S.R.Sukumar vs. S.Sunaad Raghuram,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 844 OF 2015
(Arising out of S.L.P. (Crl.) No.4813/2012)
July 2nd 2015
S.R. SUKUMAR ..Appellant
Versus
S. SUNAAD RAGHURAM ..Respondent
J U D G M E N T
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
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.
7. Upon consideration of the rival contentions and materials
on record, the points falling for determination are:
(i) in the facts of the case, when did the Magistrate take
cognizance of the complaint for the first time i.e. on 18.05.2007 or on
21.06.2007, when the Magistrate satisfied of a prima facie case to take
cognizance of the complaint;
(ii) whether amendment to a complaint filed under Section
200 Cr.P.C. is impermissible in law and whether the order allowing the
amendment suffers from serious infirmity.
8. Section 200 Cr.P.C. provides for the procedure for
Magistrate taking cognizance of an offence on complaint. The Magistrate is not
bound to take cognizance of an offence merely because a complaint has been
filed before him when in fact the complaint does not disclose a cause of
action. The language in Section 200 Cr.P.C. “a Magistrate taking cognizance of
an offence on complaint shall examine upon oath the complainant and the
witnesses present, if any…” clearly suggests that for taking cognizance of an
offence on complaint, the Court shall examine the complainant upon oath. The
object of examination of the complainant is to find out whether the complaint
is justifiable or is vexatious. 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.
9. 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. In Narsingh Das Tapadia vs. Goverdhan Das Partani & Another., AIR
2000 SC 2946, it was held that the mere presentation of a complaint cannot be
held to mean that the Magistrate has taken the cognizance. In Subramanian Swamy
vs. Manmohan Singh & Another, (2012) 3 SCC 64, this Court explained the
meaning of the word ‘cognizance’ holding that “…In legal parlance cognizance is
taking judicial notice by the court of law, possessing jurisdiction, on a cause
or matter presented before it so as to decide whether there is any basis for
initiating proceedings and determination of the cause or matter judicially”.
10. Section 200 Cr.P.C. contemplates a Magistrate taking
cognizance of an offence on complaint to examine the complaint and examine upon
oath the complainant and the witnesses present, if any. Then normally three
courses are available to the Magistrate. The Magistrate can either issue
summons to the accused or order an inquiry under Section 202 Cr.P.C. or dismiss
the complaint under Section 203 Cr.P.C. Upon consideration of the statement of
complainant and the material adduced at that stage if the Magistrate is satisfied
that there are sufficient grounds to proceed, he can proceed to issue process
under Section 204 Cr.P.C. Section 202 Cr.P.C. contemplates ‘postponement of
issue of process’.
It provides that the Magistrate on receipt of a complaint of
an offence of which he is authorised to take cognizance may, if he thinks fit,
postpones the issue of process for compelling the attendance of the person
complained against, and either inquire into the case himself, or have an
inquiry made by any Magistrate subordinate to him, or an investigation made by
a police officer, or by some other person for the purpose of deciding whether
or not there is sufficient ground for proceeding. If the Magistrate finds no
sufficient ground for proceeding, he can dismiss the complaint by recording
briefly the reasons for doing so as contemplated under Section 203 Cr.P.C. A
Magistrate takes 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.
11. “Cognizance” therefore has a reference to the
application of judicial mind by the Magistrate in connection with the
commission of an offence and not merely to a Magistrate learning that some
offence had been committed.
Only upon examination of the complainant, the Magistrate
will proceed to apply the judicial mind whether to take cognizance of the
offence or not. Under Section 200 Cr.P.C., when the complainant is examined,
the Magistrate cannot be said to have ipso facto taken the cognizance, when the
Magistrate was merely gathering the material on the basis of which he will
decide whether a prima facie case is made out for taking cognizance of the
offence or not. “Cognizance of offence” means taking notice of the accusations
and applying the judicial mind to the contents of the complaint and the
material filed therewith. It is neither practicable nor desirable to define as
to what is meant by taking cognizance. Whether the Magistrate has taken
cognizance of the offence or not will depend upon facts and circumstances of
the particular case.
12. In S.K. Sinha, Chief Enforcement Officer vs.
VideoconnInternational Ltd. And Ors., (2008) 2 SCC 492, considering the
scope of expression “cognizance” it was held as under:-
“The expression “cognizance” has not been defined in the
Code. But the word (cognizance) is of indefinite import. It has no esoteric or
mystic significance in criminal law. It merely means “become aware of” and when
used with reference to a court or a Judge, it connotes “to take notice of
judicially”. It indicates the point when a court or a Magistrate takes judicial
notice of an offence with a view to initiating proceedings in respect of such
offence said to have been committed by someone.”
13. A three Judge Bench of this Court in the case of R.R.
Chari vs. State of Uttar Pradesh, 1951 SCR 312, while considering what the
phrase ‘taking cognizance’ mean, approved the decision of Calcutta High Court
in Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Abani
Kumar Banerjee, AIR 1950 Cal. 437, wherein it was observed that:
“…What is “taking cognizance” has not been defined in the
Criminal Procedure Code and I have no desire now to attempt to define it. It
seems to me clear, however, that before it can be said that any Magistrate has
taken cognizance of any offence under S.190(1)(a), Criminal P.C., he must not
only have applied his mind to the contents of the petition, but he must have
done so for the purpose of proceeding in a particular way as indicated in the
subsequent provisions of this Chapter,– proceeding under S. 200, and thereafter
sending it for enquiry and report under S. 202. When the Magistrate applies his
mind not for the purpose of proceeding under the subsequent sections of this
Chapter, but for taking action of some other kind, e.g., ordering investigation
under Section 156(3), or issuing asearch warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of the offence...”
(Underlining added)
The same view was reiterated by this Court in Jamuna Singh
& Ors. vs. Bhadai Sah, (1964) 5 SCR 37 and Nirmaljit Singh Hoon vs. State
of West Bengal & Anr., (1973) 3 SCC 753.
14. Elaborating upon the words expression “taking
cognizance” of an offence by a Magistrate within the contemplation of Section
190 Cr.P.C., in Devarapally Lakshminarayana Reddy & Ors. vs. V. Narayana
Reddy & Ors., AIR 1976 SC 1672, this Court held as under:-
“…But from the scheme of the Code, the content and marginal
heading of Section 190 and the caption of Chapter XIV under which Sections 190
to 199 occur, it is clear that a case can be said to be instituted in a court
only when the court takes cognizance of the offence alleged therein. The ways
in which such cognizance can be taken are set out in clauses (a), (b) and (c)
of Section 190(1). Whether the Magistrate has or has not taken cognizance of
the offence will depend on the circumstances of the particular case including
the mode in which the case is sought to be instituted, and the nature of the
preliminary action, if any, taken by the Magistrate. Broadly speaking, when on
receiving a complaint, the Magistrate applies his mind for the purposes of
proceeding under Section 200 and the succeeding sections in Chapter XV to the
Code of 1973, he is said to have taken cognizance of the offence within the
meaning to Section 190(1)(a). It, instead of proceeding under Chapter XV, he
has, in the judicial exercise of his discretion, taken action of some other
kind, such as issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under Section 156(3), he cannot be said to
have taken cognizance of any offence.”
15. Contention of the appellant is that the act of taking
cognizance of an offence by the Magistrate precedes the examination of the
complainant under Section 200 Cr.P.C. and the learned Senior Counsel for the
appellant placed reliance on the decision of this Court in CREF Finance Ltd.
vs. Shree Shanthi Homes (P) Ltd. And Anr., (2005) 7 SCC 467 wherein this Court
has held as under:-
“10. In the instant case, the appellant had filed a detailed
complaint before the Magistrate. The record shows that the Magistrate took
cognizance and fixed the matter for recording of the statement of the
complainant on 1-6-2000. Even if we assume, though that is not the case, that
the words “cognizance taken” were not to be found in the order recorded by him
on that date, in our view that would make no difference. Cognizance is taken of
the offence and not of the offender and, therefore, once the court on perusal
of the complaint is satisfied that the complaint discloses the commission of an
offence and there is no reason to reject the complaint at that stage, and
proceeds further in the matter, it must be held to have taken cognizance of the
offence. One should not confuse taking of cognizance with issuance of process.
Cognizance is taken at the initial stage when the Magistrate peruses the complaint
with a view to ascertain whether the commission of any offence is disclosed.
The issuance of process is at a later stage when after considering the material
placed before it, the court decides to proceed against the offenders against
whom a prima facie case is made out. It is possible that a complaint may be
filed against several persons, but the Magistrate may choose to issue process
only against some of the accused. It may also be that after taking cognizance
and examining the complainant on oath, the court may come to the conclusion
that no case is made out for issuance of process and it may reject the
complaint…..” (Underlining added)
In our considered view, the above decision is of no
assistance to the appellant. A perusal of the above decision would show that
this Court has emphasized upon the satisfaction of the Court to the commission
of offence as a condition precedent for taking cognizance of offence. However,
in the facts of the said case, Court was of the view that the cognizance was
taken by the Magistrate once the Magistrate applied his mind on the contents of
the complaint and on the satisfaction that prima facie case existed.
16. In the present case, the complaint was filed on
9.05.2007 and the matter was adjourned to 15.05.2007 and on that date on
request for inquiry, the matter was adjourned to 18.05.2007. On 18.05.2007,
statement of complainant was recorded in part and the order sheet for
18.05.2007 reads as under:-
“Complainant is present with Shri N.V. Adv. Cognizance taken
u/s 200 of Cr.P.C. r/w statement Complainant is recorded in part. Now 5.35 p.m.
hence on request call on 23.5.2007.”
On 23.05.2007, the complainant was present and his statement
was recorded and the same was marked as Ex.P-1 and annexures A to G were
referred. On request, the matter was adjourned to 24.05.2007 on which date the
complainant filed application under Section 200 Cr.P.C. seeking amendment to
the complaint by adding paras 11(a) and 11(b) and the said application was
allowed. Amended complaint was filed and one witness was examined for the
complainant on 2.06.2007. On 21.06.2007, the Magistrate passed the detailed
order recording his satisfaction to proceed against the appellant(A-1) and also
observing that there are no sufficient grounds to proceed against Smt. H.R.
Leelavathi and ordered issuance of summons to accused No.1–appellant herein.
Before examination of the complainant, the Court was yet to
make up the mind whether to take cognizance of the offence or not. It is wrong
to contend that the Magistrate has taken cognizance of the case even on
18.5.2007 when the Magistrate has recorded the statement of
complainant–respondent in part and even when the Magistrate has not applied his
judicial mind. Even though the order dated 18.05.2007 reads “cognizance taken
under Section 200 Cr.P.C.”; the same is not grounded in reality and actual
cognizance was taken only later.
17. Insofar as merits of the contention regarding allowing
of amendment application, it is true that there is no specific provision in the
Code to amend either a complaint or a petition filed under the provisions of
the Code, but the Courts have held that the petitions seeking such amendment to
correct curable infirmities can be allowed even in respect of complaints. In
U.P. Pollution Control Board vs. Modi Distillery And Ors., (1987) 3 SCC 684,
wherein the name of the company was wrongly mentioned in the complaint that is,
instead of Modi Industries Ltd. the name of the company was mentioned as Modi
Distillery and the name was sought to be amended.
In such factual background, this Court has held as follows:-
“…The learned Single Judge has focussed his attention only
on the technical flaw in the complaint and has failed to comprehend that the
flaw had occurred due to the recalcitrant attitude of Modi Distillery and
furthermore the infirmity is one which could be easily removed by having the
matter remitted to the Chief Judicial Magistrate with a direction to call upon
the appellant to make the formal amendments to the averments contained in para
2 of the complaint so as to make the controlling company of the industrial unit
figure as the concerned accused in the complaint. All that has to be done is
the making of a formal application for amendment by the appellant for leave to
amend by substituting the name of Modi Industries Limited, the company owning
the industrial unit, in place of Modi Distillery…. Furthermore, the legal
infirmity is of such a nature which could be easily cured...”
18. What is discernible from the U.P. Pollution Control
Board’s case is that easily curable legal infirmity could be cured by means of
a formal application for amendment. 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.
On the contrary, 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.
19. In the instant case, the amendment application was filed
on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b).
Though, the proposed amendment was not a formal amendment, but a substantial
one, the Magistrate allowed the amendment application mainly on the ground that
no cognizance was taken of the complaint before the disposal of amendment
application.
Firstly, Magistrate was yet to apply the judicial mind to
the contents of the complaint and had not taken cognizance of the matter.
Secondly, since summons was yet to be ordered to be issued
to the accused, no prejudice would be caused to the accused.
Thirdly, the amendment did not change the original nature of
the complaint being one for defamation.
Fourthly, the publication of poem ‘Khalnayakaru’ being in
the nature of subsequent event created a new cause of action in favour of the
respondent which could have been prosecuted by the respondent by filing a
separate complaint and therefore to avoid multiplicity of proceedings, the
trial court allowed the amendment application.
Considering these factors which weighed in the mind of the
courts below, in our view, the High Court rightly declined to interfere with
the order passed by the Magistrate allowing the amendment application and the
impugned order does not suffer from any serious infirmity warranting interference
in exercise of jurisdiction under Article 136 of the Constitution of India.
20. The appeal is dismissed. The trial court is directed to
take up the matter and dispose the same in accordance with law as early as
possible. It is made clear that we have not expressed any opinion on the merits
of the matter.
….……………………J. (T.S. THAKUR)
….……………………J. (R. BANUMATHI)
New Delhi; July 2, 2015
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