Bombay High Court
MADHABI PURI BUCHversusSAPAN SHRIVASTAVA
- Decided
- Disposal
- Disposed Off
- Bench
- SHIVKUMAR DIGE
Holding
The order of the Special Judge directing registration of the FIR is quashed as it was passed without application of mind and without the requisite prior sanction.
Summary
The petitioners, former SEBI officers and later BSE officials, challenged an order of a Special Judge that had directed registration of an FIR against them under IPC sections 166A(b), 120B, 420, 409 and PC Act sections 7 and 13 for allegedly failing to prevent the illegal listing of Cals Refineries Ltd. on the BSE in 1994. The complainant, a private investor, claimed loss due to the purportedly non‑compliant listing and alleged that the petitioners took gratification and did not act under Section 15HA of the SEBI Act. The petitioners argued that no prima facie case existed, that Section 15HA was not in force in 1994, that prior sanction under the Prevention of Corruption Act and Section 156(3) CrPC was required, and that they bore no vicarious liability. The High Court held that the Special Judge’s order was mechanical, lacked application of mind, and was passed without the mandatory sanction, thereby quashing it. The criminal revision applications were allowed and the impugned order set aside.
Issues considered
- Whether the Special Judge could validly order registration of an FIR under Section 156(3) CrPC without a prima facie case against the public servants.
- Whether prior sanction under Section 19 of the Prevention of Corruption Act, 1988 and the amended provisions of Section 156(3) CrPC is mandatory before proceeding against government servants.
- Whether Section 15HA of the SEBI Act, 1992 is applicable to alleged conduct relating to a listing that occurred in 1994.
- Whether the petitioners can be held vicariously liable for the alleged illegal listing of Cals Refineries Ltd.
Legislation cited
- Code of Criminal Procedure — s. 154(1), 154(3), 156(3)
- Indian Penal Code, 1860 — s. 120B, 166A(b), 409, 420
- Prevention of Corruption Act, 1988 — s. 13, 19, 7
- Securities and Exchange Board of India Act, 1992 — s. 15HA
- Securities Contracts (Regulation) Act, 1956 — s. 17A
Subjects
- criminal revision
- Section 156(3) CrPC
- public servant sanction
- SEBI
- stock exchange listing
- corruption
- vicarious liability
- FIR registration
- Indian Penal Code
- Prevention of Corruption Act
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 76 OF 2025
Ashwani Bhatia ...Applicant
versus
VAISHALI Sapan Shrivastava and Anr. ...Respondents
ANIL
TIKAM WITH
Digitally signed
CRIMINAL REVISION APPLICATION NO. 77 OF 2025
by VAISHALI
ANIL TIKAM
Date: Madhabi Puri Buch ...Applicant
2026.07.30
12:47:29 +0530 versus
Sapan Shrivastava and Anr. ...Respondents
WITH
CRIMINAL REVISION APPLICATION NO. 78 OF 2025
Pramod Agarwal & Anr. ...Applicants
versus
State of Maharashtra and Ors. ...Respondents
_________________________________________________________________
Mr. Omprakash Jha i/by The Law Point, Advocate for Applicant in CRA -76
of 2025.
Mr. Sudeep Pasbola, Senior Advocate along with Mr. Omprakash Jha i/by
The Law Point, Advocate for the Applicant in CRA 78 of 2025.
Mr. Aditya Mehta a/w. Rishabh Botadra, Advocate for Applicant in CRA 78
of 2025.
Mr. Sapan Shrivastava- Respondent No 1 in person.
Mr. Sagar R. Agarkar, APP for the State.
ACP Machindra Dive, ACB Mumbai.
_________________________________________________________________
CORAM : SHIVKUMAR DIGE, J.
DATE : 7th JULY, 2026.
P.C. :
1. Heard respective learned counsel for the Applicants in all these
revision applications, Respondent No.1 in person and learned APP for the
State.
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2. The challenge to the order in all these revision applications is
same. Hence, I am deciding these revision applications by this common
order.
3. The challenge in these applications is to the order dated
01/03/2025 passed by the learned Special Judge, Mumbai whereby the
learned Judge has allowed the application filed by Respondent No.1
under Section 156(3) of the Code of Criminal Procedure (for short
'Cr.P.C.') and directed to register the offence under Sections 166A (b),
120B, 420 and 409 of Indian Penal Code (for short 'IPC') and under
Sections 7 and 13 of the Prevention of Corruption Act, 1988 against the
Applicants.
4. It is complainant's case that he and his family had invested in
shares of Cals Refineries Ltd. (for short 'CAL'), which was listed on the
Bombay Stock Exchange (for short 'BSE')on 13/12/1994 allegedly without
requisite compliance. It is alleged by Respondent No.1 that BSE illegally
listed CAL on its Exchange which was against the SEBI Circular dated
18/06/1992. The Applicants, who were officers of the SEBI failed to take
action against CAL and Officers of BSE under Section 15HA of the SEBI
Act. It is alleged that fraudulent listing of CAL, which was against the
rules, resulted in a huge loss to the complainant in CAL shares. It is also
alleged that the Applicants have taken gratification and various other
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benefits, and thereby failed to protect the interest of the investors.
5. It is contention of learned Solicitor General ('SG') for
Applicants in Revn No. 76 of 2025 that the learned Judge erred in passing
order under Section 156(3) of Cr.P.C. against the applicant as Respondent
No.1 had failed to make out a prima facie case against the applicants for
failing to discharge their duties as officers of SEBI. Learned SG further
submitted that the learned Judge ought to have appreciated the fact that
the allegation of Respondent No.1 that CAL was listed on BSE without
SEBI compliance and in violation of SEBI Circular dated 18/06/1992 was
without any basis and there was no material on record to support the
same. The SG further submitted that the learned Judge completely
ignored the fact that the allegations of Respondent No.1 that the
Applicants had failed to take action under Section 15HA of SEBI Act, 1992
was without any basis. Section 15HA was introduced in the SEBI Act only
in the year 1995. Learned SG further submits that there was no
requirement for obtaining NOC from SEBI for listing of any shares in BSE.
The matter primarily pertains to the listing agreement executed by the
Company with the Stock Exchange. SEBI is only a regulatory authority
and if there are any violations committed by a company with regard to
disclosure or fraudulent practices, then SEBI is empowered to intervene
and initiate action in the interest of investors. The learned SG further
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submitted that no vicarious liability can be fastened on the applicants in
respect of alleged offence. The alleged listing of CAL is of the year 1994.
None of the Applicants were on the Board of SEBI at the relevant time or
held any such position in which they should have been charged with the
said offences. No offence as alleged. No offence as alleged are committed
by the Applicants. Hence, requested to allow the Applications.
6. It is contention of learned Senior Counsel for the Applicants in
Revn 78 of 2025 that CAL Company was suspended in the year 2018. The
Applicants have been appointed on the board of BSE as members in the
year 2023 as Managing Director and Chairman and Chief Executive. The
applications filed by Respondent were responded by the SEBI. No
offence, as alleged, is made out against the Applicants. But these facts are
not considered by the Learned Special Judge and has passed impugned
order, which is erroneous and requested to allow the applications.
7. It is contention of learned Senior Counsel in Revn. 77 of 2025
that no role is attributed to the present Applicant except mere allegations
that no action was taken on the complaint filed by Respondent. Learned
Senior Counsel further submitted that the procedure under Sections
154(1) and 154(3) has not been followed. The Applicants were
government servants. Before directing registration of the FIR no sanction
under Section 19 of the Prevention of Corruption Act, 1988 had been
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obtained. Learned counsel further submitted that Section 15HA of SEBI
Act and 17A of Securities Contracts (Regulation) Act, 1956 would not be
applicable as the Cals Refineries Ltd. was listed before 1994. But this fact
has not been considered by the Learned Special Judge and requested to
allow the Application.
8. It is contention of Respondent, party in person that he and his
family had invested amount worth Rs.50,000/- in CAL. The said company
was listed by BSE without SEBI compliance. He further submitted that the
Applicants, who were office bearers of SEBI have not taken action agains
Cals Refineries IPO corruption complaint. BSE listed Cals Refineries IPO
without SEBI compliance and due to this investors and Respondent No.1
incurred loss. Respondent No.1 further submitted that he made
complaints to various authorities including the applicants, but no action
was taken. Hence, he was compelled to file a private complaint with the
Learned Special Judge. The learned Special Judge has passed well
reasoned order. No interference is required and requested to reject the
applications. He relied on the judgment of the Apex Court in the case of
Union of India v. W.N. Chadha1.
9. I have heard learned Solicitor General and learned senior
counsel and Respondent - party in person. This is a classic example of
passing of order by the Learned Special Judge without application of mind.
1 (1993) Suppl. (4) SCC 260
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The complaint filed by Respondent No.1 with the authorities show that an
application was filed on 17/08/2023 under RTI about getting information
about the fraudulent listing Cals Refineries Limited at BSE. The said RTI
application was replied by the SEBI by letter dated 28/08/2023 stating
that the information sought was not available with SEBI. It is furthr
stated that in case you are not satisfied with the reply, you may appeal to
First Appellate Authority- Shri Anand Rajeshwar Baiwar, Executive
Director SEBI. Thereafter, Respondent No.1 filed a complaint addressed
to the Chairperson, SEBI dated 04/04/2024 stating that the Cals
Refineries is listed at BSE without SEBI compliance and till date no
action has been taken by her under Section 15HA of SEBI Act, 1992.The
copy was also sent to Ms. Prachi Babadi, BSE and Mr. Abhijit Pai, BSE. The
other application was filed on 11/03/2024. The said applications were
replied by the SEBI. Respondent No.1 filed complaint with DG, ACB
Mumbai and CBI Director by email dated 04/04/2024 alleging that
Mumbai ACB & CBI are not taking action on cognizable offence of
corruption in SEBI. Kindly take action as per 154(3) of Cr.P.C. It is
contention of learned counsel for the Applicants that the Cals Refineries
Ltd. was listed in the year 1994. So, applicants have no concern about
listing of the said company. The said company was suspended in the year
2018. All the applicants have been appointed on the board of SEBI -BSE
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in the year 2022-2023 onwards. A persual of the emails sent by
Respondent No.1 to various authorities reveals that he has neither
mentioned the names of the Applicants nor leveled any allegations against
them that they have acted in collusion with Cals Refineries or that they
have cheated the respondents No.1 or other. Only vague allegations were
mentioned in the said email about not taking action against Cals
Refineries. Merely vague allegations cannot be a ground to involve the
Applicants in the crime of cheating, conspiracy, demand and acceptance of
bribe.
10. It is contention of Respondent No.1, party in person that
veracity of information cannot be checked by the Magistrate. In my view,
as observed earlier, if complaints filed against the officers are frivolous. It
prima facie, appears that applicants have no concern with the allegations
alleged by Respondent No.1 . The learned Special Judge has not
considered these facts. As per the amended Section of 156(3) of Cr.P.C.,
prior sanction is mandatory before taking action against government
servants, but it was not sought. It is contention of Respondent No.1 that
prior sanction is mandatory to prosecute a public servant for acts
committed while performing official duty. In the present case, they were
not discharging their official duties. In my view, the allegations in the
complaint against the applicants are not taking action against the CAL
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Company. It shows it was in respect of official duty. Thus, prior sanction
was necessary before passing any order against the Applicants.
11. As observed earlier, the order passed by the learned Special
Judge, Mumbai is mechanical and without application of mind. Hence, I
pass following order:
ORDER
(i) Criminal Revision Applications are allowed.
(ii) The impugned order passed by the Learned Special Judge,
Mumbai is quashed and set aside.
(iii) Criminal Revision Applications are disposed of.
(SHIVKUMAR DIGE, J.)
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