There is no specific provision in the Criminal Procedure Code (or in the Negotiable Instruments Act) for amendment of the complaint.
However, in the case of Amol Shripal Sheth v. Hari Om Trading Co.,
(2014) 6 Mah LJ 222 (Bom) : (2013) 3 AIR Bom R 820 : 2013 Cri LJ (NOC 451) 163, Bombay High Court held that the Magistrate has incidental and ancillary power to the main power of taking cognizance of offence to allow amendment, and also that this power can be exercised before and after taking cognizance of the offence in a case like present one. The relevant observations are reproduced below for your benefit:
“The aforesaid provisions of Criminal Procedure Code show that if the Magistrate takes cognizance of the offence, he needs to ascertain as to who has committed the offence. In the case like present one, the complainant may not be in a position to get the correct name of the accused. A tight schedule of time limit created by the provisions of N.I. Act also needs to be kept in mind in such a case. Due to such tight schedule of time limit, which is mandatory in nature, in many cases the complainant may not be able to get the complete and correct name of the responsible persons for dishonour of cheque at the time of filing of the complaint. So in view of these circumstances and the aforesaid provisions of Criminal Procedure Code, the Magistrate can take cognizance of the offence and he may issue process even against the persons whose name is not correctly described by the complainant. If after appearance of accused, the defence taken like in the present case is there, the Magistrate needs to ascertain as to whether there is doubt about the identity of the person described by the complainant in the complaint and as to whether the person who appeared as accused is the same or not. That can be done even during trial. If the accused points out the defects in the name given in the complaint, but he is not in a position to show that he is a different person, he cannot take benefit of such defects. There is no provision in Criminal Procedure Code providing for dismissal of the complaint due to such defect. Complaint can be returned only under section 201 of Criminal Procedure Code, if the Magistrate finds that he is not competent to take cognizance of such a case. So, if there is no doubt about the identity of the accused described in the title and in the body of the complaint, such person cannot get acquittal by taking such defence. For such defence, the complaint also cannot be dismissed under section 203 of Criminal Procedure Code. The burden to establish the identity of accused and involvement of the accused in the crime is always on the prosecution and the opportunity to establish both the things cannot be taken away from the prosecution, if there is such defect. Thus, in one way, it can be said that the accused does not get any benefit due to such defect. Then, the question arises as to what needs to be done or what can be done in such cases to correct such mistake.”
“It is not disputed that there is no specific provision dealing with the amendment of the complaint. There is also no provision preventing the Court from allowing the amendment in complaint in such a case. From the aforesaid provisions and particularly, the fact that the Magistrate takes cognizance of the offence, this Court holds that the Magistrate has incidental and ancillary power to the main power of taking cognizance of offence to allow such amendment. In view of the discussion made above, this Court further holds that the power can be exercised before and after taking cognizance of the offence in a case like present one.”
So, you can try using the above judgment.
In addition to the above, the provisions of Section 319(1) of the Cr.P.C. lays down that: “Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.” Therefore, the name of a new accused person can be added under the provisions of Section 319 of the Cr.P.C., in appropriate cases.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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