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The Law of Protest Petition in India

What is a Protest Petition?

  1. Protest Petition is nowhere defined in the Criminal Procedure Code but is a very important aspect as the criminal law practice is concerned.
  2. 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.
  3. After making investigation, the police submit his investigation report to the Magistrate under 173(2) of the Cr.Pc.
  4. 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.
  5. 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 person.

Consequence of the Protest Petition:

  1. Magistrate may accept the final report of the Police and may reject the Protest Petition.
  2. 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.
  3. 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:

  1. The Magistrate is not bound to accept the final report submitted by the Police Officer.
  2. The Magistrate can disagree with that report and can take the cognizance simply based upon the documents that are submitted or annexed with the police report.
In case of Rajesh v. State of Haryana https://indiankanoon.org/doc/31716362/, 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 https://indiankanoon.org/doc/80081494/, 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."

Conclusion:
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 concerned Magistrate.

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.

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