Amendment in Criminal Complaint is permissible where Court is yet to take cognizance of the offence(s) complained. 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.
In the instant matter a complaint was filed under Section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) alleging commission of offences punishable under Sections 120-B, 499 and 500 of the Indian Penal Code, 1860 (IPC). Statement of the complainant was recorded after the filing of complaint. Thereafter an application seeking amendment to the complaint by way of inserting fresh paras in the complaint was filed and the same was allowed. Thereafter, trial Court took the cognizance of the offence and directed issuance of the process to the accused named therein. Accused filed petition for quashing of the order allowing amendment on the ground that there is no provision under the Code under which amendment can be made. High Court however upheld the finding of trial court holding that since no cognizance was taken before the date of allowing amendment, no prejudice could be stated to have been caused to the accused and also that the denial of amendment could have resulted into multiple proceedings.
Supreme Court observed that 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. 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.
“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. Whether the Magistrate has taken cognizance of the offence or not will depend upon facts and circumstances of the particular case.
In the instant case, the amendment application proposed amendment which was not formal, 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 which would mean that 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, there was new cause of action which had come up which could have been prosecuted by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. It was on the basis of above considerations, the trial court had allowed the amendment and the High Court had righty affirmed the same.
S.R. Sukumar vs. S. Sunaad Raghuram
Criminal Appeal No. 844 of 2015