INTRODUCTION
Protest Petition is no where defined in the Criminal Procedure Code but is a very important aspect as the criminal law practice is concerned. It is filed when the victim or complainant is not satisfied with the investigation conducted by the Police. If magistrate accept the petition , he may take cognizance or the matter under section 190 of CrPC.
Pre-Petition Procedure
When any aggrieved person complains before the Magistrate under section 156(3) of the CrPC, the Magistrate after being satisfied with the complaint petition gives instruction to the police for investigation. Police thereby register FIR and thereby start investigation. After making investigation, the police submit his investigation report to the Magistrate under 173(2) of the CrPC.
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 CIPC. If the protest petition is accepted then the Magistrate takes cognizance of the matter under section 190 of CrPC and issues notice to the accused person.
When an aggrieved person or complainant is not satisfied with the police report which filed before the concerned court, such person may move the petition against the negative police report which is called the Protest Petition.
In simple words, Protest Petition is a representation made by the victim to the court during or after the completion of investigation by the police. Such petition is treated as Complaint under Section 190 of Criminal Procedure Code before the concerned court.’
Consequence of the Protest Petition:
- Magistrate may accept the final report of the Police and may reject the Protest Petition.
- 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 CrPC.
- 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 Police Officer. 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 Vishnu Kumar Tiwari v. State of Uttar Pradesh the Supreme Court held that not all Protest Petition should meant as Complaint Petition and further observed :
“That 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.”
In case of Rajesh v. State of Haryana’, the Supreme Court held that, “If police name only some accused in the charge sheet instead of all accused named in FIR, the Magistrate has to give an opportunity to the informant to file protest petition
Conclusion
The Protest Petition is an imperative of judicial innovation. Its existence and development across the country over the last century directly questioned the notions that the role of the victim was negligible in India. Its presence today raised important questions related to the separation between the sphere of investigation and trial. In the present scenario, this predominately area-specific judicial practice has attained national statues. It would be helpful if the federal legislature codified the Protest Petition and made it a part of the Code of Criminal Procedure to address the ambiguities that have arisen during this transformative process. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
