PROTEST PETITION UNDER CrPC - A COMPREHENSIVE ANALYSIS AND REMEDIAL INSIGHTS

In this discussion, a humble attempt is being made to look into the laws relating to the Protest Petition and summarily deal with some of the situations which may arise due to filing of Protest Petition and the remedy available to the complainant etc.

Although, “Complaint” is defined under Section 2(d) of the Code of Criminal Procedure, 1973, however, “Protest Petition” has not been defined under the Code or in any other statute, and yet the latter is a legally recognised or accepted practice available to the complainant/victim to make an objection to a closure report filed by the police under Section 173(2) CrPC. As Protest Petition does not even find a mention in any of the criminal acts, the availability of such a remedy to the complainant or the victim aggrieved by the closure report of the police remains somewhat elusive and cannot be deduced from the mere reading of the provisions of the Code.

The Hon’ble SC in Gangadhar Janardan Mhatre[1], discussed regarding the absence of provision in the Code relating to filing of Protest Petition by referring to its decision in Bhagwant Singh[2] wherein the court stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration and further held that where the Magistrate decides not to take cognizance and to drop the proceeding against some of the persons mentioned in the FIR, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory.

In the said Gangadhar Janardan Mhatre[3] the SC also discussed about the options available to a Magistrate when a report under Section 173(2)(i) is submitted in various situations, including in the event, the report conclude that no offence appears to have been committed. Then in that case, the magistrate may either (1) accept the report and drop the proceeding; or (2) 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).

Now, in a situation where a protest petition is filed against the closure report of the police which states that no case is made out against the accused or that there is no commission of any offence, then whether the said protest petition can be treated as a complaint petition by the Magistrate? In this regard, the Hon’ble SC in Popular Muthiah Case[4] held that when the final form is filed, the Magistrate has jurisdiction, in the event a Protest Petition is filed. to treat the same as a complaint petition and if a prima facie case is made out, to issue processes. More fully, in Vishnu Kumar Case[5], after discussing judgements of the SC and various High Courts, the apex court held that if a Protest Petition fulfils the requirements of a complaint, the Magistrate may treat the Protest Petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. While also dealing with the maintainability of second protest petition, the Hon’ble SC in Shiv Shanker Singh[6] held as under : -

“14. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of 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...”

And in case where the Magistrate has already accepted the closure report/Final Report of the Police, a three Judges’ Bench of the SC in Kishore Kumar Gyanchandani[7] held that the acceptance of the FR does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding as the right of the complainant to file a regular complaint is not taken away. Later, by relying on the Kishore Kumar case[8], the SC in Rakesh v. State of U.P.[9] had reiterated the same conclusion and rejected the contention that having accepted the negative final report the Magistrate has become “functus officio” and was denuded of all power to proceed in the matter. Also, in Mahesh Chand[10] it clearly states that there cannot be any doubt or dispute that only because the Magistrate has accepted the FR, the same by itself would not stand in his way to take cognizance of the offence on a protest petition.

Regarding the availability of any discretionary power with the Magistrate once the Protest Petition is filed, the SC in Vishnu Kumar Case[11] held that if the Magistrate is convinced on the basis of the consideration of the FR, the statements under Section 161 CrPC that no prima facie case is made out, the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. Further, it was held that if the Magistrate treats the Protest Petition as a complaint, then procedure prescribed under Section 200 and 202 CrPC has to be followed and necessarily complainant and witnesses has to be examined. However, if the material is such that it persuades the court to disagree with the conclusions arrived at by the IO, cognizance could be taken under Section 190(1)(b) for which there is no necessity to examine the witnesses under Section 200 CrPC. But as the Magistrate could not be compelled to treat the Protest Petition as a complaint, the remedy of the complainant would be to file fresh complaint and invite the Magistrate to follow the procedure under Section 200 read with 202 CrPC. Thus, pointing out an effective alternative remedy available to the aggrieved party instead of praying for treating the Protest Petition as complaint.

From the above discussion, it can be concluded that the protest petition can be treated as a complaint petition if it fulfils the requirements of a complaint and also that even after acceptance of the closure report or the final report, the Magistrate can take cognizance of the protest petition, however, as he has ample discretionary power, he cannot be compelled to take cognizance by treating the same as complaint. Further, a second Protest Petition on the same facts can be maintained under exceptional circumstances. Lastly, the remedy of the complainant is to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 and 202 CrPC instead of praying for taking cognizance by treating the protest petition as complaint petition and examined witnesses.

__________