S.R. SUKUMARversusS. SUNAAD RAGHURAM

                     [2015] 9 S.C.R. 1105


                       S.RSUKUMAR                                    A
                                v.
                  S. SUNAAD RAGHURAM
              (Criminal Appeal No. 844 of 2015)
                                                                     B
                         JULY2, 2015
         [T. S. THAKUR AND R. BANUMATHI, JJ.]
      Code of Criminal Procedure, 1973:

       s. 200- Examination of complainant- Object of - Held:         C
Is to find out whether com,.>laint is justifiable or is vexatious.

      ss. 200, 202, 203, 204 - Complaint -Amendment of-
Cognizance of offence - In the instant case, complaint filed
on 9.5.2007 - Statement of complainant recorded on D
18.5.2007 and further recorded on 23.5.2007 - Next day,
respondent-complainant filed an application seeking
amendment to the complaint - Magistrate al/owe<j the
amendment and took cognizance of the offence and issued
process on 21.6.2007 - Grievance of appellant in petition E
for quashing summons was that Magistrate took cognizance
of offence for the first time on 18.5.2007 and on 24.5.2007
allowed the amendment application and took cognizance
again for the second time and thus cognizance was taken F
twice which was not permissible - High Court refused to
interfere with the order of Magistrate and dismissed the
petition - Propriety - Held: It is wrong to say that Magistrate
took cognizance of offence even on 18. 5. 2007 when the
statement of complainant was recorded in part and even when G
Magistrate had not applied his judicial mind -Although 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 petitions seeking such amendment to correct curable
                              1105                              H
1106.      SUPREME COURT REPORTS                 [2015) 9 S.C.R.


 A infirmities can be allowed even in respect of complaints - 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, the Court may permit such an
 B amendment to be made - Magistrate allowed the
   amendment application mainly on the ground that no
   cognizance was taken of the complaint before the disposal
   of amendment application and no prejudice would have
   caused to the appellant - High Court rightly refused to
 C interfere with the order of Magistrate.

         ss.200, 202, 203, 204 - Procedure to be followed by
     Magistrate for taking cognizance of offence - Discussed.

 o         Taking cognizance of offence - Held: Means the
      magistrate must have judicially applied the mind to the
     contents of the complaint and indicates that magistrate takes
     judicial notice of the offence .

 E        Dismissing the appeal, the Court

         HELD: 1. Section 200 Cr.P.C. provides for the
   procedure for Magistrate taking cognizance of an offence
   on complaint. The language in Section 200 Cr.P.C. "a
 F 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
 G 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
 H Magistrate must have judicially applied the mind to the
     S. R. SUKUMAR v. S. SUNAAD RAGHURAM              1107


contents of the complaint and indicates that Magistrate A
takes judicial notice of an offence. 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. [Paras 8, 9] [1113-H; 1114-A-D]
                                                       8
    Narsingh Das Tapadia vs. Goverdhan Oas Partani
    &Anr. AIR 2000 SC 2946: 2000 (3) Suppl. SCR
    171 ; Subramanian Swamy vs. Manmohan Singh
    & Anr. (2012) 3 sec 64: 2012 (3) SCR 52 -
    relied on.                                         C

     2. Under Section 200 Cr.P.C. 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 o
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. E
"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. [Paras 10, 11] [1114-G-H; 1115-A-B, F] F

    S.K. Sinha, ChiefEnforcementOfficerv. Videocon
    International Ltd. and Ors. (2008) 2 SCC 492:
    2008 (2) SCR 36; R.R. Chari vs. State of Uttar
    Pradesh 1951 SCR 312; Superintendent and           G
    Remembrancer of Legal Affairs, West Bengal Ii.
    Abani Kumar Banerjee AIR 1950 Cal. 437;
    Jamuna Singh & Ors. v. Bhadai Sah, (1964) 5
    SCR 37; Nirmaljit Singh Hoon v. State of West
                                                       H
1108       SUPREME COURT REPORTS                  [2015] 9 S.C.R.

 A        Bengal & Anr (1973) 3 SCC 753: 1973 (2) SCR
          66 ; Devarapal/y Lakshminarayana Reddy & Ors.
          v. V Narayana Reddy & Ors. AIR 1976 SC 1672:
          1976 (0) Suppl. SCR 524- relied on.

 B        CREF Finance Ltd. v. Shree Shanthi Homes (P)
          Ltd. AndAnr (2005) 7 SCC 467: 2005 (2) Suppl.
          SCR 873 - held inapplicable.

         3. In the present case, the complaint was filed on
 c 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 23.05.2007, the complainant
   was present and his statement was recorded. On
   request, the matter was adjourned to 24.05.2007 on
 o which date the complainant filed application under
   Section .200 Cr.P.C. seeking amendment to the complaint
   which 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
 E detailed order recording his satisfaction to proceed
   against the appellant(A-1) and also observing that there
   are no sufficient grounds to proceed against the other
   accused and ordered issuance of summons to accused
   No.1-appellant. It is wrong to contend thatthe Magistrate
 F 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
 G under Section 200 Cr.P.C."; the same is not grounded in
   reality and actual cognizance was taken only later. [Para
   16] (1120-C, D-H; 1121-A]

           4. Regarding allowing of amendment application,
 H it is true that there is no specific p:-i'.Jvision in the Code to
      S. R. SUKUMAR v. S. SUNAAD RAGHURAM                     1109


amend either a complaint or a petition filed under the        A
provisions of the Code, but the petitions seeking such
amendment to correct curable infirmities can be allowed
even in respect of complaints. 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           B
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 Cburt may permit such an amendment to be made.
On the contrary, if the amendment sought to be made in        C
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
                                                              0
complaint. [Paras 17, 18] [1121-B; 1122-B-D]

     UP Pollution Control Board vs. Modi Distillery
     and Ors. (1987) 3 sec 684: 1987 (3) SCR 798 -
     relied on.
                                                              E
      5. In the instant case, the amendment application
 was filed on 24.05.2007 to carry out the amendment.
 Though, the proposed am~ndment was not a formal
 amendment, but a substantial one, the Magistrate allowed
 the amendment application mainly on the ground that F
·no cognizance was taken of the complaint before 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· G
 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 cf poem H
1110         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


 A '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
 B allowed the amendment application. Considering these
   factors which weighed in the mind of the courts below,
   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
 C any serious infirmity warranting interference in exercise
   of jurisdiction under Article 136 of the Constitution of
   India. [Para 19] [1122-E-H; 1123-A-B]

                            Case Law Reference
 D
       2000 (3) Suppl. SCR 171       relied on.      Para 9
        2012 (3) SCR 52              relied on.      Para 9
        2008 (2) SCR 36              relied on.      Para 12
       1951SCR312                    relied on.      Para 13
 E
   AIR 1950 Cal. 437                 relied on.      Para 13
   (1964) 5 SCR 37                   relied on.      Para 13
   1973 (2) SCR 66                   relied on.      Para 13
   1976 (0) Suppl. SCR 524            relied on.     Para 14
 F
   2005 (2) Suppl. SCR 873            held
                                      inapplicable. Para 15
       1987 (3) SCR 798               relied on.    Para 17
       CRIMINAL APPELLATE JURISDICTION : Criminal
 G Appeal No. 844 of2015

              From the Judgment and Order dated 20.01.2012 in
       Criminal Petition No. 507712007 of the High Court of Karnataka
       at 8~ngal0ri·'l
 H
       S. R. SUKUMAR v. S. SUNAAD RAGHURAM                    1111


     Kiran Siri, S.J. Amith and Dr. Vipin Gupta for the        A
Appellant.

     S. Udaya Kumar Sagar, Bina Madhavan, Lawyers Knit
& Co. for the Respondent.
                                                               B
     The Judgment of the Court was delivered by

     R. BANUMATHI, J. 1. Leave granted.

      2. This appeal arises out of an order dated 20.01.2012
passed by the High Court of Karnataka at Bangalore in C
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
Addi. Chief Metropolitan Magistrate, Bangalore permitting the
respondent to carry out the amendment in a criminal complaint D
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 E
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 oft~e wedlock of his father late Shri S.G. Raghuram and
mother Late Smt." B.S. Girija. However, his father after the F
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. G
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 H
1112         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A     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
 B 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'
 C 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 cog.nizance of the offence and
 D 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 groun·d that there is no provision under
 E the Code, providing for amendment of the complaint. The High
   Court·vide impugned Order dated 20.01.2012 dismissed the
   petition filed by the appellant observing that before the date of
   allowing amendment application i.e. 24.05.2007, cognizance
 F 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
 G 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 criminctl complaint. It was
 H submitted that on 18.05.2007, the Magistrate took cognizance
        S. R. SUKUMAR v. S. SUNAAD RAGHURAM                         1113
                   [ R. BANUMATHI, J.]
of the complaint for the first time and the Magistrate allowed A
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 B
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 C
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 D
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 E
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 F
cognizance of the complaintforthefirsttime 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 G
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   H
1114         SUPREME COURT REPORTS                   [2015J 9 S.C.R.


 A     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 ... "
 B     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
 C     thatthe 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.

 D           9. Mere presentation of the complaint and receipt of the
       same in the co.urt 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
 E     held to mean that the Magistrate has taken the cognizance. In
       Subramanian Swamyvs. Manmohan Singh &Another, (2012)
       3 sec 64, this Court explained the meaning of the word
       'cognizance' holding that" ... In legal parlance cognizance is
 F 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 matterjudicially".

             10. Section 200 Cr.P.C. contemplates a Magistrate
 G     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
 H     summons to the accused or order an inquiry under Section
        S. R. SUKUMAR v. S. SUNAAD RAGHURAM                         1115
                   [ R. BANUMATHI, J.]

202 Cr.PC. or dismiss the complaint under Section 203               A
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.PC. Section
202 Cr.PC. contemplates 'postponement of issue of process'.         B
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       C
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
procee~ing. If the Magistrate finds no sufficient ground for
                                                                    0
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 atthe time when the Magistrate       E
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 F
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 G
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" H
means taking notice of the accusations and applying the
                                                         •
1116         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


 A     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.
 B          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:-
 c          "The expression "cognizance" has not been
            defined in the Code. Butthe 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
 D          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
 E          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 ofUttarPradesh, 1951SCR312, while
 F     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
 G
            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
 H          cognizance of any offence under S.190(1 )(a),
            Criminal P.C., he must not only have applied
      S. R. SUKUMAR v. S. SUNAAD RAGHURAM                 1117
                 [ R. BANUMATHI, J.]

     his mind to the contents of the petition, but he      A
     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.       B
     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        c
     a search warrant for the purpose of the
     investigation, he cannot be said to have taken
     cognizance of the offence ... " (Underlining
     added)
                                                           D
The same view'was reiterated by this Court in Jamuna Singh
& Ors. vs. Bhadai Sah, (1964) 5 SCR 37 and Nirma/jit 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 E
contemplation of Section 190 Cr.P.C., in Devarapa/ly
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           F
     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 ~ase
     can be said to be instituted in a court only when
     the court takes cognizance of the offence            G
     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
                                                          H
1118         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A          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
 B          speaking, w_hen 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
 c          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 discretio!:'I, taken action of some
            other kind, such as issuing a search warrant
 D
            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."
 E           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.PC. and
       the learned Senior Counsel for the appellant placed reliance
 F     on the decision of this Court in CREF Finance Ltd. vs. Shree
       Shanthi Homes (P) Ltd. AndAnr., (2005) 7 SCC 467 wherein
       this Court has held as under:-

            "1 Q.., In the instant case, the appellant had filed
            a detailed complaint before the Magistrate. The
 G          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"
 H
            were not to be found in the order recorded by
      S. R. SUKUMAR v. S. SUNAAD RAGHURAM                   1119
                 [ R. BANUMATHI, J.]

     him on that date, in our view that would make           A
     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               B
      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             c
     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
                                                             D
     when after considering the material placed
     before it, the court decides to proceed against
     the offenders against whom a prim a facie case
      is made out. It is possible that a complaint may
      be filed against several persons, but the              E
      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          F
     ·issuance of pr.ocess 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 G
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 H
1120         SUPREME COURT REPORTS                    (2015] 9 S.C.R.


 A     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
 B 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:-

 c          "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
 0
       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
       filed application under Section 200 Cr.P.C. seeking
 E     amendment to the complaint by adding paras 11 (a) and 11 (b)
       and the said application was allowed. Amended complaint
       was ~led 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
 F     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
 G     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 recordec;i the statement of complainant-
       respondent in part and even when the Magistrate has not
       applied his judicial mind. Even though the order dated
 H     18.05.2007 reads "cognizance taken under Section 200
       S. R. SUKUMAR v. S. SUNAAD RAGHURAM                        1121
                  [ R. BANUMATHI, J.]

Cr.P.C."; the same is not grounded in reality and actual           A
cognizance was taken only later.

       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 B
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 C
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 Co.urt has held as
follows:-                                                           D

     " ...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                 E
     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                   F
     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                      G
     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 ....
                                                                   H
                                                     •
1122       SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A        Furthermo~e, 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
 s 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
 C 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
 D 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
 E 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
   the disposal of amendment application. Firstly, Magistrate was
 F 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
 G 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
 H complaint and therefore to avoid multiplicity of proceedings,


                 •
        S. R. SUKUMAR v. S. SUNAAD RAGHURAM                        1123
                   [ R. BANUMATHI, J.]
the trial court allowed the amendment application. Considering A
these factors which weighed in the mind.ofthe 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 B
jurisdiction under Article 136 of the Constitution of India.

      20. The appealis 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 C
expressed any opinion on the merits of the matter.

Devika Gujral                                  Appeal dismissed.