PROTEST
PETITION: A LEGAL PERSPECTIVE
In criminal cases, protest
petition is a term which is in vogue quite often. The protest is raised in case
of a Final Report filed by the Police before a concerned Magistrate
seeking closure of case, pursuant to registration of F.I.R. The closure Report
is filed under Section 169 of Code of Criminal Procedure, in the event,
according to police, no evidence in the case was found to file charge sheet
against the accused. Generally, closure report is filed owing to lack of
evidence and thus, inability of police to file charge sheet. The protest
petition by a victim , however, could be filed against such closure report
or also if the F.I.R registered is under inadequate provisions or if any clear
and tangible fault are conspicuous in investigation and if there is a shoddy
investigation. It may be noted that Section 156(3) of Cr.P.C contains a
comprehensive provision, under which a Magistrate is empowered to monitor the
case and necessary guidelines or directions to Police could be passed by a
concerned Magistrate. The investigation is generally believed to be domain of
investigation, but the Magistrate is not powerless even during investigation as
per the trap of section 156(3) of Cr.P.C and the precedents have evolved in
pursuance thereto through various judicial dicta as laid down by hon’ble
Supreme Court.
Though, much in vogue in legal
framework, but the word protest petition is no where defined or
mentioned in Code of Criminal Procedure. However, it has evolved as procedure
any by dint of the judicial precedents, more particularly, in the last Two
decades or so when such issues are dealt with more pervasively. The next
question of significance relates to the Role
of a Magistrate, whether a Magistrate is obliged to accept the Closure Report/Final
Report as per section 169 of Cr.P.C or any discretion as regards accepting or
rejecting the Closure Report/Final Report is vested in a Magistrate. The law
has matured in this regard, ever since, and it is now settled that a Magistrate
is not obliged to accept the Closure Report/Final Report and discretion is
accorded to a Magistrate, whether to accept or reject the report.
THE OPTIONS TO A MAGISTRATE
In case a Closure report/ Final Report
seeking closure of case investigated by the Police in a F.I.R, filed before a
Magistrate, the options before the ld Magistrate is clear and discernible. The
options are:
(a) The
Magistrate may accept the Final Report and may reject the Protest Petition.
(b) The Magistrate may accept the final report,
but treat the protest petition as a complaint and proceed in accordance with
Section 200 of Cr.P.C.
(c) The
Magistrate may accept the Protest Petition and reject the Final Report
and take the cognizance u/s 190(1)(a) of Cr.P.C.
It is held in Dilawar Singh Vs State of Delhi JT
2007(10)SC 585 that If the aggrieved person is aggrieved by the shoddy investigation
or improper investigation, such a person can approach court of Magistrate u/s
156(3) and if the Magistrate is satisfied, he can order a proper investigation
and take other suitable steps and pass such order as he thinks necessary for
ensuring proper investigation. To state, in yet another recent judgment of
hon’ble Supreme Court reported as T.C
Thangaraj Vs V.Engammal & Ors III(2011) CCR 295 SC it is held that
Magistrate can direct the police to carry out investigation properly and can
monitor the same if Magistrate finds that Police have not done their duty or
not investigated properly.
LAW
& PRECEDENTS
The hon’ble Supreme court in State of Punjab Vs Baldeo Singh 1999(39) . ACC 349 have expressed
anguish in the following words :-
“There
is indeed a need to protect society from criminals. The society intent in
safety will suffer if persons who commit crime are let off because the evidence
against them is to be treated as if it does not exist. The answer, therefore,
is that the investigating agency must follow the procedure as envisaged by the
statute scrupulously and the failure to do so must be viewed by the higher
authorities seriously inviting action against the concerned official so that
the laxity on the part of the investigating authority is curbed”.
The accused are
not to be heard for hearing in closure report
Karan Singh vs State 1997 ACC 163 (1997
AIHC 376)
S.C Misra vs State 1996 AWC (Supp)318
S. K. Sharma reported in 1994 ACC, 748
Anil
Kumar vs State 1994, ACC 535
The Hon’ble Supreme Court in aforesaid
cases has held that the Magistrate is not required under the law to hear an
accused before rejecting a final report submitted by the Investigating Officer
or while hearing an informant in opposition of filing of such final report.
Abhinandan
Jha AIR 1968 SC 117: (1968 All LJ 373),
The hon’ble Supreme Court has held:
“whenever
an informant found fault with a Final Report being filed by the Investigating
Officer, he would file protest petition before the Court of the Magistrate. On
hearing the informant on the protest petition, the Court could pass an order of
summoning the accused by rejecting the Final Report, or, direct further
investigation, or accept the Final Report and reject the protest petition. It
should be useful to notice here that in none of the Criminal Procedure Codes that is the one now
in vogue, Cr. P. C. of 1973 or the repealed Cr. P. C. of 1898 or the earlier
Cr. P. Cs. of 1982 or of 1872 or the earliest one that is Cr. P. C. of 1861 is
there any provision permitting an informant to file any objection against Final
Report filed by an Investigating Officer. The practice of hearing an informant
through the mode of protest petition was permitted because it was carrying
forward the true spirit behind the very purpose of as investigation undertaken
by Police upon a grievance of an informant regarding commission of an alleged
offence. The best precedence on the permissibility of preferring protest
petition is reported in the decision in Abhinandan
Jha (supra) wherein the practice of filing protest petition against Final
Report has been specifically noted and countenanced by the Hon'ble Supreme
Court”.
It is to be culled out that that till that stage the issue of
truthfulness of allegations of the informant is confined between the informant
on the one hand and the Investigating Officer on the other. Invariably only one
issue has to be determined whether the named or unnamed accused, as may
apparently emerge from the allegations in the FIR, has or has not to be
challaned to Court for trial. No other issue opens up before the Investigating
Officer. All steps of the Investigating Officers are directed towards that
single goal. In order to arrive at the said conclusion, the Investigating
Officer may take all steps indicated in Chapter V for 'arrest of persons', in
Chapter VI for process to compel appearance and Chapter VII for process to
compel the production of things. It may be stated here, just as a reminder that
arrest of an accused or suspect at one point of time by the Investigating
Officer does not necessarily mean that a charge sheet is bound to be filed
against him at the conclusion of the investigation and likewise not arresting
an accused or suspect by the Investigating Officer would not mean that final
report is bound to be filed in his favour.
As per the dicta of hon’ble Supreme Court any
lapses of Police officials during the investigation process or any dereliction
of duty may be taken note of by the Magistrate and the Magistrate has
comprehensive power to secure the end of justice. In the matter reported as Sakri
Vasu Vs State of U.P AIR 2008 SC
907: 2008 AIR SCW 309: 2008 (1) ALJ 752 it is held that
Magistrate can monitor investigation and Magistrate can invoke his power u/s
156(3) to redress grievance of complainant by issuing appropriate directions to
police, even after registration of F.I.R.
As per the latest verdict on protest
petition by Supreme Court all protest petitions are not complaints. In Vishnu
Kumar Tiwari v. State of Uttar Pradesh ( Criminal Appeal No. 1015 of 2019),
the Supreme Court observed that, “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 fact that he may have jurisdiction in a case to
treat the protest petition as a complaint is a different matter. Undoubtedly,
if a magistrate treats the protest petition as a complaint, he would have to
follow the procedure prescribed under Section 200 and 202 of the Code, if the
latter Section also commends itself to the Magistrate. In other words,
necessarily, the complainant and his witnesses would have to be examined. No
doubt, depending upon the material which is made available to a Magistrate by
the complainant in protest petition, it may be capable of being relied on in a
particular case having regard to its inherent nature and impact on the
conclusions in the final report. 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 complaint, 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.”
In case of Rajesh
v. State of Haryana (Criminal Appeal No. 813 of 2019), the
Supreme Court held that, “If police names only some accused in the charge sheet
instead of all accused named in FIR, the Magistrate has to give an opportunity
to the informant to file protest petition.”
Issue with the Protest
Petition:
The significance of the Protest
Petition for a victim’s right 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.
To meet the goals of justice, victim can go with this remedy
where previous investigation had wrongly acquitted the accused. Once the
Magistrate establishes that this was not a false complaint and the victim is
rightly unsatisfied, he/she can conduct the inquiry by himself/herself, or
order an investigation by an officer-in-charge, to whom the complaint is forwarded.
However, the essential ingredients of the Complaint must be
satisfied to maintain a Protest Petition before Magistrate and Magistrate in
apt case may take cognizance under section 190(1) (a) of the Code of Criminal
Procedure, 1973. There are three options available to the Magistrate, when the
final report is submitted by the police and the Protest Petition is filed, as
elucidated above.
LEGAL POSITION
The correct legal position is that Magistrate is not bound to
accept the final report submitted by the police officials. The Magistrate can
disagree with that report and take the cognizance even on the basis of police
papers, if any submitted along with the police report. Hence, where the Protest
Petition is filed, the procedure prescribed for trial of the complaint case has
to be followed and Protest Petition has required to be dealt accordingly as per
law. Moreover, section 173(8) entails further investigation and without proper investigation,
if the case against the accused whether named or named is sought to be closed,
the same could be rejected on the touchstone of law.
Conclusion:
The Protest Petition, though, has not as yet become the part of
statute book, still, with a view to do substantive justice through judicial
orders a mechanism is evolved whereby the aggrieved party i.e complainant can
seek judicial innovation. As per the existing criminal justice system in our
country, role of victim is negligible, however, increasingly the ladder of
leverage are being accorded to the victim by courts with a view to do
substantive justice in a matter, in as much as it is the victim who are
directly affected and as the criminal wrong is wrong against state and thus
state represents victim, but making a victim oblivious to the process shall not
do any good and that realization has made qualitative change in judicial dicta
and even issues could be raised by a victim which may be the sphere of
investigation and trial. This is high time, parliament codified law and
included the provisions of Protest petition in Cr.P.C and also to accord further
leverage to the victim in the statute book with a view to aid, emphasize and
contribute in the role of prosecution.
Anil K Khaware
Founder &
Senior Associate
societylaw&justice.com
