The regulator has suggested to remove automatic disqualification of individuals holding key positions on filing of an FIR (first information report) or a charge sheet in economic offence cases.
“It has been represented that mere pendency of criminal complaint or FIR or filing of charge sheet should not trigger disqualification, as filing of such criminal complaint or FIR or charge sheet are the preliminary steps to set the criminal law into motion. The same is also stated to be against the settled principle of criminal law that all persons are innocent until proven guilty,” Sebi said in a discussion paper on Wednesday.
The move comes after the regulator submitted before the Bombay High Court that it would review its rules on ‘fit on proper person’ after brokers involved in the National Spot Exchange (NSEL) case, including Anand Rathi Commodities and Motilal Oswal, challenged a Sebi order declaring them ‘not fit and proper’ to operate.
These brokers argued that disqualification merely on allegations was a violation of their constitutional rights.
As per current rules, intermediaries, key managerial personnel and persons in control incur a disqualification if there is a pending criminal complaint or FIR filed by Sebi or a pending charge sheet concerning economic offences by an enforcement agency.
The regulator has now proposed that a rule-based formula may be onerous and not appropriate as it could lead to unintended consequences such as putting a person at a disadvantageous position at a preliminary stage of pending criminal complaint or charge sheet, which could later result in acquittal or discharge.This may also be counterproductive to the objective of promoting ease of doing business, it said.
Any serious or incriminating factor may be taken into account on a case-to-case basis in the context of the person’s overall conduct and the potential risk to the interests of the investors, Sebi said.
The regulator said it would come out with guidelines regarding cases where pendency of criminal proceedings is egregious enough to incur disqualification.
