Importance of Protest Petition in Criminal Justice System

Introduction

A protest petition is an important legal remedy available to an aggrieved person who is dissatisfied with the police investigation. In other words, when the complainant is not satisfied with the police report, they may file a petition before the concerned court, which is known as a protest petition. Therefore, a protest petition plays a vital role in safeguarding victims' rights and maintaining fairness in India's criminal justice system.

Meaning of Protest Petition

A Protest Petition is not defined anywhere in India’s criminal law system, neither in the Bharatiya Nagarik Suraksha Sanhita, 2023¹ (hereinafter referred to as “the BNSS”) nor in any other penal law. It has developed solely through judicial pronouncements. If either the victim or the complainant files a First Information Report under Section 173 of the BNSS before a police station, the police officer in charge investigates the matter after collecting material evidence. After the investigation, the Investigating Officer may either file a chargesheet or submit a final report in the negative form.

If the Investigating Officer submits the final report in the negative form before the Magistrate, the victim may file a Protest Petition before the Magistrate having jurisdiction. A protest petition is a written request made by a complainant to a Magistrate when they are not satisfied with the police investigation report. It is usually filed when the police say that no crime has been committed, there is insufficient evidence, or no action should be taken against the accused person. Under the BNSS, a protest petition allows the complainant to challenge the police report and ask the Magistrate to order a fresh investigation, reject the closure report, or start legal proceedings against the accused.

Legal Context

Where the Investigating Officer submits a closure report under Section 193(3) of the BNSS, Section 193(3)(iii) mandates that the Investigating Officer shall inform the informant about such action.

As per Vishnu Kumar Tiwari vs The State Of Uttar Pradesh on 9 July, 2019², the Hon’ble Supreme Court observed that when a protest petition is submitted against the final report filed by the police, it is the duty of the learned Magistrate to examine the protest petition. If there is substance in the protest petition, the Magistrate may take cognizance under Section 190(1)(b) of Cr.P.C.

In the case of Pakhando & Others Vs State of U.P. & Another³, the Court opined that in the case of a final report, the Magistrate has four options:

The Magistrate may agree with the police report, accept it, and close the case.
The Magistrate may take cognizance under Section 190(1)(b) of the Cr.P.C. and issue summons to the accused if the evidence collected during the investigation shows sufficient grounds to continue the case, even if the police have given a different opinion.
If the Magistrate believes that the investigation was incomplete or not properly conducted, he may order further investigation.
The Magistrate may also treat the original complaint or the protest petition as a private complaint under Section 190(1)(a) of the Cr.P.C. and proceed under Sections 200 and 202 of the Cr.P.C. After examining the matter, the Magistrate may either dismiss the complaint or issue process against the accused.

Where Can a Protest Petition Be Filed?

The Protest Petition may be filed before the Magistrate having jurisdiction or before the same Magistrate before whom the Investigating Officer has filed the final report in negative form.

Whether the Magistrate Can Entertain the Protest Petition After Taking Cognizance of the Chargesheet?

As per Ramakant Singh & Ors. v. State of Jharkhand & Ors. (2023)⁴, the Hon’ble Supreme Court held that after taking cognizance of the chargesheet, the Magistrate cannot entertain a Protest Petition.

Whether the Magistrate Can Entertain a Second Protest Petition After the First Protest Petition Was Dismissed in Negative Form?

As per Subrata Choudhury @ Santosh Choudhury & Ors. Versus The State of Assam & Anr.⁵ (2024), the Hon’ble Supreme Court held that a Magistrate can entertain a second complaint against a negative final report or chargesheet when the grounds raised in both petitions are different.

How to Draft the Protest Petition

The name of the Court must be mentioned.
The full name of the complainant, his father’s name, and his address must be mentioned. Similarly, the name of the accused, his father’s name, and his address must also be mentioned.
The sections mentioned in the First Information Report must be stated in the Protest Petition.
The names of the witnesses who ought to have been examined, but were deliberately not examined by the Investigating Officer, must be mentioned.
It must also be stated that the material witnesses were not examined by the Investigating Officer who filed the closure report or negative final report.
If the complainant possesses a medical report, it must be annexed to the petition.
If there is connivance on the part of the Investigating Officer, the specific name of the Investigating Officer must be mentioned. It should also be stated that there was connivance between the accused and the Investigating Officer, as the Investigating Officer filed the closure report in negative form.

Conclusion

A Protest Petition under the Bharatiya Nagarik Suraksha Sanhita, 2023, is an important remedy against an unfair or incomplete investigation. It allows the complainant or victim to challenge a closure report or negative final report and helps the Magistrate ensure fairness and proper justice in the case.

References

ACT NO. 46 OF 2023
https://indiankanoon.org/doc/80081494/
Ibid
2023 LiveLaw (SC) 988
2024 LiveLaw (SC) 856

Importance of Protest Petition in Criminal Justice System