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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

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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

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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

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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.

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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

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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.

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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

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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

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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.   

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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

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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.”

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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

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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

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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.

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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  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...”

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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

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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.

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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    

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