Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
The Protest Petition
The Protest Petition: What It Is, What the Magistrate May Do with It, and the Procedure That Follows If It Is Treated as a Complaint
The expression protest petition appears nowhere in the Bharatiya Nagarik Suraksha Sanhita, 2023, nowhere in the Code of Criminal Procedure that preceded it, and in no rule made under either. It is entirely a creature of practice. It is the name given to the objection an informant files when he is told that the police have submitted a report recommending that his case be closed, and its whole function is to place before the Magistrate the material on which he says the report is wrong.
Because it has no statutory existence, everything about it has had to be worked out by the courts: whether the Magistrate must entertain it, whether it becomes a complaint, what he must do if he treats it as one, and what happens if he ignores it. This topic sets out the answers.
1. What It Is
Figure 1: What it is, what it is not, and what follows if it is treated as a complaint
The occasion for a protest petition arises in this way. The police complete an investigation and submit a report under section 193(3) concluding that no offence is made out. The Magistrate, before he may accept that report, must give the informant notice and an opportunity of being heard, because the acceptance would terminate the proceeding the informant began. The document the informant files in response to that notice is the protest petition.
Question | Answer |
|---|---|
Is it mentioned in the Sanhita? | No. It is a creature of practice, with no statutory form, no prescribed contents and no prescribed time |
When is it filed? | On notice of a report recommending closure, before the Magistrate decides whether to accept it |
Who files it? | The informant, in answer to the notice; in practice also a victim or another person aggrieved |
What should it contain? | The material on which the informant says the report is wrong: the facts, the witnesses, the documents. An objection that merely disputes the conclusion is of little use |
Is it a complaint? | Not unless the Magistrate decides to treat it as one. It does not become a complaint automatically |
Is it a precondition to cognizance? | No. The Magistrate may take cognizance on the material in the police report itself, with or without one |
Must the Magistrate entertain it? | He must consider it, since it is filed in answer to a notice he gave. He is not bound to act on one that discloses no material |
2. The Three Courses
Figure 2: The three courses, and what each produces
On a report recommending closure, with or without a protest petition, the Magistrate has three courses. The protest petition bears on which of them he takes; it does not create a fourth.
- Accept the report. After hearing the informant — which is what the protest petition is — he may accept the report and drop the proceeding, recording his reasons. The informant’s remedies are then a revision, the High Court’s inherent jurisdiction, or a fresh complaint, which is not barred.
- Disagree and take cognizance on the report. Where the material in the report itself discloses an offence, he may take cognizance under section 210(1)(b) notwithstanding the officer’s contrary conclusion. No protest petition is needed for this, and the case then proceeds as one instituted on a police report.
- Treat the protest petition as a complaint. Where the protest petition itself discloses material on which cognizance could be taken, he may treat it as a complaint under section 210(1)(a) and proceed under Chapter XVI. The case then proceeds as one instituted otherwise than on a police report.
⚠ The choice determines the shape of the whole trial If the Magistrate takes cognizance on the police report, the case is instituted on a police report. Section 230 governs the supply of documents, and in a warrant case the charge is framed on the material before any evidence is taken. If he treats the protest petition as a complaint, the case is instituted otherwise than on a police report. The complainant must be examined on oath, the accused must be given an opportunity of being heard before cognizance, and in a warrant case all the prosecution evidence is taken before the charge is framed. The second route is therefore considerably longer and puts the complainant to proof at an earlier stage. Where the material is in the police report, the first route is the appropriate one, and the Magistrate should not take the complaint route merely because a protest petition has been filed. |
3. When It May Be Treated as a Complaint
📖 B. Chandrika v. Santhosh, (2014) 13 SCC 699 Facts: A final report was submitted and the complainant filed a protest petition. The Magistrate treated the protest petition as a complaint and proceeded. Questions arose as to when a protest petition may properly be treated as a complaint, and what the Magistrate is obliged to do once he has taken that course. Held: The Court held that a protest petition may be treated as a complaint where it satisfies the requirements of a complaint — that is, where it is an allegation made to the Magistrate with a view to his taking action, disclosing the commission of an offence. Where the Magistrate decides to take that course he must follow the procedure prescribed for complaints: he must examine the complainant and the witnesses present on oath, reduce the substance to writing, and thereafter decide whether there is sufficient ground for proceeding. He cannot take cognizance on a protest petition treated as a complaint without that examination, because the examination is the safeguard that the complaint route substitutes for the investigation the police route supplies. The Court held that where the protest petition does not satisfy the requirements of a complaint, the Magistrate may still act on the material in the police report, but he cannot treat the petition as a complaint and dispense with the complaint procedure at the same time. Ratio: A protest petition may be treated as a complaint where it satisfies the requirements of one. If it is so treated, the complaint procedure must be followed in full, including the examination of the complainant and his witnesses on oath. |
3.1 The procedure that follows
Step | Provision | Requirement |
|---|---|---|
Examination on oath | Section 223 | The Magistrate shall examine upon oath the complainant and the witnesses present, and the substance of the examination shall be reduced to writing and signed by them and by the Magistrate |
Hearing the accused | Section 223, proviso | The Magistrate shall not take cognizance on a complaint without giving the accused an opportunity of being heard. This requirement is new to the Sanhita |
Postponement of process | Section 225 | He may postpone the issue of process and either inquire into the case himself or direct an investigation by a police officer, to decide whether there is sufficient ground for proceeding |
Where the offence is triable exclusively by a Court of Session | Section 225, proviso | He shall not make any direction for investigation; and he shall call upon the complainant to produce all his witnesses and examine them on oath |
Dismissal | Section 226 | If after considering the examination and the result of the inquiry or investigation he is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and briefly record his reasons |
Issue of process | Section 227 | If there is sufficient ground for proceeding, he issues a summons or a warrant |
The second row deserves emphasis because it is new. Under the Code of Criminal Procedure a Magistrate took cognizance on a complaint without hearing the person complained against, and the accused first learnt of the matter when process was served on him. The proviso to section 223 of the Sanhita now requires him to be given an opportunity of being heard before cognizance is taken. Where a protest petition is treated as a complaint, that requirement applies, and it is a significant addition to the route.
4. When the Magistrate Need Not Act on It
A protest petition does not oblige the Magistrate to proceed. Two situations have to be distinguished.
The protest petition | What the Magistrate should do |
|---|---|
Merely disputes the conclusion of the police, asserting that the report is wrong without setting out material on which cognizance could be taken | It does not oblige him to proceed. He considers it as the informant’s objection to the report, and decides whether to accept the report, take cognizance on it, or direct further investigation. He should record his reasons for rejecting the objection |
Discloses material — facts, named witnesses, documents — on which an offence could be found | He must consider that material. He may take cognizance on the police report if the material is there, or treat the petition as a complaint and proceed under Chapter XVI. Either way he must record reasons |
Is accompanied by an affidavit and the documents relied on | The material is then in a form he can act on, and the case for considering it is at its strongest |
Is filed after the report has already been accepted | The order of acceptance stands unless set aside. The remedy is a revision, the High Court’s inherent jurisdiction, or a fresh complaint, which is not barred |
⚠ Three propositions that are constantly confused A protest petition is not a complaint. It becomes one only if the Magistrate decides to treat it as one, and only if it satisfies the requirements of a complaint. Filing it does not by itself set the complaint machinery in motion. A protest petition is not necessary for cognizance. The Magistrate may take cognizance on the material in the police report itself whether or not the informant objects. An informant who files no protest petition has not thereby lost the case. Treating it as a complaint is not a short cut. It is the longer route, not the shorter one: it requires examination on oath, an opportunity to the accused before cognizance, and in a warrant case the taking of all the prosecution evidence before the charge. A Magistrate who takes that course and then omits the examination on oath has taken a step that cannot stand. |
5. Drafting a Protest Petition
Since the document has no prescribed form, what it should contain follows from what the Magistrate has to decide. He is deciding whether to accept the report, to take cognizance on it, to direct further investigation, or to treat the petition as a complaint. A petition drafted with those four questions in view is of considerably more use than one that argues about the report.
- Identify the material in the report itself which, on the informant’s case, discloses an offence. This is what founds the second course, and it is the shortest route to cognizance because the case then proceeds on a police report.
- Identify what the investigation did not do: the witnesses not examined, the documents not obtained, the recovery not attempted. This founds a direction for further investigation under section 193(9).
- Set out the facts constituting the offence, with the names of the witnesses and the documents relied on, in a form capable of being treated as a complaint if the Magistrate takes that course. Support it with an affidavit.
- Deal with the reasons given in the report. An objection that ignores what the officer said, and simply asserts that the case is true, gives the Magistrate nothing to act on.
- Be prepared to be examined on oath. If the Magistrate treats the petition as a complaint, the informant becomes the complainant and must be examined under section 223, with his witnesses present.
6. Key Takeaways
The position stated shortly 1. The protest petition is nowhere mentioned in the Sanhita. It is a creature of practice, with no prescribed form, contents or time. 2. It is the objection filed by the informant in answer to the notice he must be given before a report recommending closure is accepted. 3. It is not a complaint unless the Magistrate decides to treat it as one, and only where it satisfies the requirements of a complaint. 4. It is not a precondition to the Magistrate taking cognizance. He may take cognizance on the material in the police report itself, with or without one. 5. The Magistrate’s three courses on a closure report are: accept the report; disagree and take cognizance on the material in it; or treat the petition as a complaint. He may also direct further investigation. 6. Which course he takes determines the shape of the whole trial: cognizance on the report produces a case instituted on a police report; the complaint route produces one instituted otherwise, in which all prosecution evidence is taken before the charge. 7. If he treats it as a complaint he must follow Chapter XVI in full: examination of the complainant and his witnesses on oath under section 223: B. Chandrika. 8. The proviso to section 223 is new: the accused must be given an opportunity of being heard before cognizance is taken on a complaint. 9. A petition that merely disputes the conclusion, without disclosing material, does not oblige the Magistrate to proceed; one that discloses material must be considered, and reasons recorded either way. 10. Where the report has already been accepted, the remedies are revision, the High Court’s inherent jurisdiction, and a fresh complaint, which is not barred because acceptance is not an acquittal. |
7. Frequently Asked Questions
What is a protest petition?
The objection filed by an informant to a police report recommending that his case be closed. It has no statutory existence: the expression appears nowhere in the Sanhita, and it is entirely a creature of practice.
Is a protest petition a complaint?
Not automatically. It becomes a complaint only if the Magistrate decides to treat it as one, and only where it satisfies the requirements of a complaint — an allegation made to the Magistrate with a view to his taking action, disclosing the commission of an offence.
Must a protest petition be filed before the Magistrate can take cognizance?
No. The Magistrate may take cognizance on the material in the police report itself even though the report recommends closure, and no protest petition is necessary for that course.
What must the Magistrate do if he treats it as a complaint?
He must follow Chapter XVI in full: examine the complainant and the witnesses present on oath under section 223 and reduce the substance to writing; give the accused an opportunity of being heard before taking cognizance; and, where he postpones process, inquire himself or direct an investigation under section 225.
What should a protest petition contain?
The material in the police report which, on the informant’s case, discloses an offence; what the investigation failed to do; the facts constituting the offence with the names of witnesses and the documents relied on, supported by an affidavit; and an answer to the reasons given in the report.
What if the Magistrate rejects the protest petition?
He should record his reasons. The order accepting the final report is amenable to revision and to the High Court’s inherent jurisdiction, and a fresh complaint on the same facts is not barred, because the acceptance of a final report is not an acquittal and decides nothing.
Related Topics
- Final Report and the Magistrate’s Options
- The Police Report under Section 193 BNSS
- Complaint, FIR and Police Report: The Distinction
- Commencement of Proceedings before Magistrates: Chapter XVII, BNSS
- Investigation and Inquiry Distinguished
- Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196