Form of words:
New Delhi: The Rajasthan Police on November 1 arrested former State Bank of India (SBI) chairman Pratip Choudhary in connection with an alleged loan scam.
His arrest came in compliance with an order of the Chief Judicial Magistrate (CJM) court in Jaisalmer, which issued a non-bailable warrant against the banker after accepting a protest petition filed by former directors of Hotel Gowdavana.
The petitioners alleged that the former SBI chairman sold his assets worth Rs 200 crore for just Rs 25 crore after the owners defaulted on the loan, to a company named Alchemist Asset Reconstruction Company Ltd. The complaint claimed that Choudhary joined the board of Alchemist after retirement.
According to an SBI statement, the complainants had obtained a loan of Rs 25 crore from the bank in 2007. Upon their failure to pay, recovery efforts were launched and the dues were handed over to The Alchemist, a Asset Reconstruction Company (ARC), in March 2014. The sale of ARC was done through a prescribed process in line with the policy of the Bank, the statement said.
ThePrint explains what a protest petition is, who can file it, and its relevance under criminal jurisprudence.
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Not defined under the Criminal Procedure Code
A protest petition is a representation made by the victim or informer to object against the closure report of the police in a case during or after the completion of the police investigation.
Protest petition is not defined under the Code of Criminal Procedure (CrPC), which is the rule book for criminal trials in India, but it is a mechanism that has evolved through judicial pronouncements over the years, including some pre-independence To identify even in the era. Victim’s rights under criminal law.
The CrPC does not envisage hearing of the victims while considering the police report for grant of bail and closure of the case. However, the judiciary has been instrumental in letting the victim have her say in the two stages of a criminal trial.
Police started investigation after registering an FIR under Section 154 of CrPC. If the police conclude that there is sufficient evidence to proceed against the accused, they file a charge sheet under section 190(b) of CrPC before the magistrate concerned, who either proceeds with the trial or proceeds with the case. Assigns to the High Judge to conduct. depending on the gravity of the offenses charged in the case. So there is no need to listen to the victim.
However, when the police deny the existence of any evidence to chargesheet the accused, they submit a final report for closure of the case under Section 173 of CrPC. This happens when a magistrate can either directly disallow the closure and summon the accused or give an opportunity to the victim/complainant to contest the negative report. This is done under Section 190 (A) of CrPC, as mentioned in various High Court and Supreme Court judgments.
However, a protest petition cannot be treated as a complaint under the law. But the legal remedy allows the complainant to file a separate complaint read with Section 200, Section 202 of CrPC to pray for further proceedings in the matter.
The procedure to be followed under Section 200 CrPC requires the court to examine the complainant and his witnesses before calling the accused for trial.
If the magistrate admits the protest petition, cognizance of the matter is taken and notice is issued to the accused to appear and face trial. However, the magistrate also has the discretion to reject the protest petition if no merit is found in the protest petition.
How did the protest petition come into play?
In the pre-independence era, both Patna and Calcutta High Courts dealt extensively with concerns regarding the rights of victims in a criminal trial.
Referred to as “outrage petitions”, translated as “dissent”, the Calcutta High Court had defined protest petitions as representations made by an aggrieved person or victim or informant to a magistrate.
It was only in 1985 that the Supreme Court for the first time clarified the position under which a protest petition could be filed. decision in NS Bhagwant Singh Vs Commissioner of Police It held that in the absence of any provision in the CrPC, the obligation of the Magistrate to issue notice to the injured person or the relative of the victim arose from the “principles of natural justice”.
The court ruled on the victim or any member of the family who, though not entitled to notice under the law, has the right to appear before the magistrate at the time of consideration of the closure report. Further, though the magistrate is not bound to give notice, he may, in exercise of his discretion, give such notice to the injured person, the court said.
In 2019, the Supreme Court gave two more detailed judgments on the importance of protest petitions, but also asked magistrates to exercise caution while considering protest petitions.
In Rajesh vs State of HaryanaThe apex court had observed that the courts should exercise their power under the CrPC to summon an accused, even if his name is not in the charge sheet, at least. It should not be used because a judge is of the opinion that “any other may also be guilty,” but “only if there is strong and convincing evidence as evidence against a person.”
later in Vishnu Kumar Tiwari Vs Uttar PradeshAll the protest petitions should not be treated as complaint petitions, the top court said. The court said that a magistrate cannot be compelled to take cognizance of the protest petition as a complaint, if he is convinced on the basis of the final report and the statements of witnesses recorded by the police that there is no prima facie case. is made.
In a recent judgment, the SC upheld the judgment of the Madras High Court, which held that a victim is compulsorily entitled to notice before the acceptance of the final report of the police, and if notice is not served, she have the right to file. protest petition.
(Edited by Arun Prashant)
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