What is a Protest Petition?

What is a Protest Petition?

Author: Mr. Abhijeet, Law College Dehradun.

The term “Protest Petition” is nowhere defined under the Criminal Law in India either in Criminal Procedure Code, 1973, Indian Penal Code, 1860 Evidence Act, 1872 or any other act which is subsisting but when the aggrieved person or complainant is not satisfied with the police report which is filed before the Concerned Court, the Complainant has an opportunity to move the petition against the said negative police report challenging the said report before the concerned court and the said petition is termed as “Protest Petition”. 

The said petition is treated as Complaint under Section 190 of Criminal Procedure Code before the concerned court which is dealt by the concerned court by looking to all available means and documents available on record before the court, therefore let us understand what the section 190 of Criminal Procedure.

How to fill a protest petition?

Many interesting procedural issues arose by allowing this intervention by complainants. I list some below:

·   If the Magistrate has a Closure Report and a Protest Petition, can the latter be considered only if the Final Report is accepted?

·   Does the Protest Petition have to be a ‘Complaint’ to take cognizance?

·   Must the Complainant be examined on oath under Section 200 Cr.P.C. after taking cognizance on a Protest Petition?

·   If the Magistrate takes cognizance on a Protest Petition when there is a Closure Report, would the case be tried as a complaint case or one based on a police report?

·   If the Magistrate has a Protest Petition and Closure Report, can the Magistrate send the police back for further investigation to file a fresh report?

·   If the Magistrate is rejecting the Closure Report and accepting the Protest Petition, should the case be transferred before another Magistrate for trial?

Some of these questions can be answered with a degree of certainty. On the first question, there is no prohibition on considering the Protest Petition before accepting the Closure Report. The magistrate may well look at the protest petition beforehand and take cognizance on the Closure Report itself. The magistrate is also empowered to direct a further investigation under Section 156(3) Cr.P.C. after receiving a protest petition. Similarly, it is settled that if the magistrate does decide to take cognizance on the Protest Petition, it must satisfy ingredients of a ‘Complaint’ under Section 2(d) of the Cr.P.C., and then the complainant must be examined on oath before issuing a summons.

For the others, there remains some doubt though, and this comes with a cost since these questions have important consequences. For example, a complaint case allows for arguing discharge after cross-examining witnesses and such cases can be dismissed for non-appearance of the complainant. This is not so when cases have proceeded on the police report. Furthermore, if the magistrate rejects the findings in the Closure Report and takes cognizance, or direct further investigation only to take cognizance thereafter, would it not affect the appearance of justice if the trial proceeded before the same court? After all, it is not entirely unreasonable to suppose that the court has already arrived at some conclusions about the case in such situations despite the limited application of mind required at this initial stage of the criminal process. The latter is becoming increasingly pressing, though, with it becoming routine for certain courts to re-send closure reports for further investigation to gather more material and play the role of a prosecutor.

Issues with protest petition.

The significance of the protest petition for a victim’s rights is elusive since, apart from its non-existence in statutory literature, it also suffers from lack of certainty due to the limited number of case laws available to discern it from its ambiguities.

Since the protest petition can be sent directly to the magistrate without any police intervention, it expands a victim’s remedies in law, since the magistrate need not even look at the shoddy police report to decide whether to go forward with the complaint or not.

But one must be aware, the protest petition can also be a double-edged sword as it can negatively affect the rights of the accused. For example, even if the magistrate cannot direct a further investigation or re-investigation, he/she can still direct it on the basis of a protest petition, causing the accused (if already in custody), to be detained for the maximum period of the prescribed time.

This also enables the magistrates to play the role of the prosecutor, rejecting closure reports, sending them back for re-investigation or even taking charge of the matter themselves. Although this is not a problem in itself, one must consider this conundrum — what if the same case comes up for trial in the same magistrate’s court, then the preconceived notions of the magistrate are bound to affect the proceedings.

Regardless, one can safely say that it is important for all citizens to be aware of this ‘last shot at justice’.

Conclusion

The Protest Petition is a crucial piece of judicial innovation much ahead of the times in giving victims a say in the criminal process. Its existence, and development, across the country over the last century directly questions notions that the role of the victim was negligible in India. Its presence today raises important questions regarding the separation between the spheres of investigation and trial. It would be insightful to compare this with other colonial jurisdictions to discern exactly how unique this practice was to India. Today, this predominantly area-specific judicial practice has attained national status. It would certainly help if the federal legislature codified the Protest Petition and made it a part of the Cr.P.C. to address the lingering ambiguities that have arisen during this transformative process.

[1] . Mohd. Safi Vs. State of Bengal, AIR 1966 SC 69: 1966 CrLJ 75: (1965) 3 SCR 467

[2]   Vadilal Panchal Vs. Ghadigaonkar, AIR 1960 SC 1113

[3] MANU/SC/1197/2013: 2013(14) SCALE (209)

[4] 1996 CriLJ 61

[5]   1994 CrLJ 2132, 2135, 2136