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Tuesday, July 7, 2015

Amendment of complaint when can be allowed - before taking cognizance

  Amendment of complaint under sec.200 of Cr.P.C.- Allowed - Evidence recorded - took cognizance and issued summons to the Accused - Challenged - High court declined - Apex court held that 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. -2015 S.C. MSKLAWREPORTS

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