PROTEST PETITION: A LEGAL PERSPECTIVE

 

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