Applicability of Code of Criminal Procedure, 1973 (CrPC 1973) to the proceedings before the Special Court designated under Section 435(1) of the Companies Act, 2013
It is submitted that Section 2(29) (Definition of Court) of the Companies Act, 2013 (“Act, 2013”) has been notified on 12.09.2013 except clause (iv). Later on, in exercise of the powers conferred by Sub-section (3) of Section 1 of the Act, 2013, the Central Government has appointed the 18th day of May, 2016 vide Notification No. S.O. 1795 (E) dt 18.05.2016, as the date on which the provisions of clause (iv) of sub-section (29) of section 2, sections 435 to 438 (both sections inclusive) and section 440 of the Act, 2013 come into force. It means the provisions of ‘Special Court’ under Sections 435 to 438 (both sections inclusive) and Section 440 were enforced first time in the year 2016 i.e. on 18th day of May, 2016.
As mentioned above, the Ministry of Corporate Affairs (“MCA”) vide Notification No. S.O. 1795 (E) dt 18.05.2016 has first time notified Sections 435 to 438 (both sections inclusive) and section 440 of the Act, 2013 for the setting up of ‘Special Courts’ to specifically deal with and dispose of criminal offences under the Act, 2013. Therefore, the transitional provisions provided under Section 440 of the Act, 2013 has come into force w.e.f. 18th May, 2016.
In respect with the question – Whether the Code of Criminal Procedure, 1973 (2 of 1974) (“Code”) is apply to the proceedings before the Special Court designated under Section 435(1) of the Companies Act, 2013, it is submitted that Section 438 of the Act, 2013 clearly specify that provisions of the Code shall apply to the proceedings before the Special Court. Section 438 of the Act, 2013 read as under:-
Application of code to proceedings before special court
“438. Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to the proceedings before a Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a Court of Session or the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case may be, and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.”
Pursuant to Section 438 of the Act, 2103, save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure,1973 shall apply to the proceedings before a ‘Special Court’ and for the purposes of the said provisions, the Special Court shall be #[Court of Session or the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case may be] and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.
#Substituted for the words “Court of Session” by the Companies (Amendment) Act 2017 vide Notification No. S.O. 1833(E) dated 7th May, 2018.
SECTION 440. TRANSITIONAL PROVISIONS
As per Section 440 of the Act, 2013, any offence committed under this Act, which is triable by a ‘Special Court’ shall, until a Special Court is established, be tried by a #[Court of Session or the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case may be] exercising jurisdiction over the area, notwithstanding anything contained in the Code of Criminal Procedure, 1973.
Provided that nothing contained in this section shall affect the powers of the High Court under section 407 of the Code to transfer any case or class of cases taken cognizance by a #[Court of Session or the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case may be] under this section.
#Substituted for the words “Court of Session” by the Companies (Amendment) Act 2017 vide Notification No. S.O. 1833(E) dated 7th May, 2018.
Disclaimer: Nothing contained in this document is to be construed as a legal opinion or view of either of the authors whatsoever and the content is to be used strictly for educative purposes only.
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