IMPORTANT POINT
A Special Public Prosecutor's authority is limited to the case for which they are appointed, and they cannot challenge orders in higher courts without specific authorization.

ORDER :

1. The 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. 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 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.

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. H