S.R. Sukumar vs S. Sunaad Raghuram

Court: Supreme Court of India

Jurisdiction: Supreme Court of India

Case No.: Criminal Appeal no. 844 of 2015

Bench: Justice T.S Thakur and Justice R. Banumati         

Appelant: S.R Sukumar

Respondent: S. Sunaad Raghuram

Decided on: Second July 2015

Introduction

The fundamental issue which is dealt with by Supreme Court, in this case, is regarding the amendment of a complaint filed under Section 200 of the Criminal Procedure Code which is to be amended after filing a complaint and recording statements or not. Meaning of cognizance from a judicial perspective as cognizance refers to when a complaint is filed or when Judge starts analyzing the case according to the complaint filed. Where Court gave judgment that Complaint can be amended in reference to Section 200 of the Criminal Procedure Code and Cognizance taken by Magistrate does refer to analyzing complaints, witnesses, statements accordingly. Wherein in the present case respondent filed a complaint under Section 120-B,499,500 of the Indian Penal Code against the appellant, and his mother who got married to his father after the death of his mother, appellant is using his fathers name as a natural father which would affect the reputation of the respondent and his father. Further, he filed a complaint on 09.05.2007, his statement was recorder on 18.05.2007, further statements were recorder on 23.05.2007, on 24.05.2007 respondent moved an application for insertion of paras which states their convenience of stated facts by them which was done to fabricate, malign image, the status of the respondent.

Background

The question which arose in this case basically focuses on- Cognizance taken by Magistrate as the Magistrate took actual cognizance on 18.05.2007 or 21.06.2007 when the Magistrate was satisfied for cognizance of the complaint, amendment of Section 200 of the Criminal Procedure Code can be done of not of if done would not lead to serious irregularity or infirmity where:

Cases on which Court relied-

S.K Sinha Chief Enforcement Officer vs Videocon International Ltd And Ors[1], It was held that expression “cognizance” has not been defined in the Code, but it merely means “ become aware of” and in reference to Judge “to take notice judicially” when Judge or a Magistrate takes judicial notice of an offence with the view to initiate proceedings in respect of such offence committed by someone.

R.R Chari vs State of Uttar Pradesh [2]– Three-Judge Bench in this case while considering the phrase ‘taking cognizance’ which has not been defined in Criminal Procedure Code but it seems clear that before it can be said that Judge has taken Cognizance of any offence under Section 190(1)(a), Cr.pc he must not only have applied his mind to the contents of the petition but must have done so for proceeding in a particular manner as in Section 200, sending for enquiry under Section 202. When, Magistrate applies his mind not for purpose of proceeding under subsequent proceedings of this chapter but for taking any action like issuing a warrant for purpose of the investigation, he cannot be said to take cognizance of the offence. The same view was reiterated by this Court in Jamuna Singh & Ors. Vs BhadaiSab[3] and Nirmaljit Singh Hoon vs State of West Bengal & Anr[4].

Devarpally Lakshminarayana Reddy & Ors. Vs V. Narayana Reddy & Ors[5]-Court held that as according to the heading and caption of Chapter X1V under which Sections 190 to 199 occur it seems to be the clear case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. Whether Magistrate has taken cognizance or not will depend upon the circumstances of the case including the mode in which the case is instituted. On receiving the complaint Magistrate applies his mind for Section 200 and succeeding sections in Chapter XV of the Code of 1973. If in the judicial exercise of his discretion taken action alike ordering investigation by the police or issuing a Search warrant it would not be said as taking cognizance.

U.P.Pollution Control Board vs Modi Distillery And Ors[6],- In this case wherein Company was wrongly mentioned in the complaint that is instead of Modi Industries Ltd. Name of the company was mentioned as Modi Distillers and the name was sought to be amended. Court held that- “ Learned Single Judge has focused his attention on technical flow in the complaint and failed to look after flaw had occurred due to non corporative and nondisciplined attitude of Modi Distillery and infirmity can be easily be removed by having matter remitted to Chief Judicial Magistrate as by calling upon the appellant to make amendments in para 2 of the complaint so as to make controlling Company of the industrial unit figure as concerned accused avoiding any irregularity and mixed propositions of judgment, which can be done by formal application of the appellant for leave to amend by substituting the name of Modi Industries Limited, company owing to the industrial unit, in place of Modi Distillery, legal infirmity of the mere irregularity of such nature can be cured.

Change in existing laws

In the present case Respondent filed a complaint on 9 May 2007, further respondent moved an application for seeking an amendment to the complaint on 24 May 2007, by praying insertion of paras 11(a) and 11(b) in the complaint stating the fact of poem name ‘ Khalnayakaru’ written by the appellant in connivance with his mother which mirrored respondent as Villain- ‘Khalnayak’, with an intention to lower or fabricate status and reputation of respondent. Trial Court allowed amendment on 24 May 2007, took cognizance and directed issuance of the process to appellant wide dated 21.06.2007. Appellant approached High Court praying for quashing the proceedings in PCR No. 8409/2007 registered as C.C .No. 15851/2007on ground that there was no provision under the Code for amendment of the complaint. High Court dismissed the petition filed by the appellant observing that before the amendment application i.e 24 May 2007, cognizance of the case was not taken and no prejudice is caused to the appellant, further High court was of the view that if an amendment is not allowed, then multiple proceedings would have ensued between parties.

Further, in the instant case amendment application filed on 24 May 2007 to carry out amendment by adding paras 11(a) and 11(b), through amendment was merely a substantial amendment, Magistrate allowed amendment application as no cognizance was taken and he has yet to examine offence, apply his judicial mind, summons were also yet to be ordered to be issued to accused, the amendment did not change original nature of the complaint and further subject matter which is to be added in the complaint was important in arriving at decision as it created a new cause of action in favour of respondent, therefore to avoid multiplicity of proceedings and speedy justice trial court allowed the amendment application.

Adequacy in reasoning given by Court.

The reasoning given by Court stands adequate according to me and as decided by Honorable court in the instant case as a mere amendment if could help in avoiding unnecessary misinterpretation or multiple proceedings, or would help in speedy justice and lessen the burden of the court which would actually state party guilty or added up giving evidence against them would only relief Court and parties in lesser time to reach towards a reasonable decision as Court gave in instant case complaint was filed under Section 200 of Criminal Procedure Code language of this section clearly suggests for taking cognizance of an offence on complaint Court shall examine complaint on oath, merely complaint was examined it does not mean that Magistrate has taken cognizance of an offence,  presentation of complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. Cognizance, therefore, has a reference to the application of judicial mind by Magistrate not merely when Magistrate learns about the offence being committed therefore decision as in favour of amendment as on 24 May 2007 was allowed as cognizance actually was not taken by Magistrate as he merely knew facts and does not apply or examined thoroughly facts and circumstances of the case as in the light of giving the final decision.

Policy implications of the decision-

A decision given by the court is bona fide and undoubtedly in favour of benefiting the public at large where decision given by Court for a mere amendment to be allowed in the complaint would help in curing any infirmity at first hand if caused by the respondent which could help him in a better way so as to present strong and all necessary statements which would serve in favour of his stated contentions. The mere amendment would also help in avoiding future complexities which would have raised if another complaint was filed by the respondent in the reflection of inclusion of para 11(a) and 11(b) in statement which mirrored cause of action as of poem which acted and added on defamatory material which clearly gave observation of respondent being right with his contention, also made term ‘cognizance ‘clear with reference of certain cases as it does refer when Magistrate actually examine facts circumstances in light of giving decision and not merely would refer to as when facts and statements are learned by Magistrate, it does not define term cognizance but give implication as to the usage of this term as in reference of Chapter X1V, Chapter XV of Criminal Procedure Code.

Facts of the Case-

On 09.05.2007, the respondent filed a complaint under Section 200 of Criminal Procedure Code as against the first appellant and his mother Smt. H.R.Leelavathi alleging that they have committed offenses punishable under Section 499,500,120-B of the Indian Penal Code.

In the complaint, the respondent alleged that he was born of the wedlock of his father and late Shri. S.G.Raghuram and mother Late Smt. B. S. Girija, after the death of his mother Girijaj, married another divorced lady namely Smt.H.R.Leelavati who at the time of second marriage, already had a son aged six years S.H.Sukumar(appellant) born from her previous wedlock. Respondent alleged that his father name i.e. Late Shri S.G.Raghuram was used by the appellant as his natural father which created doubts in minds of his near and dear ones and also fabricated integrity, respect, the character of the respondent and his father.

Respondent filed a complaint on 09.05.2007,his statement was recorded on 18.05.2007 and further recorded on 23.05.2007, on 24.05.2007 respondent moved an application seeking an amendment to the complaint by praying insertion of paras 11(a) and 11(b) in the complaint stating fact that poem named ‘ Khanayakaru’ written by the appellant in connivance with his mother which depicted respondent as a villain- Khalnayak which was with an intention to malign image and status of the respondent. Trial Court allowed amendment on 24.05.2007, 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 the case was not taken and therefore no prejudice is caused to the appellant.

Arguments Advanced by appelant-

Mrs. Kiran Suri, learned Senior Counsel appearing for the appellant contended that the Criminal Procedure Code does not include as such provision or amendment of the complaint and due to the absence of this Court errored in the decision in allowing amendment in the criminal complaint as the Magistrate took cognizance on the very day of submission as on 18.05.2007 and Magistrate took the second cognizance on 21.05.1997 and cognizance taken twice is not permissible as once cognizance taken Magistrate ought not to be allowed amendment and impugned order to be set aside. Act of taking cognizance completed as further Magistrate has to proceed under Section 200 without any amendment in the complaint.

Arguments Advanced by Respondent

Counsel for Respondent, on the other hand, contended that Respondent was examined in Court on oath on 18.05.2007, his examination was deferred to 23.05.2007 for further inquiry, during the course of inquiry application for amendment in the complaint was filed further it was contended that on 18.05.2007 no cognizance was taken therefore it would not lead to the fact that cognizance was taken twice by Magistrate, as there is no enabling provision in Criminal Procedure Code regarding amendment so there is no bar as to carry out an amendment in the interest of justice, Court has the power to do so.

Issues Raised

Amendment of the complaint filed under Section 200 of the Criminal Procedure Code.

Questions raised before Court

In  the light of present case issued raised before Honorable Court are-

  • According to the stated facts when did Magistrate take cognizance of the complaint for the first time i.e. on 18.05.2007or on 21.06.2007, when the Magistrate satisfied prima facie case to take cognizance of the complaint,
  • Whether amendment to a complaint filed under Section 200 Cr.Pc is impermissible in law and whether the order allowing the amendment suffers from serious infirmity.

Judgment of Court in brief

In the instant case, the application was filed to carry out amendment as to the insertion of para 11(a) and 11(b) in complaint though the proposed amendment was not a formal but a substantial one, Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before disposal of amendment application as-

  • 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 cause did to the accused.
  • Thirdly, the amendment did not change the original nature of the complaint being that of defamation.
  • Fourthly publication of the poem ‘Khalnayakaru’ been in nature of the subsequent event created new cause inaction of favour of the Respondent which could have been prosecuted by the respondent by filing a separate complaint.

The court allowed the amendment application so as to avoid multiplicity in proceedings and under these factors stated above, High Court rightly declined to interfere with the order passes by the Magistrate allowing the amendment application and impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India.

Analysis of the Judgment

Court’s decision was appropriate and justified, was taken bona fide intention as to avoid multiplicity or duplicity of proceedings which would have originated after filing another complaint as foe insertion of para11(a) and 11(b) Court correctly laid that

  • Amendment of complaint under Section 200 of Criminal Procedure Code can be done if cognizance has not taken by Magistrate as to avoid any infirmity in complaint and would also not illegally permit Magistrate to take second cognizance as cognizance as taken by Magistrate is somewhat become in present case.
  • Mere substantial amendment done just to clarify infirmity also helped to avoid serious  which would have caused with interference of Article 136 of Constitution.

[1] (2008) 2 SCC 492

[2] 1951 SCR 312

[3] (1964)5 SCR 37

[4] (1973) 3 SCC 753

[5] AIR  1976 SC 1672

[6] 1987)3 SCC 684

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