New Delhi: The Rajasthan Police on 1 November arrested former State Bank of India (SBI) chairman Pratip Chaudhuri in connection with an alleged loan scam.
His arrest was in compliance with an order by the chief judicial magistrate (CJM) court in Jaisalmer, which issued non-bailable warrants against the banker, after accepting a protest petition filed by former directors of Hotel Gaudavan.
The petitioners alleged the former SBI chairman had sold their Rs 200 crore-worth property for just Rs 25 crore, when the owners defaulted on a loan, to a company named Alchemist Asset Reconstruction Company Limited. Chaudhuri, the complaints claimed, joined the board of Alchemist after his retirement.
According to an SBI statement, the complainants had secured a Rs 25 crore loan from the bank in 2007. On their failure to pay up, recovery efforts were initiated and the dues were assigned to Alchemist, an asset reconstruction company (ARC), in March 2014. The sale of ARC was done through a laid-down process in line with the bank’s policy, the statement said.
ThePrint explains what is a protest petition, who can file it and its relevance under criminal jurisprudence.
Not defined under criminal procedure code
Protest petition is a representation made by the victim or an informant to the court during the police investigation or after its completion to object against the police’s closure report in a given case.
Protest petition is not defined under the Criminal Procedure Code (CrPc), the rulebook for criminal trials in India, but is a mechanism that evolved through judicial pronouncements over the years, with some dating back to the pre-Independence era as well, to recognise the rights of a victim under criminal law.
The CrPc does not envisage hearing of victims while considering grant of bail and the police report to close a case. The judiciary, however, has played an important role in letting a victim have a say at the two stages of a criminal trial.
After filing an FIR under Section 154 of the CrPc, the police begin their probe. If the police conclude there is sufficient evidence to proceed against the accused, they file a charge sheet under Section 190 (b) of the CrPc before the magistrate concerned, who either proceeds with the trial or assigns the case to higher judge to conduct it, depending upon the severity of the offences invoked in the matter. In such a scenario, a victim need not be heard.
However, when the police rule out the existence of any evidence to charge sheet the accused, they then submit a final report to close the case under Section 173 of the CrPc. It is then that a magistrate can either directly reject the closure and summon the accused or grant an opportunity to the victim/complainant to contest the negative report. This is done under Section 190 (a) of the CrPc, as outlined in various high court and Supreme Court rulings.
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 under Section 200, read with Section 202, of the CrPc to pray for a further proceeding in the matter.
The procedure followed under Section 200 CrPc requires the court to examine the complainant and his/her witnesses before summoning the accused for trial.
If the magistrate accepts the protest petition, then cognisance of the case is taken under and notice is issued to the accused to appear and face the trial. However, the magistrate also has the discretion to reject the protest petition in case he/she finds no merits in the protest petition.
How did a protest petition come into play?
Both the Patna and Calcutta High Courts had in the pre-Independence era extensively dealt with concerns related to the rights of victims in a criminal trial.
Referred to as “Naraji Petitions,” loosely translated as “dissatisfaction,” the Calcutta High Court had defined protest petitions as representations made by an aggrieved person or a victim or informant to the magistrate.
It was only in 1985 that the Supreme Court for the first time clarified the situation under which a protest petition can be filed. The decision in the Bhagwant Singh Vs Commissioner of Police held that in the absence of any provisions in the CrPc, the obligation of the magistrate to issue notice to the injured person or relative of a victim arose from the “principles of natural justice”.
The court ruled the victim or a family member, though not entitled to a notice under the law, has the locus to appear before a magistrate at the time the closure report is being considered. Also, though magistrates are not bound to give notice, they may, in the exercise of their discretion, give such a notice to the injured person, the court said.
In 2019, the Supreme Court delivered two more elaborate verdicts on the importance of protest petitions, but at the same time asked magistrates to exercise caution while entertaining protest petitions.
In Rajesh vs State of Haryana, the top court had observed that courts must exercise their power under the CrPc to summon an accused, even though his name is not there in the charge sheet, sparingly. It should not be exercised because a judge is of the opinion that “some other may also be guilty,” but “only where strong and cogent evidence occurs against a person from the evidence manner.”
Later, in Vishnu Kumar Tiwari vs Uttar Pradesh, the apex court held, not all protest petitions should be treated as a complaint petition. The court said a magistrate could not be compelled to take cognisance by treating the protest petition as a complaint, if he/she is convinced on the basis of the consideration of a final report and statements of witnesses recorded by the police that no prima facie case is made out.
In a recent judgment, the SC upheld the Madras High Court verdict, which said a victim is mandatorily entitled to notice before the acceptance of the final report of the police, and, in case notice is not served, he has the right to file a protest petition.
(Edited by Arun Prashanth)