PROTEST PETITION

A protest petition is a submission made to the court by the victim or an informant to object against the police’s closure report in a particular case either during the course of the police investigation or after it has been completed. 

The term “protest petition” is not specified in the Criminal Procedure Code (CrPc), which is the guideline for criminal proceedings in India. Instead, it refers to a procedure that has developed through time as a result of judicial rulings, some of which date back to the time before independence.

The CrPc prohibits examining the issuance of bail and the police report to close a case while considering the testimony of victims. However, the judiciary has been crucial in allowing a victim to speak up during both phases of a criminal prosecution.

The police launch their investigation after submitting a FIR in accordance with Section 154 of the CrPc. If the police decide there is enough evidence to proceed against the defendant, Under section 173(2) of the Cr.Pc the police submit their investigation report to the relevant magistrate  after conducting their inquiry and then to the magistrate, who, depending on the seriousness of the incriminated offenses, either conducts the trial or refers it to a higher judge. After submitting the FIR the magistrates may or maynot take cognizance under Section 190(b) of the Criminal Procedure Code.

Cognizance of offenses by Magistrates

1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offense:

a. upon receiving a complaint of facts which constitute such offense;

b. upon a police report of such facts;

c. upon information received from any person other than a police officer, or upon his own knowledge, that such offense has been committed.

2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Before calling the accused for trial, the court must first interrogate the complainant and any witnesses, as per the procedure outlined in Section 200 CrPc.

Examination of complainant.

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:  

The  magistrate may grant or reject the protest petition, at any stage. In the event that the magistrate determines that the protest petition has no merit, the magistrate also has the option of rejecting it. But if the case is taken under consideration then the accused will be given notice to appear and participate in the trial. 

Take into account the following important aspects to comprehend the protest petition’s major ideas:-

1. The Criminal Procedure Code makes no mention of protest petitions, despite the fact that they are a crucial component of criminal law practise.

2. When a person who feels wronged brings a complaint before the magistrate pursuant to section 156(3) of the Criminal Procedure Code, the magistrate, upon being satisfied with the complaint petition, directs the police to conduct an investigation.

3. Under section 173(2) of the Cr.Pc. the police submit their investigation report to the magistrate after conducting their inquiry. After submitting the FIR the magistrates may or maynot take cognizance under Section 190(b) of the Criminal Procedure Code.

4. In the event that the aggrieved or complainant is dissatisfied with the police report, he or she may file a protest petition before the relevant Magistrate, expressing their displeasure and requesting further inquiry under the direction of the court. The individual who feels wronged may simultaneously ask for additional legal action under sections 200 and 202 of the Criminal Procedure Code.

5. If the protest petition is granted, the Magistrate will take the case under section 190 of the Criminal Procedure Code and notify the accused.

How did the effects of a protest petition come into play?

Prior to independence, the Patna and Calcutta High Courts both dealt in depth with issues pertaining to the rights of victims in a criminal trial.

The Calcutta High Court had classified protest petitions as representations made by an aggrieved person, a victim, or an informant to the magistrate. They are also known as “Naraji Petitions,” which loosely translates as “dissatisfaction.”

Only in 1985 did the Supreme Court fully define the circumstances under which a protest petition may be submitted. According to the ruling in the case of Bhagwant Singh v. Commissioner of Police, the magistrate’s duty to give notice to an aggrieved party or a victim’s relative derived from the “principles of natural justice” even in the lack of any provisions in the Criminal Procedure Code.

The victim or a family member has the right to come before a magistrate while the closure report is being evaluated, the court said, even if they are not legally entitled to a notice. Additionally, the court stated that although magistrates are not required to give notice, they are free to do so if they choose to do so to the aggrieved person.

When a protest petition is used, the following things happen:

1. The Magistrate has the option of accepting the Police’s final report and rejecting the protest petition.

2. The Magistrate may accept the final report and proceed the protest petition in accordance with Sections 200 and 202 of the Cr.PC. by treating it as a complaint petition.

3. The Magistrate has the authority to take cognizance under Section 190 of the Code, accept the protest petition, reject the final report, and take action.

Discretion of the Magistrate:

1. The police officer’s final report is not required to be accepted by the magistrate.

2. The documents supplied with or affixed to the police report give the magistrate the ability to reject that report and take cognizance.

The Supreme Court issued two additional lengthy rulings on the significance of protest petitions in 2019, however they were accompanied by a request for magistrates to proceed with caution when considering such petitions.

In case of Rajesh v. State of Haryana 

The Supreme Court observed that:

It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

In Vishnu Kumar Tiwari v. State of Uttar Pradesh

The Supreme Court held that not all Protest Petition should meant as Complaint Petition and observed with respect to Para 41 therein as:

“In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint.

The Apex in this case further observed: –

That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer; cognizance could be taken under Section 190 (1) (b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a compliant, the remedy for the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code.”

The Madras High Court’s ruling that a victim must receive notice before the acceptance of the police’s final report was maintained by the SC in a recent decision. If notice is not provided, the victim has the right to file a protest petition.

In a recent case of R. Dharamlingum V/s State Criminal Revision No-967 of 2019, Hon’ble Supreme Court in Feb 2020 has rectified the order of Madras High Court as follows—”A victim/complainant of an offence/event (being a party of case) is entitled to get a notice before final disposal of case and if he does not receive such notice he has an absolute right to file a petition against concerned institution (Police Station/ Court)”. This type of petition seeks justice and raises the question of an unsatisfactory police investigation is known as Protest Petition.

Case laws

• Vishnu Kumar Tiwari v. State of U.P., (2019) 8 SCC 27

If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code.(para-46)

• B. Chandrika v. Santhosh, (2014) 13 SCC 699

It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before the Magistrate takes cognizance under Section 190(1)(a) CrPC.(para 5)

• Rakesh v. State of U.P., (2014) 13 SCC 133

Power of Magistrate to take cognizance after accepting negative final police report – FIR case- Magistrate by accepting final report under S. 173 did not become functus officio and had power to take cognizance under S. 190(1)(a) on basis of protest petition filed by complainant/first informant and proceed under S. 200 and 202

• Samta Naidu v. State of M.P., (2020) 5 SCC 378

Protest petition, held, can always be treated as a complaint and proceeded with in terms of Ch. XV CrPC Further held, second protest petition stands on a similar footing as second complaint, and its maintainability or otherwise must be decided based on the same principles-Criminal

• Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685

Complainant’s right and options against accused in criminal trial, stated Held, the same are (1) the right to be given notice on filing of police report, (2) the right to file a protest petition, which may be treated as a complaint by Magistrate, and (3) the right to question the fairness of investigation and demand further investigation

Conclusion

The police begin their inquiry after receiving a FIR under section 154 of the Criminal Procedure Code. If the police discover all of the alleged offenses, they file a charge-sheet pursuant to section 190(b) of the Code with the relevant Magistrate.

However, if the police determined that there was no offense, they must file a Final Report in accordance with section 173 of the Criminal Procedure Code. The Complainant submits a Protest Petition to the Magistrate under Section 91 read with Section 190(a) of the Cr.Pc. after being dissatisfied with the Final Report. Despite this, the Code nowhere defines protest petitions!

Therefore, it is correct to conclude that only the Complainant has the ability to submit a Protest Petition, not the Accused!

The same and appropriate laws should be codified by our legislature in an orderly manner to ensure that the lawyers follow a consistent standard of conduct and, as a result, protect both the complainant’s and the accused person’s rights.