| SooperKanoon Citation | sooperkanoon.com/1235573 |
| Court | Karnataka High Court |
| Decided On | Aug-28-2024 |
| Case Number | CRL.RP 942/2024 |
| Judge | M.NAGAPRASANNA |
| Appellant | State Of Karnataka |
| Respondent | Shri. Sangamesh |
1 R Reserved on :
06. 08.2024 Pronounced on :
28. 08.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE28H DAY OF AUGUST, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL REVISION PETITION No.942 OF2024BETWEEN: STATE OF KARNATAKA BY THE SPECIAL PUBLIC PROSECUTOR, IN SPL.C. 828/2018, (PAPER TOWN PS-BADRAVATI-CID POLICE VERSUS SANGAMESH AND OTHERS), PENDING ON THE FILE OF CCH82 SPECIAL COURT FOR MPS AND MLAS- BANGALORE, C/O. CID OFFICE, BANGALORE AND ALTERNATIVELY M.S.SHYAMSUNDAR, SPP, A1, LE-CHATEAU, 90, INFANTRY ROAD, BENGALURU – 560 001. ... PETITIONER (BY SRI M.S.SHYAM SUNDAR, SPL.PP) AND:
1. . SHRI. SANGAMESH S/O. BELLADA KOTRAPPA, AGED ABOUT53YEARS, RESIDING AT PARVATI KRUPA, 2 OSM ROAD, OLD TOWN, BADRAVATHI, SHIVAMOGGA DISTRICT, BADRAVATHI – 577 201. 2 . SHRI B.K.MOHAN, S/O. BELLADA KOTRAPPA, AGED ABOUT63YEARS, RESIDING AT PARVATI KRUPA, OSM ROAD, OLD TOWN, BADRAVATHI, SHIVAMOGGA DISTRICT, BADRAVATHI – 577 201. 3 . SHRI GANESH S/O. SANGAMESH, AGED ABOUT37YEARS, RESIDING AT PARVATI KRUPA, OSM ROAD, OLD TOWN, BADRAVATHI, SHIVAMOGGA DISTRICT, BADRAVATHI – 577 201. 4 . SHRI. BASAVARAJ S/O. SANGAMESH, AGED ABOUT35YEARS, RESIDING AT PARVATI KRUPA, OSM ROAD, OLD TOWN, BADRAVATHI, SHIVAMOGGA DISTRICT, BADRAVATHI – 577 201. 5 . SHRI JAGADISH @ JAGANNATH S/O. BELLADA KOTRAPPA, AGED ABOUT67YEARS, RESIDING AT NANDI NIVASA, MADAVANAGAR, TARIKERE ROAD, BADRAVATHI, SHIVAMOGGA DISTRICT, BADRAVATHI – 577 201. 6 . SHRI. C.MAHESH KUMAR, S/O. LATE CHIKKAIAH, 3 AGED ABOUT55YEARS, 137, AVVANA MANE, GANDHINAGAR, BADRAVATHI, SHIVAMOGGA DISTRICT, BADRAVATHI – 577 201. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP. AMICUS CURIAE SRI C.H.HANUMANTHARAYA, ADVOCATE FOR R-1 TO R-5) THIS CRL.RP IS FILED UNDER SECTION397R/W401CR.P.C PRAYING TO1 EXAMINE THE CORRECTNESS OF THE
ORDERIMPUGNED DATED2007.2024 VIDE ANNEXURE-A TO THIS PETITION PASSED IN SPL.C.NO.828/2018 PENDING ON THE FILE OF LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-820 SPL. COURT FOR MLAS AND MPS);
2) SET ASIDE THE
ORDERIMPUGNED DATED2007.2024 VIDE ANNEXURE-A TO THIS PETITION PASSED IN SPL.C.NO.828/2018 PENDING ON THE FILE OF LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-82) SPL.COURT FOR MLAS AND MPS) AND ALLOW THE PRAYER OF THE PETITIONER / PROSECUTION IN TERMS OF APPLICATION DATED1106.2024 VIDE ANNEXURE-F TO THE PETITION. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0608.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 4 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV
ORDERThe petitioner/Special Public Prosecutor appointed by the State in Special C.C.No.828 of 2018 is knocking at the doors of this Court calling in question an order dated 20-07-2024 passed by the LXXXI Additional City Civil and Sessions Judge, Bengaluru in Special C.C.No.828 of 2024 rejecting an application filed by the petitioner seeking to ask leading questions to CW-35 without declaring him hostile.
2. Facts, adumbrated are as follows;- A crime comes to be registered based upon a complaint on 23-05-2010 for offences punishable under Sections 120B, 147, 307 r/w 149 of the IPC. When the investigation was through, a petition comes to be filed before this Court in Writ Petition No.23617 of 2010 seeking transfer of investigation to the hands of Crime Investigation Department/CID. It is later a charge sheet is filed against accused No.6 one Jagadish and all other accused i.e., accused Nos. 1 to 5 stood dropped from the array of accused. 5 When the trial was on PWs 1 to 4 were examined. At the time of their examination it comes to the notice that accused No.6, had in fact, not done any overt act, but it was accused Nos. 1 to 5.
3. An application then comes to be filed by the prosecution under Section 319 of the Cr.P.C., seeking to bring back accused Nos. 1 to 5 into the array of accused to be tried for the aforesaid offences. This was challenged before this Court in Criminal Petition No.2832 of 2017 contending that the application filed by the prosecution was not maintainable. After the disposal of the petition pursuant to the direction of this Court, objections were considered and the application so filed by the prosecution to bring in accused Nos. 1 to 5 back into the web of trial comes to be allowed by order of the concerned Court on 21-01-2019. While so doing, the concerned Court observed that accused No.6 was deliberately brought in and accused Nos. 1 to 5 were deliberately given up. This order of the concerned Court dated 21-01-2019 has become final. The issue in the lis, at this juncture, is not with regard to the merit of the matter. The Special Public Prosecutor appointed by the State to prosecute Special C.C.No.828 of 2018 files an application before 6 the concerned Court that he wants to examine CW-35, Investigating Officer and wants to put leading questions to him. This is considered by the special Court as it involved a former Member of the Legislative Assembly and rejects the application. The rejection of the application is what has driven the petitioner to this Court in the subject petition.
4. Heard Sri M.S. Shyam Sundar, leraned Special Public Prosecutor for the petitioner; Sri C.H. Hanumantharaya, learned counsel appearing for respondents 1 to 5 and learned Amicus Curiae Sri B.N. Jagadeesha, learned Additional State Public Prosecutor.
5. The learned Special Public Prosecutor would contend that there is no word called ‘hostile’ in the Indian Evidence Act, 1872 (‘the Act’ for short). A question may a leading question but it cannot be denied to be put to the witness, as Section 154 of the Act clearly permits the question, which is in the nature of leading question, to be put to its own witness. It is not necessary that one should be declared hostile and then questioned. 7
6. Per contra, the learned counsel Sri C.H. Hanumantharaya appearing for respondents 1 to 5 would refute the submissions to contend that the petitioner has to cross the first hurdle of having locus to file the present petition, as he is appointed as a Special Public Prosecutor to prosecute Special C.C.No.828 of 2018 before the concerned Court. That would not mean that he is entitled to file petitions before this Court invoking Section 397 of the Cr.P.C. On merit of the matter, the learned counsel would contend that if leading questions are to put to the witnesses of the prosecution, they have to be declared first as hostile. Without declaring them hostile, no questions which are in the nature of leading questions can be put to the witnesses. He would submit that this is the settled principle of law which need not require elaborate hearing on the matter by this Court. Both sides would seek to place reliance upon several judgments of the Apex Court and that of other High Courts, which would all bear consideration in the course of the order qua their relevance.
7. The learned Additional State Public Prosecutor appointed as Amicus Curiae to assist the Court also reiterated the submissions of 8 the learned counsel Sri C.H. Hanumantharaya, adding to it that the other witnesses of the prosecution who have not spoken anything about the crime have not been treated hostile and they have not been cross-examined. The petitioner wants leading questions to be put only to CW-35 or any other Investigating Officer. The hidden agenda should not be permitted to be executed in the case at hand. The learned counsel would further add that the petitioner has no locus to challenge the proceedings before this Court, as he is not appointed to file the revision petition before this Court.
8. The learned Special Public Prosecutor/petitioner would join issue to contend that he is no doubt appointed as a Special Public Prosecutor for prosecuting Special C.C.No.828 of 2018 which has not been concluded. This petition is an offshoot of the same proceeding. Therefore, he is entitled to file the subject petition is what he would submit.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the 9 material on record. In furtherance whereof, the following issues would arise for my consideration: (i) Whether the petitioner has locus to file the petition calling in question the order dated 20-07- 2024 when he is appointed to prosecute Special C.C.No.828 of 2018 under Section 24(8) of the CrPC?. (ii) Whether the order declining to permit leading questions to be put to CW-35 without treating him hostile is tenable in law?. Issue No.1: (i) Whether the petitioner has locus to file the petition calling in question the order dated 20-07- 2024 when he is appointed to prosecute Special C.C.No.828 of 2018 under Section 24(8) of the CrPC?.
10. Since the issue is whether the Special Public Prosecutor can prefer a petition before this Court when his appointment being restricted to appear before the concerned Court, I deem it appropriate to answer the threshold bar of locus, as, if the petitioner does not have the locus to maintain the subject petition, other issue need not be gone into. Section 24(8) of the Cr.P.C., reads as follows:
10. “24. Public Prosecutors. – (1) … … (8) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an Advocate for not less than ten years as a Special Public Prosecutor. Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.” It is not in dispute that the petitioner is appointed as a Special Public Prosecutor to prosecute the case in Special C.C.No.828 of 2018. Heavy reliance is placed upon a three judge Bench decision of the Apex Court in the case of K.ANBAZHAGAN v. STATE OF KARNATAKA1. The Apex Court interprets Section 24(8) r/w Sections 301 and 302 of the IPC. Answering an identical contention, the Apex Court holds that once proceedings are over before the concerned Court, to file an appeal or a petition before the High Court, the Special Public Prosecutor appointed under Section 24(8) of the Cr.P.C., would have no right. The Apex Court in the said case has held as follows: “…. …. ….
23. Section 2(u) CrPC defines “Public Prosecutor”. It reads as follows:
1. (2015) 6 SCC15811 “2. (u) ‘Public Prosecutor’ means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor;
24. Section 24 CrPC deals with Public Prosecutors. For our purpose, Sections 24(1), 24(3) and 24(8) being relevant are reproduced below: “24.Public Prosecutors.—(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. *** (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. *** (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
25. Sub-section (1) of Section 24 CrPC has been amended in the State of Karnataka (vide Karnataka Act 20 of 1982 w.e.f. 3-9-1981). It provides thus: “In Section 24, in sub-section (1)— (i) Omit the words ‘or the State Government shall’; (ii) for the words “appoint a Public Prosecutor”, substitute the words “or the State Government shall appoint a Public Prosecutor”.” 12 26. Section 25-A deals with the Directorate of Prosecution. It reads as follows: “25-A.Directorate of Prosecution.—(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. (2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. (3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State. (4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. (6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 24 shall be subordinate to the Deputy Director of Prosecution. (7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.” 13 27. Section 301(1) CrPC that deals with the appearance by Public Prosecutors reads thus: “301.Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal.
28. The aforesaid provisions have to be appreciated in a schematic context. All the provisions reproduced hereinabove are to be read and understood as one singular scheme. They cannot be read bereft of their text and context. If they are read as parts of different schemes, there is bound to be anomaly. Such an interpretation is to be avoided, and the careful reading of the Criminal Procedure Code, in reality, avoids the same. The dictionary clause in Section 2(u) only refers to a person appointed under Section 24 CrPC and includes any person acting under the directions of a Public Prosecutor. The class or status of the Public Prosecutor is controlled by Sections 24 and 25-A CrPC. On a careful x-ray of the provisions of Section 24 it is clearly demonstrable that Section 24(1) has restricted the appointment of Public Prosecutor for the High Court, for the provision commences with words “for every High Court”. Sub-section (3) deals with the appointment of Public Prosecutor or Additional Public Prosecutor for the districts. There is a procedure for appointment with which we are not concerned. Sub-section (8) of Section 24 deals with the appointment of Special Public Prosecutor for any case or class of cases. A Public Prosecutor who is appointed in connection with a district his working sphere has to be restricted to the district unless he is specially engaged to appear before the higher court. A Special Public Prosecutor when he is appointed for any specific case and that too for any specific court, it is a restricted appointment. In this context Section 25-A of the Code renders immense assistance. The State Government is under an obligation to establish a Directorate of Prosecution. Section 25-A clearly stipulates that Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor who are appointed by the State Government under sub-section (1) or under sub- section (8) of Section 24 to conduct cases in the High 14 Court, shall be subordinate to the Director of Prosecution. Sub-section (6) postulates that the three categories named therein appointed by the State Government to conduct cases in the district courts shall be subordinate to the Deputy Director of Prosecution. Thus, the scheme makes a perceptible demarcation and compartmentalisation for the Public Prosecutor in the High Court and the district courts.
29. In this context we may refer with profit to Rule 30 of the Karnataka Law Officers (Appointments and Conditions of Service) Rules, 1977 (for short “the Rules”). The said Rule reads as follows: “30.Special Counsel.—Subject to these Rules the Government may appoint any advocate as a Special Counsel either for the conduct of a civil or criminal case or any appeal or proceedings connected therewith, pending in a court either within the State or in any other State or in the Supreme Court or in any High Court in the country. (2) Before making such appointment the Government may consult the Advocate General if the appointment is to conduct a civil case or appeal and the Director of Prosecution if it is to conduct a criminal case or appeal. (3) Remuneration payable to a Special Counsel shall be such as may be decided by Government in each case having regard to the nature of the case.” The said Rule 30 as far as the State of Karnataka is concerned has its own significance. It clearly lays down that before making an appointment the Government may consult the Advocate General if the appointment is to conduct a civil case or appeal, and the Director of Prosecution if it is to conduct a criminal case or appeal. Sub-rule (1) of Rule 30 makes a distinction between a case and an appeal and same is the language used in sub-rule (2). We are only referring to this Rule to highlight that this Rule has been framed by the State of Karnataka by way of abundant caution. This Rule clarifies that if any counsel is to be appointed for the purpose of an appeal, the State Government may do so after consulting the authorities mentioned therein. There is nothing on record that 15 the fourth respondent was appointed to defend the prosecution in appeal in the High Court.
30. The authority to appear before the High Court as the analysis would show, is fundamentally founded on the interpretation of Section 301 CrPC. We have already reproduced Section 301(1). In this context we may refer with profit to Section 493 of the old Code. It reads as follows: “493.Public Prosecutor may plead in all courts in cases under his charge. Pleaders privately instructed to be under his direction.—The Public Prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under inquiry, trial or appeal; and, if any private person instructs a pleader to prosecute in any court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein under his directions.” In the aforesaid provision the legislature had employed the words “before any court in which any case of which he has charge”. In Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda [(1970) 1 SCC665 1970 SCC (Cri) 263]. explaining the word “case” the Court held : (SCC p. 668, para
9) “9. … The word ‘case’ is not defined by the Code but its meaning is well understood in legal circles. In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. In other contexts the word may represent other kinds of proceedings but in the context of the sub-section it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person.
31. In Surjit Singh [State of Punjab v. Surjit Singh, AIR1967SC1214:
1967. Cri LJ1084: (1967) 2 SCR347 while dealing with an application for withdrawal from prosecution under Section 494 of the old Code by the Public Prosecutor, 16 though in a different fact situation, observed that : (AIR pp. 1221-22, paras 30-31) “30. … Section 492 only deals with the appointment of Public Prosecutors by the Government or by the District Magistrate, in circumstances mentioned therein and Section 493 specifically refers to the Public Prosecutor who is in charge of the case which is under enquiry, trial or appeal, when appearing and pleading before such court. Section 493 only dispenses with the Public Prosecutor having to file any written authority. That section also makes it clear that if any private person is instructing a pleader to prosecute any person ‘in any such case’—which must have reference to the case of which the Public Prosecutor is in charge—nevertheless, the Public Prosecutor shall conduct the prosecution and the pleader is to act under his directions. Section 494 also, in our opinion, must refer only to the Public Prosecutor who is in charge of the particular case in which he makes a request to withdraw from the prosecution. Some of these aspects have been already adverted to by us earlier. If any Public Prosecutor, who had nothing to do with a particular case, is held entitled to file an application under Section 494, in our opinion, the result will be very anomalous. For instance, if there are two Public Prosecutors appointed for a particular court, and one of the Public Prosecutors is conducting the prosecution in a particular case, and desires to go on with the proceedings, it will be open to the other Public Prosecutor to ask for withdrawal from the prosecution. Similarly, a Public Prosecutor appointed for case A, before a particular court, can, by virtue of his being a Public Prosecutor, file an application in case B, with which he has nothing to do, and ask for permission of the court to withdraw from the prosecution.
31. The reasonable interpretation to be placed upon Section 494, in our opinion, is that it is only the Public Prosecutor, who is in charge of a particular case and is actually conducting the prosecution, that can file an application under that section, seeking 17 permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution, under Section 494 of the Code.” We have referred to this judgment in extenso only to show the responsibility of a Public Prosecutor in charge of a case.
32. Section 301 occurs in Chapter XXIV CrPC, 1973 that deals with the “General provisions as to inquiries and trials”. Sections 24(8) and 301(1) when read together, needless to say, confer a right on the Public Prosecutor who is in charge of a case to appear and plead without having any written authority. He remains and functions as the sole authority in charge of the case. There can be no cavil over the same. The core question is, whether “in charge of the case” would include an appeal arising out of the said case in the hierarchical system?.
33. Section 24(1) CrPC deals with the specific power of the Government to appoint Public Prosecutor. Section 24(8) confers the power on the State Government to appoint a Special Public Prosecutor for any case or class of cases. To give an example, there can be a batch of cases under the Prevention of Corruption Act against number of persons arising out of different FIRs but involving similar transactions. To have a proper trial the Government is entitled to appoint a Special Public Prosecutor. If the word “case” is given a meaning to include the appeal, it will be denuding the power of appointing authority. The law does not so countenance. If the Government by a notification appoints an eligible person clearly stating that he shall conduct the trial as well as pursue the appeal arising out of it, there will be no difficulty. Therefore, much stress cannot be given on the words “without any written authority” as used in Section 301. It can only mean that the Public Prosecutor once engaged/appointed by the State, he can prosecute the appeal without filing any formal authority for the said purpose. It cannot be construed to the extent that solely because he has been appointed in connection with the trial case, he can appear before the High Court 18 for which he has not been appointed in pursuance of Section 24(1) CrPC. Section 301(1) CrPC cannot be stretched to that extent. In that event, it would really lead to an anomalous situation. A Public Prosecutor has to be specifically appointed for the appeals or revisions or other proceedings in the High Court. The anomalous situations, which have been highlighted by Lokur, J.
have our respectful concurrence. In fact, the Code does not remotely so envisage and the contextual reading of all the provisions does not so convey. Therefore, we ingeminate that a Public Prosecutor who is appointed to conduct a case before the trial court cannot be deemed to be appointed for the purpose of appeal arising therefrom solely because of the language employed in Section 301(1) CrPC.” (Emphasis supplied) The Apex Court holds that a Public Prosecutor who is specifically appointed to conduct a case before the trial Court cannot stretch his right to appear in an appeal, revision before the High Court or other proceedings. The order passed under sub-section (8) of Section 24 r/w Sections 301 and 302 of the Cr.P.C., will not clothe the Special Public Prosecutor to appear before higher fora without explicit authorization for such appearance.
11. The petitioner has vehemently contended that the order that he has called in question is an intermediary order and not an interlocutory order and therefore, he has a right to approach this 19 Court challenging any intermediary action of the concerned Court. This submission, on the face of it, is unacceptable as, if this submission was to be accepted, every action of the concerned Court, be it intermediary or interlocutory, would be akin to granting permission to the petitioner to appear up to the Apex Court, without him being authorized to do so. This Court would not tinker upon the authorization pursuant to which the right of the petitioner to conduct the proceedings has sprung, which would mean that it cannot go beyond the walls of the Court to which he is authorized to conduct proceedings. The Apex Court is unequivocal in observing that the Public Prosecutor who is specifically appointed to conduct a case will not clothe the right to appear in an appeal or revision. The subject petition is a criminal revision petition arising out of an order passed on 20-07-2024 in Special C.C.No.828 of 2024. While the order may be an order rejecting the application filed by the petitioner intermediary or interlocutory, it need not be gone into, as any kind of order where it is to be appealed against or revision before the revisional Court, the same is expressly barred, as observed by the Apex Court, interpreting an identical order of appointment of a Special Public Prosecutor to conduct a case. 20
12. Much reliance is placed by the petitioner, on certain subsequent judgments of the Apex Court to contend that, once the Public Prosecutor is appointed, his right under the appointment is unfettered. The judgments that he seeks to place reliance upon are (i) In the case of AMIR HAMZA SHAIKH v. STATE OF MAHARASHTRA2 wherein the Apex Court holds as follows: “…. …. ….
5. It may be noticed that under Section 301 of the Code, the Public Prosecutor may appear and plead without any authority before any court in which that case is under inquiry, trial or appeal and any person may instruct a pleader who shall act under the directions of the Public Prosecutor and may with the permission of the court submit written submissions.” (ii) In a later judgment, the Apex Court in the case of REKHA MURARKA v. STATE OF WEST BENGAL3 has held as follows: “…. …. ….
7. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the State at large. Though he is appointed by the Government, he is not a servant of the Government or the investigating agency. He is an officer of the court and his primary duty is to assist the court in 2 (2019) 8 SCC3873 (2020) 2 SCC47421 arriving at the truth by putting forth all the relevant material on behalf of the prosecution. While discharging these duties, he must act in a manner that is fair to the court, to the investigating agencies, as well to the accused. This means that in instances where he finds material indicating that the accused legitimately deserves a benefit during the trial, he must not conceal it. The space carved out for the Public Prosecutor is clearly that of an independent officer who secures the cause of justice and fair play in a criminal trial.” and (iii) A Division Bench of the High Court of Kerala in the case of ABDUL LATHEEF v. STATE OF KERALA4 has held as follows: “…. …. ….
34. From all the above, it can safely be concluded that when the court has the power to direct the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. in a matter even after taking cognizance on the final report filed by the investigating agency before it under Section 173(2) Cr.P.C., either the de facto complainant, who is aggrieved on account of any lapse committed by the investigating agency in conducting the investigation or in not conducting the investigation in another line to which it ought to have been conducted, or the Public Prosecutor who notices serious lapse committed by the investigating agency in not conducting the investigation properly, can invite the attention of the court through an application for satisfying the court in respect of the necessity to invoke the power of the court under Section 173(8) Cr.P.C.. Even without any such wake up call, the court on its own can invoke its power under Section 173(8) Cr.P.C.” The judgment in the case of AMIR HAMZA SHAIKH supra would not render any assistance to the petitioner, as the issue before the Apex Court was whether, the Magistrate is bound to grant 4 2014 Crl.L.J.4800 22 permission at the mere asking by the victim of his or her right to assist the Court in a trial before the Magistrate. While so saying the Apex Court holds that under Section 301 of the Cr.P.C., the Public Prosecutor may appear and plead without any Authority before any Court in which the case is under inquiry, trial or appeal and any person may instruct the Public Prosecutor. The issue before the Court was not interpreting sub-section (8) of Section 24 of the CrPC, as once a Special Public Prosecutor is appointed, he can stretch the forum of appointment to higher fora. There can be no qualm about the principles laid down by the Apex Court in the said judgments.
13. In the later judgment in the case of REKHA MURARKA the petitioner places reliance upon paragraph 7 quoted supra. The Apex Court only recognizes the importance of a Public Prosecutor. Given the wrongs committed against the Society, the role of the Public Prosecutor in the administration of justice is crucial. The Apex Court does not deal with the issue whether the Special Public Prosecutor once appointed can appear before any fora, higher to 23 the authorization of appointment. This judgment also would not render any assistance to the petitioner.
14. The 3rd judgment is a Division Bench judgment of the High Court of Kerala in the case of ABDUL LATHEEF quoted supra. It again deals with the role of a Public Prosecutor. The Public Prosecutor who notices serious lapses committed by the Investigating Agency can invite the attention of the Court through an application for satisfying the Court the necessity to invoke the power under Section 173(8) of the Cr.P.C., against which Abdul Latheef, the accused therein had approached the Division Bench. The Division Bench answers the criminal revision petition in favour of the Public Prosecutor and rejects it. Nowhere the Division Bench has held that once the Special Public Prosecutor is appointed to prosecute a particular case before a particular forum can stretch his wings to other fora.
15. The Apex Court in the case of K.ANBAZHAGAN supra clearly indicates that the right of the Special Public Prosecutor is restricted to the walls of the said Court and will not have permission 24 to appear in an appeal or revision arising out of the findings rendered by the Court to which he is appointed to conduct the case.
16. The situation in the case at hand is identical to what the Apex Court considers in the case of K.ANBAZHAGAN. It is an undisputed fact that the petitioner is appointed to conduct the case in Special C.C.No.828 of 2018. Beyond the wall of the said Court, if the petitioner wants to appear or challenge any action, either in appeal or in revision, an order to that effect is imperative. This imperativeness cannot be assumed in the absence of any specific order thereto. In the light of the preceding analysis, I answer the issue of locus against the petitioner and hold that he has no locus to present the present revision petition, without a specific authorization to do so, from the hands of the Competent Authority. The order appointing him as Special Public Prosecutor, in Special C.C.No.828 of 2018 to conduct that case, cannot be stretched to filing a revision before this Court, as is done in the case at hand. 25 Issue No.2: (ii) Whether the order declining to permit leading questions to be put to CW-35 without treating him hostile is tenable in law?.
17. In the light of the issue of locus being held against the petitioner, no other issue need be gone into. If the petitioner has no right to present the petition, this Court need not answer other submissions made, in a petition which is not even entertainable. In that light issue No.2 need not be gone into.
18. For the aforesaid reasons, the criminal revision petition is dismissed. Interim order, if any subsisting, would stand dissolved. This Court would place its appreciation for the efforts of the learned Amicus Curiae in assisting the Court, to steer clear the issue. Sd/- (M. NAGAPRASANNA) JUDGE bkp