Protest Petitions in Criminal Trial

The Criminal Procedure Code 1973 [Cr.P.C.] was amended in 2009 to introduce certain statutory rights for victims of crime. This included the introduction of a Victim's Compensation Scheme [Section 357-A Cr.P.C.] and conferring a right upon victims to appeal against judgments [By way of inserting a Proviso to Section 372 Cr.P.C.]. During my first few months of practising, though, I found that the judiciary had played an equally important role towards increasing the role of the victim. For instance, although the Cr.P.C. does not strictly envisage hearing victims while considering grant of bail, many courts allowed them an opportunity to be heard at this stage. This post focuses on another such judicial creation - the Protest Petition.

What is a Protest Petition
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.

The Protest Petition through History
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 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).

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

• If the Magistrate has a Closure Report and a Protest Petition, can the latter be considered only if the Final Report is accepted?
• Does the Protest Petition have to be a 'Complaint' to take cognizance? 
• Must the Complainant be examined on oath under Section 200 Cr.P.C. after taking cognizance on a Protest Petition?
• If the Magistrate takes cognizance on a Protest Petition when there is a Closure Report, would the case be tried as a complaint case or one based on a police report?
• If the Magistrate has a Protest Petition and Closure Report, can the Magistrate send the police back for further investigation to file a fresh report?
• If the Magistrate is rejecting the Closure Report and accepting the Protest Petition, should the case be transferred before another Magistrate for trial?

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.

Conclusion

The Protest Petition is a crucial piece of judicial innovation much ahead of the times in giving victims a say in the criminal process. Its existence, and development, across the country over the last century directly questions notions that the role of the victim was negligible in India. Its presence today raises important questions regarding the separation between the spheres of investigation and trial. It would be insightful to compare this with other colonial jurisdictions to discern exactly how unique this practice was to India. Today, this predominantly area-specific judicial practice has attained national status. It would certainly help if the federal legislature codified the Protest Petition and made it a part of the Cr.P.C. to address the lingering ambiguities that have arisen during this transformative process. 

Balveer Singh vs. Rajasthan and Ad-Hoc Criminal Procedure

The Supreme Court has a problematic legacy of providing ad-hoc criminal procedure, divorced from the text of the rather meticulous Criminal Procedure Code 1973 [Cr.P.C.]. A new chapter in this legacy is the decision by a Division Bench in Balveer Singh & Anr. v. State of Rajasthan & Anr. [Crl. Appeal No. 253 of 2016, decided on 10.05.2016]. 

The facts are not exactly straightforward. The police investigated a woman's death and filed a charge-sheet alleging offences under Section 306 IPC [abetment of suicide] against her husband. The father of the deceased filed an application before the Magistrate seeking that cognizance of offences under Section 304-B [dowry death] and 498-A IPC [cruelty to wife] be taken against the deceased woman's husband and her in-laws. The Magistrate heard the complainant and proposed accused, and dismissed the application. The case was committed to the Sessions Court [Section 306 is only triable by a Court of Session]. The same application was filed before the Sessions Court, which allowed it and took cognizance of the additional offences. The aggrieved parties went to the High Court which directed the Sessions Court to decide the application afresh by hearing both sides. This led to the same conclusion, and the matter finally went to the Supreme Court which dismissed the appeal.

What is special about this decision? Three aspects are highlighted: 

1. The Interplay between Sections 190 and 193 Cr.P.C. 

The Supreme Court discussed the law on cognizance in respect of committal proceedings, i.e. the interplay between Sections 190 and 193 Cr.P.C. This meant engaging with a controversial recent Constitution Bench decision in Dharam Pal v. State of Haryana [(2014) 3 SCC 306]. The Court in Balveer Singh reiterated the basic truths such as cognizance is taken of offences and not offenders, is only taken once, and a Magistrate can take cognizance of offences exclusively triable by a Sessions Court. So, logically, if a Magistrate takes cognizance in these cases, then a Sessions Court will not be taking cognizance again. But how to decide whether or not the Magistrate took cognizance? This required an analysis of the process of committal.

2. 'Active' vs. 'Passive' Roles of the Magistrate at Committal

Sessions Courts cannot take cognizance of offences as courts of original jurisdiction under Section 193 Cr.P.C. Cases must be 'committed' to these courts, and this process is called Committal. It involves a completion of various formalities - securing presence of the accused, providing copies of documents etc. - before the case is sent to the Sessions Court for trial. Committal was very elaborate in the old Cr.P.C. of 1898 with evidence and arguments before the Magistrate. But the process was drastically streamlined in the 1973 Code to reduce delays. One would think that this points to a clear legislative intent of reducing the role of a Magistrate. However, over time, there naturally emerged some confusion as to how reduced the role was to be. 

Today, with Balveer Singh, we see a revision of that role with the Supreme Court discussing whether the Magistrate plays an 'Active' or 'Passive' role during Committal. I say revision, because the Constitution Bench in Dharam Pal seemed to suggest that the Magistrate could only be playing a passive role. The significance of this debate will be interesting to see. In Balveer Singh the Court held the Magistrate played an 'Active' role and took cognizance before committing the case. So could answering whether cognizance is taken by the Magistrate depend upon the 'Active' or 'Passive' role during Committal? This is critical, especially since the Supreme Court last year created a concept of 'real' cognizance in S.R. Sukumar [commented upon earlier in a longer post on cognizance].

3. Implied Approval of Ad-Hoc Criminal Procedure

One of the reasons why the Supreme Court concluded the Magistrate played an 'Active' role was because both sides were heard on the application filed by the father of the deceased. While there may be some basis in law to support the application [the judicially created concept of 'Protest Petitions'], to my mind there is nothing in law supporting the Magistrate giving the proposed accused a right to be heard. Yet, we find the Supreme Court gives a clear stamp of approval to this illegality and allow various potentially interested persons a right of hearing at the preliminary stage of cognizance thus further delaying proceedings. All this when cognizance was probably never meant to be a stage for any great discussion or argument!

What's more, the Court further supports such ad-hoc procedural innovation by way of its conclusion. One would think that since the Court concludes that cognizance can only be taken once, and it held here that the Magistrate took cognizance, then the entire process before the Sessions Court would be held illegal. In a not-so-brilliant sleight of hand, the Court upholds the process before the Sessions Court by holding it to have been an exercise of revisional jurisdiction under Section 397 Cr.P.C. as orders refusing cognizance are revisable. The small problem of there being no revision petition is taken care of by reminding us that these powers under Section 397 Cr.P.C. can be exercised suo motu But surely this still needs the Sessions Court to state that it was exercising this jurisdiction. Or, perhaps, Articles 141 and 142 can now be read as empowering the Supreme Court with the power to impregnate lower court orders with any logic necessary to protect them from legal challenge.