Our legal system thrives on the principles of natural justice and the conduct of a fair and impartial trial. A fair trial is a sine qua non especially when it comes to criminal matters, and hence, a fair procedure established by law is necessary for the efficacious disposal of cases. In any criminal matter, the filing of the First Information Report (FIR) behaves as the starting point of an investigation. After a charge-sheet is filed and evidence collected through investigation by the Police, if there is not enough evidence to substantiate the allegation against the accused, or if an offense is not made out, the accused must be discharged. Such discharge occurs through the medium of a closure report, as under Section 169 of the Code of Criminal Procedure, 1973 wherein the reasons for the acquittal of the accused are also codified.
The filing of a closure report is necessary so that the accused is not unnecessarily harassed even when nothing incriminating is found against him/her. Since our legal system believes in innocence of the accused unless one is proven guilty, the closure report prevents unfairness and arbitrary prosecution of a person. The closure report may be accepted by the Magistrate on reasonable grounds, or the Magistrate may reject the same and issue process for further investigation. However, even when the closure report is accepted by the Magistrate- the first Informant or complainant has the recourse to challenge the closure report through a Protest Petition.
Protest petitions have not been defined in the Code but offer a remedy to the informant in case s/he believes that the discontinuation of the investigation is unjustified or unfair, and this may also be treated as a complaint as under Section 190, CrPC[1]. Protest Petitions have been accepted in practice despite not being specifically codified in the Code. These are thus necessary in case of an unconvincing closure of a case in furtherance of justice, equity, and good conscience.
As delineated in Bhagwant Singh v Commissioner of Police[2], the Police shall deliver a police report under Section 173(2), CrPC to the Magistrate stipulating whether an offense is made out and a charge-sheet filed, or not. In case of the latter, a closure report is submitted. If the Magistrate does take cognizance of the offense, then no Protest Petition shall lie. However, if the closure report is accepted such that the Magistrate discerns that the discontinuance of proceeding shall occur, the informant’s interest in the cause of action is said to be prejudiced. Thus, a protest petition may be filed herein so that an opportunity is given to the complainant to be heard and challenge the same and convince the Magistrate to take cognizance of the offense, and continue with the proceedings. This is in the interests of justice, and hence a representative of the deceased may also file a Protest petition in case of acceptance of the closure report by the Magistrate.
In KP Ramasamy and Ors. v R. Dharamlingam and Ors., the Madras High Court further stipulated that a notice must be compulsorily served to the informant or complainant before the closure report of the police is accepted by the Magistrate and even when the notice is not served, the informant still has a right to file a protest petition. The serving of notice to the informant regarding filing of closure report however, is absolutely necessary for a fair trial so as to provide an opportunity to the informant even if this has not been per se codified in the Code of the Criminal Procedure[3].
However, it must be clarified that the protest petition does not behave as a second complaint[4]; the latter may also be filed in case the earlier complaint contains insufficient material or in case of misunderstanding of the nature of the complaint. In Pramod Kumar Jhunjhunwala and Ors. vs. Girdhari Lal Goenka,[5], it was clarified by the Court that the second complaint filed on the same facts is only considered by the Magistrate in exceptional circumstances while considering validity of a protest petition- in case the previous order was passed on an incomplete record, or otherwise. Herein, it was also clarified that a protest petition is usually rejected when continuance of proceedings shall amount to abuse of the process of the Court.
A Protest petition is usually rejected when there is no sufficient material on record that incriminates the accused, in case of absence of ingredients of an offence (i.e., no offence is per se made out), if the case is purely of civil nature[6] or if the protest petition is of mala fide nature[7] (when there are no new facts connected to the case, no reason for continuing the prosecution, and the case is filed as an attempt to enrol the accused into criminal proceedings even when a matter is of civil nature). In any of these cases, the Court has no right to summon the accused and make him participate in the proceedings as this would also warrant a waste of judicial time.
Even after a protest petition is rejected, the complainant is not rendered remediless. As per Subhash Sahebrao Deshmukh v Satish Atmaram Talekar and Ors.[8], the informant may file a revision petition against an order which dismisses the protest petition of the complainant. Similarly, in K Samuel Jebakumar case[9], the Madras High Court stipulated that even after dismissal of the revision petition or protest petition, the petitioner may file a private complaint to the Magistrate under Section 200 of the CrPC by producing materials to support his cause of action.
In any given case, the Magistrate is not obligated to accept the closure report. The discretion of the Magistrate is imperative[10] and hence, the Magistrate may reject the closure report, accept the Protest petition, and direct furtherance of proceedings by taking cognizance of the offence as per Sections 173(8) and 165(3), CrPC. The Magistrate also has the power to take suo-moto cognizance in case s/he believes that the setting aside of an investigation is unjust in any way.
A prime example of the application of mind and exercise of discretion by the Magistrate in cases involving closure reports and protest petitions may be the case of Nupur Talwar v CBI[11]. In this case, the informant filed a Protest petition against the final report filed by the CBI but subsequently, the informant became the accused. Herein, the Magistrate rejected the closure report as well as the prayer stipulated in the Protest Petition but took cognizance of the offense through exercising discretion. In Vinay Tyagi v Irshad Ali @ Deepak and Ors.[12], it was also held that the Magistrate must consider the closure report, police report, records of the case, or documents annexed thereto to summon the accused or direct further investigation.
As per Manohari and Ors v District Superintendent of Police and Anr[13], if a case involves a death surrounding suspicious or unnatural circumstances, an inquest report must be prepared by the police which must be then forwarded to the Jurisdictional Magistrate (and not Executive Magistrate). A notice must also be necessarily served to the victim or any relatives of the victim in case the victim is deceased if a closure report is filed so as to enable the victim/relatives to file a protest petition which shall be considered by the Magistrate.
In Amar Nath Chaubey v Union of India[14], the Apex Court held that the Police may not file a closure report merely on the grounds that sufficient material had not been supplied or produced by the complainant/informant for carrying out the investigation. Since Article 14 and Article 21 of the Constitution provides that a fair investigation is necessary, such a ground for filing a closure report shall be in contravention of the principles of a fair investigation and the police must, hence, undertake the necessary steps to carry out its own investigation and probe into the matter instead of only depending on the material provided by the informant in any case.
Both Protest Petitions and Closure reports are clearly impenetrable and pertinent parts of criminal jurisprudence. However, the closure report has the potential of being misused by the administrative authorities in carrying out investigations and such misuse must be tackled strictly and immediately through judicial discretion as this would be to the prejudice of justice. In such a case, protest petitions behave as the last shot at justice. This does not imply that protest petitions are not rid of flaws either- these may used as ploys for malicious prosecution, and the principle of providing full and final discretion to the Magistrate somewhere puts him in the shoes of a prosecutor.
The non-codification of protest petitions also behaves as a challenge in furthering the ambiguity regarding the procedure and the very concept of the protest petitions. Overall, both closure reports and protest petitions pertain to the interests of either party to a criminal dispute, and behave as mechanisms for furtherance of justice, it is necessary that these tools are not misused, and such misuse shall only be prevented through codification of the law surrounding them and through passing of guidelines by the Judiciary to settle any scope of vagueness or ambiguity.
[1] Gopal Vijay Verma v Bhuneshwar Prasad Sinha and Ors., (1982) 3 SCC 510 [2] Bhagwant Singh v Commissioner of Police and Anr., AIR 1985 SC 1285 [3] HS Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v State (Union Territory of Chandigarh) (1980) 4 SCC 631 [4] Pramatha Nath Talukdar v Saroj Ranjan Sarkar (1962) Supp (2) SCR 297 [5] Pramod Kumar Jhunjhunwala and Ors. vs. Girdhari Lal Goenka, 2019 SCC Online Cal 5531 [6] Pradeep Jain and Ors. v Inspector of Police, CCB and Ors., 2009 CriLJ 4789 [7] M Raveendran v Dharti Dredging and Infrastructure Ltd. and Ors., 2019 SCC OnLine Mad 36056 [8] Subhash Sahebrao Deshmukh v Satish Atmaram Talekar and Ors, AIR 2020 SC 3324 [9] K Samuel Jebakumar v N Radhakrishnan and Ors., 2019 SCC OnLine Mad 9344 [10] B Chandrika v Santhosh and Ors., (2014) 13 SCC 699 [11] Nupur Talwar v CBI (AIR 2012 SC 847) [12] Vinay Tyagi v Irshad Ali and Ors. (2013) 5 SCC 762 [13] Manohari and Ors v District Superintendent of Police and Ors., 2018-2- LW (Crl) 522 [14] Amar Nath Chaubey v Union of India, AIR 2021 SC 109
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