A complainant or a victim of a crime doesn’t know his right to protest a closure report filed by the police under Section 173 of the Code of Criminal Procedure. A closure report is filed when the police, after investigation, comes to the conclusion that the offences alleged are not made out against the accused. In other words, the police states that there is either no or insufficient evidence to prosecute the accused. But a magistrate isn’t bound to accept the closure report even if it is the conclusion of a great investigation. He has the option to either accept the closure report or direct further investigation under Section 156(3) of the Code of Criminal Procedure. However, it’s the discretion of the magistrate; criminal law doesn’t provide any codified right of protest against the closure report to the victim of crime.
But over the years, courts have acknowledged this gap in criminal law and have recognized the victim’s right of protest against the closure report. Thus, for victims of crime, the courts have created a right of protest against the closure report. In other words, what’s not there in criminal law, but should have been there, has been judicially created. Maybe, in the beginning such protests by the victims were simply verbal. But now, if the victim is not satisfied with the closure report; he may file a written protest petition.
In the protest petition, the victim pleads his concerns about the gaps in the police investigation, before the magistrate. He prays to not close the case against the accused and requests further investigation in the matter. However, the magistrate is not bound to accept the protest petition on its face. The magistrate applies his judicial mind to see whether the concerns raised by the victim about the gaps in the investigation are valid or not. Nevertheless, this judicially endowed right of filing a protest petition makes the criminal justice system more inclusive and assures the victim of a fair investigation and trial.
But, apart from being uncodified, the protest petition, suffers from some other problems as well. If for example, an accused is in judicial custody and the police after investigation concludes that he deserves to be discharged but the magistrate takes cognizance of the protest petition, directing further investigation; it would mean more time in custody for the accused. Also, if a magistrate who accepts a protest petition also presides over the trial of the case, an allegation of bias may be raised against him. It may be alleged that the magistrate is prejudiced against the investigation as he accepted the protest petition.
Judicial creation of protest petition is a commendable step that gives the victim a right to challenge the police investigation. However, there are certain handicaps which need to be addressed through either Supreme Court guidelines or legislative intervention.
*The author is a practicing lawyer at the High Court of Delhi and can be contacted at firstname.lastname@example.org