A criminal complaint filed can be amended to correct curable infirmities: SC

S.R. Sukumar v. S. Sunaad Raghuram Criminal Appeal No. 844/2015, SLP No. 4813/2012 –  2nd July, 2015

CORAM: Two judge bench comprising of Justice T.S. Thakur and Justice R. Banumathi

Wherein, the facts of the case are that on 9.5.2007, the respondent had filed a complaint under Section 200 of the Code of Criminal Procedure, 1973, against the appellant and his mother, Smt. H.R. Leelavathi, alleging that they had committed offences which are punishable under S.120-B (Criminal Conspiracy), S. 499 & S.500 of The Indian Penal Code, 1860. In the complaint, the respondent had alleged that he was born of the wed lock of his father Late Shri. S.G. Raghuram and mother Late Smt. B.S. Girija. His mother died first and after her death his father married a divorcee named H.R. Leelavathi who had her son, the appellant from her previous marriage. The respondent alleged that his father’s name had been purportedly used by the appellant as his own natural father and the respondent alleges that such an act leads to the arousal of doubt of legitimacy amongst the ones near and dear to them & the character and integrity of his father. He filed the complaint and a part of statement was recorded on 18.5.2007 while remaining part was recorded on 23.5.2007. However, the very next day he requested the complaint to be amended slightly.

The trial court allowed the amendment, took the cognizance of the offence and directed issuance of the process to the appellant vide order dated 21.6.2007. Aggrieved by the order the appellant approached the HC praying for the quashing of the proceedings that took place in the Trial Court. The HC dismissed the appellant’s petition as they felt there is no prejudice caused to the appellant and if amendment is not allowed then multiple proceedings would have ensued between the parties.

The issue were as to whether amendment can be made or not in a criminal petition which has already been filed and recorded? Is the above act filed under S. 200 of the Code of Criminal Procedure, 1973 will be permissible under the law?

The Appellants contended that under the Code of Criminal Procedure, 1973, there is no provision for amendment of a complaint that has already been filed and recorded and both the Courts have erred by allowing the amendment to take place. They also contended that once cognizance of the case was taken, the Magistrate ought to have not at all allowed the amendment of the complaint filed

The respondent, on the other hand contended that the respondent-complainant was being examined in the Court on oath in part on 18.5.2007 and his examination was deferred to on 23.5.2007 for more enquiries and during the course of inquiry only was the amendment application being filed. The same was allowed to avoid multiplicity of proceedings between the parties, which is a very reasonable ground to do so. The respondent also contended that no cognizance took place on 18.5.2007 and thus it is wrong to say that cognizance was done two times by the magistrate. They also contended that although there is no specific provision under the Code of Criminal Procedure, 1973 to amend a complaint at the same time there is also no specific provision under the Code of Criminal Procedure, 1973 that bars the magistrate from doing such an act, plus the act also ensures justice.

The Learned Magistrate observed that even before the cognizance of the case, there seems to be nothing that would make the appellant prejudiced.

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’.

The Court held that;

“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 the present case there are no valid grounds to quash the order to amend the complaint, plus amending the complaint would lead to avoidance of multiplicity of proceedings. Therefore, the amendment can be done in the criminal complaint and the appellant’s petition is therefore dismissed.”

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–  Nardhana Ram

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