 of Cr.P.C. and the committal orders have been passed only on the basis of the order dated 30th June 2006 issued by the Registrar General of this Court regarding establishment of a Special Court for trial of the cases filed under the SEBI Act.
(f) After the complaints were committed to the Sessions Court under Section 209 of Cr.P.C., separate applications were filed before the Sessions Court but the relief prayed for was not on the same lines. In one set of cases the accused prayed for quashing of the committal order on the ground that it did not comply with the requirements of Sections 200, 202 and 208 of Cr.P.C. and consequently it was prayed that the complaints be returned to the Court of Metropolitan Magistrate so as to pass a fresh order of committal after complying with the said provisions of Cr.P.C. Whereas in the other set
