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Introduction
“Protest Petition” - a concept in criminal law, that even though received cognizance several decades ago, yet, till date, does not find its place in any statute. Given its significance, in the criminal jurisprudence, it seems only prudent that the concept should have had been well modulated by now, yet surprisingly, it often finds itself only to be the subject matter of argumentative and precedential evolution.

What is a protest petition?
A protest petition is a petition that an aggrieved person or complainant is entitled to file before the concerned Magistrate, in the event, such aggrieved person/complainant is displeased with the outcome of the investigation conducted by the police, pursuant to a complaint filed by such person/complainant. This is mostly in cases where the police after conducting the investigation files a closure report under section 173 of the Criminal Procedure Code, 1973 (“Cr.P.C.”), finding no material evidence against the accused or that the complaint is of civil nature.

Section 190 of Cr.P.C. provides for powers of a Magistrate to take cognizance of offences even in cases where a closure report or a negative report has been filed by the police after investigation. Section 190 of Cr.P.C. stipulates that upon receipt of a police report under section 173 of Cr.P.C., the Magistrate has three alternatives i.e. to accept the police report/chargesheet where the police has come to the conclusion that an offence has been made out against the accused and take cognizance of the same; secondly where a negative closure report has been filed, reject such report and pass orders to conduct further investigation and thirdly, accept such negative closure report and close any further investigation in the case.

In the event, the Magistrate exercises its discretion and chooses the third alternative, it is required to give a notice to the complainant/aggrieved person about the same, who can then file a protest petition/make appropriate representations in this regard, before the Magistrate. The Magistrate, if satisfied with the protest petition and finds that investigation is required, he is further empowered to take cognizance of such a protest petition as a complaint under section 190 of Cr.P.C and reject the closure report filed by the police.

Who can file a protest petition?
One of the most controversial aspect relating to ‘protest petition’ is the person who is entitled to file the same. The Supreme Court in case of Bhagwant Singh vs Commissioner of Police & Anr.1 had taken cognizance of three categories of persons who can be heard by the Magistrate prior to acceptance of a negative closure report, which includes:
  1. the first informant /the complainant
  2. the injured person
  3. the relative of the deceased
However, while setting out these three categories of persons, the Hon’ble Apex Court took the view that it is only the ‘first informant’ who will be entitled to a notice from the Magistrate, the rest two categories could only make representations, when such closure report is being considered by the Magistrate. The Hon’ble Apex Court observed:

“4. 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.

5. The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the first information report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him...”

The entitlement of the ‘first informant’ to a notice by the Magistrate prior to acceptance of a closure report was further reiterated by the Hon’ble Supreme Court in case of Gangadhar Janardan Mhatre vs State of Maharashtra2, and recently in the case of Vishnu Kumar Tiwari vs State of UP3

Who is an ‘injured person’?
As is apparent, the position as far as the ‘first informant’ is concerned, is quite clear. Further, there appears to be no ambiguity in relation to the third category i.e., ‘relative of the deceased’ however, when it comes to connotation of the term ‘injured person’ in this context, the same has been quite a conundrum.

In various precedents, a number of third parties including investigating agencies have sought to include themselves in the category of ‘injured person’. One such recent case was Directorate of Enforcement vs State of Maharashtra and others4, where in a complaint filed by a travel agency against an airlines and its promoters with respect to certain dues under an agreement, the Enforcement Directorate tried to intervene taking the plea that it would fall under the category of ‘injured person’ and filed a protest petition, when the concerned police station filed a closure report terming the dispute to be of civil nature. It was contented by the Enforcement Directorate that it is an injured person in a representative capacity of the victims of economic offences, which are serious in nature, having large repercussions on the economy of a country.

To further substantiate its case, the Enforcement Directorate relied on the definition of the term ‘victim’ under section 2(wa) of Cr.P.C. which reads as under:

2... [(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir]

The Hon’ble Bombay High Court, however, after considering the definition of the term ‘victim’ as laid down in precedents of Mahendrasinh Jorubha Zala vs Central Bureau of Investigation and Others5, Manoj Kumar Singh vs State of Uttar Pradesh6 and Uday Bhan vs State of Madhya Pradesh7 wherein the courts had observed that a victim can include a person who is an actual sufferer of the offence and no one else, took the view that the Enforcement Directorate is an investigating agency and can neither be construed to be a victim nor an aggrieved/injured/interested person, entitling them to be heard before the Magistrate deciding whether the closure report ought to be accepted or not.

Conclusion
As is apparent from above, the concept of Protest Petition does not find its place in any statute but is evolved through judicial pronouncements, with an intent to afford an opportunity to the victim or informant / complainant or an aggrieved person, to place before the court all the discrepancies in the report filed by police under Section 173 of Cr.P.C. before the court accepts or rejects it. Despite being such an important tool, particularly, for a victim/injured party of an offence in the criminal jurisprudence, often due to lack of codification, lack of information available about the same and also due to ambiguities arising out of conflicting views taken by various high courts, it remains an unexplored remedy for public at large.

The precedential progression of the concept of Protest Petition in the absence of properly formulated statutory provisions and the ambiguities arising as a result, mirrors the majesty and sanctity of law on one hand and the possibility of its abuse on another.

In light thereof, the unambiguous codification of the concept, provisions incidental thereto, particularly pertaining to the persons who can file a Protest Petition, admissibility of evidence if any, in possession of such petitioner relating to the alleged crime, the factors that may be considered to treat a protest petition as a complaint in terms of section 190 of Cr.P.C. by the Magistrate, is only judicious, as the same will go a long way in proper adjudication of such petitions and also facilitate the process of investigation.

  1. AIR 1984 SC 1285
  2. (2004) 7 SCC 768
  3. (2019) 8 SCC 27
  4. Order dated 21st December in Criminal Writ Petition (ST) No. 3122 of 2020
  5. Judgement dated 5th August, 2019 in Criminal Appeal No. 970 of 2019v
  6. 2017 Cr.L.J. 1240
  7. 2014 Cr.L.J. 2151