The criminal law machinery is set into motion with the receipt of complaint by the police from an informant/complainant. An FIR is lodged and the investigation is carried out by the investigating officer into the allegations mentioned in the complaint and upon completion of investigation a report in the form and format provided u/s 173(2) Cr.P.C. (commonly referred to as ‘Final Report’) is forwarded to the magistrate empowered to take cognisance of the offence.
Options before a magistrate on receipt of Final Report
When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3).
Protest Petition- What it is:
A protest petition is a legal mechanism through which a complainant or victim can challenge the police or investigative agency’s decision to close a case or file a closure report/ final report.
There is no specific provision under the Criminal Procedure Code, 1973 (Cr.P.C.) for filing a ‘protest petition’ by the informant/complainant and the manner a protest petition shall be dealt with by a magistrate. But it is a mechanism that has evolved through judicial pronouncements over the years. As indicated by the Hon’ble Supreme Court of India in Bhagwant Singh vs Commissioner of Police [(1985) 2 SCC 537] the right to file a protest petition is conferred on the informant and none else.
Protest Petition – When it can be filed:
Where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the informant/complainant has to be granted an opportunity of being heard in the matter as noted by the Hon’ble Supreme Court in Bhagwant Singh case. The Informant/Complainant being aggrieved of the report submitted by investigating officer may exercise the right of audience and address the court ventilating his objections to the final report by filing a ‘protest petition’ before the concerned magistrate.
Protest Petition – How it is to be dealt with:
The Concerned magistrate upon receipt of final report and protest petition, depending upon the material which is made available by the complainant in the protest petition, which 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, may if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer take cognizance under Section 190(1)(b) of the Code and proceed with the issuance of process.
However, Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer.
In case the cognizance is taken on the basis of the extraneous material i.e. protest petition, accompanying affidavits and materials not part of the final report, the Magistrate is required to treat the protest petition as a private complaint and adopt the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C.
Protest Petition – Remedy upon rejection:
It is settled position of law that a Magistrate could not be compelled to treat a protest petition as a complaint, the remedy of the complainant in case of rejection of protest petition is 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. The Hon’ble Supreme Court in “MUKHTAR ZAIDI
versus THE STATE OF UTTAR PRADESH & ANR” observed that the right of the Complainant to file a petition under Section 200 Cr.P.C. is not taken away even if the Magistrate concerned does not direct that a Protest Petition be treated as a complaint.
BRIEF SUMMARY- READY REFERENCER
1. Filing a Protest Petition:
- When the police complete an investigation, they may file a closure report if they conclude that there is insufficient evidence to proceed with the If the complainant or victim disagrees with this conclusion, they can file a protest petition.
- The protest petition is filed before the magistrate or the court that has jurisdiction over the case.
2. Purpose:
- The protest petition allows the complainant to express dissatisfaction with the investigation’s findings and request the court to reject the closure report.
- It provides the complainant an opportunity to present additional evidence or highlight deficiencies in the police
3. Court’s Response:
- Upon receiving a protest petition, the court may take various actions:
- Direct the police to conduct further
- Accept the protest petition and take cognizance of the case, leading to the issuance of summons or warrants against the
- Reject the protest petition if it finds no merit in the complainant’s objections.
4. Legal Provisions:
- The procedure for protest petitions is not explicitly outlined in the Code of Criminal Procedure (CrPC), but it is recognized through judicial precedents and legal
5. Importance:
- Protest petitions play a crucial role in ensuring that victims and complainants have a recourse if they believe that justice has not been served due to an inadequate investigation.
- They act as a check on the investigative agencies, promoting accountability and thoroughness in criminal investigations.