Protest petitions were a novel concept until a decade ago. However, they are becoming more critical in protecting victims’ rights and providing them a voice in the criminal process. It is essentially a representation given to the court by the victim/informant while or after the police investigation is completed.
It is an opportunity given to the victim/complainant to raise objections against the police’s investigation is complete. It is commonly filed when the police present the final report under section 173 of the CrPC, wherein the police conclude that the allegations against the accused are not made out.
What Is a Protest Petition?
When an aggrieved person or complainant is dissatisfied with the police report filed before the relevant court, he or she may file a protest petition against the unfavourable police report. In simple terms, a protest petition is a submission made by the victim to the court during or after the conclusion of the police investigation.
Procedure to File Protest Petition
The procedure to file a protest petition is mentioned below:
First, the officer-in-charge must submit a police report to the magistrate so that the magistrate can take care of the case. If the magistrate wishes to reopen the investigation, the magistrate can interrogate the victim or witness under section 200 of CrPC. Here, one gets the opportunity to relate their case.
To achieve the aims of justice, victims might pursue this remedy in cases where prior investigations incorrectly released the offender. Once the magistrate determines that this was not a fraudulent complaint and that the victim is legitimately dissatisfied, he/she can undertake the investigation himself/herself or order an inquiry by an officer-in-charge to whom the complaint is referred.
The main elements of the complaint must, however, be satisfied in the protest petition before the magistrate takes cognizance under section 190 (1)(a) of the Code of Criminal Procedure.
When the police present their final report, and the protest petition is filed, the magistrate has three alternatives:
- The magistrate may accept or reject the final report and the protest petition.
- He may accept the final report but consider the protest petition a complaint and proceed in line with sections 200 and 202 of the Criminal Procedure Code, 1973.
- Under section 190 (1)(b) of the law, he may accept the protest petition, reject the final report, and take cognizance.
The correct legal position is that the magistrate is not required to accept the police authorities’ final report. The magistrate may disagree with that report and take cognizance even if no police files are filed with the police report. As a result, where a protest petition is submitted, the method prescribed for trial of the complaint case must be followed, and the protest petition must be dealt with in accordance with the law. The magistrate may review the protest petition before taking cognizance of the Closure Report.
After receiving a protest petition, the magistrate has the right to direct further investigation under section 156(3) CrPC. Similarly, it is decided that if the magistrate decides to take cognizance of the protest petition, it must satisfy the requirements of a ‘complaint’ under section 2(d) of the CrPC, and the complainant must be examined under oath before summons are issued.
Constitutional Approach in Protest Petition
Article 14 of the Indian Constitution guarantees equality before the law to all citizens. One of the primary principles of the “Rule of Law” is “Equality before the law,” as stated by Professor A.V. Dicey when discussing the rule of law. As a result, the Indian Constitution implicitly invites the rule of law into its constitutional machinery.
The Constitution, in Part III, read along with Part IV, subsequently empowers every citizen to seek remedies for violations of their constitutional rights for the omission of an act that would have led to proving the FIR was justifiable and cognizable but was marked closed for some valid reason at the discretion of the police officer-in-charge. This type of petition against the unfavourable complaint of the police is known as a protest petition.
Opportunities and Obstacles of Protest Petition
The concept of protest petition is helpful for the complainants, but there are certain obstacles to this concept as it is nowhere directly mentioned in Indian law. Thus, it’s important to understand the opportunities and obstacles of the protest petition.
The protest petition is significant for a victim’s rights since it can be delivered directly to the magistrate without police participation. It also widens a victim’s legal remedies and aids in giving justice to the victim. The protest petition can also be a double-edged sword in that it may compromise the accused’s rights.
For example, the magistrate cannot order further inquiry or re-investigation, but he or she can order it based on a protest petition, causing the accused to be held.
Aside from its absence in statutory language, it lacks certainty due to the small number of case laws accessible that separate it from confusion. Allowing magistrates to act as prosecutors, rejecting closure reports, and re-investigating cases might compromise justice.
For example, if the same case is heard by the same magistrate’s court, their prior beliefs may influence the proceedings.
The protest petition is a requirement for judicial innovation. Its presence and development in India during the last century immediately challenged the concept that the victim’s involvement was unnecessary. Its presence has highlighted significant considerations about the distinction between investigation and trial. This primarily regional judicial procedure has gained national recognition in the current circumstances.
The federal legislature should codify the protest petition and include it in the Criminal Procedure Code to overcome the ambiguities that have evolved during this transformative process.
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