TMI Blog2015 (7) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance was taken of the complaint before the disposal of amendment application. Appeal dismissed - decided against appellant. - Criminal Appeal No. 844 Of 2015 (Arising out of S.L.P. (Crl.) No.4813/2012) - - - Dated:- 2-7-2015 - T.S. Thakur And R. Banumathi, JJ. JUDGMENT: R. Banumathi, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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