9911796707
TMI Blog2015 (7) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 conniva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
