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Judgment
By filing this revisional application, the two accused persons/petitioners have challenged the orders dated 08.09.2021 and 18.05.2024 in connection with C/668 of 2004/SEBI/29/2021 [SEBI vs. M/s. Shekher Plantation (P) Ltd. & Ors.].
By the said impugned orders, the Ld. Judge, 5th Special Court, Calcutta, issued a warrant of arrest against the petitioners, who are both directors of M/S. Shekher Plantation (P) Ltd. although they were on bail granted by the CJM, Alipore, South 24 Parganas, and also rejected the prayer for directing the Copy Department to accept the application filed on behalf of the petitioners and supply the certified copy of the complaint and all relevant orders passed by the Court of the learned Judge, 5th Special Court, SEBI at Calcutta.
The brief facts of the case are that the opposite party/SEBI filed a complaint case against M/S. Shekher Plantation (P) Ltd. and the petitioners herein for commission of offence punishable under Sections 24(1) and 27 of SEBI Act, 1992 before the Ld. CJM, Alipore, South 24 Parganas, alleging defalcation of Rs. 1 lakh 10 thousand. In the said case, the petitioners herein surrendered and obtained bail from the court of the CJM.
The matter was, subsequently, transferred from the Ld. CJM, Alipore to the Ld. Judge, 5th Special Court, Alipore, Calcutta, in view of subsequent amendment of Section 26.
The learned advocate for the petitioners submits that the petitioners were on bail. They were unaware of the transfer of the case from the Court of Ld. CJM to the designated Special Court and, as such, they could not appear on the date fixed. However, the Trial Court issued a warrant of arrest without issuing summons to the petitioners, which is palpably illegal and the same is liable to be set aside.
The learned Advocate for the Petitioners placed reliance upon a judgment in the case of Tarsem Lal vs. Directorate of Enforcement Jalandhar Zonal Office reported in 2024 SCC OnLine SC 971, particularly paragraph 23 to support his contention that the Magistrate should have given an opportunity to appear before the transferee court. Operative conclusions of the Hon’ble Supreme court is as follows:
“23.Now, we summarise our conclusions as under:
a)Once a complaint under Section 44 (1)(b) of the PMLA is filed, it will be governed by Sections 200 to 205 of the CrPC as none of the said provisions are inconsistent with any of the provisions of the PMLA;
b)If the accused was not arrested by the ED till filing of the complaint, while taking cognizance on a complaint under Section 44(1)(b), as a normal rule, the Court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued;
c)After a summons is issued under Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 of the CrPC;
d)In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 of the CrPC;
e)If the accused does not appear after a summons is served or does not appear on a subsequent date, the Special Court will be well within its powers to issue a warrant in terms of Section 70 of the CrPC. Initially, the Special Court should issue a bailable warrant. If it is not possible to effect service of the bailable warrant, then the recourse can be taken to issue a non-bailable warrant ……”.
The learned advocate appearing on behalf of the opposite party submits that the Trial Court can issue warrant of arrest at the time of taking cognizance if the petitioners do not appear on the date fixed, when the offence involves economic offence as the petitioners are charged of defalcation to the tune of Rs.1, 10,000/- in the year 1997. The date was fixed for plea before the CJM on several occasions, but the petitioners did not appear; as such the impugned order is correct and requires no interference.
Having heard the learned counsels for the respective parties and on perusal of the judgment as well as the amendment, this Court finds that the Trial Court should have, at least, issued summons upon the accused persons, who were on bail at the initial stage and, thereafter, if occasion arises, an arrest warrant could be issued.
This court would like to quote Section 26 (B) as under:
“26-B. Offences triable by Special Courts.–
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 taken cognizance of and tried by the Special Court established for the area in which the offence is committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court concerned”.
Accordingly, this Court finds that the order of issuance of warrant of arrest is palpable and illegal. The same is set aside.
The petitioners are directed to appear before the Trial Court on the next date fixed positively without fail, and if they fail to appear, the Trial Court shall exhaust all steps in accordance with law to secure their attendance before the Trial Court.
Upon considering, the Trial Court conclude the proceedings logically, without giving any unnecessary adjournment.
With the above observation, the criminal revisional application being CRR 4073 of 2024 is disposed of. Connected applications, if any, are also, thus, disposed of.
Interim order, if any, stands vacated.
Let a copy of this order be communicated to the concerned Trial Court for information and necessary steps.
TCR is also transmitted to the Trial Court.
All parties shall act on the basis of a server copy of this order duly downloaded from the official website of this Court.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all legal and necessary formalities.