More teeth for Sebi

Equivalent to independent investigation agency

New Delhi (PTI): In a major policy change, the government has finally extended additional powers to Sebi in order to recover wrongful gains made in contravention of law, which the market regulator was seeking for quite some time. Accordingly, Sebi now can order search and seizure, attachment of properties, arrests and detention of defaulters and also can pass disgorgement directions. Further, Sebi also allowed seeking information from other regulators within India and abroad with retrospective effect, thus paving way for collection of details pertaining to cases pending for over 15 years now.

Under the Securities Laws Amendment Ordinance which was promulgated by the President of India last week, the individuals and companies being probed by Sebi can now settle their pending investigations. Such settlements can be undertaken in cases that are currently pending for more than six years.

In case of ponzi schemes, which are being floated as Collective Investment Schemes (CIS), the rules have amended to classify any money collection of Rs 100 crore or more as CIS operation. Thus, Sebi draws powers to crack down on illegal investment schemes floated by individuals as well. Till now it has power to probe against companies. However, all government-notified schemes kept out of the CIS framework.

These changes are among 22 amendments made by the government in three main Acts governing Sebi and its operations -- the Securities and Exchange Board of India (Sebi) Act, the Securities Contracts Regulation Act (SCRA) and the Depositories Act -- through a 16-page Ordinance.

The others include, Sebi has been given powers to pass disgorgement orders for amount equivalent to wrongful gains or to losses averted by contravention of regulations. Besides, the regulator can now enter and search buildings, places, vessels, vehicles and aircraft of defaulters. Its officers can also also break open the lock of any door, box, locker, safe almirah, etc to get information from suspected entities.

At the same time, the defaulters can seek settlement of pending cases with Sebi with retrospective effect from April 20, 2012. The Ordinance also allows the government to set up as many special courts, as required, to expedite hearing of cases involving contravention of securities laws.

Sebi has also been given direct powers to attach properties and bank accounts of persons and companies failing to comply with directions, involving payment of penalties, refunds to the investors and other dues. The regulator can also order arrest and detention of defaulters in prison.

The powers to seek information from other domestic and foreign regulators have been made effective retrospectively from March 6, 1998. For seeking information from outside the country, Sebi can enter into an arrangement, agreement or understanding with relevant foreign authorities with the prior approval of the central government. At the same time, Sebi can now ask for information or records from any person, banks, authorities, boards or corporation, if the regulator is of the opinion that such details could be relevant to any investigation or inquiry being undertaken by it.

With regard to its new search and seizure powers, Sebi can also access the documents maintained in the electronic format. On settlement, the Ordinance provides that any person against whom any proceedings have been or may be initiated by Sebi under certain sections, may file an application to Sebi proposing for settlement of such proceedings for the alleged defaults.

After taking into account the "nature, gravity and impact of defaults", Sebi can accept or reject such a settlement on payment of an amount to be decided by the regulator, subject to various terms and conditions. However, no appeals can be made against Sebi's decision in these matters. The settlement provision has been made applicable retrospectively with effect from April 20, 2007.

Special Court For speedy trial of offences under various Sebi regulations, the Ordinance also provides for setting up of "as many special courts as may be necessary" by the central government. Such courts would consist of a single judge to be appointed by the central government with concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working. The judge would need to hold the office of a Sessions Judge or an Additional Sessions Judge immediately before such appointment.

Also, the person conducting prosecution on behalf of Sebi before such a Special Court would be deemed to be a Public Prosecutor within the meaning of the relevant clause of the Code of Criminal Procedure. Such prosecutors would need to have been in practice as an advocate for at least 7 years or should have a minimum experience of seven years in a relevant government job. Till the time a Special Court is established, any offences committed under Sebi Acts would be tried by a Session Court. If a person fails to pay the penalty imposed by Sebi or fails to comply with any direction for refund of money or any disgorgement orders, the recovery officer appointed by Sebi can proceed to recover such an amount.

The recovery can be done through modes including attachment and sale of the person's movable or immovable properties, attachment of bank accounts, arrest of the person and his detention in prison, or appointment of a receiver for the management of the person's properties.

The properties and bank accounts that can be attached would also include those transferred to the names of his spouse or minor child, or son's wife or son's minor child. These provisions would continue to apply even after attainment of majority by a minor child or son's minor child during the attachment procedures.

The amendments have made it clear that Sebi would have powers to pass orders against any person who has made profit or averted loss by indulging in any transaction or activity in contravention of the provisions of the Sebi regulations.