The result of the above discussion would lead to the following conclusions, which answer the questions formulated in this order thus :
"(a) Complaint alleging commission of any offence punishable under Section 23 of the Securities Act can be filed only by the Central Government or the State Government, or the SEBI or recognized stock exchange or by any person, who falls in the same category as the category of the authorities mentioned in Section 26 or who is a person affected by contravention of the provisions of the Securities Act.(b) Filing of a complaint by an authority or a person contemplated by Section 26 of the Securities Act, is sine qua non for setting the law in motion.(c) No authority has been given under the Securities Act to a Police Officer of any rank to file a complaint under Section 26 of the Securities Act.(d) A Police Officer can neither make investigation into the offences punishable under the Securities Act nor effect arrest for them till the time the requisite conditions discussed at length in the order are fulfilled.(e) The procedure for dealing with the offences punishable under Section 23 of the Securities Act would be governed by Sections 26, 26B and Section 26D of that Act together with applicable and relevant provisions of the Cr.P.C., in particular, those contained in Chapters XV and XVI of the Cr.P.C."
40. Once it is found that there can be no investigation initiated by a Police Officer without there being a complaint filed in terms of Section 26 of the Securities Act and also without there being any express authorisation by the competent Court given to him for making an investigation into the offences alleged to be committed under various clauses of Section 23(1) of the Securities Act, no arrest can be sought to be made by a Police Officer. In this case, there is no complaint filed so far in terms of Section 26 of the Securities Act. Therefore, insofar as this offence is concerned, the applicant would be entitled to be released on confirmed anticipatory bail.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application [ABA] Nos. 445, 446 and 447 of 2016
Decided On: 24.10.2016
Khanhaiya Ramchand Thawrani
Vs.
State of Maharashtra
Hon'ble Judges/Coram:
S.B. Shukre, J.
Citation: 2017 CRLJ1402
