SPECIAL COURTS AND MEDIATION & CONCILIATION PENAL


Special courts are one most commendable constitute introduced by this Act. This is trend recently to constitute special courts for every single legal constitute. The main reason for establishment of such special court is technicalities involved in these technical matters.

ESTABLISH OF SPECIAL COURT (SECTION 435):

The Central Government may for the purpose of providing speedy trial of offences under this Act, by notification establish or designate Special Courts.

A Special Court shall consist of a single judge appointed by the Central Government. The Judge shall be appointed with the concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working.

A person shall not be qualified for appointment as a judge of Special Court unless he was holding a Sessions Judge or an Additional Sessions Judge.

OFFENCES TRIABLE BY SPECIAL COURTS (SECTION 436):

All offence under the Companies Act shall be triable only by the Special Court for the area in which the registered office of the company in relation to which the offence is committed.

Where a person accused of or suspected of the commission of an offence under the Act is forwarded, a Judicial Magistrate may authorise the detention of that person for fifteen days or an Executive Magistrate for seven days. Where the Magistrate consider that the detention of the person upon or before the expiry of the period of detention is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction.

The Special Court may exercise the same power which a Magistrate having may exercise under Section 167 of the Code of Criminal Procedure, 1973 in relation to an accused person who has been forwarded to him.

A Special Court may upon perusal of the police report of the facts constituting an offence under this Act or upon a complaint, take cognizance of the offence without the accused being committed to it for trial.

When trying an offence under this Act, a Special Court may also try an offence under the Code of Criminal Procedure, 1973 in a same trial.

The Special Court may try in a summary way any offence under this Act which is punishable with imprisonment for a term not exceeding three years. In case of summary trial, a sentence of imprisonment for a term exceeding one year shall not be passed. Where the Special Court think it is undesirable to try the case summarily, the Special Court shall record an order to that effect and thereafter recall any any witness who may have been examined and proceed to hear or rehear in regular trial.

APPEAL AND REVISION (SECTION 437):

The High Court may exercise all the powers conferred by Chapter XXIX and XXX of the Code Criminal Procedure, 1973 on a High Court as if a Special Court were a Court of Session trying cases.

APPLICATION OF CODE TO PROCEEDING BEFORE SPECIAL COURT (SECTION 438):

The provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court. The Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court be deemed to be a Public Prosecutor.

OFFENCES TO BE NON – COGNIZABLE (SECTION 439):

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.

No court shall take cognizance of any offence under this Act except on the complaint of –

(a)  the Registrar in writing,

(b) a shareholder of the company,

(c)  a person authorised by the Central Government.

The court may take cognizance of offences relating to issue and transfer of securities and non – payment of dividend on complaint in writing by a person authorised by the Securities and Exchange Board of India.

Where the complainant is the Registrar or a person authorised by the Central Government, the presence of such officer before the Court trying the offence shall not be necessary. The court may require personal attendance of these complainants at the trial.

TRANSITIONAL PROVISIONS (SECTION 440):

Until a Special Court is established, any offence triable by a Special Court shall be tried by a Court of Session.

COMPOUNDING OF CERTAIN OFFENCES (SECTION 441):

Any offence punishable under this Act with fine only, may either before or after the institution of any prosecution be compounded by –

(a)  the Tribunal; or

(b) where the maximum amount of fine which may be imposes for such offence does not exceed five lakh rupees, by the Regional Director or any officer authorised by the Central Government,

on payment or credit, by the company or the officer to the Central Government of a sum as the Tribunal or the Regional Director or officer may specify. This sum shall not exceed the maximum amount of the fine which may be imposed for the offence so compounded. The sum if any, paid by way of additional fee shall be taken into account.

Any offence shall not be compounded if the investigation against such company has been initiated or is pending under this Act.

An offence cannot be compounded within a period of three years from the date on which a similar offence committed by it or him was compounded.

Every application for the compounding of an offence shall be made to the Registrar who shall forward the same, together with his comments thereon, to the Tribunal or the Regional Director or any officer authorised by the Central Government.

Where any offence is compounded, its intimation shall be given by the company to the Registrar within seven days from the date on which the offence is so compounded.

Where any offence is compounded before the institution of any prosecution, no prosecution shall be instituted in relation to such offence.

Where the compounding of any offence is made after the institution of any prosecution, the company or its officer in relation to whom the offence is so compounded shall be discharged.

The Tribunal or the Regional Director or any officer authorised by the Central government, may direct by an order any officer or other employee of the company to file or register such return, account or other document within specified on payment of fee or additional fee.

Any officer or other employee of the company who fails to comply with any order made by the Tribunal or the Regional Director or any officer shall be punishable with imprisonment for a term which may extend to six month or with fine not exceeding one lakh rupees or with both.

Any offence which is punishable under this Act, with imprisonment or fine, or with imprisonment or fine or with both, shall be compoundable with the permission of the Special Court. Any offence which is punishable under this Act, with imprisonment only, or with imprisonment and also with fine, shall not be compoundable.

MEDIATION AND CONCILIATION PENAL (SECTION 442):

The Central Government shall maintain a panel of experts to be called as the “Mediation and Conciliation Penal” for mediation between the parties during the pendency of any proceedings before the Central Government or the Tribunal or the Appellate Tribunal.

Any of the parties to the proceedings may apply for referring the matter pertaining to such proceedings to the Mediation and Conciliation Panel. The Central Government or the Tribunal or the Appellate Tribunal before which any proceeding is pending may suo motu refer any matter pertaining to such proceeding to the Mediation and Conciliation Panel.

The Mediation and Conciliation Panel shall follow the prescribed procedure and dispose of the matter referred to it within a period of three months from the date of such reference and forward its recommendation to the Central Government or the Tribunal or the Appellate Tribunal.

Any party aggrieved by the recommendation of the Mediation and Conciliation Penal may file objection to the Central Government or the Tribunal or the Appellate Tribunal.

COMPANY PROSECUTORS (SECTION 443):

The Central Government may appoint company prosecutors for the conduct of prosecutions arising out of this Act.  The Company Prosecutor shall have all the powers and privileges conferred to Public Prosecutors appointed under the Code of Criminal Procedure, 1973.

APPEAL AGAINST ACQUITTAL (SECTION 444):

The Central government may direct any company prosecutor to present an appeal from an order of acquittal passed by any court, other than a High court.

COMPENSATION FOR ACCUSATION WITHOUT REASONABLE CAUSE (SECTION 445):

The provision of Section 250 fo the Code of Criminal Procedure, 1973 shall apply mutatis mutandis to compensation for accusation without reasonable cause before the Special Court or the Court of Session.

APPLICATION OF FINES (SECTION 446):

The court imposing any fine under this Act may direct that the whole or any part thereof shall be applied in or towards payment of the costs of the proceedings, or in or towards the payment of a reward to the person on whose information the proceedings were instituted.

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4 responses to “SPECIAL COURTS AND MEDIATION & CONCILIATION PENAL

  1. Pingback: Special Courts | AishMGhrana

  2. Pingback: EXEMPTION TO GOVERNMENT COMPANIES | AishMGhrana

  3. Pingback: THE COMPANIES AMENDMENT BILL 2014: PART 3 OF 3 | AishMGhrana

  4. To lessen the burden of Legal Courts, there is provision in Constitution of India, Part XIV-A, under Articles 323-A and 323-B.
    Arbitration and Concilation Act, 1996 also exists.
    Lok Adalats, conducted once in three months, by state judicial department also exists.
    If matter can be settled amecably by following in any of the above methods, then disputes will be solved speedily.

    By shirish shanbhag

    Like

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