Can a complaint be amended and when can a Magistrate be said to have taken cognizance of a case? A division bench of the apex Court delineated-

Date of Judgement: 2 July, 2015

Composition of the Bench: Division bench of hon’ble Mr. Justice T.S. Thakur and hon’ble Mrs. Justice R. Banumathi, The latter authored this judgement.

Facts in Brief

9 May 2007: A complaint was filed under Section 200 Cr.P.C. against the first appellant and his mother for alleged offences punishable under Sections 120-B, 499 and 500 IPC. 

In the complaint, the respondent had adverted that his late father after the death of his biological mother, married another divorced lady (appellant 2 in the instant case) who at the time of the second marriage, already had a son aged six years named S.H. Sukumar (appellant), born from her previous wedlock. 

The respondent alleged his step brother purportedly used the name of his step father portraying as if he was his natural father. This often created doubts among the near and dear ones about the legitimacy of the complainant and aspersions about the integrity and character of his father which had consequently affected the respondent’s reputation.

18 May 2007: Further statement of the complainant were recorded. 

24 May 2007: respondent moved an application seeking amendment to the complaint praying for insertion of paras 11(a) and 11(b) in the complaint stating the fact of a poem named ‘Khalnayakaru’ written by the appellant in connivance with his mother depicting the respondent as a villain, with an intention to malign the character, image and status of the respondent. 

24 May 2007: The trial court allowed the amendment 

21 June 2007: The trial Court took the cognizance of the offence and directed issuance of the process to the appellant. Aggrieved by this order, 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. 

20 January 2012 The High Court dismissed the petition filed by the appellant observing that before the date of allowing amendment application i.e. 24 May 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.

Aggrieved by the order of the High Court, the present special leave petition was filed. 

Issues

Whether  the Magistrate took cognizance of the complaint for the first time on 18.05.2007 or on 21.06.2007 in the given factual matrix, when the Magistrate satisfied of a prima facie case to take cognizance of the complaint

The Court delineated the broad contours of s. 200 of Cr.P.C. The Court opined that the phraseology of the section “clearly suggests” that for taking cognizance of an offence, the Court shall examine the complainant upon oath. The rationale 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 would entail judicial application of mind to the contents of the complaint.

The Court placed reliance on the following cases-

In Narsingh Das Tapadia vs. Goverdhan Das Partani & Another., it was held  that the mere presentation of a complaint cannot be held to mean that the Magistrate has taken cognizance. 

In Subramanian Swamy vs. Manmohan Singh & Another, the 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”.

The Court adverted to the three courses that are usually available to the Magistrate upon examination of the complainant. 

1. The Magistrate can either issue summons to the accused or order an inquiry under Section 202 Cr.P.C. or 
2. dismiss the complaint under Section 203 Cr.P.C. 
3. 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. 

“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. 

The Court placed reliance on a judgement of a three Judge Bench of the apex Court in the case of R.R. Chari vs. State of Uttar Pradesh, which considered meaning of the phrase ‘taking cognizance’, and observed 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 a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence” 

On the basis of facts in the present case, the Court held that it would be wrong to contend that the Magistrate had taken cognizance of the case even on 18.5.2007 when the he had merely recorded the statement of complainant–respondent in part and even when the Magistrate has not applied his judicial mind and consequently not taken cogniance. It was only on 21st June that the trial Court had actually taken cognizance. 

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.

The Court conceded that there was no explicit provision for amendment of complaints in the code but adverted that the Courts have held petitions seeking amendment to correct curable infirmities to be allowed even in respect of complaints.

In U.P. Pollution Control Board vs. Modi Distillery And Ors, the name of the company was wrongly mentioned and was sought to be amended. In such factual background, this Court has held as follows:-

“..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…”

The above case adverted how easily the 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. 

The Court went on to observe 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.

Ratio Decidendi

The Court held that in the instant case, 

Firstly, Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter on the date but forth by the appellant. 

Secondly, since summons were yet to be ordered to be issued to the accused, no prejudice would be caused to the accused on account of an amendment in the complaint. 

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 a subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by filing of a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. 

Having considered these factors the apex Court opined that the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order of the High Court did not suffer from any serious infirmity thus obviating the need for the ape Court to interfere in exercise of jurisdiction under Article 136 of the Indian Constitution.