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SUPREME COURT OF INDIA
T.S. THAKUR, R. BANUMATHI, JJ.
S.R. SUKUMAR – Appellant
Versus
S. SUNAAD RAGHURAM – Respondent
CRIMINAL APPEAL NO. 844 OF 2015 (Arising out of S.L.P. (Crl.) No.4813/2012)
Decided On : 02-07-2015
AIR 2000 SC 2946; (2012) 3 SCC 64 – Relied upon
(b) Code of Criminal Procedure, 1973 – Section 200 – Magistrate recording statement of complainant in part on 18.5.2007 – Detailed order recording Magistrate’s satisfaction to proceed against the appellant(A-1) and to drop proceeding against Smt. H.R. Leelavathi taken on 21.06.2007 – Cognizance taken on 21.06.2007 although erroneously so recorded on 18.05.2007. (Para 16)
(c) Administration of Justice – Criminal proceedings – Complaint case – Amendment of complaint – No specific provision under CrPC for amendment of complaint – However, amendment to correct curable infirmities which can be corrected by a formal amendment can be allowed – Amendment not relating either to a curable infirmity or an infirmity not correctable by a formal amendment or likely to cause prejudice to the other side, should not be allowed – Instantly, amendment not formal but substantial, cognizance was not yet been taken, summons were yet to be issued, amendment not changing nature of the complaint, publication of the poem could give fresh cause of action and multiplicity of proceedings – Courts below rightly allowed the amendment. (Para 17, 18, 19)
(1987) 3 SCC 684 – Relied upon
Facts of the case:
On 9.05.2007, respondent filed the complaint against the first appellant and his mother Smt. H.R. Leelavathi (A-2). In the complaint, the respondent has alleged that he was born of the wedlock of his father late Shri S.G. Raghuram and mother Late Smt. B.S. Girija. However, his father after the death of his mother Girija, married another divorcee lady namely Smt. H.R. Leelavathi (A-2) who at the time of the second marriage, already had a son aged six years S.H. Sukumar (appellant), born from her previous wedlock.
The respondent alleged in the complaint that his father’s name i.e. Late Shri S.G. Raghuram has been purportedly used by the appellant portraying as if he is his natural father often creating doubts among the near and dear ones about the legitimacy of the respondent-complainant and integrity and character of his father which had affected the respondent’s reputation.
Respondent filed the complaint on 9.05.2007 and his statement was recorded in part on 18.05.2007 and further recorded on 23.05.2007. Next day i.e. on 24.05.2007, respondent moved an application seeking amendment to the complaint by praying for insertion of paras 11(a) and 11(b) in the complaint stating the fact of poem named ‘Khalnayakaru’ written by the appellant in connivance with his mother (A-2) depicting the respondent as Villain-‘Khalnayak’, with an intention to malign the character, image and status of the respondent.
The trial court allowed the amendment on 24.05.2007 and took the cognizance of the offence.
The appellant approached the High Court praying for quashing the proceedings on the ground that there is no provision under the Code, providing for amendment of the complaint.
The High Court dismissed the petition filed by the appellant.
Finding of the Court:
Courts below rightly allowed the amendment.
Result: Appeal dismissed.
Key Points: - Amendments to a complaint can be allowed to correct curable infirmities even though there is no explicit provision, if they do not prejudice the other side and do not alter the nature of the offence; amendment allowed when cognizance has not yet been taken and to avoid multiplicity of proceedings (!) (!) (!) - Cognizance under Section 200 Cr.P.C. requires the Magistrate to apply judicial mind to the contents of the complaint and to examine the complainant and witnesses on oath; mere filing or receipt of the complaint does not constitute cognizance; cognizance meaning "taking judicial notice" and proceeding under sections like 204 or 202 may follow (!) (!) (!) (!) - In the case at hand, the Magistrate did not have cognizance on 18.05.2007 but took cognizance later after evaluating the amended complaint on 21.06.2007; amendment prior to cognizance is permissible to avoid prejudice and multiplicity, whereas after cognizance it requires careful scrutiny to prevent prejudice (!) (!) (!) (!) - The Court cites that taking cognizance is not merely the filing of a complaint but a judicial mind applied to disclose an offence; addition of paragraphs via amendment does not automatically constitute or undo cognizance; courts must weigh whether amendment prejudices or changes the nature of proceedings (!) (!) (!) - The decision affirms that there is no express bar to amendment of complaints and that curable infirmities may be addressed by formal amendments to avoid multiplicity of proceedings and prejudice, guiding future conduct of similar cases (!) (!)
Judgment
R. Banumathi, J.
Leave granted.
2. This appeal arises out of an order dated 20.01.2012 passed by the High Court of Karnataka at Bangalore in Criminal Petition No.5077/2007 wherein the High Court declined to quash the order dated 21.06.2007 passed in PCR No.8409/2007 thereby confirming the order passed by the VII Addl. Chief Metropolitan Magistrate, Bangalore permitting the respondent to carry out the amendment in a criminal complaint on the premise that the amendment was made prior to taking cognizance of the offence.
3. On 9.05.2007, respondent filed the complaint under Section 200 Cr.P.C. against the first appellant and his mother Smt. H.R. Leelavathi (A-2) alleging that they have committed the offences punishable under Sections 120-B, 499 and 500 IPC. In the complaint, the respondent has alleged that he was born of the wedlock of his father late Shri S.G. Raghuram and mother Late Smt. B.S. Girija. However, his father after the death of his mother Girija, married another divorcee lady namely Smt. H.R. Leelavathi (A-2) who at the time of the second marriage, already had a son aged six years S.H. Sukumar (appellant), born from her previous wedlock. The respondent alleged in the complaint that his father’s name i.e. Late Shri S.G. Raghuram has been purportedly used by the appellant portraying as if he is his natural father. Respondent alleged that the act of the appellant using name of respondent’s father as his own father often created doubts among the near and dear ones about the legitimacy of the respondent-complainant and integrity and character of his father which had affected the respondent’s reputation.
4. Respondent filed the complaint on 9.05.2007 and his statement was recorded in part on 18.05.2007 and further recorded on 23.05.2007. Next day i.e. on 24.05.2007, respondent moved an application seeking amendment to the complaint by praying for insertion of paras 11(a) and 11(b) in the complaint stating the fact of poem named ‘Khalnayakaru’ written by the appellant in connivance with his mother (A-2) depicting the respondent as Villain-‘Khalnayak’, with an intention to malign the character, image and status of the respondent. The trial court allowed the amendment on 24.05.2007 and took the cognizance of the offence and directed issuance of the process to the appellant vide Order dated 21.06.2007. Aggrieved by the Order dated 21.06.2007, the appellant approached the High Court praying for quashing the proceedings in PCR No.8409/2007 registered as C.C. No.15851/2007 on the ground that there is no provision under the Code, providing for amendment of the complaint. The High Court vide impugned Order dated 20.01.2012 dismissed the petition filed by the appellant observing that before the date of allowing amendment application i.e. 24.05.2007, cognizance of case was not taken and therefore no prejudice is caused to the appellant. Further, the High Court was of the view that if amendment is not allowed, then the multiple proceedings would have ensued between the parties.
5. Mrs. Kiran Suri, learned Senior Counsel appearing for the appellant contended that under the Criminal Procedure Code there is no provision for amendment of complaint and in the absence of any specific provision in the Code, courts below erred in allowing the amendment in criminal complaint. It was submitted that on 18.05.2007, the Magistrate took cognizance of the complaint for the first time and the Magistrate allowed the amendment application on 24.05.2007 and the Magistrate again took cognizance of case for the second time on 21.06.2007 and thus the cognizance taken twice by the Magistrate is impermissible under the law. It was further submitted that once cognizance was taken, the Magistrate ought not to have allowed the amendment and the impugned order is liable to be set aside.
6. Per contra, learned counsel for the respondent contended that the respondent-complainant was examined in Court on oath in part on 18.05.2007 and his examination was deferre
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