Companies Act Section 439 — Offences to be non-cognizable
CHAPTER XXVIII SPECIAL COURTS
Commercial / Corporate
Summary
Sub-section (1) states that, despite anything in the Code of Criminal Procedure, 1973, every offence under this Act is considered non-cognizable, except for the offences referred to in sub-section (6) of section 212. This means that, generally, police cannot arrest a person for these offences without a warrant, and the offences are treated as less serious in terms of police powers.
Sub-section (2) says that no court can take cognizance of any offence under this Act alleged to have been committed by a company or any of its officers, unless there is a written complaint from the Registrar, a shareholder or a member of the company, or a person authorised by the Central Government. The first proviso adds that the court may take cognizance of offences relating to issue and transfer of securities and non-payment of dividend, on a written complaint by a person authorised by the Securities and Exchange Board of India. The second proviso clarifies that this sub-section does not apply to a prosecution by a company of any of its officers.
Sub-section (3) states that, despite anything in the Code of Criminal Procedure, 1973, when the complainant under sub-section (2) is the Registrar or a person authorised by the Central Government, that officer does not need to be present before the court trying the offence, unless the court requires their personal attendance at the trial.
Sub-section (4) says that the provisions of sub-section (2) do not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in relation to any matter in Chapter XX or any other provision of this Act relating to the winding up of companies. The explanation clarifies that the liquidator of a company is not considered an officer of the company within the meaning of sub-section (2).
Official Text
(1) Notwithstanding anything in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act except the offences referred to in sub-section (6) of section 212 shall be deemed to be non-cognizable within the meaning of the said Code.
(2) No court shall take cognizance of any offence under this Act which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, a shareholder 2[or a member] of the company, or of a person authorised by the Central Government in that behalf:
Provided that the court may take cognizance of offences relating to issue and transfer of securities and non-payment of dividend, on a complaint in writing, by a person authorised by the Securities and Exchange Board of India:
Provided further that nothing in this sub-section shall apply to a prosecution by a company of any of its officers.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),where the complainant under sub-section (2) is the Registrar or a person authorised by the Central Government, the presence of such officer before the Court trying the offences shall not be necessary unless the court requires his personal attendance at the trial.
(4) The provisions of sub-section (2) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters in Chapter XX or in any other provision of this Act relating to winding up of companies.
Explanation.—The liquidator of a company shall not be deemed to be an officer of the company within the meaning of sub-section (2).