Vidhi Agarwal
In the era of police brutality, in which victims are often arrested for no wrong, the protest petition empowers the common man to seek real justice. There was no definition of the term ‘Protest Petition’ under any law in India, neither in the Criminal Procedure Code (CrPC), 1973 nor in the Indian Penal Code, 1860.
It was, however, recognised as a convention and, even before independence, was part of the criminal procedure in India, albeit with regional variations.
While the High Courts of Patna and Calcutta addressed these questions extensively before independence, the first recorded Delhi judgement did not come before 1990.
The Protest Petition is an opportunity offered to the victim to raise objections to the police investigation’s findings. Commonly it is filed when police present the final report under section 173 of Code of Criminal Procedure, 1973 wherein the police conclude that the allegations are not made out against the accused.
What is a Protest Petition?
When an aggrieved person or complainant is not satisfied with the police report which was filed before the concerned court, such person may move the petition against the negative police report which is called the Protest Petition.
In plain terms, before or after the conclusion of the criminal investigation, the Protest Petition is a representation provided by the victim to the judge.
The petition is considered as a complaint before the court concerned under section 190 of the Criminal Procedure Code and the same is dealt with by the court by looking at all available means and records on-record before the court, so let us understand what the Criminal Procedure Code says in section 190.
History
It is interesting to trace the development of this concept through time. Unfortunately, at a time when such ideas were unfamiliar to the judicial procedure in most areas of the world, no one has yet come across any discussion of how this was a special approach by judges to ensure some measure of protecting victims’ rights. Another interesting facet was how the High Courts seem to have considered Protest Petitions as any representations which protest against police investigations. Naraji was the term primarily used in Calcutta, which loosely translates to discontent. Naturally, this extended to petitions being filed by both accused persons and complainants/victims, although the latter overwhelmingly outnumbering the former. Moreover, the defendant’s Protest Petition seems to have been submitted only during the investigation, while the complainants’ petitions were filed both during and after the investigation was ended.
Finally, the considerations of the Protest Requests and the approval by the police of the Final Reports have raised critical concerns about the essence of the exercise: whether it was an executive function or a judicial function. Where the role was viewed as an administrative activity, this meant that in revision proceedings there was little space for a review of such an order. This is now merely of historical interest, as the new CrPC makes a strong distinction between the roles of the executive and the judiciary of magistracy.
Procedure to file a Protest Petition
The Court, in Bhagwant Singh v. Commissioner of Police and Anr AIR [1985 SC 1285], cleared the fact about the circumstances in which a Protest Petition can be filed. Initially, the officer-in-charge must give a police report to the magistrate for the magistrate to take charge of the case. If the Magistrate decides to reopen the investigation, then, under section 200 of the Code of Criminal Procedure, 1973, the Magistrate can examine the victim or witness where one has the chance to narrate their case. This remedy can be used to meet the interests of the victim of justice where previous investigations have wrongly accused the defendant. Once the Magistrate determines that this was not a false accusation and that the victim is correctly unsatisfied, he/she can conduct the investigation on his/her own or order an investigation by an officer to whom the complaint is directed.
In the Protest Petition, however, the basic ingredients of the case must be met before the magistrate becomes informed under section 190(1)(a) of the Code of Criminal Procedure, 1973. When the final report is presented by the police and the Protest Petition is lodged, there are three choices open to the magistrate.
Firstly, Magistrate may accept the final report and may also reject the Protest Petition.
Secondly, he may accept the final report but 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 and reject the final report and take cognizance under Section 190 (1) (b) of the code.
The correct legal position is that the Judge is not obligated to approve the final report submitted by the officials of the police. The Magistrate may disagree with that report and, if any, take the information even on the basis of police records submitted along with the police report. Therefore, the process prescribed for the trial of the complaint case must be followed when the Protest Petition is filed, and the Protest Petition must be dealt with accordingly as required by statute.
The judge can well look beforehand at the Protest Petition and take cognizance of 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 wishes to take cognizance of the Protest Petition, under Section 2(d) of the Cr.P.C., it must meet the criteria of a ‘complaint,’ and then the complainant must be tested on oath before issuing a summons.
The Magistrate is obligated to provide notice in re: Indranil Mukherjee [2017 SCC Online Cal 210], make available copies of witness statements and related records, and provide the informant with an opportunity to be heard at the time of the police report being considered. The complexity of serving an informant’s notice cannot constitute justification for depriving the informant of such an opportunity. Protest Petitions may be used in this respect to verify the unconvincing closure of cases and to ensure that the law of fair disclosure of facts is properly complied with.
An injured person may appear before the Magistrate or the relative of the victim/deceased, who is not the informant, and lodge a protest petition. However, in Sanjay Bansal and Ors. v. Jawaharlal Vats and Ors. [AIR 2008 SC 207], the Court held that he is not entitled to any notice unless it is considered appropriate by the Magistrate in the exercise of its discretion. It creates a technical barrier for such people, thereby jeopardising their right to know about the progress of a criminal complaint, which could inherently affect them.
In the occurrence of the informant’s hostility, the lack of notice and consequent lack of opportunity to be heard significantly decreases the effectiveness of Protest Petitions in preventing the unconvincing closure of cases.
As per the latest ruling on the Supreme Court’s protest petition, these protest petitions are not complaints. In Vishnu Kumar Tiwari v. State of Uttar Pradesh (Criminal Appeal No. 1015 of 2019), the Supreme Court noted that:
“In the facts of this case, taking into account the essence of the charges contained in the petition for protest and the annexes which basically consisted of affidavits, if, on the basis of evaluation of the final report, the Magistrate was persuaded of the statements contained in Section 161, he cannot be forced to take cognizance by treating the protest petition as a complaint. Undoubtedly, if the protest petition is viewed as a complaint, if the latter section also commends itself to the Magistrate, it will have to obey the process specified under Sections 200 and 202 of the Code.”
In other words, there will inevitably be a need to investigate the claimant and his witnesses. There is no doubt that, depending on the facts made available to the Magistrate by the complainant in the protest petition, it might be capable of being relied on in a specific case in terms of its inherent nature and the effect of the final report’s findings. That is if the evidence is such that the court is convinced to disagree with the findings obtained by the investigating officer; information for which there is no need to interview witnesses pursuant to Section 200 of the Code may be obtained under Section 190(1)(b) of the Code.
However, because the protest petition could not be considered as a complaint by the Magistrate, the complainant’s recourse would be to lodge a new complaint and to invite the Magistrate to follow up on the proceedings referred to in Section 200 of the Code or Section 200 of Section 202 of the Code.
In the case of Rajesh v. State of Haryana (Criminal Appeal No. 813 of 2019), the Supreme Court held that “If police after investigation, finds no role of a particular accused and files charge sheet without implicating him, then if the Trial Court at the stage of summoning finds that a accused should be summoned, even though his name is not in the charge sheet. At that stage Trial Court gives an opportunity to informant/complainant to file protest petition.”
Magistrate judicial discretion concerning Protest Petition
The Magistrate is not required to approve the closure report if a closure report is filed and may deal with it in various ways. As given under Section 190(1), she can take suo moto cognizance (c). The Magistrate can accept the Protest Petition and reject the Final Report and take cognizance under Section 190(1)(b) of CrPC if a Protest Petition has been submitted.
Besides, under Section 173(8) and Section 165(3) of CrPC, if the evidence is found to be insufficient, she can guide further investigation and order a separate police report.
Another interesting choice at the hand of the Magistrate is that, as kept in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors., she may approve the final closure report or reject the charge sheet, but treat the Protest Petition as a complaint and take cognizance of the offence under Section 190(1)(a), [(1982) 3 SCC 510] and [AIR 2002 SC 483] by Kishore Kumar Gyanchandani v. G.D.Mehrotra.
The basic ingredients of a complaint must fulfil the Protest Petition. In Chandrika v. Santosh &Ors in B. [2013 (14) SCALE 209], the Court held that the Judge must use her own mind in the exercise of judicial power, analyse the evidence before her and ascertain the facts and the false nature of the evidence before her. However, as acknowledged by the Court in ChhediLal& Others v. State Of U.P & Another [2012], she should not rely on any other information outside the record of the Investigating Officer to locate the deficiency in the investigation. If the Protest Petition is regarded as a lawsuit, under Section 202, the Magistrate is empowered to perform the investigation herself.
If, on the basis of a police report or by way of a protest petition, the Magistrate has found a prima facie case, then the proceedings under Section 204 of the CrPC can be issued directly.
The above options open to the Magistrate to determine if the police report or the Protest Petition should be considered and whether the Protest Petition should be regarded as a complaint clearly demonstrate the magnanimous quantities of discretion accorded to the Magistrate.
The case of Nupur Talwar v. CBI [AIR 2012 SC 847] is a particularly intriguing case in which the accused actually became the informant who filed the Protest Petition after the CBI filed a closure report. Despite rejecting the closure report and the prayer made in the Protest Petition, the Magistrate took cognizance of the offence pursuant to Section 204, on careful examination of the evidence and cautious exercise of discretion. The case offers a clear example of how the Magistrate’s discretion can serve as a check on the unconvincing closure of cases before the trial starts, impacting the level of fair disclosure and fair trial of evidence.
While such discretion ensures flexibility in the investigation and inquiry process, the Magistrate or, for that matter, the law, does not operate in a vacuum and is continuously shadowed by socio-political power structures. Furthermore, because the Magistrate cannot accept any proof that was not part of the record of the Investigating Officer, in the absence of reasonable disclosure of evidence, the power could not be properly exercised.
Challenges
The significance of the protest petition for the rights of a victim is elusive because, without police intervention, the protest petition can be sent directly to the magistrate; it expands the remedies of a victim in law and helps to provide the victim with justice. The protest petition can also be a double-edged sword as it can negatively affect the accuser’s rights. For example, the magistrate cannot advise further investigation or re-investigation, but can still instruct it on the basis of a protest petition, causing the accused to be arrested. In addition to its absence in statutory literature, due to the limited number of case laws available to distinguish it from ambiguities, it also suffers from a lack of certainty.
This may affect fair proceedings by allowing magistrates to play the role of prosecutor, rejecting closure reports, sending them back for re-investigation. For example, if the same case comes before the court of the same magistrate, the proceeding may be affected by their preconceived notion.
One of the main concerns concerning the Protest Petition remains that due to unequal access to information and lack of awareness of police procedure in general and this tool in particular, in addition to the desensitisation of police ineptitude, the aggrieved informants/victims are unable to make ample use of the procedure recognized by the Courts.
This can also be explained by the fact that no current statute in India has expressly codified a protest petition as a procedural tool. This adds to the uncertainty in the minds of the general public, the police, magistrates, and courts regarding its application.
Conclusion
A requirement of judicial creativity is the Protest Petition. Over the last century, its existence and development across the country directly questioned the notion that the victim’s role in India was negligible. Today, its presence raised important questions relating to the separation between the investigation and trial spheres. This predominantly area-specific judicial practice has achieved national status in the current scenario.
If the federal legislature codified the Protest Petition and made it part of the Criminal Procedure Code to address the uncertainties that have emerged during this transformative process, it would be helpful.
Protest Petitions aim to expand the legal remedies of the informant/victim as they can be sent directly to the Magistrate without police intervention, so they are often called the last shot at the fairness of the informant/victim.
However, since it depends significantly on the judgement of the Magistrate, the right of the informant may, without any fault on his part, be defeated, for example, if it is bound by time. Also, since it allows the magistrates to play the role of the prosecutor, to reject reports, to send them back for re-investigation, or even to take charge of the matter on their own, it can lead to biases that are bound to affect the hearings, if the case is heard by the same Magistrate’s court, it is proposed that the legislature should not only codify the law on the protest petition but also specify the process and nature of its implementation. This will allow greater consistency and assurance about the process and conditions for the filing of the Protest Petition.
Also, to include injured persons and families of the victim, the legislature should extend the classes of individuals who can file a complaint petition and are entitled to obtain a notice. Any requirements that the magistrate should follow at the time of the protest petition or closure report should also be addressed. Such efforts would strengthen the protest petition and help victims or the common man to ensure and secure justice.