TMI Blog2006 (9) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... nces alleged to have been committed by the petitioners relate to the period 24.03.1999 to 21.02.2000. There is also no dispute that the punishment under Section 24(1) of the SEBI act (as it then stood) could extend to imprisonment for one year or with fine or both. The SEBI act was amended by the Securities and Exchange Board of India (Amendment) Act, 2002. In terms of Section 1(2) of the Amendment act, the amendments were deemed to have come into force on 29.10.2002. After the amendment, the punishment prescribed under Section 24(1) of the SEBI act, could now extend to imprisonment up to 10 years or with fine up to rupees 25 crores or both. Another important amendment carried out was in respect of Section 26 of the SEBI act. Section 26(2) of the SEBI act, prior to amendment, provided that no court inferior to that of a metropolitan magistrate or judicial Magistrate first-class shall try any offence punishable under the act. Post amendment, this provision stipulated that no court inferior to that of the court of session shall try any offence punishable under the act. 5. Before I consider the rival contentions raised by the parties, it would be appropriate to set out the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Metropolitan Magistrate on 1.6.2004. On that date, the learned Additional Chief Metropolitan Magistrate issued summons in the complaint and notice on the application for extension of the period of limitation. The matter was listed before the learned Additional Chief Metropolitan Magistrate on several dates and ultimately the complaint itself was transferred to the court of the additional Sessions Judge on 7.1.2005 pursuant to administrative orders issued by the High Court on 4.12.2004 whereby complaints filed by the SEBI after the date of the said amendment in the SEBI act were assigned to the sessions court for trial irrespective of the date of commission of the offence. The sentencing would however be in accordance with the provisions as they existed at the time the offence was committed. It is consequent upon the transfer of the complaint to the Court of the learned Additional Sessions Judge that the impugned order dated 5.10.2005 came to be passed whereby the application filed on behalf of SEBI for extension of time in filing the complaint was allowed. 8. It was contended on behalf of the petitioners that the learned Additional Chief Metropolitan Magistrate did not cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. According to the learned Counsel for the respondent, the Additional Sessions Judge dealt with the matter as a successor court and not as the Sessions Court. He submitted that since the sentence for the offence under Section 24(1) of the SEBI act would be in terms of the unamended provision, the maximum punishment prescribed is imprisonment up to one year. Referring to the provisions of Section 2(w) and Section 2(x) of the code, which define the expressions summons case and warrant case , the learned Counsel for the respondent submitted that in view of the fact that the punishment for the alleged offences in the present case could extend up to imprisonment of one year, the present case is to be regarded as a summons case and not as a warrant case. He further contended that, in terms of Section 251 of the code, no formal charges are required to be framed in a summons case. In the present case, the learned Additional Sessions Judge has proceeded under Section 251 of the code. The court has not framed charges under chapter XVII but has described the particulars of the offence under chapter XX, as it is required to do in a summons case. It was therefore contended by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 21.03.2002 were challenged before this Court as being violative of the Constitution of India as well as of the legislative provisions. It was contended, inter alia, that only the Metropolitan Magistrates or the Judicial Magistrates, first-class had exclusive jurisdiction to try the complaints under Section 138 of the Negotiable Instruments Act, 1881 and that no jurisdiction vested in the Courts of Additional Sessions Judges to try complaints under the said Section 138. The expediency of issuing such an administrative order was that the High Court, on the administrative side, was of the view that the mandate of trying cases under Section 138 of the Negotiable Instruments Act, 1881, expeditiously, should be implemented. The High Court found that the number of cases could not be disposed of expeditiously because of lack of judicial officers at the magisterial level. It is in these circumstances that the High Court issued the aforesaid administrative order transferring all the cases under Section 138 of the Negotiable Instruments Act, 1881 which were pending on 31.12.2001 from the courts of Metropolitan Magistrates to the courts of Additional Sessions Judges. The division b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred to the Courts of Additional Sessions Judges was preceded by the amendment in Section 26(2) of the SEBI Act. Prior to its amendment Section 26(2) of the SEBI Act read as under: (2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act. After the amendment which took effect from 29.10.2002 the said Sub-Section (2) of Section 26 of the SEBI Act reads as under: (2) No Court inferior to that of a court of Session shall try any offence punishable under this Act. The effect of the amendment was that the offences under the SEBI Act now became friable by a Court of Session and not by any court inferior to that of a Court of Sessions. In this background, the High Court passed the administrative order on 4.12.2004 whereby complaints filed by the SEBI after the date of the amendment in the SEBI Act (i.e. 29.10.2002) were assigned to the Sessions Court for trial irrespective of the date of the commission of the offence. It is subsequent to this administrative order of the High Court that the complaint in this case was transferred to the court of the Additional Sessions Judge on 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accompalished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. 18. The amendment that has been brought about in Section 26 of the SEBI Act is only an amendment relating to the fourm and, therefore, in view of Clause (ii) mentioned in the aforesaid extract from the Supreme Court decision in Hitendera Vishnu Thakur (supra), the amendment would be only of a procedural nature. Since the amendment merely affects procedure and there is nothing in the language used to enable us to take a contrary view, it must be presumed to have retrospective application. 19. A reference to another decision of the Supreme Court would also be apposite. In New India Assurance Company Ltd. v. Shanti Mathur held as under: 5. On the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of Sukhdev Raj (supra) which makes it clear that the delay can be condoned under Section 473 of the Code at any stage and it is not at all necessary that before cognizance is taken the delay ought to be condoned. In Sukhdev Raj (supra), the Supreme Court was dealing with the case where an application for condoning delay had been filed at a stage much after the taking of the cognizance and, in fact, after almost the entire trial was over but, before judgment was delivered. In that case, the Supreme Court held that Section 473 of the Code does not in any clear terms lay down that the application should be filed at the time of filing the challan itself. The Court observed that the words so to do in the interest of justice are wide enough to engulf such a situation. 21. In Vanka Radha Manohari (supra), the Supreme Court considered the scope and interplay of Sections 468 and 473 of the Code. The Supreme Court was of the view that under Section 473 a Court can take cognizance of an offence not only when it finds, on the facts and circumstances of the case, that the delay has been properly explained, but also, in the absence of proper explanation, if the Cou ..... 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