The term 'Protest Petition' is nowhere defined under the Criminal Law in India but when the aggrieved person or complainant is not satisfied with the police report which filed before the Concerned Court; the Complainant may move the petition against the negative police report which is called the Protest Petition and the same is treated as Complaint under Section 190 of Criminal Procedure Code
When the Final Report is submitted by the Police and the Protest Petition is filed, the Magistrate has three options available to him
Firstly, he may accept the Final Report and may also reject the Protest Petition;
Secondly, he may accept the Final Report but treat the Protest Petition as a complaint and proceed in accordance with Section 200 and 202 of the Code;
Lastly, he may accept the Protest Petition and reject the Final Report and take cognizance under Section 190(1)(b) of the Code.
The correct legal position is that the Magistrate is not bound to accept the final report submitted by the police officials. The Magistrate can disagree with that report and take cognizance even on the basis of police papers, if any submitted along with the police report.
Magistrate can really go in the exercise of his powers under Section 156(3), Criminal Procedure Code (CrPC).
In case a complainant feels aggrieved when the police turn him away without registering his FIR against those who subjected him to a ‘cognizable offence’, he has the right to approach a magistrate under S 156(3) CrPC to get an order for registration of his FIR and investigation by police.
QUESTION:- when the aggrieved moves an application against the police under S 156(3), can the magistrate, instead of directing the police to register an FIR and investigate the case, register that application as a complaint about investigation by the court itself, rather than by the police?
ANSWER:- when the magistrate decides to register an application under S 156(3) in his court as the complaint for investigation by the court itself, rather than by police. The Supreme Court (JT 2002 (2) SC 81), ruled that on receipt of an application under S 156(3), the magistrate would be “fully competent” to take cognizance of the offence complained about and have it registered as a complaint in his court for investigation.
QUESTION:- If on an application under S 156(3), the magistrate directs the police to conduct an investigation into the alleged cognizable offence, but eventually the investigating officer (IO) submits a final report (FR) before the magistrate, saying that the investigation has revealed no evidence against the accused, what options are then left before the magistrate?
ANSWER:- That is, the options open to a magistrate when in pursuance of an order passed by him under S 156(3), the police investigates the crime but eventually submits a final report, disclosing no evidence against the accused. In such a situation, the magistrate is left with either of the following options:
Option 1: When the police submit a final report clearing the accused of the allegations made against them, but the complainant moves a protest petition against it. If the magistrate, after going through the case diary, concludes that there is ‘sufficient evidence in the case diary’ against the accused, and the IO has ‘erroneously’ submitted a final report, the magistrate can summon the accused on the basis of ‘that evidence’ in the case diary, and the case shall proceed as a State case against the accused.
Option 2: When there is ‘no sufficient evidence’ in the case diary to summon the accused, and the magistrate is of the view that ‘further investigation’ by the police is required, he may direct the police for ‘further investigation’ in the matter.
Option 3: If the magistrate concludes that the evidence in the case diary is ‘not sufficient’ to summon the accused, but the complainant desires to examine some ‘more witnesses’ to substantiate his allegation against the accused, the magistrate can register the complainant’s protest petition as a complaint for investigation by the court itself, and in that case, the magistrate can summon the accused, but only after taking cognizance of the offence under Section 190 CrPC, and after recording the statement of the complainant and witnesses.