TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 869
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....EBI 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 India (Amendment) Act, 2002 (hereinafter referre....
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....f 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 of offences by courts.-(1) No court shall take cognizance of any offence punishable under this Act or ....
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....stant 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 had reserved orders in the matter on 22.02.2007 - well before the Division Bench of the Delhi High Court, had pronounced ....
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....se 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 than one for such area, by such one of them as may be specified in this behalf by the High Court concerned. 26C. Appeal and revision.- The High Court ....
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....gh 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, during the course of hearing (to demonstrate prejudice), according to learned counsel, leave no room for any doubt, that the litigation initiated by the private parties, based on the above mentioned juris....
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....nstitutional 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 placed on Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696, wherefrom, our attention was drawn to the following observations: "2. The factual matrix in which the controversy arises may be summarised as un....
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....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 (1) and 'over the area in which the accident occurred', mentioned in sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. To that extent there wa....
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....r 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 vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions alrea....
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....nstituted 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, the main opinion was rendered by H.L. Gokhale, J., and a concurring order was passed by Madan B. Lokur, J. Reliance was placed on the following observations from the judgment rendered by H.L. Gokhale, J.: "19. The First Schedule to CrPC deals with the classification of offences. Part I thereof deals with the offences under the Penal Code....
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.... 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 stating that A.S. Impex Ltd. does not lay down the correct proposition of law. 21. The High Court does have the power to transfer the cases and appeals under Section 407 CrPC which is essentially a judicial power. Section 407(1)(c) CrPC lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the....
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.... 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. N. Subbiah Choudhry AIR 1957 SC 540) but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act." 34. In T. Bara i v. Henry Ah Hoe (1983) 1 SCC 177, it was observed in para 17 of the Report that a person accused of the commission of an offence has no right t....
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....oneous 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 effected by the High Court stands acceptable and as such we refrain ourselves from dilating on this aspect of the matter any further. It is pertinent to add in this context that some differentiation exists between a procedural statute and statute dealing with substantive rights and in the normal course of events, matters of procedure are presumed to be retrospective unless there is an express ban onto its retrospectivity. In this context, the observations of this Court in the case of Jose Da Co....
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..... 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 proceeding excepting as altered by the new legislation and as such we need not dilate on the issue any further." Based on the conclusions recorded by this Court in the above cited judgments, it was contended, that with reference to procedure, there could be no dispute, that cognizance to be taken by a court competent at the time a matter is taken up, can be changed retrospectively, even if the cause of action had accrued prior to the change (of 'forum' for trial). And further, that an accused has no vested right, to be tried....
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.... 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 of transfer was liable to be set aside. In this context, this Court also noted that the power to create or enlarge jurisdiction is legislative in character and no court, whether superior or inferior 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. 28. Antulay subsequently came up for consideration in Ranbir Yadav v. State of Bihar (1995) 4 SCC 392. In para 14 of the Report, it was noted that th....
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....nt 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 under S. 5(3) of the Act even though it was repealed on December 18, 1964 by the amending Act. We accordingly reject the argument of the appellant on this aspect of the case." (iii) Reliance was also placed on Securities and Exchange Board of India v. Ajay Agarwal, (2010) 3 SCC 765, wherefrom learned counsel pointedly drew our attention to the legal position expressed in paragraphs 40 and 41, which are reproduced below: "40. Provisions of Section 11-B being procedural in nature can be applied retrospectively. The Appellate Tribunal made a manifest error by not appreciating that ....
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....es 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' (introduced by the amendment). It was pointed out, that while interpreting the provisions of 'the SEBI Act' itself, this Court had held Section 11B to be a procedural provision, having retrospective effect, and that, the amended provision would be applicable to pending cases, even in matters which had arisen prior to the amendment. It was submitted that, where a legislative enactment provides for a special/specific 'forum' for adjudication, then only such special/specific 'forum' can try matters arising under the enactment. It was submitted, that in such matters, the jurisdiction of all other courts stood excluded. ....
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....pecial 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 the above view of the matter, it was the submission of the learned Additional Solicitor General, that the determination rendered by the Bombay High Court, with reference to 'forum' had been rendered infructuous, consequent upon 'the 2014 Amendment Act' which inter alia omitted Section 26(2) from 'the SEBI Act', and retrospectively inserted Section 26B into 'the SEBI Act'. Before that, according to learned senior counsel, Section 26(2) of 'the SEBI Act' amended by 'the 2002 Amendment Act' held the field (with effect from 29.10.2002), and that, adjudication after 29.10.2002 could only be made (for offences arisi....
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....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, retrospective). It was submitted, that such express or implied intendment (pertaining to the first category), would become apparent from an amended statute, where the original court is not deprived of exercising jurisdiction, or alternatively, when the original court's existing jurisdiction is abolished. In all such cases, according to learned counsel, unless the continuation of pending matters by the 'forum' already seized of the matter is done away with, expressly or by necessary implication, all pending proceedings would continue to be dealt with by the 'forum' where the matter was originally instituted. While expounding th....
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....rior 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 696. It was pointed out from the above judgment, that the factual foundation of the controversy was depicted in paragraphs 2 to 8, which are reproduced below: "2. The factual matrix in which the controversy arises may be summarised as under: Crime No. 129 of 2007 for commission of offences punishable under Sections 408, 420, 467, 468 and 471 IPC was registered against the appellant on 18-5-2007, at Bheraghat Police Station. On the date of the registration of the case the offences in question were triable by a Magistrate of First Class in terms of the First Schedule of Code of Criminal Procedure, 1973. That position under....
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....vestigation 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 held that since no charge-sheet had been filed before the Magistrate as on the date the amendment came into force, the case was exclusively triable by the Sessions Court. The High Court has affirmed that view and dismissed the revision petition filed by the appellant, hence the present appeal. 6. The Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007 is in the following words: "An Act further to amend the Code of Criminal Procedure, 1973 in its application to the State of Madhya Pradesh. Be it enacted by the Madhya Pradesh Legislature in the Fifty-eighth Year of the Republic of India as follows: 1. Short title.-(1) This Act may be called the Code of C....
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....ken 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 the case is instituted in the Magistrate's court when the Magistrate takes cognizance of an offence, in which event the case is one instituted on a complaint or a police report. The decision of this Court in Jamuna Singh v. Bhadai Shah AIR 1964 SC 1541, clearly explains the legal position in this regard. 7.4. To the same effect is the decision of this Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252 (SCC p. 257, para 14), where this Court held that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein and that cognizance can be taken in the manner set out in clauses (a) to (c) of Section 190(1) CrPC. We may also refer to the decision of this Court in Kamlapati Tr....
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.... 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 approach the forum as per the amended 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 ....
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..... 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 questions which this Court was 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. Answering the question in the affirmative this Court speaking through A.S. Anand, J. (as His Lordship then was), held that Amendment Act 43 of 1993 was retrospective in operation and that clauses (b) and (bb) of sub-section (4) of Section 20 of TADA apply to the cases which were pending investigation on the date when the amendment came into force. The Court summed up the legal position with regard to the procedural law being retrospective in its operation and the righ....
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....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. The questions formulated by the Full Bench of the High Court were answered in the negative holding that all cases pending in the Court of the Judicial Magistrate, First Class as on 22-2-2008 when the amendment to the First Schedule to CrPC became operative, will remain unaffected by the said amendment and such matters as were, in the meanwhile committed to the Court of Session, will be sent back to the Judicial Magistrate, First Class for trial in accordance with law. In coming to that conclusion the Full Bench placed reliance upon three decisions of this Court in Manujendra Dutt v. Purnedu Prosad Roy Chowdhury AIR 1967 SC 1419, CIT v. R. Sharadamma (1996) 8 SCC 388 and R. Kapilnath v. Krishna (2003) 1 SCC 444. The ratio of the above decisions, in our opinion, was not directly applicable to the fact situation before the Full Bench. The Full Bench of the High ....
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....ed 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 trial of the appellant had been taken up by Special Judge, Santhal Paraganas when Section 5(3) of the Prevention of Corruption Act, 1947 was still operative. The appellant was convicted by the Special Judge before the Amendment Act repealing Section 5(3) was promulgated. This Court held that the conviction pronounced by the Special Judge could not be termed illegal just because there was an amendment to the procedural law on 18-12-1964. The following passage is, in this regard, apposite: (AIR p. 1639, paras 5-6) "5. ... It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle viz. that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (see A Debtor, In re, e....
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....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 prospectively. We say so because the trial of the cases that were sent back from the Sessions Court to the Court of the Magistrate, First Class under the orders of the Full Bench may also have been concluded or may be at an advanced stage. Any change of forum at this stage in such cases would cause unnecessary and avoidable hardship to the accused in those cases if they were to be committed to the Sessions for trial in the light of the amendment and the view expressed by us." 22. It was also the contention of learned counsel for the private parties, that 'the 2002 Amendment Act' does not indicate the desire of the legislature in divesting proceedings which were earlier pending before a Metropolitan Magistrate (or, a Judicial Magistrate, as the case may be). In order to substantiate the instant contention, learned counsel, in the first instance, placed reliance on the statement of objects and reasons of the Securities and Exchange Board of India....
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.... 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, 1992. 5. It is now proposed to replace the Ordinance by a Bill, with, inter alia, the following features- (a) increasing the number of members of the SEBI from six (including Chairman) to nine (including Chairman); (b) conferring power upon the Board for,- (i) calling for information and record from any bank or other authority or Board or corporation established or constituted by or under any Central, State or Provincial Act in respect of any transaction in securities which are under investigation or inquiry by the Board; (ii) passing an order for reasons to be recorded in writing, in the interest of investors or securities market, either pending investigation or inquiry or on completion of such investigation or inquiry for taking any of the following measures, namely, to-- (A) suspend the trading of any security in a recognised stock exchange; (B) restrain persons from accessing the securities market and prohibit any person associated with securities market to ....
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....s." Reading extensively from the objects and reasons extracted above, it was submitted, that the aforestated amendment was primarily aimed at remedying the shortcomings in 'the SEBI Act', particularly, with reference to inspection, investigation and enforcement. It was also pointed out, that the said amendment was aimed at enhancing the penalties postulated for violation of the provisions of 'the SEBI Act', inasmuch as, the existing penalties did not serve as an effective deterrent. It was submitted, that 'the 2002 Amendment Act' was an in-depth restructuring of the SEBI (by increasing the number of its members), and by conferring further powers on the Securities & Exchange Board of India. It was submitted, that the change of 'forum' emerging out of the provisions of 'the 2002 Amendment Act', was not even referred to in the statement of objects and reasons. And as such, it was not proper for this Court to draw any inference, merely on the premise, that a procedural amendment had been contemplated by changing the existing 'forum (to that of the Court of Session). It was submitted, that an overall analysis of 'the 2002 Amendment Act' would demonstrate, that the erstwhile penalties u....
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....It was submitted, that any change of 'forum', whilst the penal consequences remained unchanged, was absurd. According to learned counsel representing the private parties, the change of 'forum' (through 'the 2002 Amendment Act') was aimed at bringing the 'forum' of adjudication, at par with the 'forum' contemplated for similar penal consequences, under the Code of Criminal Procedure. It was submitted, that it could never have been the intention of the legislature through 'the 2002 Amendment Act', to alter the 'forum' for offences with trivial punishments (as is the case, with the private parties herein). 23. In order to substantiate the contention advanced in the foregoing paragraph, learned counsel has placed reliance on Commissioner of Income Tax, Orissa v. Dhadi Sahu, 1994 Supp (1) SCC 257, and drew our attention to the following observations recorded therein: "5. Pending reference of the case before the Inspecting Assistant Commissioner, Section 274(2) of the Act was amended with effect from April 1, 1971 by the Taxation Laws (Amendment) Act, 1970 (hereinafter referred to as 'the Amending Act') so as to read as follows: "Notwithstanding anything contained in clause (iii) of....
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.... be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums." Reliance was also placed on R. Kapilnath v. Krishna, (2003) 1 SCC 444, wherein the Court's pointed attention was drawn to the following observations: "4. The above submission of the learned counsel has been stated only to be rejected. It is pertinent to note that the proceedings in the Court of Munsiff had already stood concluded by the time the amendment came into force. It is not disputed that Amendment Act 32 of 1994 has not been given a retrospective operation and there is nothing in the Act to infer retrospectivity by necessary implication. The Act has been specifically brought into force w.e.f. the 18th day of May, 1994. The learned counsel for the appellant cited a number of decisions laying down the law as to how an amendment in legislation brought into force during the pendency of legal proceedings has to be given effec....
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....'the SEBI Act' by 'the 2002 Amendment Act', learned counsel emphasized on "... shall be taken cognizance of and tried ...". Relying on the aforestated words used in Section 26B, it was asserted, that the intent of the legislature was that the change of 'forum' would apply only to matters, wherein cognizance had not been taken. It was submitted, that there was no question of taking fresh cognizance, where cognizance had already been taken. It was accordingly sought to be inferred, that the clear intent indicated by the legislature was, that the change of 'forum' would be applicable, only in matters wherein cognizance had not been taken. 24. Learned senior counsel, then placed reliance on Videocon International Limited v. Securities and Exchange Board of India, (2015) 4 SCC 33. It was submitted, that the instant judgment of this Court had taken into consideration a number of previous judgments rendered by it, for recording its final conclusions. As such, it was submitted, that reliance on the instant judgment, would obviate the necessity of reference to other judgments of this Court (on the question in hand). Learned counsel placed reliance on the observations and conclusions, recor....
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....hile adjudicating the aforesaid dispute, this Court held as under: (Ambalal case, SCC pp. 409-10 & 415, paras 24-27 & 34-36) "24. We may quote here Section 6 of the General Clauses Act, 1897: '6. Effect of repeal.-Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forf....
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.... 27. At the most, such a provision can be said to be granting a privilege to the landlord to seek intervention of the Controller for eviction of the tenant under the statute. Such a privilege is not a benefit vested in general but is a benefit granted and may be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition of eviction of the tenant the privilege accrued with the landlord is not effected by repeal of the Act in view of Section 6(c) and the pending proceeding is saved under Section 6(e) of the Act. *** 34. Thus we find Section 6 of the General Clauses Act covers a wider field and saves a wide range or 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 applicable, the courts have to scrutinise and find, whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved . However, in cases where Section 6 is applicable, it is not merely a vested right but all those covered under various clauses from (a) to....
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....ntention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Ltd. case , it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein does not so envisage, it has to be concluded, that the pending appeals (before the amendment of Section 15-Z) would not be affected in any manner. Accordingly, for the same reasons as have been expressed in the above judgment (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for the appellant is wholly misconceived. Furthermore, the instant contention is wholly unacceptable in view of the mandate contained in Sections 6 (c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that....
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....forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29-10-2002, would have to be accepted as vested, and must be adjudicated accordingly." 25. Learned counsel for the private parties, emphasized the manner in which legislative intent, in such matters, is usually expressed. It was submitted, that it was usually provided for the amending....
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....sted right but all those covered under various clauses from (a) to (e) of Section 6. We have already clarified right and privilege under it is limited to that which is "acquired" and "accrued". In such cases pending proceedings is to be continued as if the statute has not been repealed. 36. In view of the aforesaid legal principle emerging, we come to the conclusion that since proceeding for the eviction of the tenant was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable in the present case, as it is the landlord's accrued right in terms of Section 6. Clause (c) of Section 6 refers to "any right" which may not be limited as a vested right but is limited to be an accrued right. The words "any right accrued" in Section 6(c) are wide enough to include landlord's right to evict a tenant in case proceeding was pending when repeal came in. Thus a pending proceeding before the Rent Controller for the eviction of a tenant on the date when the repealing Act came into force would not be affected by the repealing statute and will be continued and concluded in accordance with the law as existed under the repealed statute." 26. Relia....
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....n of Section 274, as amended by the Taxation Laws (Amendment) Act of 1970, the Inspecting Assistant Commissioner to whom the case had been referred prior to 1971 had no jurisdiction to impose penalty." xxx xxx xxx 18. It may be stated at the outset 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. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them." Reference was also made to, Commissioner of Income Tax, Bangalore v. R. Shradamma, (1996) 8 SCC 388, and finally, learned counsel placed reliance on R. Kapilnath v. Krishna, (2003) 1 SCC 444, wherefrom the Court's attention was drawn to paragraph 4, which is extracted below: "4. The above submission of the learned counsel has been stated only to be rejected. It is pertinent to note that the proceedings in the Court of Munsiff had already stood concluded by the time the amendme....
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....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." 27. Learned counsel representing the private parties, in continuation of the above submission placed reliance on Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460. It was submitted, that the reliance on the above judgment, was to demonstrate the same position, through a proposition which was contextually different. It is necessary to record, that the instant judgment was also relied upon by learned counsel representing the SEBI. However, according to learned counsel for the private parties, it is essential also to take into consideration the observations recorded in the concurring order passed by Madan B. Lokur, J. First of all, it is necessary to appreciate the submissions canvassed. They were recorded (in the opinion relied upon) as under: "25. The notification authorising the Special Judge to dispose of cases under the Foreign Exchange Management Act, 1999 and thereby effectively transferring the petitioners' case pending before the Magi....
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....r this section only on the application of the Attorney General of India or of a partly interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney General of India or the Advocate General of the State, be supported by affidavit or affirmation. (3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case." 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. 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 w....
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....ced through 'the 2014 Amendment Act', would determine the 'forum' for fresh matters, i.e., matters where cognizance had not been taken till the date of amendment. In order to protect the proposition being canvassed in the correct perspective and context, reliance was placed on Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74, wherefrom, our pointed attention was drawn to the following observations: "5. It would appear that their Lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey 59 IA 283, 287. "There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term......" Similarly in Raja of Remnad v. Kamid Rowthen and Others53 IA 74, a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full Bench of the Madras High....
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....trial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury. 6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal." 28. While repudiating the submissions advanced by Mr. C.A. Sundaram, Ms. Pinky....
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....trate the disjunctive character of the above provision, reliance was placed on Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15, wherein the Court observed as under: "7. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines "cheating". The said provision requires: (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in bod....
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....e 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 S. 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 S. 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 enactment, ....
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..... It 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." 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 available to the petitioners. It only changes the forum and as already held above, t....
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....aforesaid contention, learned counsel also emphasized on the use of the words "no court inferior to" and the word "shall" in Section 26(2) of 'the 2002 Amendment Act', to highlight that jurisdiction of all other inferior courts was taken away. In order to support the aforesaid contention, learned counsel placed reliance on Union of India v. A.K. Pandey, (2009) 10 SCC 552, wherein reference was pointedly made to the following observations: "15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, the....
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.... stance, raised by Mr. C.A. Sundaram, learned Senior Advocate representing most of the private parties. 33. In a manner of understanding, it may well be possible to conclude, that the adjudicatory 'forum' was not altered at all by 'the 2002 Amendment Act'. In this behalf, reference may be made to Section 26(2) of 'the SEBI Act', as it existed prior to the 2002 amendment. The above provisions mandated, that 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. The contemplated 'forum' of adjudication could be the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), or any other higher court. And not necessarily the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class). The higher court which could have tried matters even before 'the 2002 Amendment Act', could well be the Court of Session. And as such, in case of a determination, the trial of offences under 'the SEBI Act' could have been conducted by a Court of Session even prior to 'the 2002 Amendment Act', there would be nothing wrong about it. The provision, as it existed prior ....
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.... This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392, and Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, as well as, a number of further judgments noted above. 35. We have also no doubt, that alteration of 'forum' has been considered to be procedural, and that, we have no hesitation in accepting the contention advanced on behalf of the SEBI, that change of 'forum' being procedural, the amendment of the 'forum' would operate retrospectively, irrespective of whether the offence allegedly committed by the accused, was committed prior to the amendment. 36. Whilst accepting the contentions advanced on behalf of learned counsel for SEBI pertaining to 'forum' (with reference to which inferences have been drawn in the foregoing paragraph), it is not possible for us to outrightly reject the contentions advanced by Mr. C.A. Sundaram, learned Senior Advocate, while projecting the claim of the accused. We are not oblivious of the conclusions recorded by this Court in Commissioner of Income Tax, Orissa v. Dhadi Sahu, 1994 Supp (1) SCC 257, wherein it was held tha....
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....It was also observed in the above judgment, that the provisions for change over of proceedings from one court to another, are only found in a statute, which takes away the jurisdiction of one court, and confers it on another, in pending actions. Since the amending Act did not show the pending proceedings before the court would abate, it was felt, that the court before which proceedings were filed, continued to have the jurisdiction to adjudicate the same. The above position has been considered affirmatively by this Court also in Nani Gopal Mittal v. State of Bihar, AIR 1970 SC 1636; Ambalal Sarabhai Enterprises v. Amrit Lal and Co., (2001) 8 SCC 397; R. Kapilnath v. Krishna, (2003) 1 SCC 444; Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696; and Videocon International Limited v. Securities and Exchange Board of India, (2015) 4 SCC 33. From a perusal of the conclusions drawn in the above judgments, we are inclined to accept the contention, that change of 'forum' could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of, but where the remedy had already been availed of (under an existing statutory provision), the right may b....
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....nt under 'the 2002 Amendment Act' came into force, on 29.10.2002. There can be no doubt whatsoever, that 'the 2002 Amendment Act', expressly diverted jurisdiction from the Metropolitan Magistrates (and, Judicial Magistrates of the first class) to try offences under 'the SEBI Act', after 'the 2002 Amendment Act' became operational. 40. The position was similarly explicit in Section 26B inserted by 'the 2014 Amendment Act', by use of the words "... 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 ... tried by the Special Court established for the area in which the offence is committed...". There can be no doubt whatsoever, that 'the 2014 Amendment Act' grouped all offences together as one, by providing that all offences committed prior to or after 'the 2014 Amendment Act', would be tried by a Special Court. The attempt of the learned Senior Advocate, to segregate the cases arising under 'the SEBI Act' into two categories, is clearly and expressly ruled out, by the language adopted in the provision itself. We are of the view, that Section 26B was categorically ex....
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....al had commenced under the unamended provision, after the amendments, which we have held to be operational retrospectively, the trial would move to the changed 'forum' (to the Court of Session, after 'the 2002 Amendment Act' and, to the Special Court, after 'the 2014 Amendment Act'). 42. We shall now endeavour to attempt to record the submission advanced by Mr. D.P. Singh, Advocate, who also represented the accused. The first contention advanced by learned counsel was simple and straightforward. It was submitted, that transfer of jurisdiction, consequent upon 'the 2002 Amendment Act', from the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), to a Court of Session, would seriously prejudice the accused represented by him. It was his contention, that after the amendment of Sections 24 and 26 by 'the 2002 Amendment Act', the punishment for offences committed under 'the SEBI Act' were enhanced to the extent, that the same could no longer be tried as summons-cases. It was pointed out, that the trial of cases after 'the 2002 Amendment Act', could only be as warrant-cases. In this behalf, it was sought to be asserted, that under Section 2(x) of the Code ....
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....thing contained in this Code (a) any Chief Judicial Magistrate; (b) any Metropolitan Magistrate; (c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences: (i) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years; (ii) theft, under section 379, section 380 or section 381 of the Indian Penal Code, 1860 (45 of 1860), where the value of the property stolen does not exceed two thousand rupees; (iii) receiving or retaining stolen property, under section 411 of the Indian Penal Code, 1860 (45 of 1860), where the value of the property does not exceed two thousand rupees; (iv) assisting in the concealment or disposal of stolen property, under section 414 of the Indian Penal Code, 1860 (45 of 1860) where the value of such property does not exceed two thousand rupees; (v) offences under sections 454 and 456 of the Indian Penal Code, 1860 (45 of 1860); (vi) insult with intent to provoke a breach of the peace, under section 504 and criminal intimidation punishable with imprisonment for a term which may extend to....
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....refore, the possibility of being let off with a light sentence of three months, has also been taken away. It was submitted, that the instant right vested in the accused under the unamended provisions of Sections 24 and 26 of 'the SEBI Act' could not have been taken away retrospectively. It was pointed out, that after 'the 2002 Amendment Act', the accused cannot insist, in case he is found guilty, that the sentence imposed upon them should be limited to three months. 44. It was the emphatic contention of learned counsel for the accused, that irrespective of the submissions advanced on behalf of the accused, as have been canvassed by other learned counsel, if it could be shown that the change of 'forum' of trial, was discriminatory or prejudicial or created a disability or disadvantage or fastened an obligation, not arising in the 'forum' of trial prior to the amendment, the change of 'forum' would have to be prospective. In this behalf, reliance was placed on Union of India v. Sukumar Pyne, AIR 1966 SC 1206; Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636; New India Insurance Co. Ltd. v. Shanti Misra (1975) 2 SCC 840; Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC....
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....(1) and 24(2) of 'the SEBI Act'. 46. Moreover it was submitted, that in 'the SEBI Act', there is no provision of summary trial of the cases. The legislative intent, is therefore very clear. Wherever the legislature had envisaged summary trial of cases, the legislature has made specific provision for the same, in the enactment itself. Under the Negotiable Instrument Act, the legislature had provided under Section 143 of the Negotiable Instruments Act, 1881. Similar provisions were also provided for under Section 16A of the Food Adulteration Act, 1954. It was accordingly asserted, that under special enactments, whenever the legislature desired the offences to be tried summarily, it provided so expressly. But, no such provision has expressly been enacted under 'the SEBI Act'. There was no expression in either the pre-amendment or the post-amendment legislation, of any legislative intent of the trial proceeds, before different forums for violations of the different provisions of Section 24(1) and 24(2) of 'the SEBI Act'. As 'the SEBI Act' had provided different punishment under Sections 24(1) and 24(2), for trial before the same 'forum', the plea raised by learned counsel for the accu....
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....djudication of offences committed under 'the SEBI Act', prior to 'the 2002 Amendment Act', was a court not inferior to that of a Court of the Metropolitan Magistrate (or, a Judicial Magistrate of the first class). It is therefore apparent, that the 'forum' for trial, which would adjudicate offences under 'the SEBI Act', emerged from the substantive enactment itself (-'the SEBI Act'). As such, reference for purposes of offences under 'the SEBI Act' to the provisions of the Code of Criminal Procedure, for the matter of jurisdiction, is wholly misconceived. 49. It is also essential, to make a reference to Part II of the Second Schedule to the Code of Criminal Procedure. The same is extracted hereunder: "II - CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or non-cognizable Bailable or non-bailable By what court triable 1 2 3 4 If punishable with death, imprisonment for life, or imprisonment for more than 7 years, Cognizable Non-bailable Court of Session If punishable with imprisonment for 3 years, and upwards but not more than 7 years, Cognizable Non-bailable Magistrate of the first class If punishable with imprisonment for less than 3 years or with....
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....ection 260, aforementioned. The use of the words "...all or any of the following offences ..." with reference to the offences mentioned at (i) to (ix) of sub-section (1) of Section 260 further makes it apparent, that the summary process could be applied only to the clearly defined exigencies/offences. It is therefore, that Section 26(b) assumes significance, because it endeavours to deal with offences provided for in special enactments. Reliance on Section 260, with reference to offences provided for in special enactments, in our view, is clearly misconceived. Since the 'forum for trial under the SEBI Act' is derived from Section 26(b) of the Code of Criminal Procedure, the same would need an express order of empowerment for holding summary proceedings, before the court concerned adopts the summary procedure. And that is exactly why, summary proceedings are expressly provided for, by different legislative enactments, i.e., where the competent court for trial is determined under Section 26(b) of the Code of Criminal Procedure. It may illustratively be noticed, that when legislative intent was to provide for summary proceedings, the legislation itself expressly provided for the same....
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.... suggested by learned counsel representing the accused. Since the applicability of Section 260 of the Code of Criminal Procedure to proceedings under 'the SEBI Act' has not been accepted, the prejudice claimed on behalf of the accused under Section 262 of the Code of Criminal Procedure (-which is dependent on Section 260 of the Code) can also not be accepted. 52. The second contention advanced by Mr. D.P. Singh, learned counsel was, that the right of revision available to the accused, prior to the amendment to 'the SEBI Act', has been taken away. It was pointed out, that this aspect also had substantive (and, not merely procedural) implications for the accused. It was pointed out, that the right of revision being a valuable right of the accused, the deprivation of the above valuable right, emerging from the change of 'forum' from the Court of the Metropolitan Magistrate (or, Judicial Magistrate of the first class) by 'the 2002 Amendment Act', and by 'the 2014 Amendment Act', should not be considered as a trivial procedural issue. It was submitted, that the taking away of the right of revision from an accused, has to be considered as a substantial procedural deprivation. It was sub....
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.... and the whole controversy centers round the point as to whether the provision of section 5 (1) of the West Bengal Special Courts Act, 1950, as well as certain notifications issued under it are ultra vires the Constitution by reason of their being in conflict with Art. 14 of the Constitution. The material facts, which are not controverted, may be shortly stated as follows. On 17-8-1949, an Ordinance, known as the West Bengal Special Courts Ordinance, was promulgated by the Governor of West Bengal under section 88 of the Government of India Act, 1935. On 15-3-1950, this Ordinance was superseded and replaced by the West Bengal Special Courts Act which contained provisions almost identical with those of the Ordinance. Section 3 of the Act empowers the State Government to constitute, by notification, Special Courts of criminal jurisdiction for such areas and to sit at such places as may be notified in the notification. Section 4 provides for appointment of a Special Judge to preside over a Special Court and it mentions the qualifications which a Special Judge should possess. Section 5(1) then lays down that a Special Court shall try such offences or classes of offences or cases or cl....
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.... of the Code of Criminal Procedure, was available to the accused under the unamended provisions of 'the SEBI Act', when adjudication for offences under 'the SEBI Act' was vested with a Metropolitan Magistrate (or, a Judicial Magistrate of the first class). It was submitted, that since the adjudicatory procedure for holding trials for offences under 'the SEBI Act' was vested with a Court of Session (under 'the 2002 Amendment Act'), and thereafter, with the Special Court (consequent upon 'the 2014 Amendment Act'), the accused who have not been tried (prior to the above amendments), stood deprived of the right of revision, under Section 397 read with Section 401 of the Code of Criminal Procedure. It was therefore contended, that the amendment of 'forum' of trial, in the facts and circumstances of the present case, could not be treated as a mere procedural amendment, but was liable to be considered as having substantive adverse implication for the accused. In order to support his above assertion, learned counsel placed reliance on Krishnan v. Krishnaveni, (1997) 4 SCC 241, and invited our attention to the following: "7. It is seen that exercise of the revisional power by the High Cou....
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....dy of revision cannot be considered as deprivation of a right. In this behalf, reference may be made to Pranab Kumar Mitra v. State of West Bengal, AIR 1959 SC 144, wherein it was held: ".....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 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. .....". The aforesaid determination also emerges from the following observations recorded in paragraph 6 of the above judgment, which is extracted hereunder: "6. In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or no....
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....under Section 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 Section 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." Reference on the above issue, may also be made to Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, wherein this Court held as under: "41. This question proceeds on the assumption that there is a right of revision. A Constitution Bench of this Court in Pranab Kumar Mi....