9911796707
TMI Blog2021 (9) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as applications filed by the Petitioner for certain documents (Exhibit-P and Exhibit-Q) are pending before the Whole Time Member of the SEBI. The letter of the Respondent dated 24/03/2021 and the statement made by the learned senior counsel for the Respondent stating that the they are not relying any other documents except those which are provided to the Petitioner, we do not find any substance in the present writ petition. - WRIT PETITION (L) NO. 19352 OF 2021 - - - Dated:- 15-9-2021 - K.K. TATED AND PRITHVIRAJ K. CHAVAN, JJ. For the Petitioner : Mr. Aurup Dasgupta with Mr. Ankit Bhatia, Ms Jinal Vani i/b M/s. Jhangiani Narula Associates. For the Respondent : Mr. Pradeep Sacheti, Senior Counsel with Ms Deepti Mohan, Ms Nidhi Singh and Binjal Samani i/b Vidhi Partners ORDER P.C. :- 1. Heard. 2. By this petition, under Article 226 of the Constitution of India, the Petitioner is seeking directions against the Respondent to forthwith furnish documents relied upon by the Respondent and a copy of an Opinion formed under Rule 3 of the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of offence alleged to have been committed by him. (3) If, after considering the cause, if any, shown by such person, the adjudicating officer is of the opinion that an inquiry should be held, he shall issue a notice fixing a date for the appearance of that person either personally or through his lawyer or other authorised representative. (4) On the date fixed, the adjudicating officer shall explain to the person proceeded against or his lawyer or authorised representative, the offence, alleged to have been committed by such person indicating the provisions of the Act, rules or regulations in respect of which contravention is alleged to have taken place. (5) The adjudicating officer shall then give an opportunity to such person to produce such documents or evidence as he may consider relevant to the inquiry and if necessary the hearing may be adjourned to a future date and in taking such evidence the adjudicating officer shall not be bound to observe the provisions of the Evidence Act, 1872 (11 of 1872) : Provided that the notice referred to in sub-rule (3), and the personal hearing referred to in sub-rules (3), (4) and (5) may, at the request of the person concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the said e-mail but in respect of the documents mentioned at paragraph No. 3, 4 and 5 stated that, those are confidential documents for their reference purpose. Paragraph 2 of the letter dated 24/03/2021 is as under: 2. Further reference is drawn to your e-mail dated March 23, 2021 wherein you have requested for additional documents in the matter. In this regard, following are submitted:- a) With respect to the documents mentioned at para 1 and 2 in the said email, a CD containing the scan copies of the documents is attached herewith. b) Documents mentioned at para 3, 4 and 5 in the said email are been kept confidential for being internal/confidential/third party in nature. 6. The learned counsel for the Petitioner submits that as the Respondent have failed and neglected to supply the documents as claimed by the Petitioner, the Petitioner has filed application dated 13/07/2021 before the Deputy General Manager for supply of an Opinion formed under Rule 3 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, while issuing show cause notice dated 17/11/2020. The Petitioner also filed another application on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and the Rules do not support the plea taken by the appellants in this regard. Even the principles of natural justice do not require supply of documents upon which no reliance has been placed by the Authority to set the law into motion. Supply of relied on documents based on which the law has been set into motion would meet the requirements of principles of natural justice. No Court can compel the Authority to deviate from the statute and exercise the power in altogether a different manner than the prescribed one. 34. As noticed, a reasonable opportunity of being heard is to be provided by the Adjudicating Authority in the manner prescribed for the purpose of imposing any penalty as provided for in the Act and not at the stage where the Adjudicating Authority is required merely to decide as to whether an inquiry at all be held into the matter. Imposing of penalty after the adjudication is fraught with grave and serious consequences and therefore, the requirement of providing a reasonable opportunity of being heard before imposition of any such penalty is to be met. In contradistinction, the opinion formed by the Adjudicating Authority whether an inquiry should be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Board has formed an opinion that there are grounds for adjudging under the provisions of Chapter VIA of the Act and, therefore, the appointment of the Adjudicating Officer cannot be faulted. In its counter affidavit, the respondent has averred as under:- It is submitted that SEBI had examined into the alleged irregularities in the trading in shares of Himalayan Granites Ltd. and into possible violation of the provisions of the SEBI Act and PIT Regulations. Further, the adjudication proceedings were initiated in the matter after the Whole Time Member was primafacie satisfied that there are sufficient grounds to enquire into the affairs and adjudicate upon the alleged violations under the SEBI Act and PIT Regulations. It is submitted that the same can be seen from Page no.66 (Annexure 10) of the writ petition containing the file noting. On the basis of these submissions, the learned counsel for the Petitioner submits that, the Respondents may be directed to supply all these documents or direct the Authority to decide their applications dated 13/07/2021 before deciding the main show cause notice. He submits that if these reliefs are not granted to the Petitioner, irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the law into motion. Observations of the Courts are not to be read as Euclid's theorems nor as provisions of the statute. The observations must be read in the context in which they appear. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision to impute a different meaning to the observations [see Haryana Financial Corporation Vs. Jagdamba Oil Mills12]. 47. It appears that those Acts recognize rights of accused persons in a criminal case to a fair trial. It is clear that disclosure of unused material in criminal proceedings in United Kingdom is regulated by the provisions of those Acts and applicable to criminal trials where the accused are charged with criminal offences. Duty of disclosure of unused material is not a definite concept to be applied in any and every case in this country. There is no such Act or law as in United Kingdom, nor any procedure prescribed for disclosure of unused material in criminal proceedings. In the present case, the appellants are not defendants in any criminal trial. The judgment has no application as to the fact situation and the law applicable in United Kingdom is not applicable to either th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
