A Last Shot at Justice: A Protest Petition is a Double-Edged Sword

What does an aggrieved party do when an investigation is botched up? Here’s a last recourse.

(Photo: iStock)

Do you know what legal recourse a grieving victim may have once a shoddy report is filed by the police on the basic of a careless investigation? Don’t worry if you don’t know — you are not the only one.

Over 60 percent of citizens aren’t aware of this instrumental remedy in law.

In a country where over 75 percent of people are afraid to report a crime as they feel unhappy with how complainants are treated by the police and where, between the years 1953 and 2013, convictions in murder cases fell from 51 percent to 36.5 percent, and only 26.5 percent of alleged rapists were brought to book, it is evident that the quality of investigation and prosecution have suffered over the years.

What is a Protest Petition?

Although the average taxpayer can’t do much about the sub-average prosecution, when it comes to police investigation, the ‘protest petition’ gives you a last chance to reopen an unsatisfactory investigation.

The ‘protest petition’ bequeaths victims with the right to petition against a police report if they are not satisfied with it. However, there is a lack of awareness about this unique provision, due to the average citizen’s desensitisation to the ineptitude of the police.

The layman often does not know what to do once the police concludes a closure report which leads to the perpetrators being discharged by the magistrate. Even if a chargesheet is filed, it is often done on the basis of a sub-standard investigation which eventually would lead to an acquittal, leaving the victim disgruntled.

In an age where the police or prosecution are not capable of protecting all the interests of the victim, being aware of remedies like the protest petition empowers the average citizen in his/her quest for real justice.

Relative awareness of the average person regarding protest petitions. (Source: Survey Conducted by Authors)

How to File a Protest Petition?

First, a police report by the officer-in-charge needs to be sent to the magistrate so that the magistrate can take charge of the case. If the magistrate decides to reopen the investigation, then under Section 200 of the Criminal Procedure Code, the magistrate can examine the victim or witness, where one has the opportunity to narrate their case. This is an opportunity for the victim to receive justice if the previous investigation had ‘wrongly’ acquitted the accused.

The magistrate assesses whether injustice has been done due to a slipshod police report. However, this process also safeguards the alleged accused as the victim is put under oath, so as to ascertain if the complaint is frivolous (as the police report suggests) and the accused is truly innocent.

Once the magistrate establishes that this was not a false complaint and the victim is rightly unsatisfied, he/she can conduct the inquiry by himself/herself, or order an investigation by an officer-in-charge, to whom the complaint is forwarded.

According to Advocate Jyotirmay Deshmukh, a criminal lawyer practicing in the Bombay High Court, on an average, in every two out of five cases, the complainant is not satisfied with the investigation and many of them do file protest petitions.

He agrees that most complainants are not aware of their right to file a protest petition and this awareness predominantly comes through sound legal advice. He strongly considers protest petitions to be the last resort for the aggrieved, mainly because of the large number of cases in which the police have either purposely carried out a flawed investigation with ulterior motives, or generally been careless.

Issues With the Protest Petition

The significance of the protest petition for a victim’s rights is elusive since, apart from its non-existence in statutory literature, it also suffers from lack of certainty due to the limited number of case laws available to discern it from its ambiguities.

Since the protest petition can be sent directly to the magistrate without any police intervention, it expands a victim’s remedies in law, since the magistrate need not even look at the shoddy police report to decide whether to go forward with the complaint or not.

Further, any orders passed by the magistrate regarding the protest petition can be appealed in higher courts. Also, nothing prohibits the filing or entertaining of a second complaint even on the same facts, provided that the earlier complaint has been subject to some irregularities either in the procedural and/or factual aspect.

But one must be aware, the protest petition can also be a double-edged sword as it can negatively affect the rights of the accused. For example, even if the magistrate cannot direct a further investigation or re-investigation, he/she can still direct it on the basis of a protest petition, causing the accused (if already in custody), to be detained for the maximum period of the prescribed time.

This also enables the magistrates to play the role of the prosecutor, rejecting closure reports, sending them back for re-investigation or even taking charge of the matter themselves. Although this is not a problem in itself, one must consider this conundrum — what if the same case comes up for trial in the same magistrate’s court, then the preconceived notions of the magistrate are bound to affect the proceedings.

Regardless, one can safely say that it is important for all citizens to be aware of this ‘last shot at justice’.

(Ninaz Baldawala and Viren Tapkir are first year law students at OP Jindal Global University. This is a personal blog and the views expressed are the authors’ own. The Quint neither endorses nor is responsible for them.)

(The Quint is now on WhatsApp. To receive handpicked stories on topics you care about, subscribe to our WhatsApp services. Just go to TheQuint.com/WhatsApp and hit send)