'P', director of XYZ Limited (the Company), was accused of having engaged in price rigging and insider trading during the Initial Public Offer (IPO) of the company, in violation of Regulations 4(a) and (e) of the SEBI (P

CS Professional · Drafting, Pleadings and Appearances · PYQS · December 2024
'P', director of XYZ Limited (the Company), was accused of having engaged in price rigging and insider trading during the Initial Public Offer (IPO) of the company, in violation of Regulations 4(a) and (e) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices) relating to Securities Market Regulations, 1995, along with other provisions of the Takeover Regulations, 1994 and 1997. SEBI received a complaint alleging that certain Delhi/Bombay based brokers had on the instructions of the Company, purchased its shares and that huge deliveries were kept outstanding in the grey market. SEBI also received an anonymous complaint, alleging price rigging and insider trading in the scrip of the company. During its investigation, SEBI obtained the details of the top brokers who traded in the shares of the Company during this period on the Delhi Stock Exchange and Bombay Stock Exchange, and also of their clients who had made significant purchases or sales on the scrip. Consequently, SEBI came up with the name of 9 entities who had purchased approximately 53% of the 58 lakh equity shares on offer during 32 days period. They were found to have continued buying shares even after that period, and had ultimately purchased 54,38,000 equity shares, which was approximately 75% of the post issue floating stock of Company. As such, it was assumed that these entities were, therefore, responsible for the upward price movement in the scrip. A criminal complaint was filed against 'P' before the Trial Court alleging the above violations and an Adjudicating Officer (AO) under the SEBI Act was appointed. Prior to any orders in the aforesaid proceedings, the Chairman of SEBI, under the provisions of the SEBI Act, allowed 'P' to purchase the shares of the shareholders at higher price than that fixed during the IPO, thereby supposedly resolving the issue. However, the AO, pursuant to noting the offences committed by 'P', levied a fine of ₹ 50,000 on him and other promoters. This penalty too was paid by the accused. The appellant ('P') is being prosecuted for an offence under Sec. 24(1) of the Security and Exchange Board of India Act, 1992 (SEBI Act). The Appellant sought the compounding of the offence under section 24A. By an order Additional Sessions judge (Trial Judge) rejected the application, upholding the objection raised by the High-Powered Advisory Committee of the Securities and Exchange Board of India that the offence could not be compounded without its consent, which was upheld by the High Court of Delhi. Hence, the present appeal before the Supreme Court. Based on the above facts and in light of the relevant case laws, answer the following questions: Whether under section 24A of the SEBI Act, the express consent of SEBI is required prior to the compounding of offences by the Securities Appellate Tribunal or the court before which proceedings are pending?

Answer & Explanation:

The facts of the given situation are similar to that the case of Prakash Gupta v. Securities and Exchange Board of India, dated July 23, 2021 decided by Hon'ble Supreme Court of India. In this case it was laid down by the Apex Court that while a plain reading of the section 24A of the SEBI Act, 1992 does not provide for the consent of SEBI, it was considered whether such consent should be read into Section 24A, on the grounds of casus ommisus. In the present case, it was also laid down that it is evident that Section 24A does not stipulate that the consent of SEBI is necessary for the SAT or the Court before which such proceedings are pending to compound an offence. Where Parliament intended that a recommendation by SEBI is necessary, it has made specific provisions in that regard in the same statute. Section 24B provides a useful contrast. Section 24B(1) empowers the Union Government on the recommendation of SEBI, if it is satisfied that a person who has violated the Act or the Rules or Regulations has made a full and true disclosure in respect of the alleged violation, to grant an immunity from prosecution for an offence subject to such conditions as it may impose. The second proviso clarifies that the recommendation of SEBI would not be binding upon the Union Government. In other words, Section 24B has provided for the exercise of powers by the Central Government to grant immunity from prosecution on the recommendation of SEBI. In contrast, Section 24A is conspicuously silent in regard to the consent of SEBI before the SAT or, as the case may be, the Court before which the proceeding is pending can exercise the power. Hence, it is clear that SEBI's consent cannot be mandatory before SAT or the Court before which the proceeding is pending, for exercising the power of compounding under Section 24A. In view of the above, it may be said that the express consent of SEBI is not mandatory under Section 24A of the SEBI Act for the Securities Appellate Tribunal (SAT) or the Court to compound an offense.

Topics: Securities Law

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