JUDGMENT:

1. Rule.

2. Rule made returnable forthwith. Heard. finally with the consent of the parties.

3. This petition under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 assails the order, "Issue Process", under Section 73(a) and Section 235A of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as lithe I.B. Code") passed by the Additional Sessions Judge, 58th Court, Mumbai in Special Case No. 853/2020, on a Complaint filed by the Insolvency and Bankruptcy Board of India, a statutory body established under the I.B. Code.

4. Presently, only ground, on which impugned order has been challenged is that, the learned Additional Sessions Judge does not have jurisdiction to entertain the complaint filed by the respondents. As such other grounds of challenge are expressly kept open.

5. Mr. Amir Arsiwala, learned Counsel for the Petitioner submitted that in terms of Section 236 of I.B. Code, the Special Court, established under the Companies Act, 2013 is empowered to try the offences under the I.B. Code. He submitted, Section 435 of the Companies Act empowers, the Central Government to establish Special Courts for speedy trial of the offences under the Companies Act. Mr. Arsiwala submitted that under Section 236 of I.B. Code, the Special Court shall be deemed to be a Court of Session and person conducting the prosecution shall be, 'deemed' to be a Public Prosecutor. Mr. Arsiwala submitted Section 236 of the I.B. Code came into effect on 1st December, 2016, whereafter Section 435 of Companies Act was amended by way of Companies Amendment Act 2017 with effect from 7th May, 2018, and in that sense amendment of 2017 was consequential. Mr. Arsiwala submitted Section 435 of the Companies Act, 2013 was amended twice; firstly in 2015 and thereafter in 2017. He submitted that originally enacted Section 435 empowered the Central Government to establish Special Courts, for the speedy trial of offences, only under the Companies Act and the Judge holding office of the Sessions Judge or Additional Sessions Judge was qualified to be appointed as a Judge of Special Court. Mr. Arsiwala argued that in 2015, Section 435 of Companies Act was amended with effect from 29th May, 2015. By this amendment Special Court/s, established by the Central Government consisting of the Judge holding office of Sessions Judge was empowered to try, offences only under the Companies Act, which were punishable with imprisonment of two years or more AND other offences under the Companies Act, punishable with imprisonment less than two years, were triable by Court of Metropolitan Magistrate or Judicial Magistrate First Class. Mr. Arsiwala further submitted in 2018 i.e. after I.B. Code came into force, Section 435 of the Companies Act was again amended on 7th May, 2018 to make it compatible with the object of Section 236 of I.B. Code i.e. "speedy trial of offences". Mr. Arsiwala submitted that by 2018 amendment, for the first time, Central Government is empowered to establish/ designate two classes of Courts as Special Courts; (i) one, Special Court consist of Judge holding office as a Sessions Judge or Additional Sessions Judge and (ii) second Special Court consist of Metropolitan Magistrate or Judicial Magistrate First Class. He submitted a Judge holding the office as a Sessions Judge or Assistant Sessions Judge under clause (a) of subsection (2) of Section 435 of the Companies Act is empowered and invested with the jurisdiction to try offences under the Companies Act, punishable with imprisonment of two years or more. Whereas, Special Court consist of Metropolitan Magistrate or Judicial Magistrate First Class in terms of clause (b) of subsection (2) of Section 435 of the Companies Act is invested with the powers and jurisdiction to try offences, other than the offences under the Companies Act. To put it differently, Mr. Arsiwala would submit that the expression, "in case of other offences" used in clause (b) of