person A filed a case against B under house tress pass, dacoity, theft, criminal intimidation as per IPC and CrPC
B is son of A's Brother. they have some property dispute.
after 20days of filing of FIR, in the same P.S, agin one FIR filed by stating that "man missing of A"
it's more than 7years now legal heir's A went to know the status of both FIR. they got to know that Both FIR's closed with
FIR against B : closed as false
FIR for man missing: untraced.
before closing the FIR, concern P.S was not intimated to the complainant or to their legal heirs.
now they doubting on B, there may be a chance of B hand in A's missing.
what is the chances to re-open the both FIR's and how to prove the crime of B.
how to file a Protest Petition to re-open the case, We are doubting B, that he managed the police and closed 1st FIR.
how to re examine the SHO ?
Expecting Valid suggestions.
thank you.
In circumstances where an aggrieved person or complainant is unsatisfied with the report which filed before the concerned court by the police, then such an aggrieved person may move the petition against the negative police report which is called the Protest Petition.
In general, Protest Petition is a representation made by the victim before the court during or even after completion of investigation by the police.
Such petition is considered as a Complaint under Section 190 of Criminal Procedure Code (CrPc, 1973) before the concerned court.
In such a case or situation, a police report by the officer-in-charge is required to be sent to the Magistrate such that the Magistrate can take charge of the case.
If he then decides to reopen the investigation, then under section 200 of the Code of Criminal Procedure, 1973, the Magistrate can examine the victim or witness, where one has the opportunity to narrate their case.
However the essential ingredients of the Complaint should be satisfied in the Protest Petition before Magistrate takes cognizance under section 190(1) (a) of the Code of Criminal Procedure, 1973.
There are three options available to the Magistrate, when the final report is submitted by the police and the Protest Petition is filed.
These are as follows:-
1.) Magistrate may accept the final report and may also reject the Protest Petition.
2.) He may accept the final report but treat the Protest Petition as a Complaint and proceed in accordance with Section 200 and 202 of the Code.
3.) He may accept the Protest Petition and reject the final report and take cognizance under Section 190 (1) (b) of the code.
The correct legal position is that Magistrate is not bound to accept the final report submitted by the police officials.
The Magistrate can disagree with that report and take the cognizance even on the basis of police papers, if any submitted along with the police report.
According to the latest verdict on protest petition by Supreme Court all protest petitions are not complaints.
In the case of Vishnu Kumar Tiwari v. State of Uttar Pradesh ( Criminal Appeal No. 1015 of 2019), the Supreme Court observed that -
"In the facts of this case, in regard to the nature of all allegations contained in the protest petition and the annexures (which essentially consisted of affidavits), if the Magistrate was convinced on the consideration of the final report, the statements under Section 161 of CrPc, then the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint.
While, the fact that he may have jurisdiction in a case to treat the protest petition as a complaint is a distinct matter.
Therefore, if the Magistrate treats the protest petition as a complaint, he needs to follow the procedures prescribed u/s 200 and 202 of CrPc, if the latter Section also commends itself to the Magistrate.
