What is a Protest Petition?
- Protest Petition is nowhere defined in the Criminal Procedure Code but
is a very important aspect as the criminal law practice is concerned.
- When any aggrieved person complains before the Magistrate under section
156(3) of the Cr.Pc, the Magistrate after being satisfied with the complaint
petition gives instruction to the police for investigation.
- After making investigation, the police submit his investigation report
to the Magistrate under 173(2) of the Cr.Pc.
- The aggrieved or the complainant in the event not satisfied with the
police report, files a protest petition before the concerned Magistrate
stating his/her dissatisfaction and pray for further investigation under
Court supervision. At the same time the aggrieved person may also pray for
further proceedings under section 200 and 202 of Cr.Pc.
- If the protest petition is accepted then the Magistrate takes cognizance
of the matter under section 190 of Cr.Pc and issues notice to the accused
Consequence of the Protest Petition:
- Magistrate may accept the final report of the Police and may reject the
- The Magistrate may accept the final report and may also treat the
Protest Petition as a Complaint Petition and process it under Section 200
and 202 of Cr.Pc.
- The Magistrate may accept the Protest Petition and reject the final
report and take cognizance under Section 190 of the code.
Discretion of the Magistrate:
- The Magistrate is not bound to accept the final report submitted by the
- The Magistrate can disagree with that report and can take the cognizance
simply based upon the documents that are submitted or annexed with the
In case of Rajesh v. State of Haryana
the Supreme Court observed that:
“the power under Section 319 Cr.PC is a discretionary and an extraordinary
power. It is to be exercised sparingly and only in those cases where the
circumstances of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that some other person may
also be guilty of committing that offence. Only where strong and cogent evidence
occurs against a person from the evidence led before the court that such power
should be exercised and not in a casual and cavalier manner.”
In Vishnu Kumar Tiwari v. State of Uttar Pradesh
the Supreme Court held that not all Protest Petition should meant as Complaint
Petition and observed with respect to Para 41 therein as:
"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 Apex in this case further observed: -
“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 compliant, 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."
After filing of FIR under section 154 of the Cr.Pc the Police start its
investigation. If the Police found that there exists all the alleged offences
then Police files Charge-sheet under section 190(b) of the Code before the
On the contrary if Police found that that no offence exists then he submits a
Final Report under section 173 of Cr.Pc. On aggrieved of the Final Report the
Complainant files a Protest Petition before the Magistrate under section 91 read
with section190(a) of the Cr.Pc. Though there is nowhere Protest Petition is
defined in the Code!
Therefore in conclusion it can be rightly said that the right to file Protest
Petition is available only with the Complainant and not with the Accused!
Our Legislature should think of the same and proper law to be coded in an
organized manner so that the lawyers maintain a uniform practice and thereby
secure the right of Complainant as well as the Accused.