TaxTMI 
TaxTMI 
2017 (8) TMI 869
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....a Act, 1992 (hereinafter referred to as 'the SEBI Act'). At the time when the complaints were filed under Section 26(2) of 'the SEBI Act', the concerned accused were to be tried by a Metropolitan Magistrate (or, a Judicial Magistrate of the first class). In this bunch of cases, the contention before this Court, at the behest of the private parties is, that for offences allegedly committed before 29.10.2002 (whether or not, taken up for trial before 29.10.2002) the trial was to be conducted by the concerned Metropolitan Magistrate (or, a Judicial Magistrate of the first class), and none other. It is relevant to record, that in these cases complaints filed against the private parties herein, pertain to allegations of commission or omission, prior to 29.10.2002. In some of these matters, proceedings were initiated prior to 29.10.2002, while in others, it was initiated after 29.10.2002. The above contention pertaining to the 'forum', for trial by a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), was premised on a purely legal assertion, founded on the format of Sections 24 and 26 of 'the SEBI Act', as they existed prior to the Securities and Exchange Board of In....
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....ns advanced during the course of hearing, emerged out of a collective reading of the amended Sections 24 and 26 (-by 'the 2002 Amendment Act'). Accordingly, the format which Sections 24 and 26 of 'the SEBI Act' assumed, after 'the 2002 Amendment Act' also needs to be noticed. The above amended provisions, are accordingly reproduced below: "24.Offences. -(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules or regulations made thereunder, he shall be punishable with imprisonment for a term which may extend to ten years, or with fine, which may extend to twenty-five crore rupees or with both. (2) If any person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any of his directions or orders, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to ten years or with fine, which may extend to twenty-five crore rupees or with both. xxx xxx xxx 26. Cognizance ....
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....red by the Bombay High Court. Some of the cases in this group of cases (being collectively disposed of through the instant judgment), arise out of the judgment of the Bombay High Court dated 16.01.2008. All the remaining cases, arise out of a similar sequence of events, which culminated before the Delhi High Court, wherein the lead judgment was rendered in Mahender Singh v. High Court of Delhi (Writ Petition (C) No.141 of 2007, decided on 11.01.2008). It is apparent, that the above judgment of the Delhi High Court dated 11.01.2008, was rendered just a few days before the impugned judgment was rendered by the Bombay High Court, on 16.01.2008. 7. Consequent upon an interpretation of the amendment to Section 26 by 'the 2002 Amendment Act', the Division Bench of the Delhi High Court, through the above judgment dated 11.01.2008 (as already noticed above), held that after the amendment of Section 26 by 'the 2002 Amendment Act', offences under 'the SEBI Act', were to be tried by a Court of Session. It is also necessary for us to mention, that the Bombay High Court did not refer to the above judgment dated 11.01.2008, since it may not have come to its notice, as the Bombay High Court ha....
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....ons are accordingly reproduced below: ''26A. Establishment of Special Courts.-(1) The Central Government may, for the purpose of providing speedy trial of offences under this Act, by notification, establish or designate as many Special Courts as may be necessary. (2) A Special Court shall consist of a single judge who shall be appointed by the Central Government with the concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working. (3) A person shall not be qualified for appointment as a judge of a Special Court unless he is, immediately before such appointment, holding the office of a Sessions Judge or an Additional Sessions Judge, as the case may be. 26B. Offences triable by Special Courts.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act committed prior to the date of commencement of the Securities Laws (Amendment) Act, 2014 or on or after the date of such commencement, shall be taken cognizance of and tried by the Special Court established for the area in which the offence is committed or where there are more Special Courts....
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....o the above, it was submitted, that an amendment to a procedural enactment is always presumed and treated to have retrospective effect, except when intended otherwise, expressly or impliedly, through the legislation itself. Accordingly, it was asserted, that change of 'forum' for trial, having merely procedural connotations, the same was bound to be treated as retrospective, especially because there was no express or implied intent in the legislative enactments ('the 2002 Amendment Act'; and 'the 2014 Amendment Act') that the amendments were intended to have prospective effect. 11. Additionally, it was submitted, that in the facts and circumstances of this case, there would be absolutely no prejudice caused to the private parties, by change of 'forum' for trial, firstly, by transfer of proceedings from the Metropolitan Magistrates (or, the Judicial Magistrates of the first class), to the Court of Session, and thereafter, by the transfer of proceedings from the Court of Session, to that of the Special Court. The absence of any alleged prejudice to the accused, in the pleadings filed on behalf of the private parties before this Court, and the absence of any such submissions, durin....
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....d by this Court in 1953 SCR 1188: (AIR 1953 SC 394) a person accused of the commission of an offence has no vested right to be tried by a particular Court or a particular procedure except insofar as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognized that "no person has a vested right in any course of procedure" (vide Maxwell 11th Edn., p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right. Mr Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code. But if this is a matter of procedure, then it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective. No right of appeal under the Criminal Procedure Code is affected because no proceedings had ever been started under the Criminal Procedure Code." (ii) Reliance was then place....
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....nded law. The claimant, observed this Court, had a "vested right of action" but not a "vested right of forum". It also held that unless by express words the new forum is available only to causes of action arising after the creation of the forum, the general rule is to make it retrospective. The following passages are in this regard apposite: (SCC pp. 844-45, paras 5-6) "5. On the plain language of Sections 110-A and 110-F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. The expressions 'arising out of an accident' occurring in sub-section (....
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....s examining was whether clause (bb) of Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 introduced by an Amendment Act governing Section 167(2) CrPC in relation to TADA matters was in the realm of procedural law and if so, whether the same would be applicable to pending cases. ..... The Court summed up the legal position with regard to the procedural law being retrospective in its operation and the right of a litigant to claim that he be tried by a particular Court, in the following words: (SCC p. 633, para 26) "(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vest....
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....re, ex p Debtor (1936) 1 Ch 237 (CA) and Attorney General v. Vernazza 1960 AC 965). The same principle is embodied in Section 6 of the General Clauses Act which is to the following effect: * * * 6. The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. ..... It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhal Parganas, has become illegal or in any way defective in law because of the amendment to procedural law made on 18-12-1964. In our opinion, the High Court was right in invoking the presumption under Section 5(3) of the Act even though it was repealed on 18-12-1964 by the amending Act. We accordingly reject the argument of the appellant on this aspect of the case." (iii) Reliance was then placed on Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460. In this judgment, ....
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....r this Court to take a different view in the facts of the present case. 20. The petitioner had relied upon the judgment of a Division Bench of the Delhi High Court in A.S. Impex Ltd. v. Delhi High Court (2003) 107 DLT 734, on the question of transfer of a proceeding. Mr Malhotra pointed out that although the judgment in Ranbir Yadav was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be a "misplaced" one, as can be seen from the sentence at the end of para 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of the Delhi High Court in Mahender Singh v. High Court of Delhi (2009) 151 Comp Cas 485 (Del). In that matter, the Court was concerned with transfer of prosecutions under the Securities and Exchange Board of India Act, 1992 from the Magistrate's Court to the Court of Session, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh has in terms held that reliance on the judgment in A.R. Antulay to oppose such transfer was of no help, and rightly so. There is no difficulty in s....
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....ge, the petitioners are seriously prejudiced inasmuch as their right of appeal from the decision of a Magistrate to a Sessions Judge is taken away. Due to this prejudicial action, which was taken by the High Court without hearing the petitioners, the notification conferring power on the Special Judge to try the case should be struck down. xxx xxx xxx 33. Similarly, in Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto (1979) 1 SCC 92 it was held somewhat more elaborately: (SCC p. 97, para 5) "5. ... It is no doubt well settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. ... This position, has also been settled by the decisions of the Privy Council and this Court (vide Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369 and Garikapati Veeraya v....
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....s Court without much ado by holding: (A.S. Impex case, DLT p. 744, para 12) "12. ... In that case the Court transferred the case from the Court of one Magistrate to the Court of another Magistrate for the reason that there was shortage of accommodation in the first court. That is not the case in hand. It was not a case where the jurisdiction was transferred from the Court of Magistrate to the Court of Session." The Delhi High Court also proceeded on an erroneous basis that the exercise of plenary administrative power available to the High Court to transfer cases meant the bypassing or circumventing of statutory provisions empowering the Magistrates to try cases under Section 138 of the Negotiable Instruments Act, 1881 and conferring that jurisdiction on Additional Sessions Judges. The High Court did not correctly appreciate the power available to a High Court under Article 227 of the Constitution." (iv) On the instant aspect of the matter, last of all, reliance was placed on Rajendra Kumar v. Kalyan, (2000) 8 SCC 99. The Court's attention was invited to the following conclusions: "20. We do feel it expedient to record that the analysis as effecte....
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....ffect which the courts give to evidence; if the new Act affects matters of procedure only, then, prima facie, it applies to all actions pending as well as future (see in this context the decisions of the House of Lords in the case of Blyth v. Blyth (1966) 1 All ER 524; A.G. v. Vernazza (1960) 3 All ER 97). In Halsbury's Laws of England (4th Edn., Vol. 44, para 925, p. 574) upon reference to Wright v. Hale (1860) 6 H&N 227 and Gardner v. Lucas (1878) 3 AC 582 (HL) along with some later cases including Blyth v. Blyth it has been stated: "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament." 22. The law thus seems to be well settled that no person has, in fact, a vested right in procedural aspect - one has only a right of prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with the pending proce....
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....vited to the following observations recorded therein: "27.3. The third reason related to the power of transfer available to this Court under Article 142 of the Constitution. In this context, reference was made to a Constitution Bench decision of this Court in Prem Chand Garg v. Excise Commr. AIR 1963 SC 996 wherein it was observed that: (AIR p. 1002, para 12) "12. ... The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws." Since the order of this Court transferring the case from the Special Judge to the High Court was contrary to the statutory law and (as held in a later part in Antulay) contrary to Article 14 and Article 19 of the Constitution, the order....
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.... did not possess such jurisdiction under the scheme of the 1952 Act." (ii) Reliance was then placed on Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636, and the observations recorded in paragraph 6, were brought to our notice: "6. The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up by the Special Judge, Santhal Parganas when Section 5(3) of the Act was still operative. The conviction of the appellant was pronounced on March 31, 1962 by the Special Judge, Santhal Parganas long before the amending Act was promulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhal Parganas has become illegal or in any way defective in law because of the amendment to procedural law made on December 18, 1964. In our opinion, the High Court was right in invoking the presumption....
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.... try cases set out in Sections 6(1)(a) and 6(1)(b) of the said Act. The court emphasised that the Special Judge had exclusive jurisdiction to try offences enumerated in Section 6(1)(a) and (b). In spite of this while giving directions in the other matter, that is, R.S. Nayak v. A.R. Antulay (1984) 2 SCR 495, this Court directed transfer to the High Court of Bombay the cases pending before the Special Judge. It is true that Section 7(1) and Section 6 of the 1952 Act were referred to while dealing with the other matters but while dealing with the matter of directions and giving the impugned directions, it does not appear that the court kept in mind the exclusiveness of the jurisdiction of the Special Court to try the offences enumerated in Section 6." Based on the legal position declared by this Court, it was asserted, that the 'forum' for trial, expressed prior to the concerned amendment herein, did not create a vested right in the accused. And that, even in matters where proceedings had already commenced before the amendment, the amendment would have to be given effect to. Furthermore, the concerned accused were liable to be proceeded against, before the changed 'forum' (introdu....
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....n or after the date of such commencement, shall be taken cognizance of and tried by the Special Court ...". Based on the above amendment, which came into force with effect from 18.07.2013, it was asserted, that all courts other than Special Courts created under 'the SEBI Act', were divested of the power to adjudicate matters arising thereunder, including pending matters, which had arisen prior to the amendment. It was submitted, that the intent of the legislature was clear and emphatic, namely, offences committed before or after the coming into operation of 'the 2014 Amendment Act' would be triable only by a Special Court, and by no other court. It was therefore asserted, that with effect from 18.07.2013, all pending matters would have to be transferred for adjudication to the Special Courts. Based on the aforesaid assertions, it was the contention of the learned Additional Solicitor General, that the Bombay High Court had erred in recording its finding, that cases instituted before a Metropolitan Magistrate (or, a Judicial Magistrate of the first class) would continue to be adjudicated by the said courts, and that, 'the 2002 Amendment Act' would have no effect on such matters. In ....
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....t where proceedings had already been initiated and trial was in progress, change of 'forum' by way of legislation, by implication would be prospective. In terms of the instant classification, it was submitted, that the present controversy falls in the first category. Change of 'forum', according to learned counsel, would not be retrospective, for the first category, only where expressly mandated otherwise. Besides the legality of the issues, learned counsel posed a simple question; how can an amendment in legislation, shift a pending case, midstream, to another court? 18. Learned senior counsel however conceded, that where the legislative amendment, while providing for a change of 'forum' for trial, also provides for transfer of pending case (postulated, under the unamended enactment), the amendment of 'forum' for trial would be retrospective. It was submitted, that in the absence of express or implied intent, all matters falling in the first category would continue to remain with the original 'forum' (provided for, under the unamended provision). And therefore, such an amendment of 'forum', even though admittedly procedural in nature, would be prospective (and not, retrospec....
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.... is the situation, in all the cases herein) since the pre-requisites therefor are not completed by the amendment, inasmuch as, Sections 11C and 24 of the SEBI Act, would not apply to occurrences/causes, prior to the date of amendment. It was submitted, that to understand the amendments introduced through 'the 2002 Amendment Act', especially Sections 11C, 24 and 26, the other provisions amended simultaneously, had to be read together. It was also submitted, that the insertion of Section 26B through 'the 2014 Amendment Act', would only apply to offences committed after the amendment, or to those offences, though committed prior to the amendment; but cognizance whereof had not been taken, at the time of the amendment. It was further submitted, that a plain reading of Section 26B would reveal, that the intent expressed therein, was conjunctive, inasmuch as the language adopted in Section 26B, could not be read as disjunctive. 20. In order to substantiate the contentions canvassed by learned senior counsel representing the private parties, as have been delineated in the foregoing paragraphs, emphatic reliance was placed on Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 6....
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....h cases also have to be made over to the Court of Session. The Court further held that all such cases as were pending before the Judicial Magistrate, First Class and had been committed to the Sessions Court shall be sent back to the Judicial Magistrate, First Class in accordance with law. The reference was answered accordingly. 5. Relying upon the decision of the Full Bench the appellant filed an application before the trial court seeking a similar direction for remission of the case for trial by a Judicial Magistrate. The appellant argued on the authority of the above decision that although the police had not filed a charge-sheet against the appellant and the investigation in the case was pending as on the date the amendment came into force, the appellant had acquired the right of trial by a forum specified in Schedule I of the 1973 Code. Any amendment to the said provision shifting the forum of trial to the Court of Session was not attracted to the appellant's case thereby rendering the committal of the case to the Sessions Court and the proposed trial of the appellant before the Sessions Court illegal. The trial court, as mentioned earlier, repelled that contention and ....
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....in the Amendment Act making the amendment applicable to pending cases, the same would not apply to cases that were already filed before the Magistrate. This implies that if a case had not been filed up to the date the Amendment Act came into force, it would be governed by the amended Code and hence be triable only by the Sessions Court. 7.3. The Code of Criminal Procedure does not, however, provide any definition of "institution of a case". It is, however, trite that a case must be deemed to be instituted only when the court competent to take cognizance of the offence alleged therein does so. The cognizance can, in turn, be taken by a Magistrate on a complaint of facts filed before him which constitute such an offence. It may also be taken if a police report is filed before the Magistrate in writing of such facts as would constitute an offence. The Magistrate may also take cognizance of an offence on the basis of his knowledge or suspicion upon receipt of the information from any person other than a police officer. In the case of the Sessions Court, such cognizance is taken on commitment to it by a Magistrate duly empowered in that behalf. All this implies that th....
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....hat it would suffice if this Court, with reference to the present case, adverts to the legal position expressed in the above judgment (rendered on an analysis of earlier judgments). Learned senior counsel, pointedly drew our attention to the following observations recorded in the above judgment: "10. In New India Insurance Co. Ltd. v. Shanti Misra (1975) 2 SCC 840, this Court was dealing with the claim of payment of compensation under the Motor Vehicles Act. The victim of the accident had passed away because of the vehicular accident before the constitution of the Claims Tribunal under the Motor Vehicles Act, 1939, as amended. The legal heirs of the deceased filed a claim petition for payment of compensation before the Tribunal after the Tribunal was established. The question that arose was whether the claim petition was maintainable having regard to the fact that the cause of action had arisen prior to the change of the forum for trial of a claim for payment of compensation. This Court held that the change of law operates retrospectively even if the cause of action or right of action had accrued prior to the change of forum. The claimant shall, therefore, have to appro....
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....where the tribunal would be able to condone the delay under the proviso to sub-section (3), and led others to say that the tribunal will have no jurisdiction to entertain such an application and the remedy of going to the civil court in such a situation was not barred under Section 110-F of the Act. While taking the latter view the High Court failed to notice that primarily the law engrafted in Sections 110-A and 110-F was a law relating to the change of forum. 6. In our opinion in view of the clear and unambiguous language of Sections 110-A and 110-F it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in sub-section (3) of Section 110-A. It must be vice versa. The change of the procedural law of forum must be given effect to. The underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the claims tribunal on payment of a nominal court fee whereas a large amount of ad valorem court fee was required to be paid in civil court." 11. In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 , one of the ....
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....) "... Now, I think it may be stated as a general principle that no party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary. Therefore, procedural laws in force must be applied at the date when a suit or proceeding comes on for trial or disposal." 14. The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of the Magistrate, First Class to the Court of Session. Apart from the fact that as on the date the amendment came into force no case had been instituted against the appellant nor had the Magistrate taken cognizance against the appellant, any amendment shifting the forum of the trial had to be on principle retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial for no such right is recognised. The High Court was, in that view of the matter, justified in (sic not) interfering with the order passed by the trial court. 15....
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....if under the Karnataka Rent Control Act, 1961 had concluded when the Karnataka Rent Control (Amendment) Act, 1994 came into force. By that amendment, the Court of Munsif was deprived of jurisdiction in such cases. This Court held that the change of forum did not affect pending proceedings. This Court further held that the challenge to the competence of the forum was raised for the first time, that too as an additional ground before this Court and that, for other factors, the Court was inclined to uphold the jurisdiction of the Court of Munsif to entertain and adjudicate upon the eviction matter. The fact situation was thus different in this case. 19. Even otherwise the Full Bench failed to notice the law declared by this Court in a series of pronouncements on the subject to which we may briefly refer at this stage. In Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 , this Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure. In that case the tria....
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....e of Bombay AIR 1958 SC 915, where the legal position was stated in the following words: (AIR p. 917, para 4) "4. The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369, AC p. 372. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective." 21. The upshot of the above discussion is that the view taken by the Full Bench holding the amended provision to be inapplicable to pending cases is not correct on principle. The decision rendered by the Full Bench would, therefore, stand overruled but only prospect....
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.... of India Act, 1992, the SEBI cannot issue commissions for the examination of witnesses or documents. Further, the SEBI has pointed out that existing penalties are too low and do not serve as effective deterrents. At present, under section 209A of the Companies Act, 1956, the SEBI can conduct inspection of listed companies only for violations of the provisions contained in sections referred to in section 55A of that Act but it cannot conduct inspection of any listed public company for violation of the SEBI Act or rules or regulations made thereunder. 3. In addition, growing importance of the securities markets in the economy has placed new demands upon the SEBI in terms of organisation structure and institutional capacity. A need was therefore felt to remove these shortcomings by strengthening the mechanisms available to the SEBI for investigation and enforcement so that it is better equipped to investigate and enforce against market malpractices. 4. In view of the above, the Securities and Exchange Board of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002) was promulgated on the 29th October, 2002 to amend the Securities and Exchange Board of India Act,....
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....e of the first class; (v) passing an order requiring any person who has violated or is likely to violate, any provision of the SEBI Act or any rules or regulations made thereunder to cease and desist for committing and causing such violation; (c) prohibiting manipulative and deceptive devices, insider trading, fraudulent and manipulative trade practices, market manipulation and substantial acquisition of securities and control; (d) crediting sums realised by way of penalties to the Consolidated Fund of India; (e) amending the composition of the Securities Appellate Tribunal from one person to three persons; (f) changing the qualifications for appointment as Presiding Officer and members of the Securities Appellate Tribunal; (g) composition of certain offences by the Securities Appellate Tribunal; (h) conferring power upon the Central Government to grant immunity; (i) appeal to the Supreme Court from the orders of the Securities Appellate Tribunal; (j) enhancing the penalties specified in the SEBI Act. 6. The Bill seeks to achieve the above objects." Reading extensively from the objects and ....
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....e SEBI Act', was altered by 'the 2002 Amendment Act' whereby, consequent upon the contravention of the provisions of 'the SEBI Act' or any rules or regulations made thereunder, the offender was "...punishable with imprisonment for a term which may extend to ten years, or with fine, which may extend to twenty-five crore rupees or with both." Additionally referring the amendment of Section 24(2) by 'the 2002 Amendment Act', it was submitted, that for failing to comply with any of the directions or orders of an adjudicating officer, the punishment contemplated was "... imprisonment for a term which shall not be less than one month but which may extend to ten years or with fine, which may extend to twenty-five crore rupees or with both." It was submitted, that the private parties herein, cannot be required to suffer the punishment contemplated under Section 24, consequent upon its amendment by 'the 2002 Amendment Act'. It was submitted, that on account of the enhanced punishment under Section 26(2) of 'the 2002 Amendment Act' postulated, that no court inferior to that of a Court of Session, would try any offence triable under 'the SEBI Act'. It was submitted, that any change of 'forum'....
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....pecting Assistant Commissioner shall be returned without passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed Rs. 25,000. This supports the inference that in pending references the Inspecting Assistant Commissioner continued to have jurisdiction to impose penalty. The previous operation of Section 274(2) as it stood before April 1, 1971, and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass orders imposing penalty in pending references. In our opinion, therefore, what is material to be seen is as to when the references were initiated. If the reference was made before April 1, 1971, it would be governed by Section 274(2) as it stood before that date and Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty. 21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be....
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....tatutory Interpretation, Justice G.P. Singh, 8th Edn., 2001, p. 442.) We have already indicated that the Act does not bring about a change in forum so far as the pending actions are concerned. Moreover, by the time the amendment came into force, the proceedings before the Munsiff had already stood concluded and the case was pending at the stage of revision before the Additional District Judge. Further, we find that an objection laying challenge to the forum's competence was not raised before the learned Additional District Judge nor was the objection taken before the High Court in the civil revision preferred by the appellant. It was not taken as a ground in the special leave petition. It has been taken only by way of a separate petition filed subsequently and seeking leave to urge additional grounds. Such an objection cannot be allowed to be urged so belatedly. However, we have already held the argument based on the 1994 Amendment as of no merit." Based on the aforestated submissions, it was contended, that 'the 2002 Amendment Act' did not expressly or impliedly choose to alter the forum of pending matters, wherein cognizance had already been taken. Referring to Section 26B,....
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....e forum introduced by the amendment, the forum postulated by the unamended provision, has the jurisdiction to adjudicate upon pending matters (filed before the amendment). xxx xxx xxx 30. According to the learned counsel, his submission also flows from the mandate contained in Section 6 of the General Clauses Act, 1897. For this, the learned counsel placed reliance on Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co (2001) 8 SCC 397. In the above-cited judgment, the respondent landlord had filed an eviction petition on 13-9-1985 against the appellant, under Section 14(1)(b) of the Delhi Rent Control Act. When the above petition was pending, Section 3 (c) was brought in through an amendment with effect from 1-12-1988. By the above amendment, the jurisdiction of the Rent Controller, with respect to tenancies which fetched a monthly rent exceeding Rs. 3500, was excluded. Consequent upon the aforesaid amendment, the appellant tenant contended, that the civil court alone, had the jurisdiction to entertain the claim raised by the landlord, and that, the eviction petition filed under the provisions of the Delhi Re....
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....uch right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. Thus the central theme which spells out is that any investigation or legal proceeding pending may be continued and enforced as if the repealing Act or regulation had not come into force. 26. As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words, such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties get crystallised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find clause (c) of Section 6, refers the words 'any right, privilege, obligation ... acquired or accrued' under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here, mer....
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....e and will be continued and concluded in accordance with the law as existed under the repealed statute." Based on the above determination, it was the contention of the learned counsel, that in addition to the existence of a vested right, Sections 6 (c) and (e) make it abundantly clear, that a pending legal proceeding or remedy, before the amendment altered the forum, would continue to be available for the adjudication of the matter, unless the amending provision by express words or by necessary implication expressed otherwise. 37. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. We shall now venture to determine the controversy which has been debated hereinabove. So as not to be required to repeatedly express one foundational fact, it would be pertinent to mention, that our determination, insofar as the present controversy is concerned is with reference to situations wherein the amending provision by express words or by necessary implication, does not mandate the amendment to be either prospective or retrospective. In the present case, the instant situation emerges from Section 32 of ....
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....pellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15-Z by the Securities and Exchange Board of India (Amendment) Act, 2002 had no effect on the second appellate remedy made available to the parties, and further that, the above amendment merely alters the forum of the second appeal, from the High Court (under the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, the learned counsel for the appellant had placed reliance on the decisions rendered by this Court in Maria Cristina De Souza Sodder , Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, refer....
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....he grounds referred to under the Rent Act. In other words, it protects the tenant from ejectment, it protects a tenant from the drastic enhancement of the rent by the landlord which may otherwise the landlord could do under the general law. Thus the right of a tenant under the Rent Act at the best could be said to be a protective right, which cannot be construed to be a vested right. In effect, in view of this special enactment of the Rent Act, the right and remedies available to a landlord under the general law remains suspended. In other words the landlord's vested right under the general law continues so long it is not abridged by such protective legislation, but the moment when this protection is withdrawn the landlord's normal vested right reappears which could be enforced by him. xxx xxx xxx 34. Thus we find that Section 6 of the General Clauses Act covers a wider field and saves wide range of proceedings referred to in its various clauses. We find two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable. 35. In cases where Section 6 is not ap....
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....apter for the imposition of penalty." xxx xxx xxx 9. On the Revenue's application, the Appellate Tribunal stated the consolidated case to the Orissa High Court under Section 256(1) of the Act and referred the following question of law: Whether, on the facts and circumstances of the case, and on a true interpretation of Section 274, as amended by the Taxation Laws (Amendment) Act, 1970, the Inspecting Assistant Commissioner to whom the case was referred prior to April 1, 1971, had jurisdiction to impose penalty? xxx xxx xxx 13. The learned Judges of the Orissa High Court agreed with the appellate order of the Income Tax Appellate Tribunal, Cuttack dated December 19, 1973 and took the view thus: "If the Inspecting Assistant Commissioner had passed final orders prior to the amending Act of 1970, there would have been no question of loss of jurisdiction, but as the matter was still pending and by change of procedure the references became incompetent, the Inspecting Assistant Commissioner had no jurisdiction to complete the proceedings, because he....
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....s and the power of the court to take note of change in law and suitably mould the relief consistently with the legislative changes. So far as the present case is concerned, the only submission made by the learned counsel for the appellant is that the effect of the amendment is to deprive the Court of Munsiff of its jurisdiction to hear and decide the proceedings for eviction over such premises as the suit premises are. In other words, it is a change in forum brought during the pendency of the proceedings. The correct approach to be adopted in such cases is that a new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for changeover of proceedings or there is some other clear indication that pending actions are affected. (See Principles of Statutory Interpretation , Justice G.P. Singh, 8th Edn., 2001, p. 442.) We have already indicated that the Act does not bring about a change in forum so far as the pending actions are concerned. Moreover, by the time the amendment came into force, the proceedings before the Munsiff had already stood concluded and the case was pending at the stage of revision before the Additional District Judge. ....
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....ge) functioning under the Criminal Law Amendment Act, 1952 (for short "the CLA Act") meant its trial by a court that lacked jurisdiction over the subject-matter. In support of this contention, great reliance was placed on some passages in A.R. Antulay v. R.S. Nayak. 27.2. Secondly, Section 7(1) of the CLA Act provides for trial of the case by the Special Judge notwithstanding anything contained in the Code. Therefore, the statutory power available to this Court to transfer cases under Section 406 of the Code was statutorily taken away. Additionally, Section 406 of the Code only enabled this Court to transfer cases and appeals from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. Section 406 of the Code did not empower this Court to transfer a case from the Special Judge under the CLA Act to the High Court and even if it did, that power was taken away by the CLA Act. Section 406 of the Code reads as follows: "406. Power of Supreme Court to transfer cases and appeals .-(1) Whenever it is made to appear to the Supreme Court that ....
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....or both combined, could enlarge the jurisdiction of a court. On this basis, inter alia, this Court concluded that the transfer of Antulay case from the Special Judge to the High Court was erroneous in law. 30. It was contended that assuming that at law the case could validly have been transferred to the Special Judge, the petitioners are seriously prejudiced inasmuch as their right of appeal from the decision of a Magistrate to a Sessions Judge is taken away. Due to this prejudicial action, which was taken by the High Court without hearing the petitioners, the notification conferring power on the Special Judge to try the case should be struck down." Based on the judgments relied upon by learned counsel representing the private parties, as have been narrated in the foregoing paragraphs, since the proceedings in the matters in hand were pending, before the Court of Metropolitan Magistrate (or, the Judicial Magistrate, as the case may be), when 'the 2002 Amendment Act' was introduced with effect from 29.10.2002, the pending proceedings could not be transferred, to the 'forum' created by 'the 2002 Amendment Act'. In order to demonstrate prejudice, learned counsel c....
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....0, an order passed by the High Court in exercise of its revisional jurisdiction under Section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning of Section 39 of the Latters Patent. Mookerji, J., who delivered the judgment of the division Bench referred to the observations of Lord Westbury in Attorney-Genera l v. Sillem (1864) 10 RLC 704 , and of Subramania Ayyar, J., in Chappan v. Moidin (1958) ILR Mad 68, 80 , on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form....
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....as sought to be pointed out that even after 'the 2002 Amendment Act', upon trial of a case by the Court of Session (or, Additional Sessions Judge), an appeal would lie, before the High Court. It was sought to be highlighted, that the above position was further clarified in 'the 2014 Amendment Act' through Section 26C. 29. It was submitted, that the determination of 'forum', based on the quantum/gravity of the sentence contemplated for an offence, under 'the SEBI Act', as canvassed by learned counsel for the private parties, is wholly misconceived. It was submitted, that there was no such mandate, that for offences where the prescribed punishment was up to three years, a magisterial trial alone could be held. It was pointed out, that the punishment contemplated under Section 308 of the Indian Penal Code was up to three years, but the cases under the said provision was triable by a Court of Session. It was submitted, that the use of the word "or" in Section 374 of the Code of Criminal Procedure denotes, that the expressions contained in the provision preceding and subsequent thereto, were meant to be disjunctive. It was pointed out, that in such a case, by express provision, the H....
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....ea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai v. State of Bombay AIR 1960 SC 979.)" Based on the observations extracted above, it was submitted, that inference sought to be drawn by learned counsel representing private parties, that in determining 'forum' it is essential to take into consideration the length of the punishment, contemplated under the provision violated, was nothing but a figment of imagination of learned counsel for the private parties. It was also contended on behalf of SEBI, that the availability of a revisional jurisdiction to assail an order has never been accepted as a vested right. In this behalf, reliance was placed on a judgment rendered by a Constitution Bench in Pranab Kumar Mitra v. State of West Bengal, AIR 1959 SC 144, wherein it was held as under: "6. In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in S. 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper,....
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....tice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under S. 250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in Court by a legal practitioner. In hearing and determining cases under S. 439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. In our opinion, therefore, the Bombay majority decision, in the absence of any statutory provisions in respect of criminal revisional cases, lays down the correct approach." For the same proposition, reliance was also placed on Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC ....
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....hich could extend to three years or with fine, which would not be less than rupees two thousand, but not more than rupees ten thousand, or with both. It was pointed out, that even at that juncture, the 'forum' of trial under Sections 24(1) and 24(2) of 'the SEBI Act' was the same, namely, "No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try an offence punishable under this Act". It was submitted, that after 'the 2002 Amendment Act', "...no court inferior to the Court of Session shall try any offence punishable under this Act ..." In the above view of the matter, it was submitted, that the entire contention advanced at the hands of learned counsel representing the private parties, was misconceived. 31. In addition to the submissions noticed in the foregoing paragraphs, learned Additional Solicitor General contended, that the legislative intent in 'the 2002 Amendment Act', as well as, 'the 2014 Amendment Act' was clear. It was submitted, that by 'the 2002 Amendment Act' the statutory legislation took away the right of courts inferior to the Court of Session from trying offences punishable under 'the SEBI Act'. Emphasis was p....
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....bject in hand, reference was made to Mannalal Khetan v. Kedar Nath Khetan, (1977) 2 SCC 424, wherefrom the Court's attention was drawn to the following observations: 17. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur this Court referred to various tests for finding out when a provision is mandatory or directory. The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to other provisions dealing with the same subject and the language of the provision are all to be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. (See Maxwell on Interpretation of Statutes, 11th Edn., p. 362 seq.; Crawford: Statutory Construction, Interpretation of Laws, p. 523 and Seth Bikhrai Jaipuria v. Un....
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....EBI Act' would be tried by a Special Court (- Section 26B), the position cannot be taken to be at variance from the one, as it existed prior to the 2002 amendment, as also, the position as it existed after 'the 2002 Amendment Act'. The reason for the above inference is, that a Special Court (notified by the Central Government) was to be a court which, immediately before such notification, was the Court of Session or an Additional Sessions Judge (-Section 26A(3)). Truly therefore, a Special Court was a court superior to a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), as contemplated prior to 'the 2002 Amendment Act'. It was also the same as the court contemplated under 'the 2002 Amendment Act', namely, the Court of Session. Therefore, the projection of the jurisdictional claim, as has been raised by the accused herein, is a mere furore, without any serious justification. 34. We will now deal with the legality of the propositions canvassed, at the hands of learned counsel for the rival parties. In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 ....
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.... or proceedings, it was held, was a vested right as opposed to pure procedure to be followed before a particular 'forum'. It was therefore concluded, that a right becomes vested when the proceedings are initiated, in spite of change of jurisdiction/forum by way of amendment thereafter. So also, in Manujendra Dutt v. Purnedu Prosad Roy Chowsdhury, AIR 1967 SC 1419, wherein a question arose, as to whether, by the deletion of Section 29 of the Thikka Tenancy Act, 1949, the jurisdiction of the Controller over a pending suit was taken away. It was held by this Court, that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the pending suit, on the date when the Amending Act came into force. It was pointed out, that though the amending Act did not contain a saving clause, the saving contained in Section 8 of the Bengal General Clauses Act, 1899, which corresponded with Section 6 of the Central Act, fully applied to the issue. And as such, the transfer of a suit having been lawfully filed under Section 29 of the Act could not be affected by its deletion or by its amendment. Similarly, in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, the question which ar....
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.... right can be claimed with reference to 'forum', where the concerned court, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision. 38. Insofar as the matters where proceedings had already commenced before the amendment, change of 'forum' for trial came into effect, it is apparent from the judgments referred to in the preceding paragraph, that the general principle is that a law which brings about a change in the 'forum', does not affect pending actions, unless intention to the contrary is clearly shown. What needs to be determined with reference to 'the 2002 Amendment Act', as well as, with reference to 'the 2014 Amendment Act' is, whether an intention to the contrary was expressed therein, so as to alter the 'forum', where proceedings were pending. And to bring such proceedings to the 'forum' contemplated by the amendment. 39. Having given our thoughtful consideration to the proposition referred to in the preceding paragraph, we are of the view, that Section 26, as amended through 'the 2002 Amendment Act', leaves no room for any doubt, that the erstwhile 'forum' would cease to be the adjudicatory authority and the newly created ....
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....nder Section 26B would be applicable only to matters where cognizance had not been taken. It is not possible, either from the language of the provision, or even from the surrounding circumstances, to arrive at the advocated position. We are of the view, that the legislative intent was clearly contrary to the one suggested. Ordinarily, cognizance is taken by a magisterial court, whereupon, the matter is committed to the concerned higher court, for trial. Herein, the Special Courts (a Court of Session or an Additional Sessions Judge, in terms of Section 26D(1) of 'the 2014 Amendment Act') provides for a position different from the provisions contained in the Code of Criminal Procedure. Now, by 'the 2014 Amendment Act', the function of taking cognizance has been vested with Special Court, conferred with the responsibility to conduct trials. In our considered view, therefore, all pending matters where cognizance had been taken and proceedings had commenced, before the Court of Session, would not be affected. 'The 2014 Amendment Act' which provided for a change of 'forum', also authorized a Special Court to take cognizance. It is not reasonable to read anything further into the words hi....
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....enal Code and other laws, so as to conclude, that for offences punishable with imprisonment for more than seven years, the trial is liable to be conducted by a Court of Session. In this behalf, the pointed attention of this Court was also drawn to Schedule I, Part II appended to the Code of Criminal Procedure, which comprises of classification of offences from other laws (other than the Indian Penal Code). It was pointed out, that 'the SEBI Act' satisfies the category of "other laws", and therefore, for an offence punishable with imprisonment for more than seven years, the trial can only be by a Court of Session. It was submitted, that where the contemplated punishment was for three years and upwards (though less than seven years), the trial had to be conducted by a Magistrate of the first class. Again making a reference to the Part II of the First Schedule (appended to the Code of Criminal Procedure), it was submitted, that if the punishment contemplated was of imprisonment for less than three years, or with fine alone, the trial could be conducted by any Magistrate. It was submitted, that the provisions of Sections 24 and 26 of 'the SEBI Act', prior to 'the 2002 Amendment Act', w....
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....arily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear, the case in the manner provided by this Code. xxx xxx xxx 262. Procedure for summary trials. -(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter." Relying upon sub-section (1) of Section 260, it was contended, that it was open to the Metropolitan Magistrate (or, Judicial Magistrate of the first class), to try the accused under the 'the SEBI Act', by holding a summary trial. In case, the Metropolitan Magistrate (or, Judicial Magistrate of the first class), exercises his discretion to try an accused by holding a summary trial, the Metropolitan Magistrate (or, Judicial Magistrate, as the case may be), could not impose a sentence in excess of three months. It was contended, that the above right which was vested in the accused, stands taken away by 'the 2002 Amendment Act' on account of c....
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....ishment prescribed was as under: (a) Section 24(1) of 'the SEBI Act' imprisonment was for a term which may extend to one year, or with fine or both, (b) Section 24(2) of the SEBI Act imprisonment was for a term which may extend to three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand or with both. It was highlighted, that Section 2(x) of the Code of Criminal Procedure defines a 'warrant case', as a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Section 2(w) of the Code of Criminal Procedure defines a 'summons case', as a case relating to an offence, and not being a warrant case. It was submitted, that all offences would either be tried under Chapter XIX of the Code of Criminal Procedure as 'warrant cases' or under Chapter XX as 'summons cases' in view of the quantum of maximum imprisonment prescribed (of three years and one year respectively). The 'forum' of trial for both the aforesaid was the same. It was sought to be emphasized, that Section 260 of the Code of Criminal Procedure is not in Chapter XIX or XX but under Chapter XXI. The applicat....
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....atter of right. The language of Section 260(1) is "... may, if he thinks fit, try in a summary way ...". The language of section is crystal clear. Section 260(2) even provides, that the magistrate can try the case in the regular manner even after deciding to proceed summarily, at any time, if he finds during the course of summary trial, that the nature of the case is such, that it is undesirable to try it summarily. It was accordingly asserted, that the accused under 'the SEBI Act', do not have any right to a summary trial, leave alone a valuable right. 48. Whilst dealing with the first contention advanced by Mr. D.P. Singh, Advocate, it is imperative to deal with some of the salient features, which need be kept in mind. Section 26(b) of the Code of Criminal Procedure, deals with offences under legislative enactments other than the Indian Penal Code. This is how Section 26(b) contrasts with Section 26(a) of the Code. Section 26 of the Code of Criminal Procedure is reproduced below: "26. Courts by which offences are triable. Subject to the other provisions of this Code,- (a) any offence under the Indian Penal Code (45 of 1860), may be tried by- (i) t....
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....herefore be applicable only in cases where, the other laws (-other than the Indian Penal Code) do not postulate the adjudicatory court. In such cases, offences (-provided for under other laws) if punishable with death, imprisonment for life or imprisonment for more than seven years, would be tried by a Court of Session, and where, the offence in question was punishable with imprisonment for three years and upwards, but not more than seven years, the adjudicatory court would be the Court of Magistrate of the first class. And if, the punishment of the offence is imprisonment for less than three years or with fine only, the matter would be triable by any Magistrate. The above contingencies contemplated in Part II of the First Schedule (appended to the Code of Criminal Procedure), are clearly inapplicable to 'the SEBI Act' on account of the fact, that the adjudicatory court (prior to 'the 2002 Amendment Act'), was a court not inferior to that of the Metropolitan Magistrate (or, a Judicial Magistrate of the first class), after 'the 2002 Amendment Act', it was a court not inferior to a Court of Session, and finally, after 'the 2014 Amendment Act', adjudication was vested with Special Cou....
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....able Instruments Act, 1881; and the Food Adulteration Act, 1954), are regulated by Section 26(b) aforementioned, just as 'the SEBI Act'. The number of legislative enactments providing for summary proceedings can be multiplied. What is of importance is, that the legislative intent in matters falling in Section 26(b) of the Code of Criminal Procedure, for holding summary proceedings has been express. In the absence of any similar provision under 'the SEBI Act', it is natural to assume, that summary proceedings were not contemplated by the legislation, and has to be considered as precluded. In the absence of an express provision for holding summary proceedings in the trial of offences under 'the SEBI Act', it is not possible for us to accept the contention canvassed by learned counsel, by merely relying on Section 260 of the Code of Criminal Procedure. 51. It also needs to be kept in mind, that Section 26(2) of 'the SEBI Act' (prior to 'the 2002 Amendment Act') expressly provided, "No court inferior to that of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class) shall try an offence punishable under this Act". It is therefore apparent, that it was not imperat....
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.... following: "27. It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say :- I am not to blame as I am acting under the Act. It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the Act itself", it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. T....
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.... of warrant cases by the Magistrate under the Criminal Procedure Code. The procedure for committal in the sessions cases is omitted altogether; the court's powers of granting adjournment are restricted and special provisions are made to deal with refractory accused and also for cases which are transferred from one Special Court to another. The Court is expressly empowered to convict a person of an offence with which he was not charged if it transpires from the evidence adduced at the time of trial that such offence was committed by him, and it is immaterial that the offence is not a minor offence. The right of revision to the High Court has been taken away entirely, though appeals have been allowed in all cases both at the instance of the accused as well as of the State and they lie both on questions of fact and law. xxx xxx xxx 68. The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in Arts. 20 to 22 should be safeguarded is, ....
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....s and the Magistrates are inferior criminal courts to the High Court and Courts of Judicial Magistrate are inferior criminal courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinate courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice." It was therefore the assertion of learned counsel, that th....
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....ve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right to appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. The legislature has, therefore, specifically provided, by Section 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but there is no corresponding provision in Chapter XXXII, dealing with the question of abatement and the right of substitution in a criminal revision. We may assume that the legislature was aware of the decision of the Bombay High Court, referred to above, when it enacted Section 431 for the first time in the Code of 1882. If the legislature intended that an application in revision pending in a High Court, should be dealt with on the same footing as a pending appeal, it would have enacted accordingly. But in the absence of any such ena....
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....t was held: (AIR p. 147, para 6) "6. ... The revisional powers of the High Court vested in it by Section 439 of the Code read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code." xxx xxx xxx 43. While the revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only a "procedural facility" available to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural facility availabl....