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The Intricacies Involved in the Law and Practice of Protest Petition in India

Protest Petition is a concept pertaining to the Criminal Procedure that is employed by the Indian Law Courts in deciding the redressal of a criminal complaint lodged by the complainant. It comes into play when after the police on being directed by the concerned Magistrate to investigate into the allegations and averments made in the complaint by the complainant, submits a Final Closure Report u/s173 (2) Cr.P.C submits ‘No offence made out” and the complainant is not satisfied of the outcome of findings of police investigation.

Usually, when an information of commission of any cognizable offence (an offence in which a police officer can make an arrest without warrant as per the provisions u/s 2 (c) Cr.P.C,1973) is received by the police authorities, a First Information Report i.e., a FIR is required to be lodged (u/s154 Cr.P.C, 1973). But sometimes, finding no reason to believe the occurrence of any cognizable offence, a FIR isn’t lodged by the police authorities. In such a situation, feeling aggrieved, the complaining party, feeling that he has to himself a viable case which needs investigation and criminal trial against the persons accused of alleged allegations in the complaint, the complainant is The concept of Protest Petition comes into play, when after investigation as ordered by the judicial magistrate, presiding over the criminal court having jurisdiction, the police submits a Final Report of “No offence Made Out” and when to the contrary the complainant believes and has reason to hold his belief contrary to such a finding submitted by the police. It is in such a situation that the complainant has a right to lodge his protest against such a Final Closure Report submitted by the police authorities before the Judicial Magistrate in the form of a petition known as “Protest Petition”, whereby the complainant is within his legal rights to assert his dissatisfaction with the Final Closure Report submitted by the investigating agency i.e. the Police and can pray further investigation under the supervision of the Judicial Magistrate requiring the concerned Magistrate to direct an investigation to be made by a police officer or by such other person as the Magistrate thinks fit to conduct further investigation (u/s 202, CrPC) or re-investigation u/s 190 (1)(a), CrPC, in order to rule out any element of discrepancy or bias or it is for the concerned Magistrate to inquire into the case himself as according to the provisions of S.202 CrPC.

Now, it is at this stage, for the presiding Judicial Magistrate concerned before whom such a “protest petition” is lodged to consider the merits and viability of the protest that is lodged by the complainant with regard to the lacunae of the investigation done, and when the Judicial Magistrate, so empowered in this behalf, has reasons to believe into the merits and contents of such a protest petition, can allow it in compliance with Ss. 200 & 202, Cr.P.C, 1973.

The point of interest hereat is that Protest Petition although frequently used procedure and practice in the Criminal Law Courts, yet, is nowhere defined in the Criminal Procedure Code. However, its frequent use makes the concept, practice and procedure of Protest Petition, all the more, very important aspect in Criminal Law practice.

Having a look at the provisions of the Code of Criminal Procedure, allowing for the role of Protest Petition to come into play, inter-woven connectivity is to be understood as between the many sections of the Criminal Procedure Code, 1973. In this regard, of foremost importance is S. 190 (1) (a), CrPC which allows the Magistrate with the discretion of ordering investigation u/s 156 (3) CrPC into the averments made in the complaint. Once investigation is so ordered by the Magistrate, the next provision under the Code of Criminal Procedure of keen, initiating the reasons for the Protest Petition is S. 173 (2), CrPC, whereby the Investigating Agency, that is the police submits investigation report before the Magistrate summarizing the result of the investigation so conducted being “Final Closure Report to be No Offence Made Out”. Now, it is in furtherance of say for the complainant not feeling satisfied with such investigation report u/s 173 (2), CrPC; that the procedure and concept of Protest Petition comes into play. In other words, it is the complainant’s protest against the investigation conducted by the investigation agency, that is the police, entailing the grounds and reasons as to why the aggrieved party/person feels that the investigation is not proper, or is incomplete, or vitiated by malafide/bias, that he seeks to protest against the Closure Findings with regard to the Final Report u/s 173 (2), CrPC to the effect of “Offence not made out”. The complainant can then file a Protest Petition before the Magistrate, so empowered in this behalf, under the provisions of the Criminal Procedure Code, 1973 and pray for further investigation/re-investigation/inquiry into the contents of the complaint by the concerned Magistrate himself, under the provisions of the relevant sections being Ss. 190 (1) (a), 190 (1) (b),200,202, CrPC, whichever applicable, as per the course of action/discretion adopted by the concerned magistrate. The supervision of the court for further investigation may well be understood by the provisions of S.202(1), CrPC whereby the Magistrate can postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit.

However, it is to be kept in mind that the discretion under section 202 (1) CrPC accorded to the magistrate has to be exercised according to the facts and circumstances of each case. If on examination of the record and on recording, the statement of the complaint, the Magistrate forms an opinion regarding taking recourse to the provisions of S.202 CrPC, 1973, he can still refer the case under the said section to the police for the purpose of ascertaining more facts and collecting evidence which otherwise is not possible in a criminal trial. The provisions of S.202, CrPC, 1973 are only enabling provisions and in no way hold back the magistrate from holding the inquiry himself.

[Gulam Mohi-ud-din Wani Vs. Mehri, 1988 (2) Crimes 240,242 (J&K)

A Magistrate even after accepting the final closure report to the effect of “no offence been made out” submitted to him by the police u/s 173(2), CrPC, 1973 can still take cognizance of the offence upon a protest petition. [Chandra Shekhar Chaudhary Vs. Raj Kishore Jha, 1983 (1) Crimes 289 (Pat-DB). Where a protest petition is filed, the procedure prescribed for trial of a complaint case has to be followed. [Ashok Vs. State of U.P., 1994 CrLJ 2132 (All); see also Manojbhai Bhagwandas Shah Vs. State of Gujarat, 2002 CrLJ 2134 (2136) (Guj)]. At the stage of submitting Protest petition itself, the complainant may also pray for proceeding further in accordance with the provisions of Ss. 200, 202 of the CrPC. However, it has to be clearly, kept in mind that when the Magistrate disagrees with the final report mainly on the basis of FIR and case-diary, he must be deemed to have taken cognizance of the complaint u/s 190 (1) (a), CrPC, notwithstanding the fact that he has also considered some affidavits filed before him [Gajadhar Singh Vs. Mahesh Chandra, AIR 1981 NOC 206 (All)] and it is only when the Final Report submitted by the police isn’t outright rejected by the Magistrate as well as the protest petition lodged by the complainant also stands accepted, that the proper recourse would be to proceed under the provisions of Ss. 200,202, CrPC, 1973.[see also Vishnu Murya Vs. State of Rajasthan, 1990 CrLJ 1750 (Raj)]

In case, the magistrate takes cognizance under the provisions of S.190, CrPC, it is again upon the discretion of the concerned Magistrate as to how he proceeds because the discretionary powers provided to the Magistrate under the provisions of S.190 CrPC, 1973 allow that the Judicial Magistrate after considering all relevant materials may differ on conclusions as submitted before him by the investigating agency ie. the police in the Final Closure report u/s 173(2), Cr.P.C, and the Magistrate may direct re-investigation or further investigation by virtue of powers conferred upon him u/s 156 (3), Cr.P.C, 1973


If the Magistrate while differing from the conclusions as submitted before him in the Final Closure Report u/s 173 (2), Cr.P.C, feels that investigation is complete and the materials collected during the investigation reveal commission of an offence calling for putting one or more accused on trial, take cognizance of the offence u/s 190 (1) (b), Cr.P.C, 1973 and issue process, this he may do, without bound in any manner by the conclusions arrived at by the police in their final report u/s 173(2) Cr.P.C, 1973.

[Pooran Singh Vs. State of U.P., 2003 CrLJ 2275(2276) (All):2003 AllLJ 806; Rupan Deol Bajaj Vs. Kanwarpal Singh Gill, AIR1996 SC 309: (1995)6 SCC194:1996CrLJ 381; Kuli Singh Vs. State of Bihar, AIR 1978 Pat298:1978 CrLJ 1575,1583 (SB)]

In conclusion, it can be stated that the Legislature needs to draft a separate chapter within the Code of Criminal Procedure, dealing exclusively with the Law on Protest Petition so that a uniformity of practice with regard to the procedural aspects related to Protest Petition be codified, doing away with the possibilities of any kind of ambiguity with respect to the procedures to be followed on the Protest Petition for the ease and convenience of all concerned. At present, there is no precise provision/definition in the Code of Criminal Procedure with regard to Protest Petition and the entire Law & Practice on Protest Petition is derived rather in a implied manner by connecting and reading together of Ss. 190 along with Ss. 200, 202 Cr.P.C and also S.91 read with S. 190 (1) (a) Cr.P.C.


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