What is a protest petition?
A protest petition is a judicial innovation that is undefined and omitted in the Criminal Procedural Code, 1973, or any other subsisting acts. In layman terms, a protest petition, though uncodified, bequeaths an aggrieved or unsatisfied person with the right to petition against a police report filed before the court once the investigation is made by the police. It is an opportunity granted to a victim or complainant to question the report made by police subsequent to investigation. This protest petition acts as a negative report and hence keeps a check on the ineptitude actions of the police.
How to file a protest petition?
Once the investigation is done by the police, the officer-in-charge needs to send a police report also known as Closure report, to the concerned Magistrate as per Section 173(2) of the Criminal Procedural Code (CrPC). Such Magistrate is not bound to accept the Closure report submitted by the police. If the protest petition is filed after the closure report is submitted, three options are available to the Magistrate-
- He may reject the protest petition and accept the Closure report.
- He may reject the Closure report and take cognizance of the protest petition under Section 190 of CrPC.
- He may accept the Closure report and consider the petition as a complaint, following Section 200 and 202 of CrPC.
The Magistrate is empowered to consider the petition before taking cognizance of the Closure report. Once he takes cognizance of the protest petition, he may direct further investigation under Section 156(3) of CrPC, if the protest petition fulfills the ingredients of a complaint under Section 2(d) of the CrPC. By following the procedure enumerated in Section 200 of the CrPC, the Magistrate examines the victim and if he feels that the victim is rightly unsatisfied and the complaint is substantive, he may order a fresh investigation of the case.
Can all protest petitions be treated like complaints?
In the case of Vishnu Kumar Tiwari v. State of Uttar Pradesh (Criminal Appeal No. 1051 of 2019), the Supreme Court observed that if the Magistrate is convinced that no prima facie case was made out giving regard to the nature of allegations made in the protest petition, after considering the final report and the statements made under Section 161 of the code, the Magistrate cannot be compelled to take cognizance of the petition by treating it as a complaint. Once the Magistrate does not take cognizance of the protest petition as a complaint, the remedy available to the aggrieved is to file a fresh complaint that would invite him to follow the procedure under Section 200 and 202 of the code.
Right to file a protest petition
Recently in January 2020, the Supreme Court has confirmed the Judgement of the Madras High Court[1] where it was held that a petitioner being the victim in a case is ‘mandatorily entitled’ to notice before the police report in such case gets accepted and if such notice is not served, the petitioner has a right to file a protest petition. The court remarked-
“We do not find any ground to interfere in the impugned order of directing the Magistrate to hear the protest petition. We clarify that the concerned Magistrate will hear the petitioners also on protest petition and take decision on the point of issuing process or not. The observations made during the course of the impugned order will not stand in the way of the learned Magistrate while deciding protest petition.”
The court relied on a 2019 case of Vishnu Kumar Tiwari v. State of UP[2] in which it was held that a magistrate can deal with a protest petition as a complaint if it fulfills the requirements of a complaint following Section 200 and 202 of CrPC. The court further held-
“In a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective.”
In another case of Rajesh v. State of Haryana (Criminal Appeal No. 813 of 2019), the Supreme Court held that if prior to an investigation, the police feels that there is no role or requirement of a particular accused and files the charge sheet excluding him, and if the trial court at the stage of summoning feels that an accused not included in the charge sheet should be summoned, the court gives an opportunity to the complainant to file a protest petition at that stage.
Can a protest petition play the role of a double edged sword?
Though the inclusion of protest petition has vastly expanded the rights of a person aggrieved with a callous investigation or any clumsy action of the police, it turns to be a double-edged sword once it harms the rights of accused as well. For instance, in general, circumstances if a Magistrate cannot direct a re-investigation or any further investigation, he can direct one on the basis of a protest petition. As a result, the accused already detained in custody gets detained for the maximum of the prescribed retention period.
Further, another conundrum arises in cases where the Magistrate plays the role of a prosecutor rejecting final reports of the police and initiating a fresh investigation or even taking charge of the matter himself in certain cases. In such circumstances, it is a possibility that if the same case comes for trial before such Magistrate, his preconceived notions are likely to affect the proceedings of the case, further endangering the accused’s fair share of justice.
[1]https://lawstreet.co/judiciary/supremecourtofindia-madrashigh-court?refuid=NjY2OXw1MC42My4xNjAuMjE3fHNvb2xlZ2FsLmNvbQ%3D%3D.
[2] https://www.livelaw.in/know-the-law/fresh-complaint-can-be-filed-before-magistrate-after-rejection.
This Article is Authored by Venkata Moksha, 2nd Year, BA.LL.B(Hons), Student of National University of Study and Research in Law.
Also Read – What Is A Final Report Under CrPC?
