Orissa High Court
Pratap Kumar Biswal vs State Of Odisha And Another .... ... on 10 March, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.807 of 2025
Pratap Kumar Biswal .... Petitioner(s)
Mr. A. Panigrahi, Senior Advocate
along with Mr. P. Dash, Advocate
-versus-
State of Odisha and another .... Opposite Party(s)
Mr. B. Nayak, AGA
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 10.03.2025
01. 1. Heard.
2. Mr. Panigrahi, learned Senior Counsel for the petitioner
submits that the petitioner has already suffered the SEBI proceeding
on the selfsame allegation. Since the petitioner has not challenged
the order dated 25.04.2016 passed by the Securities and Exchange
Board of India, which has attained finality, the proceeding initiated
by the prosecution particularly for the offence under Section 6 of
the OPID Act is forbidden under law. He relied upon the judgment
of the Hon'ble Supreme Court in the case of Securities and
Exchange Board of India vrs. Classic Credit Limited reported in
(2018) 13 SCC 1. Relevant would be to reproduce paragraphs-57 to
59 of the said judgment:-
"57. Having given our thoughtful consideration to the
proposition referred to in the preceding paragraph, we are
of the view, that Section 26, as amended through the 2002
Amendment Act, leaves no room for any doubt, that the
erstwhile "forum" would cease to be the adjudicatory
authority and the newly created "forum"--the Court of
Session would deal with all pending matters as well. The
phrase, "No court inferior to that of a Court of Session shall
try any offence punishable under this Act", leaves no room
for any doubt, that the erstwhile "forum"--the Court of
Metropolitan Magistrate (or Judicial Magistrate of the First
Class), was denuded of its jurisdiction. The court having
jurisdiction earlier being a court inferior to a Court of
Session ceased to have the jurisdiction to adjudicate
matters punishable under the SEBI Act, after the
amendment under the 2002 Amendment Act came into
force on 29-10-2002. There can be no doubt whatsoever,
that the 2002 Amendment Act, expressly diverted
jurisdiction from the Metropolitan Magistrates (and
Judicial Magistrates of the First Class) to try offences under
the SEBI Act, after the 2002 Amendment Act became
operational.
58. The position was similarly explicit in Section 26-B
inserted by the 2014 Amendment Act, by use of the words
"... all offences under this Act committed prior to the date
of commencement of the Securities Laws (Amendment)
Act, 2014 or on or after the date of such commencement,
shall be ... tried by the Special Court established for the
area in which the offence is committed...". There can be no
doubt whatsoever that the 2014 Amendment Act grouped
all offences together as one by providing that all offences
committed prior to or after the 2014 Amendment Act,
would be tried by a Special Court. The attempt of the
learned Senior Advocate, to segregate the cases arising
under the SEBI Act into two categories, is clearly and
expressly ruled out, by the language adopted in the
provision itself. We are of the view that Section 26-B was
categorically explicit, because of the clear intent expressed
therein, that all offences committed under the SEBI Act
prior to the introduction of the 2014 Amendment Act
would be tried by the Special Court. We are therefore of
the view that there is absolutely no ambiguity that after the
2014 Amendment Act proceedings in respect of offences
committed prior thereto could only be tried by a Special
Court.
59. We have intentionally overlooked and not extracted the
words "... shall be taken cognizance of and tried by the
Special Court...", relied upon by the learned counsel for
the accused, to emphasise that the amendment of "forum"
contemplated under Section 26-B would be applicable only
to matters where cognizance had not been taken. It is not
possible either from the language of the provision or even
from the surrounding circumstances, to arrive at the
advocated position. We are of the view that the legislative
intent was clearly contrary to the one suggested. Ordinarily,
cognizance is taken by a magisterial court, whereupon, the
matter is committed to the higher court concerned for trial.
Herein, the Special Courts (a Court of Session or an
Additional Sessions Judge, in terms of Section 26-D(1) of
the 2014 Amendment Act) provides for a position different
from the provisions contained in the Code of Criminal
Procedure. Now, by the 2014 Amendment Act, the function
of taking cognizance has been vested with Special Court,
conferred with the responsibility to conduct trials. In our
considered view, therefore, all pending matters where
cognizance had been taken and proceedings had
commenced, before the Court of Session, would not be
affected. The 2014 Amendment Act which provided for a
change of "forum", also authorised a Special Court to take
cognizance. It is not reasonable to read anything further
into the words highlighted by the learned Senior Counsel.
The 2014 Amendment Act expressly provided, that for all
offences committed even prior to the 2014 Amendment
Act, proceedings would be conducted only before the
Special Court. The provision itself therefore expressly
mandated that the change of "forum" would operate
retrospectively, and as such, pending proceedings would
necessarily have to be transferred to the changed
"forum"--the Special Court. This is our considered view.
For the reasons recorded above, we hereby hold, that even
for such matters where trial had commenced under the
unamended provision, after the amendments, which we
have held to be operational retrospectively, the trial would
move to the changed "forum" (to the Court of Session after
the 2002 Amendment Act and to the Special Court after the
2014 Amendment Act)."
3. On the strength of the aforementioned judgment of the
Hon'ble Supreme Court, Mr. Panigrahi, submits that at least the
petitioner cannot be prosecuted for alleged offence punishable
under Section 6 of the OPID Act and besides other allied offences
under the Penal Code.
4. Issue notice to the Opposite Parties. Mr. Nayak, learned
Additional Government Advocate appears on behalf of the State
and waives the notice.
5. Notice be issued to the opposite party No.2 by Speed
Post/Registered Post with A.D., fixing short returnable date.
Requisites shall be filed within three working days.
6. List this matter after three weeks.
7. In the meantime, the petitioner is granted liberty to move
application before the Court below seeking adjournment owing to
the fact that the matter is sub-judice before this Court. If such
application is moved, the same shall be considered.
(S.S. Mishra)
Judge
Swarna
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 18-Mar-2025 11:02:50
