TaxTMI 
TaxTMI 
2026 (7) TMI 846
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....nd 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking, inter alia, the following reliefs: "(a) Declare that Section 2(c)(viii) and Section 2(b) of the Prevention of Corruption Act, 1988 are vague, arbitrary and unconstitutional, and are violative of Article 14 and Article 21 of the Constitution of India; and (b) Strike down Section 2(c)(viii) and Section 2(b) of the Prevention of Corruption Act, 1988 for violating Article 14 and Article 21 of the Constitution of India, insofar as they are sought to be made applicable to private persons employed with a private limited company; and (c) In the alternative, read down and/or limit the scope of operation of Section 2(c)(viii) r/w Section 2(b) of the PC Act, insofar as they are sought to be made applicable to private persons employed with or serving as a director of a private limited company incorporated in India (d) Declare that the sanction letters dated 15.11.2022 and 11.02.2023 issued by the Board of Directors of NSE are illegal and ultra vires the Prevention of Corruption Act, 1988 since the Petitioner herein is not a public servant in terms of t....
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....lleged that certain officers/officials of the NSE were passing information regarding switch-on time of the NSE Exchange Servers, facilitating access to the technologically latest and least crowded servers and providing unfair access to the NSE's co-location facility to OPG Securities. This allegedly enabled OPG Securities to be the first to login to the Exchange Servers of the NSE and receive data feed before others. It was further alleged that OPG Securities was also allowed to connect to the backup servers of the NSE, which had zero load and provided better and faster access to the market feed. 6. Upon receiving complaints regarding exploitation of the Exchange Servers, SEBI conducted an inquiry. According to the Report of its Technical Advisory Committee, OPG Securities had exploited the tick-by-tick architecture of NSE by consistently being the first to log in on the Exchange Servers of the NSE during the period 2010 to 2014. It was also alleged that bribes had been paid to some unknown officials of NSE and SEBI for conferring undue favour upon OPG Securities. 7. Accordingly, on the basis of the said information, an FIR dated 28.05.2018, bearing RC No. AC1 2018 A0011, was....
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....tated that the NSE has been held to be a "public authority" under the Right to Information Act, 2005 (hereinafter referred to as, RTI Act) by this Court in National Stock Exchange of India Ltd. v. Central Information Commission & Ors., 2010 SCC OnLine Del 1513, and as 'State' within the meaning of Article 12 of the Constitution of India, by the Supreme Court in K.C. Sharma v. Delhi Stock Exchange & Ors., AIR 2005 SC 2884. 11. The provisions of the PC Act invoked in the chargesheet, that is, Section 13(1)(d) and 13(2), relate to criminal misconduct by a 'public servant', and provide for the requirement of a prior sanction for prosecution, in terms of Section 19 of the PC Act. Accordingly, a Report was prepared by the CBI seeking sanction in terms of Section 19 of the PC Act from the competent authority in the NSE to prosecute the petitioner. The proceedings before the learned Trial Court were adjourned from time-to-time for want of sanction from the competent authority. 12. In the meanwhile, a Supplementary Chargesheet dated 18.08.2022 was also filed by the CBI under Section 120B read with Sections 201, 204, 420 of the IPC, Sections 85, 66 read with Section 43 of the IT Act an....
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.... and its contentions in pending legal proceedings and should not be treated as acceptance by NSE that any of its personnel, whether former or present, are public servants or that it is covered by the provisions of the Prevention of Corruption Act, 1988." 17. The Sanction Orders dated 15.11.2022 and 11.02.2023 were thereafter taken on record by the learned Trial Court, vide the orders dated 14.02.2023 and 15.05.2023, respectively, and are in challenge before this Court in the present Writ Petition. 18. The present Writ Petition also challenges the order dated 18.07.2023 passed by the learned Special Judge (PC Act) (CBI), whereby the learned Special Judge, after a perusal of the complaint, witness statements and other relevant documents, took cognizance against the petitioner and the other accused persons for the offences punishable under Section 120B of the IPC read with Section 13(1)(d) read with Section 13(2) of the PC Act read with Sections 201, 204 and 420 of the IPC and Sections 85, 66 read with Section 43 of the IT Act. 19. The petitioner has also challenged the constitutional validity of Section 2(c)(viii) and Section 2(b) of the PC Act, on the ground that the said p....
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....Senior Counsel submits that the NSE is a private non-government company that works for profit and is managed by its Board of Directors. Neither the organizational structure nor the functions of the NSE are public in nature. He submits that the NSE has no government shareholding, and the shareholding of entities like LIC, SBI, IDBI Bank Ltd., General Insurance Corporation, etc. in NSE, also does not alter its position. He submits that equity participation of Public Sector Undertakings in the NSE does not qualify as any financial aid by the Government and does not entitle the Government to control the management of the NSE. In support, he relies upon the judgments in National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad & Ors., (2011) 12 SCC 695; Accountant and Secretarial Services Pvt. Ltd. & Anr. v. Union of India & Ors., (1988) 4 SCC 324; and, Electronics Corporation of India Ltd. & Ors. v. Secretary, Revenue Department, Govt. of Andhra Pradesh & Ors., (1999) 4 SCC 458. 25. He further submits that the petitioner's duties and functions in the NSE were confined to the management of NSE's business. By virtue of the Articles of Association of NSE, such duties include pa....
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....ship, control or aid by the Government, and is wholly irrelevant in determining whether the petitioner would be liable for prosecution as a "public servant" under the PC Act. In furtherance, he relies on the judgments in Federal Bank Ltd. v. Sagar Thomas & Ors., (2003) 10 SCC 733 and G. Udayan Dravid & Ors. v. State & Ors., (2007) 93 DRJ 624. 30. He submits that where the Parliament intends to treat employees of private companies as public servants, it does so by an express deeming provision, such as by Section 46A of the Banking Regulation Act, 1949. However, there is no such provision in the present case for the officials of the NSE. 31. The learned Senior Counsel then submits that the sanction granted for prosecution is ex facie invalid. He submits that it is well settled that the Sanctioning Authority must independently apply its mind to the relevant facts, before granting sanction to prosecute. In furtherance, he relies upon the judgment of the Supreme Court in Central Bureau of Investigation v. Ashok Kumar Aggarwal, (2014) 14 SCC 295. He submits that the Board of Directors of the NSE, while granting the sanction to prosecute the petitioner, categorically stated that the....
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.... of an employment dispute and did not decide whether the petitioner therein or the Delhi Stock Exchange is a 'public servant' or 'public authority' under the PC Act. SUBMISSIONS ON BEHALF OF THE RESPONDENT- UNION OF INDIA 36. Mr. Amit Tiwari, learned CGSC appearing for the Union of India, submits that the challenge to the constitutional validity of Section 2(c)(viii) and Section 2(b) of the PC Act is without merit and is an attempt to evade accountability for actions that fall within the purview of the PC Act. He submits that the Statement of Objects and Reasons of the Prevention of Corruption Bill, 1987 shows that the intent of the amendment of the PC Act is to widen the coverage of the anti-corruption laws. The expressions "public servant" and "public duty" must, therefore, be given a broad interpretation, so as to include those who may not be public servants in the traditional sense, but whose actions affect the public at large. He further submits that it is the duty of the Courts that the anti-corruption laws are interpreted and worked in such a manner as to strengthen the fight against corruption. In support, he places reliance on the judgment of the Supreme Court in Sub....
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.... the entity. 43. He submits that the Sanction Order, FIR, and the chargesheets are based on comprehensive evidence and factual grounds and, therefore, do not deserve to be quashed. 44. He further submits that the caveat in the Sanction Order to the effect that NSE is not covered by the provisions of the PC Act, has no bearing on classifying the petitioner as a "public servant" in law. In furtherance of his submission, he places reliance on the judgment of the Supreme Court in Ashok Kumar Aggarwal (supra). 45. He contends that the prosecution of the petitioner under PC Act is valid, and that the classification of the petitioner as a "public servant" is consistent with the scheme and intent of the PC Act. He submits that, therefore, the present Writ Petition deserves to be dismissed, and the impugned chargesheets, Sanction Orders and the order of the learned Special Judge taking cognizance, deserve to be upheld. SUBMISSIONS ON BEHALF OF THE LEARNED SPP FOR THE RESPONDENT-CBI 46. Mr. Anupam S. Sharma, the learned SPP for the CBI, challenges the maintainability of the present petition. He submits that though the petitioner has challenged the constitutional validity of ce....
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....au of Investigation, (2018) 16 SCC 299; and State through Lokayukta Police, Raichur v. C.N. Manjunath, (2017) 11 SCC 361, and of the Jharkhand High Court in Sanjay Kumar Agarwal v. Central Bureau of Investigation, Anti Corruption Bureau, 2023 SCC OnLine Jhar 394. 50. He submits that the NSE was established to regulate the Stock Exchange and to bring the Indian Securities Market at par with the global standards. The duties performed by the officials of the NSE have far-reaching impact on the economy of the country and on the members of public who invest in the stock market. Therefore, the officials of NSE perform "public duty" within the meaning of Section 2(b) of the PC Act and would be regarded as "public servants" under Section 2(c) thereof. In support, he places reliance on the judgment of the Supreme Court Jatya Pal Singh & Ors. v. Union of India & Ors., (2013) 6 SCC 452. 51. The learned SPP also relies upon the Memorandum of Association of NSE to highlight that it provides that the object of the NSE, inter alia, is to facilitate, promote, assist, regulate and manage, in public interest, dealings in securities of all kinds to support development, and promote and maintain ....
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...., AIR 1979 SC 1628. 54. As regards the challenge to the Sanction Orders is concerned, the learned SPP submits that the same are valid since they have been issued by the Competent Authority. He submits that the Board of Directors is competent to remove the petitioner from the NSE while she was acting as MD and CEO. He contends that the petitioner's submission that she could only be removed by the shareholders of NSE and that the Board was incompetent to remove her and issue sanction under Section 19 of the PC Act, is incorrect. 55. The learned SPP submits that the impugned Sanction Orders set out the material facts, the offences alleged, and the material considered by the competent Sanctioning Authority. He submits that the Orders also show due application of mind. Further, as per Section 114(e) of the Indian Evidence Act, 1872, there raises a presumption that the official acts have been regularly performed. Therefore, the Sanction Orders shall be treated as valid and properly issued, unless the contrary is established in accordance with law. In support, he places reliance on the judgments in Central Bureau of Investigation & Ors. v. Pramila Virendra Kumar Agarwal & Anr., (202....
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....confinement; Eighth.-Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Ninth.-Every officer whose duty it is as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; Tenth.-Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; Eleventh.-Every person who holds....
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.... Supreme Court held that the Members of Parliament and Members of State Legislature will fall within the definition of "public servant" under the PC Act. The relevant findings from the said judgment are as under: "80. It would thus be seen that as per the decisions of this Court the statement of the Minister who had moved the Bill in Parliament can be looked at to ascertain the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. The statement of the Minister who had moved the Bill in Parliament is not taken into account for the purpose of interpreting the provisions of the enactment. The decision in Pepper v. Hart permits reference to the statement of the Minister or other promoter of the Bill as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity provided the statement relied upon clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words and that such a statement of the Minister must be clear and unambiguous. This rule of construction laid in Pepper v. Harthas no application in the prese....
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.... In view of the definition of "public servant" in Section 46-A of the Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a banking company operating under the licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from the definition of "public servant". We are of the view that over the general definition of "public servant" given in Section 21 IPC, it is the definition of "public servant" given in the PC Act, 1988, read with Section 46-A of the Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46-A of the Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165-A IPC have been repealed by the PC Act, 1988, relevance of Section 46-A of the Banking Regulation Act, 1949, is not lost." 62. In his concurring opinion, Justice Ranjan Gogoi, held as under: "36. While there can be no manner of doubt that in the Objects and Reasons stated for enactment of the Prevention of Corruption Act, 1988 it has been made more than clear that the Act, inter alia, envisages widening of....
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.... (v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; (vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority; (vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty; (ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); ....
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....ve, read down. 68. While there can be no caveat to the submission of the learned Senior Counsel for the petitioner that, in criminal jurisprudence, vagueness and consequent uncertainty in a penal provision may itself render the provision unreasonable and violative of the Fundamental Rights under Articles 14 and 21 of the Constitution of India, at the same time, it must be kept in mind that certain provisions may not be capable of a precise definition. The difficulty in framing a precise definition, where an infinite variety of situations may arise and cannot be comprehended, cannot be held to be hit by the evil of vagueness and uncertainty. Putting them in a strait-jacket definition may, in fact, rob them of their intended amplitude and rob the executive of the minimal latitude that it must be conferred with in order to make the laws effective, keeping in view its object and purpose. 69. In A.K. Roy (supra), a Constitutional Bench of the Supreme Court explained this delicate balance to be maintained by the legislature, as under: "61. In making these submissions counsel seem to us to have overstated their case by adopting an unrealistic attitude. It is true that the v....
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....h foreign powers' are concepts of that nature which are difficult to encase within the strait-jacket of a definition. If it is permissible to the legislature to enact laws of preventive detention, a certain amount of minimal latitude has to be conceded to it in order to make those laws effective. That we consider to be a realistic approach to the situation. An administrator acting bona fide, or a court faced with the question as to whether certain acts fall within the mischief of the aforesaid expressions used in Section 3, will be able to find an acceptable answer either way. In other words, though an expression may appear in cold print to be vague and uncertain, it may not be difficult to apply it to life's practical realities. This process undoubtedly involves the possibility of error but then, there is hardly any area of adjudicative process which does not involve that possibility. 62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi. The underlying principle is that every person is e....
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....required to adopt a purposive approach while construing the definition of "public servant" under the PC Act, and to give effect to the intention of the legislature. The term "public servant", therefore, deserves a wider construction. We quote from the judgment as under: "9. It cannot be lost sight of that the 1988 Act, as its predecessor, that is, the repealed Act of 1947 on the same subject, was brought into force with the avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of "public servant" in clause (c) of Section 2 of the 1988 Act. The Statement of Objects and Reasons contained in the Bill by which the Act was introduced in the legislature throws light on the intention of the legislature in providing a very comprehensive definition of the words "public servant". Para 3 of the Statement of Objects and Reasons reads: "3. The Bill, inter alia, envisages widening the scope of the definition of the expression 'public servant', incorporation of offences under Sections 161 to 165-A of the Penal Code, 1860, enhancement of penalties provided for these offe....
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.... servant", therefore, deserves a wide construction. (See State of M.P. v. Shri Ram Singh.)" 73. In Mansukhbhai Kanjibhai Shah (supra), the Supreme Court re-emphasised the above principles while further adding that in case two views are possible, the Court should adopt and accept the one which seeks to eradicate corruption over the one which seeks to perpetuate it. We quote from the Judgment as under: "25. However, we are concerned herein with interpreting the provisions of the PC Act. There is no dispute that corruption in India is pervasive. Its impact on the nation is more pronounced, due to the fact that India is still a developing economy. Presently, it can be stated that corruption in India has become an issue which affects all walks of life. In this context, we must state that although anti-corruption laws are fairly stringent in India, the percolation and enforcement of the same are sometimes criticised as being ineffective. Due to this, the constitutional aspirations of economic and social justice are sacrificed on a daily basis. It is in the above context that we need to resolve the issues concerned herein. 26. In Subramanian Swamy v. Manmohan Singh, t....
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....of the legislature. We quote from the Judgment as under: "12. When the legislature has used such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by a construction which would be against the spirit of the statute. The definition of "public servant", therefore, deserves a wide and purposive construction. In construing the definition of "public servant" in Section 2(c) of the PC Act, the Court is required to adopt a purposive approach as would give effect to the intention of the legislature. xxx 39. The interpretation of a definition should not only avoid being repugnant to the context but it should also be interpreted to achieve the purpose which is sought to be served by the statute. A construction which would defeat or may likely defeat the purpose of the Act has to be ignored and not accepted. A definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act. xxx 43. Where the wording of a statutory provis....
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....n who holds an office by virtue of which he is authorised or required to perform any public duty" is to be treated as a public servant under the 1988 Act. The said clause postulates that the person must (i) hold an office and (ii) by virtue of that office (iii) he must be authorised or required to perform (iv) a public duty. xxx 61. We will first examine the question whether a member of Parliament holds an office. The word "office" is normally understood to mean "a position to which certain duties are attached, especially a place of trust, authority or service under constituted authority". (See: Oxford Shorter English Dictionary, 3rd Edn., p. 1362.) In McMillan v. Guest Lord Wright has said: "The word 'office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following: 'A position or place to which certain duties are attached, especially one of a more or less public character.' " In the same case Lord Atkin gave the following meaning: "... an office or employment which was subsisting, permanent, substantive position, which had an....
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.... the Managing Director and CEO of the NSE. The NSE is a 'Recognised Stock Exchange' under Section 4 read with Sections 2(f) and 2(j) of the SCR Act. We quote Sections 2(f), 2(j) and 4 of the SCR Act as under: "2. Definitions. In this Act, unless the context otherwise requires,- xxx (f) "recognised stock exchange" means a stock exchange which is for the time being recognised by the Central Government under section 4; xxx (j) "stock exchange" means- (a) any body of individuals, whether incorporated or not, constituted before corporatisation and demutualisation under sections 4A and 4B, or (b) a body corporate incorporated under the Companies Act, 1956 (1 of 1956) whether under a scheme of corporatisation and demutualisation or otherwise, for the purpose of assisting, regulating or controlling the business of buying, selling or dealing in securities. xxx 4. Grant of recognition to stock exchanges. (1) If the Central Government is satisfied, after making such inquiry as may be necessary in this behalf and after obtaining such further information, if any, as it may require,- (a) t....
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....of the Central Government." 79. A reading of the above provisions would show that a Recognised Stock Exchange is not an ordinary business venture, but performs duties in the public interest, including the protection of investors. It is established for the purpose of assisting, regulating and controlling the business of buying, selling, or dealing in securities. Section 5 of the SCR Act empowers the Central Government to withdraw recognition granted to a Stock Exchange 'in the interest of the trade or in the public interest'. Section 6 requires every Recognised Stock Exchange to furnish to the SEBI such periodical returns relating to its affairs, as may be prescribed. Section 7 provides that every Recognised Stock Exchange shall furnish to the Central Government a copy of its annual report containing such particulars as may be prescribed. Rules restricting voting rights etc., framed by a Recognised Stock Exchange under Section 7A, require the prior approval of the Central Government and publication by the Government in the Official Gazette. Section 8 empowers the Central Government to direct a Recognised Stock Exchange to make rules, to amend the rules already made, or to even ma....
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....to ensure trading in a transparent fair and open manner with access to investors from areas in or outside India. 2. To initiate facilitate and undertake all steps of all such activities in relation to Stock Exchange, Money Markets, Financial Markets, Securities Markets, Capital Markets, as are required for better investor service and protection, including but not limited to: taking measures for ensuring greater liquidity (both in terms of breadth and depth of securities) for the investor providing easier access to the Exchange, facilitating inter-market dealings and generally to facilitate transactions in securities in a cost effective, expeditious and efficient manner. 3. To support, develop, promote and maintain a healthy market in the best interest of the investor and the general public and the economy and to introduce high standards of professionalism among themselves and with investors and the financial securities, money and capital markets in general." 82. This Court, while dealing with a Writ Petition filed against the Delhi Stock Exchange (in short, 'DSE') and the appeal arising therefrom, in K.C. Sharma (supra), considered whether the DSE is a 'State' ....
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.... Regulations there under or any SEBI directives. (2) Subject to the provisions of these Articles and of the SCR Act and the Rules framed there under and the SEBI Act and Rules there under or any SEBI Directives, the Board shall have power and wide authority to make Rules, Bye-laws and Regulations from time to time for any or all matters relating to the conduct of the business of the Exchange, the business and transactions of trading members between trading members inter se as well as between trading members and persons who are not trading members, and to control, define and regulate all such transactions and to do such acts and things which are necessary for the purposes of the Exchange or of the company. (3) Without prejudice to the generality of the foregoing, the Board shall have power to make rules, bye-laws and regulations, amongst other purposes, for all or any of the following matters:- (a) Conditions for admission to membership of the Exchange. (b) Conduct of business of the Exchange. (c) Conduct of trading members with regard to the business of the Exchange, including all matters relating to all transactions in securities of all....
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.... framed by it." 88. The Board is, therefore, empowered to manage, regulate and facilitate the entire operation of the exchange, subject to, inter alia, the provisions of the SCR Act, the Rules framed thereunder, as also the SEBI Act. The NSE acts through its officers, including the petitioner. The petitioner, holding the office of the Managing Director and CEO, cannot be wholly separated from the functions performed by the NSE and, therefore, equally performs a function and duty in which the public at large is invested. 89. In Mansukhbhai Kanjibhai Shah (supra), the Supreme Court, while considering the question as to whether a trustee of a Trust running a Deemed University could be said to be a public servant under Section 2(c) of the PC Act, held that the emphasis of the provision is not on the position held by an individual, rather, it is on the public duty performed by him/her. Court held that the legislative intent behind Section 2(c)of the Act was not to provide an exhaustive list of authorities which are covered by the provision, but to provide a general definition of the expression "public servant". Placing reliance on Ramesh Gelli (supra), it was held that the languag....