1.         Criminal complaint  - Amendment  - Amendment in a criminal complaint on the premise that the amendment was made prior to taking cognizance of the offence  On date of allowing amendment application cognizance of case was not taken   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 complainantrespondent 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. (2016)3 PLRSC 883
  2.         Criminal complaint  - Amendment  - 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  Criminal Procedure Code. (2016)3 PLRSC 883
  3.         Criminal complaint  - Amendment  - 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. Held,  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 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. (2016)3 PLRSC 883

 


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