Bombay High Court
State Of Maharashtra Through Dy. S.P. vs Suresh Gopalrao Gawali on 6 September, 2007
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
1. Rule. Returnable forthwith.
2. Heard Finally with consent of parties.
3. The State of Maharashtra has filed this petition against the order passed by the Special Judge under the Prevention of Corruption Act, whereby he discharged the non-applicant/accused.
4. A few facts may be stated thus Respondent/accused was appointed as Additional Public Prosecutor and Assistant Government Pleader by Government of Maharashtra by Notification dated 11th September, 1992 for a period of one year. As an Additional Public Prosecutor, he was conducting Sessions Case No.68/96 before the Additional Sessions Judge, Washim. It is alleged that during the course of his duty as Additional Public Prosecutor (for short A.P.P.), he demanded from one Sunil Ingle a bribe of Rs.2000/-. Sunil Ingle informed the Anti-Corruption Bureau (A.C.B.) and a trap was laid. A charge-sheet was thereafter filed against him. He applied to the Special Judge to discharge him and Special Judge has granted the application. He is discharged mainly on the ground that he is not a public servant.
5. I have heard Shri Y.B.Mandpe, Additional Public Prosecutor for the State and Shri S.G.Loney, Advocate for the non-applicant. 6. The material question that needs consideration is whether the Additional Public Prosecutor is a public servant or his appointment is purely professional. The appointment order (Annexure I) shows that appointment is made under Section 24(3) of the Code of Criminal Procedure and subject to Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. Undisputedly, however, he is not Government servant. Mr.Mandpe, learned A.P.P., submitted that the respondent is a public servant since he is appointed by Government and is paid remuneration by Government. He relied upon the definition of public servant both in Indian Penal Code and Prevention of Corruption Act. The relevant portion of the definition in Indian Penal Code is as follows
21. "Public Servant". -The words "Public servant" denote a person falling under any of the descriptions hereinafter following, namely:
[***] Second -... Third -... Fourth-... Fifth-... Sixth-... Seventh-... Eighth-... Ninth-... Tenth-... Eleventh-... [Twelfth- Every person -
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).] In Prevention of Corruption Act, as follows Public servant. means, -
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty'
7. Mr. Mandpe laid a stress on the words "remunerated by fees" in both the definitions. He submitted that though the appointment of A.P.P. is for a specific period and may not have been paid a salary, is remunerated by Government by fees. He submitted that any person who receives any money from public exchequer for discharge of any duty would fall within the definition of public servant. On the other hand, Mr. Loney, learned Counsel, submitted that appointment is purely professional and A.P.P. does not discharge any public duty. He submits that the A.P.P. does not strictly discharge the public duty. He submitted that the duty of the A.P.P. is to help the court do justice and in order to achieve that objective, he may have to act against the policy of Government also. He may have to concede to certain facts which may be against the interest of the Government. He submitted that the Government servant or a public servant, on the other hand, is bound by the policy of the Government and has to necessarily act in accordance with that policy. He also submitted that the Government cannot put restriction on A.P.P. that he must in every case protect the interest of the Government though the policy of the Government may not be according to Law. I find much force in the argument of the learned Counsel for the non-applicant. Even as a lawyer representing Government, he owes his allegiance to the court in doing justice.
8. Shri Loney, learned Counsel, contended that the Rules of appointment framed by Government make it more clear that the A.P.P.'s appointment is professional. He invited my attention to the definition of "Law Officer", "Public Prosecutor" and "Fee" in the Law Officers Rule, 1984, they are as follows Law Officer. means an advocate appointed by Government in the Law and Judiciary Department, under these rules, to conduct cases on behalf of the State or its officers before any court or the Maharashtra Revenue Tribunal and includes an Advocate-General, a Government Pleader and Public Prosecutor.
Public Prosecutor. means an advocate appointed as a Public Prosecutor by Government in the Law and Judiciary Department under these rules for the High Court and for every district in the State under subsections (1) and 3) of Section 24 of the Code of Criminal Procedure for conducting any prosecution, appeal, application or other proceedings on behalf of the State and includes an Additional Public Prosecutor.
Fee. means the fee as prescribed by Government in the Law and Judiciary Department in accordance with these rules or as taxed by the court in the bill of costs to which the Law Officer is entitled.
Those definitions show that an Advocate is appointed and he is paid fees for the job done. This shows that it is purely a professional appointment. It was rightly contended that a lawyer who is appointed as A.P.P. is free to do the private practice and this shows that he is not an employee of Government nor a public servant.
9. Shri Mandpe, learned A.P.P., contended that every Public Prosecutor must be held to be a public servant. He relied on a decision of Calcutta High Court (Kuber Nayek v. The State). The court was considering the question whether the prosecutor conducting the case was a public servant. It found that an Assistant Public Prosecutor is a public servant. It has to be borne in mind that there are different types of prosecutors. Public Prosecutors, Additional Public Prosecutors are appointed under Section 24 of Cr. P. Code while Assistant Public Prosecutors are appointed under Section 25 of Cr. P. Code. They are appointed in the courts of the Magistrates and they are necessarily Government servants. That ruling, therefore, has no bearing on the case at hand. In (State of U.P. and Anr. v. Johri Mal), the Supreme Court has held as follows
38. A distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor, on the one hand, and Assistant Public Prosecutor on the other,. So far as Assistant Public Prosecutors are concerned, they are employees of the State. They h old Civil Posts. They are answerable for their conduct to higher statutory authority. Their appointment is governed by the service rules framed by the respective State Government. See Samarendra Das, Advocate v. The State of West Bengal and Ors. .
39. The appointment of public prosecutors, on the other hand, are governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.
In view of this, it is clear that an Assistant Public prosecutor is a public servant while Additional public Prosecutor is not. His appointment is not governed by any statute or statutory rule. This Court also in a case reported in 2001 (3) Bombay Cases Reporter 543 (Govindrao Namdeorao Shirsat v. State of Maharashtra and Ors.) held that there is no relationship of master and servant between the A.P.P. and the State and the A.P.P. or Law Officer does not hold a civil post. These decisions certainly make it very clear that the person holding the post of Additional Public Prosecutor is not a public servant at all and therefore, cannot be prosecuted under the Prevention of Corruption Act. It was contended that even otherwise the prosecution is launched without there being a formal sanction if at all, according to the prosecution, the respondent is a Government servant. If he is to be treated as public servant, the prosecution should have been launched after obtaining sanction. This has also not been done. In view of the above observations, I find that the learned Sessions Judge rightly discharged the non-applicant/accused. There is no substance in the revision. It is dismissed.