1. Notwithstanding anything in the Code of Criminal Procedure, 1973, 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 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 authorized 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, 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 ).
Legal Commentary & Landmark Judgments: Section 439
Section 439 establishes that corporate offenses are generally non-cognizable, requiring written complaints by the Registrar, shareholder, or authorized officer, while preserving the exception for SFIO fraud prosecutions.
Sub-section (3) provides that the court may take cognizance on a complaint of the liquidator in winding up.
Section 439 prevents local police stations from arbitrarily registering FIRs and arresting company directors for routine technical non-compliances under the Companies Act. Police officers cannot register an FIR for company law offenses without a formal complaint from the ROC or authorized shareholder. The sole exception is SFIO fraud prosecutions, where investigators possess direct statutory arrest powers.