Updated: 17 September 2026
Sections 437, 438, 439 and 440 of the Companies Act, 2013: Appeals, Special Court Procedure, Non-Cognizable Offences and Transitional Provisions
Sections 437 to 440 form part of Chapter XXVIII of the Companies Act, 2013 dealing with Special Courts. Together, they regulate appellate and revisional jurisdiction, the criminal procedure applicable before Special Courts, cognizance of company-law offences and the forum that deals with offences until the relevant Special Court is available.
Section 437 - Appeal and revision
Meaning: Section 437 gives the High Court appellate and revisional powers in relation to a Special Court by treating that Special Court, for this purpose, as a Court of Session within the High Court's local jurisdiction.
The High Court may exercise, so far as applicable, all powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 on a High Court, as if the Special Court within its local jurisdiction were a Court of Session trying cases within that jurisdiction.
Section 438 - Application of Code to proceedings before Special Court
Meaning: Unless the Companies Act provides otherwise, ordinary criminal procedure applies to proceedings before a Special Court. The provision also determines the procedural status of the Special Court and the prosecutor.
Section 438 states that, save as otherwise provided in the Companies Act, the provisions of the Code of Criminal Procedure, 1973 apply to proceedings before a Special Court. For those purposes, the Special Court is deemed to be a Court of Session or the court of Metropolitan Magistrate or Judicial Magistrate of the First Class, as the case may be, and the person conducting the prosecution is deemed to be a Public Prosecutor.
The words extending the deemed status beyond a Court of Session were substituted by section 87 of the Companies (Amendment) Act, 2017 with effect from 7 May 2018.
Section 439 - Offences to be non-cognizable
Meaning: The general rule under this section is that offences under the Companies Act are non-cognizable, subject to the statutory exception for offences referred to in section 212(6). The section also restricts who may institute a complaint on which a court can take cognizance.
Sub-section (1): Notwithstanding the Code of Criminal Procedure, every offence under the Companies Act, except offences referred to in section 212(6), is deemed non-cognizable.
Sub-section (2): A court cannot take cognizance of an offence alleged against a company or its officer except on a written complaint by the Registrar, a shareholder or member, or a person authorised by the Central Government. For offences relating to issue or transfer of securities and non-payment of dividend, cognizance may also be taken on a written complaint by a person authorised by SEBI. This restriction does not apply to a prosecution by a company of any of its officers.
Sub-section (3): Where the complainant is the Registrar or a person authorised by the Central Government, personal attendance of that officer is unnecessary unless the trial court requires it.
Sub-section (4): The complaint restriction in sub-section (2) does not apply to action by a liquidator concerning an offence relating to Chapter XX or another winding-up provision. The Explanation clarifies that a liquidator is not treated as an officer of the company for sub-section (2).
The words "or a member" were inserted in section 439(2) by section 88 of the Companies (Amendment) Act, 2017 with effect from 7 May 2018.
Section 440 - Transitional provisions
Meaning: Section 440 prevents a procedural vacuum where an offence is triable by a Special Court but the appropriate Special Court has not yet been established.
Until a Special Court is established, an offence under the Companies Act that is triable by a Special Court is to be tried, as applicable, by a Court of Session, Metropolitan Magistrate or Judicial Magistrate of the First Class exercising jurisdiction over the area. The provision preserves the High Court's statutory power to transfer cases.
The expanded references to the competent criminal courts were substituted by section 89 of the Companies (Amendment) Act, 2017 with effect from 7 May 2018.
Current criminal procedure context after 1 July 2024
The text of sections 437, 438, 439 and 440 of the Companies Act continues to contain references to the Code of Criminal Procedure, 1973. The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and repealed the Code of Criminal Procedure, subject to its savings provisions. Section 8 of the General Clauses Act, 1897 also provides a general rule for construing statutory references where an enactment is repealed and re-enacted. Accordingly, the Companies Act text should be read together with the current criminal-procedure law and applicable savings provisions.
Practical effect of Sections 437 to 440
These provisions create the procedural bridge between company-law prosecutions and the criminal courts. Section 437 addresses High Court appeal and revision; section 438 imports criminal procedure into Special Court proceedings unless the Companies Act provides otherwise; section 439 makes most Companies Act offences non-cognizable and regulates cognizance; and section 440 identifies the temporary trial forum where the relevant Special Court has not been established.
Note: This page is a general legal information resource. For a pending prosecution or appeal, the applicable Companies Act provision, current criminal procedure law, notification establishing the Special Court, territorial jurisdiction and case-specific orders should be checked.