[Cites 8, Cited by 0]
Gujarat High Court
Nilesh Savjibhai Kotadiya vs State Of Gujarat on 20 March, 2026
NEUTRAL CITATION
R/CR.RA/215/2023 JUDGMENT DATED: 20/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 215 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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NILESH SAVJIBHAI KOTADIYA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR YOGESHKUMAR A RATANPARA(7260) for the Applicant(s) No. 1,2
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/03/2026
JUDGMENT
1) By way of this revision application under Section 397 (section 438
of BNSS) read with Section 401 (Section 442 of BNSS) of the Code
of Criminal Procedure, 1973 (for short "CrPC"), the applicants have
prayed for quashing and setting aside the order dated 07.02.2023
passed by learned Addl. Sessions Judge, Keshod, below Exh:12 in
Sessions Case No.20/2019 as well as the complaint being C.R.No.II-
34/2018 registered at Keshod Police Station, Junagadh, for the
offence under Sections 4 and 5 of the Gambling Act and Sections
19, 23(1)C,E,F, G & I of the Securities Contracts (Regulation) Act,
1956 qua the present applicants.
2) Heard Mr. Yogeshkymar Ratanpara, learned counsel for the
applicants and Mr. Rohan Raval, ld. APP for the respondent State.
NEUTRAL CITATION
R/CR.RA/215/2023 JUDGMENT DATED: 20/03/2026
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3) The facts emerging from the record of the present application are
that the applicants are the original accused in the FIR registered at
Keshod Police Station for the offences punishable under Sections 4
and 5 of the Gambling Act and Sections 19 and 23(1)(C), (E), (F), (G)
and (I) of the Securities Contracts (Regulation) Act, 1956. Upon
completion of the investigation, the Investigating Officer filed the
chargesheet. Pursuant thereto, the applicants were arrested and
subsequently enlarged on regular bail by the learned trial Court.
Thereafter, the applicants preferred an application for discharge at
Exh. 12, which came to be rejected by the learned Additional District
and Sessions Judge, Keshod, vide order dated 07.02.2023.
4) Upon perusal of the order passed by the learned Additional Sessions
Judge below Exh. 12, it appears that the discharge application filed
by the applicants has been rejected. The complaint was lodged by the
I/c. Police Inspector, Mr. R.N. Chauhan, of Keshod Police Station, for
the offences punishable under Sections 4 and 5 of the Gambling Act
and Sections 19 and 23(1)(C), (E), (F), (G) and (I) of the Securities
Contracts (Regulation) Act, 1956. After investigation, the
chargesheet came to be filed, which culminated into Sessions Case
No. 20 of 2019. A perusal of the provisions of the Securities Contracts
(Regulation) Act, 1956 indicates that the offences thereunder are
triable by the Sessions Court, however, in view of Section 26 of the
said Act, the Court cannot take cognizance of such offences on the
basis of a police report. Section 26 of the Act reads as under:-
"26. Cognizance of offences by courts.
(1) No court shall take cognizance of any offence punishable under this Act or any rules
or regulations or byelaws made thereunder, save on a complaint made by the Central
Government or State Government or the Securities and Exchange Board of India or a
recognized stock exchange or by any person.
(2) No court inferior to that of a Court of Session shall try any offence punishable under
this Act."
5) A plain reading of Section 26 of the Act, 1956, referred to above,
would suggest that no Court will be able to take cognizance of any
NEUTRAL CITATION
R/CR.RA/215/2023 JUDGMENT DATED: 20/03/2026
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offence punishable under the Act except on a complaint made by
the Central Government or State Government or the Securities and
Exchange Board of India or a recognized Stock Exchange or a
person.
6) If we believe for a moment that the complainant would fall within
the ambit of 'any person'. The issue which falls for my
consideration is, whether the court before whom the charge-sheet
is filed can take cognizance of the offence. The word 'complaint'
figuring under Section 26 of the Act means, a complaint in writing
before the court as defined under Section 2(d) of the Code of
Criminal Procedure. This Court is conscious of the fact that Section
25 makes the offence under Section 23 of the Act a cognizable
offence. Since Section 23 is a cognizable offence, the police would
definitely have the power to investigate. To this extent, there is no
problem. The police has investigated, charge-sheet is filed. Now
the stage has come for the court to take cognizance. In my view,
the Sessions Court will not be able to take cognizance on the
police report in view of the specific bar contained in Section 26 of
the Act. The same is the position with Section 26 of the Securities
and Exchange Board of India Act, 1992.
7) In view of the above and considering the settled position of law, it
appears that the learned Addl. Sessions Judge has committed
error in dismissing the discharge application of the applicants.
Hence, interference of this Court is required and offence
registered under the Securities Contracts (Regulation) Act, 1956
deserves to be quashed and set aside.
8) Accordingly, the present revision application is partly allowed.
The impugned order dated 07.02.2023 passed by the learned
Additional Sessions Judge, Keshod, below Exh. 12 in Sessions Case
NEUTRAL CITATION
R/CR.RA/215/2023 JUDGMENT DATED: 20/03/2026
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No. 20 of 2019 is hereby quashed and set aside. The FIR being C.R.
No. II-34 of 2018 registered at Keshod Police Station, Junagadh,
for the offences punishable under Sections 19 and 23(1)(C), (E), (F),
(G) and (I) of the Securities Contracts (Regulation) Act, 1956, qua
the present applicants, is also quashed and set aside. The matter is
remitted to the learned trial Court concerned for a fresh decision
qua the offences under the Gambling Act. Accordingly, the
applicants are discharged from the offences registered under the
Securities Contracts (Regulation) Act, 1956.
(HASMUKH D. SUTHAR,J)
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