Startek Plantations And Resorts ... vs Securities Exchange Board Of ...
2010 Latest Caselaw 5778 Del

              *           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                  Date of Reserve: December 03, 2010

                                 Date of Order: December 20, 2010

                                    + W.P(Crl) No.1777/2010
%                                                                              20.12.2010
         Startek Plantations and Resorts Ltd. & Ors.                  ...Petitioners

         Versus

         Securities Exchange Board of India                           ...Respondent

Counsels:

Mr. Jagjit Singh for petitioners.
Mr. Sanjay Mann, Advocate for respondent


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


                                            JUDGMENT

1. By this petition under Article 226 read with Article 227 read with Article 14 and 21

of the Constitution of India, the petitioners have sought quashing of orders of imposition

of fine on the petitioners as ordered by the learned trial court vide order dated 4th

February 2010.

2. The petitioners were convicted by the learned trial court under Sections 24 and

27 of SEBI Act for violation of Regulation (5) (1) read with Regulation 68 (1), 68(2), 73

and 74 of SEBI CIS Regulations, 1999. Petitioner no.2 Mr. V.K. Sharma, Director of the

petitioner no.1 company was sentenced to rigorous imprisonment for one year and the

petitioner no.1 company and Mr. V.K. Sharma both were sentenced to pay fine of Rs.5

lac each, in default to undergo simple imprisonment for six months. The judgment in this

W.P (Crl.) No.1777/2010 Page 1 Of 3 case was delivered by the Additional Sessions Judge as the provisions of SEBI Act were

amended in 2002 and the jurisdiction to try such cases was of Sessions Court.

3. It is submitted by the counsel for the petitioners that the offence allegedly

committed was prior to 2002 and the case of the petitioners was being heard by learned

ACMM in terms of un-amended provisions of SEBI Act and after amendment of 2002,

the case was transferred to Sessions Court. He submits that since the offence was

committed prior to 2002, the un-amended provisions of Cr.P.C. would be applicable and

the sentence of Rs.5 lac as fine as imposed by learned Sessions Judge was unlawful

since the powers of ACMM was only to impose a fine of Rs.5,000/-. The petitioners relied

upon AIR 1953 SC 394 Shiv Bahadur Singh v State and 2008 DLT 391 Mahender Singh

v High Court of Delhi.

4. In Shiv Bahadur's case(supra), the Supreme Court made it clear that Article

20(1) in its broad import has been enacted to prohibit convictions and sentence under 'ex

post facto' laws. This article must be taken to prohibit all convictions or subjections to

penalty after the Constitution in respect of 'ex post facto' laws whether the same was a

post-Constitution law or a pre-Constitution law. Thus what is prohibited under Article 20

is a conviction or sentence under sustentative 'ex post facto' law. A trial under a

procedure different from what obtained at the time of the commission of the offence or by

a Court competent under amended law though different from that which had competence

at the time of commission of crime cannot 'ipso facto' be held to be unconstitutional. A

person accused of the commission of an offence has no fundamental right to trial by a

particular Court or under a particular procedure, except insofar as any constitutional

objection by way of discrimination or the violation of any other fundamental right may be

involved. Thus, trial of the petitioners by the Sessions Court was perfectly constitutional

as per judgment cited by the petitioners. Similar preposition was laid down in Mahender

W.P (Crl.) No.1777/2010 Page 2 Of 3 Singh's case(supra) wherein it was held that the Sessions Judge has requisite

jurisdiction to entertain the complaint under SEBI Act after amendment of the Act. In

Mahender Singh's case (supra) this Court clarified that the procedure to be followed in

respect of such like offences which were committed prior to amendment would be that of

summon trial but the trial was perfectly valid even if it was conducted by the Sessions

Court as provided under amended SEBI Act.

5. The question now arises whether the Sessions Court can impose penalty more

than that which could be imposed by a MM. I consider that there can be no doubt on this

aspect. Even an MM after concluding the trial if finds that while his power to impose

penalty was only Rs.5,000/- but the case was such that higher penalty should be

imposed, he can refer the matter to Court of CMM so that higher penalty could be

imposed. The trial conducted by the Sessions Judge in this case was perfectly in

accordance with law and the sentence imposed by the Sessions Judge is also in

accordance with un-amended provisions of SEBI Act. The Court of Sessions was not

bound by the powers of Court of MM. The Court of Sessions had to exercise its own

power of sentencing after convicting the accused and impose sentence according to law.

6. I find no force in this petition. The petition is hereby dismissed.

December 20, 2010                                   SHIV NARAYAN DHINGRA, J
rd




W.P (Crl.) No.1777/2010                                                        Page 3 Of 3