Protest petition is an evolving concept in India and one should know “What is protest petition?” especially in the present era where the police and prosecution are not enough to preserve and secure the interests of the victims. Hence, the legal remedy like Protest petition empowers the ordinary man to pull his last strings for justice. Even though, there is no direct mention or definition of “Protest Petition” in the Criminal Law, it is an opportunity granted to victims and their relatives with the help of judicial precedents. As per these judgments, the victims are given a chance to raise objections against the inferences made by the police investigations, wherein the police files and presents the final report stating that there are no evidences found against the accused under Section 173 of the Criminal Procedure Code, 1973.
Usually when the aggrieved party or the complainant is dissatisfied with the police report filed before the concerned court, then such an aggrieved person has the right to file for a petition against such negative police report which is known as the “Protest Petition”. In simple words, the meaning of protest petition can be understood as the representation made by the victim or aggrieved party in the Court during or after the completion of investigation by the police. These kinds of petition are considered as complaint under Section 190 of the Criminal Procedure Code 1973.
As stated above, Protest Petition is not defined under the Criminal Procedure Code (the procedural bible of Criminal trials in India) but this mechanism has grown over the years with the aid of judicial pronouncements who have managed to recognize the rights and interests of the victim under the criminal law.
No mention of Protest Petition in Criminal Procedure Code
The Criminal Procedure Code doesn’t envision the hearing of victims under certain stages such as during the grant of bail and when the police reports to close a case due to lack of evidence against the accused. But the Judiciary, here plays a vital role and has given an opportunity to the victims to present their say at these 2 essential stages of criminal trial.
When an FIR is filed under Section 154 of the Criminal Procedure Code, the police usually begins with their probing and investigation. And if the police is successful in finding adequate evidences against the alleged person, then they file a charge sheet under Section 190(b) of the CrPC 1973 against the accused on the basis of evidences collected before the respective Magistrate. The Magistrate then either proceeds with the further trial or assigns the case to the higher judge for conducting the further procedure as per the severity of the offence committed and jurisdiction. In such a situation, there is no need for a protest petition or hearing of victim, as the victim will be heard by judge once the trials begin.
However, there are cases where the police fails to recover or rule out any evidence probing the alleged offence against the person. So, a final report is submitted by the police to close the case under Section 173 of the Criminal Procedure Code 1973. It is then, the Magistrate has the power to either directly reject the closure report or summon the accused person or the Magistrate can call the victim or complainant for contesting the negative police report. This is done under Section 1909a) of the Criminal Procedure Code as mentioned in multiple High Court and Supreme Court precedents.
Nonetheless, it should also be noted that a protest petition cannot be considered as a fresh complaint under the criminal law. But this legal remedy allows the complainant to file a separate complaint under Section 200 r/w Section 202 of the Criminal Procedure Code 1973 pleading for a further proceeding in the concerned matter.
As per Section 200 of the Criminal Procedure Code, the Court shall examine the victim or complainant and his or her witnesses before summoning the accused for further trial. So, if the Magistrate is convinced with the Protest petition and accepts the petition, then cognizance of the case is taken by the Magistrate and notice is issued to the accused to appear before the Court and face the trial. Although, if the Magistrate is not convinced with the petition and finds no merit, then he also has the discretion to reject the protest petition.
Who can file a Protest Petition?
One of the most debatable aspect of the “protest petition” is that who is entitled to file for a protest petition. In the case of Bhagwant Singh v. Commissioner of Police and Anr, the Apex Court had taken the cognizance of 3 categories of persons who can be heard by the Magistrate before giving his approval to the negative closure report. The 3 categories of persons are-
- The first complainant or informant
- The victim or injured person
- Relative of the deceased person
Nevertheless, while mentioning these 3 categories of persons, the Hon’ble Supreme Court was of the view that only the “first informant” will be entitled a notice from the Magistrate and the remaining 2 categories can make only representations when such closure report is being considered by the Magistrate.
How to file a Protest Petition?
The procedure to file a protest petition isn’t much of a hassle. Initially, the police closure report needs to be sent by the officer in charge to the concerned Magistrate so that the Magistrate takes charge of the case.
If the Magistrate chooses to reopen the investigation, then under Section 200 of the CrPC, 1973 the Magistrate can examine the complainant, victim and his/her witnesses. So, the victim will have the opportunity to present his case before the Magistrate.
In order to attain justice, the victim can use this protest petition option to correct the previous investigation wherein the accused was wrongly acquitted. Once, the Magistrate is satisfied and convinced that he/she didn’t file a false complaint and victim is rightly heard, then the Magistrate will itself begin the inquiry of its own or order an investigation by an officer in charge to whom the complaint is forwarded.
Although, it should be noted that the necessary elements of the complaint must be satisfied in the Protest Petition before the Magistrate can take cognizance of the case under Section 190(1) (a) of the Criminal Procedure Code. The Magistrate has 3 options when the closure report is submitted by the police and protest petition is filed. The options are-
- If the Magistrate finds the closure report genuine, then he may also reject the Protest petition
- The Magistrate may accept the closure report but also treat the protest petition as a “complaint” and proceed in accordance with Section 200 and 202 of the Code.
- Lastly, he may accept the Protest petition, if he is satisfied that the complaint is not false and reject the police report and take cognizance of the case under Section 190(1) (b) of the Code.
It is pretty much evident, that whether a protest petition will be accepted or not, lies in the hands of Magistrate. The legal position of Magistrate has the power to either accept or reject the final police report. If the Magistrate is not convinced with the report of the police officials he may reject it and allow the protest petition and take cognizance of the case itself. Hence, it is obvious, that when a protest petition is filed the procedure mentioned for the trial of complaint case has to be followed and the protest petition is required to be dealt accordingly depending upon the discretion of the Magistrate.
In the famous case of Rajesh v. State of Haryana, the Apex Court observed that, “If police has named only few of the accused men in the charge sheet instead of all of the accused men named in the FIR, then the Magistrate has to give an opportunity to the informant or victim to file a protest petition for inclusion of all accused men.”
Issues with the Law of Protest Petition
As mentioned above, there is no concrete definition of “Protest petition” and it finds its origin from judicial pronouncements as per the discretion of Magistrate. Thus, it is apparent that implication of protest petition for a victim’s interest still abstract due to the non-existence of any conclusive definition or mention of this remedy in the legal literature. The petition also lacks of certainty as there are no defined laws regarding the same and it depends mostly on the decision of the Magistrate whether to entertain it or not. There are also limited number of judgments to differentiate it from the existing ambiguities.
As the procedure states that the petition can be directly sent to the Magistrate, without the intervention of police officials, it definitely acts as the lender of the last resort remedy for the victim and considers its interests. The best feature of Protest petition is that, the Magistrate need not even look at the sloppy closure report for determining whether to move ahead with the complaint or not, and it will solely depend upon the genuineness of the victim and injury caused to him.
Lastly, it can be inferred that judicial precedents have advanced the concept and usage of protest petition even in the absence of adequate formulate statutory provisions. But judicial precedents are not enough, to cover the loopholes of uncertainty of protest petition and there should be proper formulation of provisions, so as to make it more uniform and standardised for all victims. The current situation of protest petition showcases, the magnificence and sanctity of law on one hand due to immense power in the hands of Magistrate but it also means there is chance of its abuse on other hand.
Therefore, it can be concluded that protest petition is an overbearing of the judicial creation. The concept and essence of protest petition has seen widespread rise in the last decade by the victims and complainants. The presence and expansion of protest petition across the nation questions the theory of our criminal law. It also inquires about the role and interests of victims which was negligible before.
This petition has made stark difference in the operations of investigation carried out by police officials and the trials conducted before the court. It gives a last hope to the victim or informant to represent their case before the Court, if the police is unable to do so. Hence, the central legislature should devise a way to codify “protest petition” and give it a proper definition under the Criminal Procedure Code 1973, so as to make it one of the concrete rights of the victims before the Court of Justice. This will even lead to less ambiguities in its transitional process and Magistrates will not be able to abuse this right for wrong purposes.
This article is authored by Rhea Banerjee, BA.LLB graduate.