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Protest Petition-Rights of Complainant And Accused

It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.

Introduction:
Sole motive of every investigation and trial is not only to administer and secure the ends of justice but also to find out the truth, as the real justice can be imparted only after arriving at the truth, which can be achieved only by Fair, Just and proper investigation, which is essence of fair trial. Investigation is the structure on which the trial is based.

Fair and proper investigation is an attribute of Article 21 of the Constitution of India The expression "fair and proper investigation" in criminal jurisprudence Connotes to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.

Unfortunate part is when the investigating agency starts playing the role of either the complainant or the accused and in that way, truth is left behind, which leads to faulty & biased investigation. From the data with regard to presentation of final report either by way of cancellation report or by way of putting the report against the accused under section 173 Code of Criminal Procedure, the ratio of finding the guilt of accused by the courts is very low and similarly, as regards the cancellation reports, the courts on the protest petition filed by the complainant in many cases have exercised the jurisdiction to order further investigation or treating the protest petition as complaint under section 190 Cr. P.C, which ultimately have lead to conviction of the accused. This all leads to the conclusion that the investigation did not reveal the truth & thus the basic canons of Criminal Jurisprudence were not followed.

The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused.

 The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth".

In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair.

In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself.

 The result of the investigation would therefore be a foregone conclusion. Babubhai v. State of Gujarat, (2010) 12 SCC 254 , Vinay Tyagi v. Irshad Ali , (2013) 5 SCC 762, Vinubhai Haribhai Malaviya and others v. State of Gujarat and another ,(2019) 17 SCC 1, Kali Ram v. State of Himachal Pradesh, AIR 1973 Supreme Court 2773

Criminal terminology
It would be apt to know meanings of some prominent words occurring and used in Criminal terminology.
Complaint
"complaint" is defined under Section 2(d) of the Code of Criminal Procedure, which reads as:
2 (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant:"

A bare perusal of the definition reveals that a complaint may be oral and there is no format for a complaint. What is the essence of the complaint is that allegations are made to a Magistrate with a view of his taking action under the Code against any person, known or unknown, who had committed an offence. It is not a police report.

First Information Report (FIR)
The words "first information report" are also not defined under the Code. But, it refers to the report given to the officer in-charge of the police station about commission of the cognizable offence. This information is given under Section 154 of the Code.

Distinction between Complaint & FIR
A broad distinction may be drawn between a complaint and an FIR. On the one hand, complaint is necessarily to be made to the Magistrate, whereas, FIR is not made to a Magistrate. Information of cognizable offence under Section 154 of the Code is given to the officer in-charge of the police station which is known as FIR. There is no format of FIR also. The law is quite in detail on this aspect as to what constitutes an FIR. The law is settled that the FIR should be not much cryptic.

At the same time, it may not be considered as encyclopedia of each and every fact, which constitutes the offence. In fact, the purpose of the FIR is to put the wheel of justice into motion by giving information of cognizable offence to the police.
  1. an "FIR" cannot be termed as a "complaint" as defined under Section 2 (d) of the Code.
  2. "complaint" is defined under Section 2 (d) of the Code, which is made to a Magistrate.
  3. The first information report is a report of a cognizable offence given to the officer in-charge of the police station.
  4. A Magistrate on a complaint made before him, may order for an investigation. In such cases, the court has both information's, original complaint as well as FIR. Both are same.
  5. If police after investigation files FIR and is accepted by the Magistrate, a complaint may be filed for the same offence.
 It is not barred. If such a complaint is filed, it shall proceed under Chapter XV of the Code.Abhinandan Jha and others v. Dinesh Mishra (1967) 3 SCC 668
Cognizable offence has been defined in Section 2(c) of the Criminal Procedure Code to mean 'an offence' for which, and "cognizable case" means a case in which, a police officer may in accordance with the First Schedule or under any law for the time being in force, arrest without warrant'.

Police report is defined in Section 2(r) to mean 'a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.

Final Report(Charge Sheet) commonly known as Challan
Interestingly even final report, as such, is not defined in the Code. It is a report submitted by the police after investigation indicating that offence is/not made out made out. It can be a report on which magistrate takes cognizance and put the case to trial or it can be a cancellation report submitting that no offence is made out after investigation leaving it to magistrate to take further action to accept/not accept the same. The same is presented under section 173 of code.

It may not be inapposite to refer to the following discussion by Supreme Court of India in as to what is a final report:
"It will be seen that the Code, as such, does not use the expression 'charge-sheet' or 'final report'. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a 'charge-sheet'. But in respect of the reports sent under Section 169 i.e. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or 'summary'." Abhinandan Jha and others v. Dinesh Mishra (1967) 3 SCC 668

FINAL REPORT AND ITS DISPOSAL
Final report is presented under section 173 Cr.P.C upon completion of investigation. After final report is submitted by the investigating agency, the Magistrate has four options:
  1. He may agree with the conclusion of the police and accept the final report and drop the proceeding.
  2. He may take cognizance under section 190(1)(b) Cr.P.C., 1973 and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
  3. He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
  4. He may without issuing process and dropping the proceedings under section 190(1)(a) Cr.P.C., 1973 upon the original complaint or protest petition treating the same as complaint and proceed to act under sections 200 and 202 Cr.P.C., 1973 and thereafter whether complaint should be dismissed or process should be issued." Pakhando & others v. State of UP & another, 2001 (43) ACC 1096 , Vishnu Kumar Tiwari v. State of Uttar Pradesh (SC), AIR 2019 SC 3482

Protest Petition
The "protest petition" as such is not defined in the Code. It is not even referred to anywhere in the Code. It is practice, which has given recognition to protest petition and originate upon filing of cancellation report by the investigating agency under section 173 of code. It is, in fact, objection filed against the Final report. It may have many prayers or any prayer including:
  1. to reject Final report and summon the accused under Section 190 (1) (b) of the Code, or to order for further investigation or to treat protest petition as a complaint. These are illustrations only.

Further Investigation & Re-Investigation
"Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173 (8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence.

Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency.

This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation.

However, in the case of a "fresh investigation", "reinvestigation" or "de novo investigation" there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation". This is primarily for the reason that it would be opposed to the scheme of the Code.

It is essential that even an order of "fresh"/"de novo" investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India.

Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. This is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation". Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762

Locus of Complainant:
It is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enact or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder, a private complaint can, not only be filed but can be entertained and proceeded with according to law.

Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision.

Numerous statutory provisions, can be referred to in support of this legal position under as:
  1. Section 187A of Sea Customs Act, 1878,
  2. Section 97 of Gold Control Act, 1968,
  3. Section 6 of Imports and Exports Control Act, 1947,
  4. Section 271 and Section 279 of the Income Tax Act, 1961,
  5. Section 61 of the Foreign Exchange Regulation Act, 1973,
  6. Section 621 of the Companies Act, 1956 and
  7. Section 77 of the Electricity (Supply) Act.

This list is only illustrative and not exhaustive. While Section 190 of the Criminal Procedure Code permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Criminal Procedure Code.

These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See section 2(n), Criminal Procedure Code, 1973) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society.

The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or, omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary.

Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision.

The scheme underlying Criminal Procedure Code clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is 'competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to Court.

Chapter XII of the Criminal Procedure Code, 1973 bears the heading 'Information to the police and their powers to investigate' Section 154 provides for information to police in cognizable cases. It casts a duty on the officer in charge, of a police station to reduce to writing every relating to commission of a cognizable offence given to him and the same will be read over to the informant and the same shall be signed by the informant and a copy thereof shall be given to him.

If information given to an officer in charge of a Police Station disclosed a non-cognizable offence, he has to enter the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and to refer the informant to the Magistrate (Section 155(1).) Sub-section (2) puts an embargo on the power of the police officer-in-charge of police station to investigate a non-cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial.

Section 156 sets out the powers of the officer in charge of police station to investigate cognizable cases. Sub-section (2) of Section 156 may be noticed. It says that 'no proceeding of a Police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under the section to investigate.'

Sub-section (3) confers power on the Magistrate empowered under Section 190 to take cognizance of an offence, to order an investigation as set out in sub-sections (1) and (2) of Section 156. Section 167 enables the Magistrate to remand the accused to police custody in the circumstances therein mentioned; Section 173 provides that 'every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, setting out various things enumerated in the section. Sub-section (8) of Section 173 provides that despite submission of the report on completion of the investigation, further investigation can be conducted in respect of the same offence and further evidence so collected has to be forwarded to the same Magistrate.

The report of this further investigation shall by and large conform with the requirements of sub-sections (2) to (6). Fasciculus of sections in Chapter XIV prescribed conditions requisite for initiation of proceedings Section 190 provides that subject to the provisions of the Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence:
  1. upon receiving a complaint of facts which constitute such offence;
  2. upon a police report of such facts, and
  3. upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed Section 191 obliges the Magistrate when he takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190, to inform the accused when he appears before him, that he is entitled to have the case inquired into or tried by another Magistrate. Section 193 provides that 'except as otherwise expressly provided in the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.'

Origin of Protest Petition
The "protest petition" as such is not defined in the Code. It is not even referred to anywhere in the Code. It is practice, which has given recognition to protest petition and originate upon filing of cancellation report by the investigating agency under section 173 of code. It is, in fact, objection filed against the Final Report. It may have many prayers or any prayer including - (i) to reject Final Report and summon the accused under Section 190 (1) (b) of the Code, or to order for further investigation or to treat protest petition as a complaint.

The Hon'ble Supreme Court categorically observed that even after submission of a report under Section 173 that no case is made out for summoning of an accused for trial, a Magistrate may order further investigation under Section 156 (3) of the Code. If protest petitions are filed, they may be treated as a complaint and may be proceeded in accordance with law. The Magistrate is not bound by the opinion formed by the IO. In the case Abhinandan Jha and others v. Dinesh Mishra (1967) 3 SCC 668

Notice to Complainant upon submission of Cancellation Report
On a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process.

We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report..."

Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned.

They are not entitled to any notice. Magistrate can, faced with a final report, independently apply his mind to the facts emerging from investigation and take cognizance under Section 190 (1)(b), and in this regard, is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance under Section 190(1)(b). It was, however, open to the Magistrate to do so.

The protest petition has to satisfy the ingredients of complaint before Magistrate takes cognizance under Section 190(1)(a) Cr.P.C. "If after investigation, the Investigating officer (IO) files a report indicating that no offence is made out, the Magistrate has following options:
  1. The Magistrate may concur with the opinion of the IO and accept an FR and drop the proceedings.
  2. The Magistrate may differ with the opinion of the IO and straightway summon the accused for the offence as made out from the material collected during investigation. This may be done under Section 190 (1)(b) of the Code.
  3. The Magistrate may order further investigation, if he finds that investigation was not done in accordance with law.
  4. In any case, before consideration of Final Report, the Magistrate shall issue notice to the informant. In case, informant files protest petition, the Magistrate may treat the protest petition as a complaint and proceed further under Chapter XV of the Code. The protest petition may be treated as a complaint, if it has requisite of a complaint."

Where the informant brought to the notice of the Magistrate the shortcomings in the investigating processes and prayed for an order of further investigation, the refusal of the Magistrate on the ground that he does not have power to review was totally wrong because such matter was not a case of reviewing any order but was only an exercise of powers conferred upon such a Magistrate by the provisions contained in Section 173(8), Criminal Procedure Code, H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh), (1980) 4 SCC 631, Bhagwant Singh v. Commissioner of Police and another (1985) 2 SCC 537, M/s. India Carat Pvt. Ltd. v. State of Karnataka and another, 1989(1) RCR (Criminal) 395, Union Public Service Commission v. S. Papaiah, 1997 SCC (Cri) 1112,Gangadhar Janardan Mhatre v. State of Maharashtra and others (2004) 7 SCC 768, 2014(13) SCC 699, B. Chandrika v. Santhosh (SC), Vishnu Kumar Tiwari v. State of Uttar Pradesh through Secretary Home, Civil Secretariat, Lucknow and another (2019) 8 SCC 27.

Whether the protest petition is a second complaint?
The protest petition is not a second complaint. The law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour.

However, the second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit. The protest petition can always be treated as a complaint and proceeded with in terms of Chapter XV Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second protest petition can also similarly be entertained only under exceptional circumstances.

In case the first protest petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh protest petition is filed giving full details, we fail to understand as to why it should not be maintainable. Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report .It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code.

The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance, if the materials produced by the complainant make out an offence.

The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 Criminal Procedure Code, 1973 the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding.

Therefore if he has not misdirected himself as to the scope of the enquiry made under section 202, of the Criminal Procedure Code, 1973 and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under section 203, of the Criminal Procedure Code, 1973 is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming." where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. section 202 Cr.P.C, 1973 was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22-6- 2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction".

There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.

The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment." Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (1962) Supp (2) SCR 297, Mahesh Chand v. B. Janardhan Reddy and another (2003) 1 SCC 734, Vishnu Kumar Tiwari v. State of Uttar Pradesh through Secretary Home, Civil Secretariat, Lucknow and another (2019) 8 SCC 27, Abhijit Pawar v. Hemant Madhukar Nimbalkar and another (2017) 3 SCC 528, Gopal Vijay Verma v. Bhuneshwar Prasad Sinha[(1982) 3 SCC 510, Kishore Kumar Gyanchandani v. G.D. Mehrotra, (2011) 15 SCC 513, Shivshankar Singh vs State of Bihar, (2012) 1 SCC 130, Samta Naidu v. State of Madhya Pradesh (2020) 5 SCC 378.

Rights of accused during investigation & at time of consideration of protest petition
It was open to the prospective accused to remain present when the inquiry is underway before the Magistrate at the pre-summoning stage. The accused has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so.

There are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure - such as Section 50 where under the persons arrested is to be informed of the grounds of his arrest and of his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours - which are all in conformity with the 'Right of Life' and 'Personal Liberty' enshrined in Article 21 of the Constitution of India and the valuable safeguards ingrained in Article 22 of the Constitution of India for the protection of an arrestee or detune in certain cases.

But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.

If prior notice and an opportunity or hearing, are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."

The accused has no right to have any say as regards the manner and method of investigation save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report, till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued.

The following can be summarized at the time of consideration of protest petition:
  1. There is nothing adverse/incriminating against the accused persons and invariably if he is made to participate in the said proceedings either upon his volition or upon his insistence, the order passed at the time of adjudication of protest petition shall be after hearing either side - binding upon the accused also. Unnecessarily this stage shall result in participation of accused and thereafter such a order shall also prejudice his right to address at a later stage, if any;
  2. Court has no power to call him in as much as, his status is not of an accused person.
  3. Prospective accused is also not supposed to state his version and has a right to keep silent.
  4. Such an adjudication is not warranted by Cr.P.C and would result in waste of judicial time - an exercise which may be repeated at later stages of the case. Chandra Deo Singh v. Prokash Chandra Bose and Anr, AIR 1963 Supreme Court 1430, Samir Ahluwalia v. State, (Delhi, 2017(240) DLT 14). Union of India v. W.N. Chaddha, AIR 1993 Supreme Court 1082, Minu Kumari v. State of Bihar, (SC), AIR 2006 SC 1937, Ranjeet Singh v. State of U.P., (Allahabad) (FB), 2000(3) RCR(Cr) 355, Mathura Prasad v. State of U.P., (Allahabad) (DB), 2007(5( RCR(Cr) 788
Every trial is voyage of discovery in which truth is the quest. Discovery of the truth is the essential purpose of any trial or enquiry. "What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.

Written By: Rajinder Goyal, Advocate - Goyal Chambers of Law
Former Addl. Advocate General, Punjab, Punjab & Haryana High Court
Office: S.C.O No.19(2ndFloor),Sector10-D,Chandigarh
Email:[email protected], Ph no:+91 9814033663

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