Amendment to a Complaint is permissible in law
notwithstanding the absence of an enabling provision in Cr.P.C, if it relates
to a simple infirmity: SC !
S.R.Sukumar vs. S.Sunaad Raghuram, July 2nd 2015, Supreme
Court
Answering the issue whether an amendment to a complaint
filed under Section 200 Cr.P.C. is impermissible in law, the Supreme Court of
India has held in a judgment S.R.Sukumar vs. S.Sunaad Raghuram (Criminal Appeal
No. 844 OF 2015) rendered today that if the amendment sought to be made relates
to a simple infirmity which is curable by means of a formal amendment and by
allowing such amendment, no prejudice could be caused to the other side,
notwithstanding the fact that there is no enabling provision in the Code for
entertaining such amendment, the Court may permit such an amendment to be made.
The Apex court’s ruling came in an appeal which arose 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.
On 9.05.2007, the respondent in the appeal before the SC
filed a 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 had 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.
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.
Mrs. Kiran Suri, Senior Advocate, 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. Mrs Suri also contended that the act of taking cognizance of an
offence by the Magistrate precedes the examination of the complainant under
Section 200 Cr.P.C.
Counsel for the respondent on the other hand contended that
the respondent-complainant was examined in Court on oath in part on 18.05.2007
and his examination was deferred to 23.05.2007 for further inquiry and during
the course of inquiry, the amendment application was filed and the same was
allowed in order to avoid multiplicity of proceedings. It was further contended
that on 18.05.2007, no cognizance was taken and therefore it would be wrong to
suggest that cognizance was taken twice by the Magistrate. It was submitted
that though there is no enabling provision in the Criminal Procedure Code to
amend the complaint and there is no specific bar in carrying out the amendment
and in the interest of justice, Court has power to do so.
A Bench of the Apex Court comprising of Justice T.S. Thakur
and Justice R. Banumathi after considering the rival contentions held that if
the amendment sought to be made relates to a simple infirmity which is curable
by means of a formal amendment and by allowing such amendment, no prejudice
could be caused to the other side, notwithstanding the fact that there is no
enabling provision in the Code for entertaining such amendment, the Court may
permit such an amendment to be made.
Writing the judgment for the Court, Justice R. Banumathi
however added a caveat to the above proposition of law that if the amendment
sought to be made in the complaint does not relate either to a curable
infirmity or the same cannot be corrected by a formal amendment or if there is
likelihood of prejudice to the other side, then the Court shall not allow such
amendment in the complaint.
The Court also held that merely because the complainant was
examined that does not mean that the Magistrate has taken cognizance of the
offence. Taking cognizance of an offence means the Magistrate must have
judicially applied the mind to the contents of the complaint and indicates that
Magistrate takes judicial notice of an offence. Mere presentation of the
complaint and receipt of the same in the court does not mean that the
Magistrate has taken cognizance of the offence.
The Apex Court also categorically held that a Magistrate can
be said to take cognizance of an offence when he decides to proceed against the
person accused of having committed that offence and not at the time when the
Magistrate is just informed either by complainant by filing the complaint or by
the police report about the commission of an offence.
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