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2020 (1) TMI 1550 - BOMBAY HIGH COURTJurisdiction - Error in SFIO investigating offences or not - Respondent No.1 submitted that Section 436(2) of the 2013 Act only empowers the Special Court to try an offence other than an offence under the 2013 Act with which the accused may, under the Cr.P.C., be charged at the same trial - HELD THAT:- The various offences under the 2013 Act of which cognizance has been taken came into force only with effect from 12/09/2013 (Section 449) and 01/04/2014 (Section 129 and 217), whereas the underlying alleged violations at NSEL’s exchange platform have all occurred on or before 31st July 2013 as per SFIO’s own complaint filed before the learned Special Court. Prima facie, therefore, prosecution of the applicants under the 2013 Act appears to be impermissible under Article 20(1) of the Constitution of India. As per Section 212(2) of the 2013 Act, prima facie it is seen that the SFIO has jurisdiction to investigate offence under the said Act only. Hence, the SFIO’s investigation and subsequent complaint for offences under the Indian Penal Code and under the 1956 Act prima facie appears to be without jurisdiction. A contrary interpretation would permit the SFIO to encroach upon investigating powers of other investigating agencies under other laws, which cannot be the intention of the legislature - For the same underlying transactions arising out of the NSEL payment defaults, the NSEL and others are already facing prosecution for offences under the Indian Penal Code before the learned MPID Court and the learned CBI Court, Mumbai. Similarly, for various violations under the 1956 Act discovered during inspection of NSEL by the Central Government, the NSEL and others are already facing prosecution before the learned Metropolitan Magistrate, Girgaon, Mumbai on complaints filed by the Registrar of Companies. This factual position has not been disputed by the other side. The SFIO Investigation Report dated 31st August 2018 and the subject complaint filed by the SFIO before the learned Special Court, appear to be without jurisdiction. Impugned Order, as such, becomes vulnerable, at least prima facie, case for consideration is, as such, made out - application allowed.
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