All You Want To Know About Protest Petitions In Criminal Trial

Simply put, a Protest Petition is a representation made by the victim/informant to the court during or after completion of investigation by the police. Today it is most commonly filed after the police file a Closure Report or B-Report under Section 173 Cr.P.C. (what was earlier commonly understood as the Final Report) wherein the police concludes the allegations are not made out against an accused. The Protest Petition, then, is an opportunity granted to the victim/complainant to raise objections against these conclusions, before the Magistrate decides to apply her judicial mind to the Final Report.

It was extremely fascinating to trace the development of this concept through time. I daresay I have completed this task though, and am still trudging through the decisions. For instance, while the High Courts of Patna and Calcutta had extensively dealt with the legal niceties surrounding Protest Petitions before independence, the first reported judgment from Delhi does not come before 1990 in most databases! Unfortunately, I have not yet come across any discussion of how this was a unique method by judges to ensure some measure of ensuring victims-rights, at a time when such concepts were alien to the criminal process across most parts of the world.

Another interesting facet was how the High Courts seem to have considered Protest Petitions as any representations protesting against police investigations. The term predominantly used in Calcutta was Naraji, which loosely translates to dissatisfaction. Naturally, this extended to petitions filed by both accused persons and complainants/victims, although the latter far outnumber the former. Further, the Protest Petition by an accused seems to have only been filed during the investigation, whereas those by complainants were filed during as well as after the conclusion of investigations.

Lastly, the consideration of Protest Petitions and acceptance of Final Reports by the police also raised important issues concerning the nature of this exercise: whether it was an executive or a judicial function. If the task was considered an executive function, this meant there was limited scope for review of such an order in revision proceedings. This is purely of historical interest now, since the present Cr.P.C. makes a clear separation between the executive and judicial functions of the magistracy. It was not always so, and there were several reports before 1973 which considered how this separation could take place (the 37th Law Commission Report discusses this to some extent).

Many interesting procedural issues arose by allowing this intervention by complainants. I list some below:

Some of these questions can be answered with a degree of certainty. On the first question, there is no prohibition on considering the Protest Petition before accepting the Closure Report. The magistrate may well look at the protest petition beforehand and take cognizance on the Closure Report itself. The magistrate is also empowered to direct a further investigation under Section 156(3) Cr.P.C. after receiving a protest petition. Similarly, it is settled that if the magistrate does decide to take cognizance on the Protest Petition, it must satisfy ingredients of a 'Complaint' under Section 2(d) of the Cr.P.C., and then the complainant must be examined on oath before issuing summons.

For the others, there remains some doubt though, and this comes with a cost since these questions have important consequences. For example, a complaint case allows for arguing discharge after cross-examining witnesses and such cases can be dismissed for non-appearance of the complainant. This is not so when cases are proceeded on the police report. Furthermore, if the magistrate rejects the findings in the Closure Report and takes cognizance, or direct further investigation only to take cognizance thereafter, would it not affect the appearance of justice if the trial proceeded before the same court? After all, it is not entirely unreasonable to suppose that the court has already arrived at some conclusions about the case in such situations despite the limited application of mind required at this initial stage of the criminal process. The latter is becoming increasingly pressing, though, with it becoming routine for certain courts to re-send closure reports for further investigation to gather more material and play the role of a prosecutor.