SIDDHARTH CHATURVEDIversusSECURITIES AND EXCHANGE BOARD OF INDIA

                             [2016] 2 S.C.R.412



A                      SIDDHARTH CHATURVEDI
                                       v.
           SECURITIES AND EXCHANGE BOARD OF INDIA
                     (Civil Appeal No.14730 of2015 etc.)
B                             MARCH 14, 2016
    [KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.]
           Securities and·Exehange Board of India Act, 1992 - ss. 15A
    (as amended in the year 2002) and I 5J - The questions whether s.
C   I 5A can be construed, in isolation, without regard to S.'J 5J - Whether
    the expression 'namely 'fixes the discretion only to the circumstances
    mentioned in the three clauses set out in s. I 5J, or whether it would
    also take into account other relevant circumstances - The questions
    referred to larger Bench for consideration.
          SEBI Through its Chairman vs. Roofit Industries Limited
D
          2015 (12) SCALE 642; Julius v. Bishop of Oxford
          (19~0) LR 5 AC 21 (HL) - referred to.

                               Case Law Reference
            2015 (12) SCALE 642              referred to      Para 7
E           (1980) LR 5 AC 21 (HL)           referred to      Para 10
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14730
    of2015
          From the Judgment and Order dated 04.08.2015 of the Securities
F   Appellate Tribunal, Mumbai in Appeal No. 436 of20 !'4
                                     WITH
          C. A. Nos. 14728 & 14729 0 f2015
         Purvish Jitendra Malkan, Jitendra M. Malkan, Ms. Dharita Malkan,
    Ms. Arunima Singh, Ms. Sangya Arora, Advs., for the Appellant.
G
          Chander Uday Singh, Sr. Adv., Pratap Venugopal, Ms. Surekha
    Raman, Purushottam Kumar Jha, Ms. Niharika (For Mis. K. J. John &
    Co.), Advs., with him for the Respondent.


H                                     412
         SIDDHARTH CHATURVEDI v. SECURITI~S AND                                  413
                EXCHANGE BOARD OF INDIA

        The following order of the Court was delivered                            A
                                 ORDER
        I. These appeals rai~e an interesting question of the interplay            •
 between section 15A, as amended in the year 2002, and Section I 5J of
 th<; Securities and Exchange Board of India Act, 1992 (in short 'the
 SEBI Act').                                                                      B

        2. The brief facts necessary to understand the present contro~ersy
 are that the appellants before us made certain purchases of shares of
 the Brijlaxmi Leasing and Finance Company between October and
 December, 2012: On 16m June, 2014, in Civil Appeal No.14730 of2015,
 a show cause notice came to be issued by the respondent SEBI to the              c
 appellant under Rule 4( I) of the Securities and Exchange Board of
 India (Procedure for holding inquiry and imposing penalty by adjudicating
 officer) Rules, 1995 for the alleged violation of the provisions of
 Reirnlations 13(4), 13(4A) and 13(5) of the Securities and Exchange
 Poard oflndia (Prohibition oflnsider Trading) Regulations, 1992.                 D
        3. A detailed reply was filed by the appellant to the show cause
 notice, on 13'" August, 2014, submitting that there was no intention to
 violate any rule or regulation. The entire transaction value of purchases
 and sale of the shares did not exceed Rs.55,000/-. It was further submitted
 that the transaction was neither made with a view to make any                    E
 disproportionate gain or unfair advantage nor was it for the purpose of
 causing any loss to investors. The default, if any, was a technical default
 that did not call for any penal action.
         4. The Adjudicating Officer, by various orders imposed a penalty
  of Rs.5 lacs, 7 lacs and 11 lacs respectively, in the three civil appeals,
                                                                                  F
. before us. An appeal made to the Securities Appellate Tribunal suffered
  the same fate, and was dismissed by the Tribunal stating that there is no
  dispute that there was violation of mandatory reg1,1Iations, and that in any
  case, a penalty of Rs.one crore could have been imposed on facts,
  whereas, iri fact, the Adjudicating Officer penalised the appellants with
  a penalty of Rs.5 lacs, 7 lacs and 11 lacs respectively, which cannot be        G
  said to be excessively harsh or unreasonable.
     5. It is these judgments of the Securities Appellate Tribunal,
 Mumbai that have come up before us in these appeals.
               '
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414             SUPREME COURT REPORTS                         [2016) 2 S.C.R.


A        6. Learned counsel appearing on behalfof the appellants has argued
  that Section I SA, after its amendment in 2002, which was the law until
  the section was further amended in the year 2014, would undoubtedly
  apply to the present facts of the case. However, learned counsel
  ~ubmitted that Section ! SA would, at all times, have to be read with
  Section ! SJ of the SEBI Act and that, this 'being so, it is clear that the
B
  violation of the regulations being only technical, and not involving any
  disproportionate gain to the appellant, or unfair ail vantage or loss to any
  investor, SEBI was not, in the first instance, correct in imposing any
  penalty at all. According to the learned counsel for the appellants, the
  defaults that were made were technical, and were made on three days
c only, and there was no repetitive nature of any default as well.
             7. Mr. C.U. Singh, learned senior counsel appearing on behalf of
      the respondent SEBI has placed before us a judgment of a Division
      Bench of this Court titled as SEBI Through its Chairman versus Roofit
      Industries Limited, reported in 201S (12) SCALE 642. Mr. Singh has
D     pointed out,one may say fairly, to us that observations made in paragraph
      S of the said judgment would completely foreclose.the arguments made
      by the learned counsel for the appellants in the present cases, but that
      these observations may not constitute the ratio of the judgment for the
      reason that the judgment ultimately construed Section ! SA prior to its
      amendment in the year 2002.
 E
             8. It is necessary at this juncture.to set out paragraphs 4 and S of
      the aforesaid judgment in order to first ascertain as to what this Court
      has stated :-                                            ·     ·
            "4. We find merit in the contentions of learned senior counsel for
            the a[!pellant that the penalty imposed by the Adjudicating Officer
 F
            should not have been reduced on wholly extraneous grounds not
            mentioned in Section. 1SJ of the SEBI Act. Section 1SJ reads
            thus:
             I SJ. While adjudging the quantum of penalty under Section 1S-1,
             the adjudicating officer shall have due regard to the following
 G           facts, namely :- ..
             a. the amount of disproportionate gain or unfair advantage,
             wherever quantifiable, made as a result of the default.
             b. the amount of loss caused to an .investor or group of investors
             as a result of the default;
 H
 SIDDHARTH CHATURVEDI v. SECURITIES AND                                  41 S
        EXCHANGE BOARD OF INDIA

 c. the repetitive nature of the default.                                 A
 The use of the word "namely' indicates that these factors alone
 are to be considered by the Adjudicating Officer. Black's Law
 Dictionary defines "namely" as "by name or particular mention.
 The term indicates what is to be included by name. By contrast,
 including implies a partial list and indicates something that is not     B
 listed." In this context, we find no reason to read "namely" as
 "including", as learned senior counsel_ for the respondent would
 have us do.
 5. It would be apposite for us to begin our analysis of the penalty
 to be imposed by.laying out Section 1SA(a) as it stood subsequent
 to the 2002 amendment, for the facility of reference:
                                                                          c
 !SA. If any person, who is required under this Act or any rules or
 regulations made thereunder,-
  a. to furnish any document, return or report to the Board, fails to
  furnish the same, he shall be liable to a penalty of one lakh rupees    D
··for each day during which such failure continues or one crore
  rupees, whichever is less;


 In the connected appeals before us, the appellant has imposed a
 penalty of Rs. 7S lakhs despite the failure having continued .for E
 substantially more than 7S days ..Learned senior counsel for the
 appellant has contended that the appellant has discretion to impose
 a penalty below the number of days ofdefault regardless of the ·
 words '°whichever is less". He has argued that there would be no
 purpose to Section I SJ ifthe Adjudicating Officer's discretion to    F
 fix the quantum of penalty did not exist, and that such an ·
 interpretation would render certain Sections of the SEBI Act as
 expropriatory legislation due to the crippling penalties they would
 impose. We do not agree with these submissions. The clear
 intention of the amendment is to impose harsher penalties for
 certain offences, and we find no reason to water them down. G
 The wording of the statute clarifies that the penalty to be imposed
 in case the offence contin.ued for over one hundred days is
 restricted to Rs. I crore. No scope has been given for discr.etion ..
 Prior. to the amendment, the section provided for a penalty "not
 exceeding one.lakh fifty thousand rupees for each such failure",
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416             SUPREME COURT REPORTS                          [2016) 2 S.C.R.



A           thus giving the app~llant the discretion to decide the appropriate
            amount of penalty. ln this context, the change to language which
            does not repose any discretion is even more significant, as it
            indicates a legislative intent to recall and remove the previously
            provided discretion. Additionally Section 151 existed prior to the
            amendment and was relevant at that time for adjudging quantum
 B
            of penalty. Once this discretionary power of the adjudicating
            officer was withdrawn, the scope of Section 151 was drastically
            reduced, and it became relevant only to the Sections where the
            Adjudicating Officer retained his prior discretion, such as in Section
            1SF(a) AND Section l 5HB. This ought to have been reflected in
 c          the language of Section 15-1, but was clearly overlooked. Section
             151 has become relevant once again, subsequent to the Securities
            Laws (Amendment) Act, 2014, which changed Section l5A(a),
            with effect from 8.9.2014, to read as follows:-
            l5A. Penalty for failure to furnish information, return, etc. - If
 D          any person, who is required under this Act or any rules or regulations
            made thereunder :-
            a. to furnish any document, return or report to the Board, fails to
            furnish the same, he shall be liable to a penalty which shall not be
            less than one lakh rupees but which may extend to one lakh rupees
 E          for each day during which such failure continues subject to a
            maximum of one crore rupees;
            The purpose of amendment .was clearly to re-introduce the
            discretion of the adjudicating Officer which was taken away by
            the. SEBI (Amendment) Act, 2002. Had the··failure of the
 F          respondent taken place between 29.10.2002 and 8.9.2014, the
            penalty ought to have been Rs.l crore, without the possibility of
            any discretion for reduction."
            9. Two things have been clearly stated by this Court in so far as
      the amended Section I 5A read with Section 151 is concerned. First, this
 G    Court has indicated that by the use of the expression "namely" in Section
      151, SEBl in adjudging the quantum of penalty under Section 15A can
      have due regard only to the three factors set out therein and not to other~
      relevant factors as the expression "namely" cannot be equated with the '
      expression "including", being an exhaustive provision on the subject matter
      covered by the provision. This Court has also clearly held that Section
 H    151 would suffer an eclipse for the period2002 to 2014 inasmuch as the
       SIDDHARTH CHATURVEDI v. SECURITIES AND                                     417
              EXCHANGE BOARD OF INDIA

intention.of the Legislature, by amending Section I 5A, seems to be that           A
no scope for any discretion for this period is to be exercised, if in fact,
there is any infraction of Rules or Regulations. This Court clearly held
that the discretionary power of the Adjudicating Officer having been
withdrawn, .the scope of Section- l 5J would correspondingly stand
drastically reduced.
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       I 0. Prima facie, we find it a little difficult to subscribe to both the
views contained in paragraph 4 as well as in paragraph 5 of t_he said
judgment.. The expression "shall have due regard to" is a very known
legislative device usect' from the time of Julius v Bishop of Oxford
(1880) LR 5 AC 214 (HL), and followed in many judgments both English
as well as ofour Courts as words vesting a discretion in an Adjudicating
                                                                                   c
Officer. The question which arises in the present appeals is whether the
expression "namely" fixes the discretion which c~n be exercised only in
the circumstances mentioned in the three clauses set out in Section I 5J,
or whether it would also take into account other relevant circumstances,
having particular regard to the fact that it is a penalty provision that the       D
Court is construing. As this needs to be authoritatively decided for the·
future, it would be better if we refer it to a larger Bench for such
authoritative pronouncement.
       11. We also find it a little difficult to accept what is stated in
paragraph 5 of the judgment. It is very difficult, keeping in view,                E
particularly; two important legal facets- one the doctrine of harmonious
construction of a statute; and two, the fact that we are construing a
penalty provision of a statute which is to be strictly construed, Section
I SA, post amendment in 2002, is suddenly given a pride of place, and
Section l 5J is made to yield entirely to it. The familiar expression
"notwithstanding anything contained" does not appear in the amended                F
Section I SA. This being the case, it is a little difficult to appreciate as to
how one can construe Section l 5A, as amended, in i~olation, without
regard to Section !SJ. In fact, the facts of the present case would go      te
show that where there is allegedly only a technical default, and the three
parameters of Section l 5J would allegedly be satisfied by the appellants,         G
namely, tha(no disproportionate or unfair advantage has been made as a
result of the default; no loss has been caused to an investor or group of
investors as ll result of the default; and there is in fact, no repetitive
nature of default, no penalty at all ought to be imposed. What has been ·
done by the appellants here is to fail to adhere to Regulation 13, as
alleged in the show cause notice, which failure has occurred on three              H
418              SUPREME COURT REPORTS                        [2016) 2 S.C.R.



A     days and consequently, has allegedly not been repeated by the appellants
      anytime thereafter. If we were to read Section I SA, as amended in
      2002, in the manner suggested by the Division Bench of this Court, it
      may lead to anomalous results in that the effect of continuing failure to
      adhere to statutory regulations alleged to have been continued well
      beyond the period of three days, and which continues till this day, has
 B
      Rs. I lakh per day as the minimum mandatory penalty under the provisions,
      which would culminate in the appellants herein having to pay Rs. I crore
      in each of the three appeals. We do not think that this could have been
      the intention of the Parliament in enacting Seetion I SA, as amended in
      2002. We also feel that on the assumption that paragraph S of the
c     judgment is correct, it would be very difficult for Section I SA to be
      construed as a reasonable provision, as it would then arbitrarily and
      disproportionately invade the appellants' fundamental rights. This being
      the case, on both the conclusions reached by this Court in paragraphs 4
      and S, as stated by us hereinabove, these matters deserve consideration
      at the hands of a larger Bench. The Registry is, accordingly, directed to
D
      place the papers of these appeals before Hon 'ble the Chief Justice of
      India for placi_ng these matters before a larger Bench.
             12. Interim orders passed by this Court shall continue to operate.
      Kalpana K. Tripathy                           Matter referred tO larger bench.