2017 (5) TMI 1847 - HC - Indian Laws

Criminal complaint amendment cannot add new accused after process, and adverse revisional orders require notice and hearing.

A magistrate's clarification order was treated as a correction of an administrative error in the process fee, because the director had not in fact been ... Recall of summoning order - Administrative mistake in issuance of summons - Amendment of criminal complaint to add accused - Revisional order without notice to affected accusedRecall of summoning order - Administrative mistake in issuance of summons - The order clarifying that Sanjay Gambhir had never been summoned as an accused and dropping proceedings against him did not amount to recall or review of the earlier summoning order. - HELD THAT: - The Court held that the original judicial order had issued summons only to the company. The subsequent issuance of summons to Sanjay Gambhir occurred because his name was mentioned in the process fee form, which was treated as a purely administrative act and not a judicial determination summoning him as an accused. Therefore, when the Magistrate later recorded that he had not been impleaded or summoned and that his appearance was due to a bona fide mistake, the Magistrate merely corrected an administrative error and did not review or recall the earlier judicial order. [Paras 7]The Magistrate's order clarifying that Sanjay Gambhir was never summoned as an accused was upheld as a rectification of an administrative mistake.Amendment of criminal complaint to add accused - Revisional order without notice to affected accused - Liberty granted in revision to move an application for adding new accused to the complaint was unsustainable, both for want of notice to the affected persons and because such addition was not a permissible curable amendment. - HELD THAT: - The Court held, first, that the revisional court could not pass an order adverse to the petitioners by granting liberty that could affect their rights without issuing notice and hearing them. Secondly, the Court held that adding as accused persons who were not initially impleaded in the complaint was not a formal or curable amendment. Such a change would seriously prejudice the persons sought to be summoned and, in the absence of any provision permitting such amendment after issuance of summons, was impermissible in law. [Paras 9, 10, 11, 12, 13]The revisional order granting liberty to seek addition of accused, and the consequential order permitting such steps before the Magistrate, were set aside.Final Conclusion: The petitions were allowed to the extent that the revisional order granting liberty to seek addition of new accused, and the consequential order of the Magistrate permitting such course, were set aside. The clarification that Sanjay Gambhir had never been judicially summoned as an accused was sustained. Issues: (i) Whether the magistrate's order dated 21 July 2014 amounted to an impermissible review or recall of the earlier summoning order, and (ii) whether a criminal complaint can be amended to add persons as accused who were not originally impleaded.Issue (i): Whether the magistrate's order dated 21 July 2014 amounted to an impermissible review or recall of the earlier summoning order.Analysis: The summoning order had been issued against the company, while the appearance of the director in the process was due to an administrative error in the process fee. The later order merely corrected that mistake and clarified that the director had never been summoned as an accused. It did not revisit or undo the judicial summoning order against the company.Conclusion: The clarification order was not a prohibited review or recall.Issue (ii): Whether a criminal complaint can be amended to add persons as accused who were not originally impleaded.Analysis: There is no general provision in the Criminal Procedure Code permitting amendment of a criminal complaint to introduce new accused after the complaint has been filed and process has issued. Such an addition is not a mere formal correction or curable infirmity, and it would cause prejudice to the proposed accused. Further, revisional proceedings cannot result in adverse orders against persons without notice and an opportunity of hearing.Conclusion: Addition of new accused by amendment was impermissible, and the revisional order and consequential magistrate order allowing such a course were set aside.Final Conclusion: The petitions succeeded, and the orders permitting addition of new accused were invalidated.Ratio Decidendi: A criminal complaint cannot be amended to add new accused unless the change is only a formal correction causing no prejudice, and revisional orders adverse to a party cannot be made without notice and hearing.