S.R.SUKUMAR Vs. S.SUNAAD RAGHURAM
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 200 - Examination of complainant.
Section 202 - Postponement of issue of process.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 844 of 2015, Judgment Date: Jul 02, 2015
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.
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.
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)
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. Videocon
International 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 a
search 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
[pic]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