Cri. Writ Petition No.2554 of 2009

16th August, 2010

Petitioner Counsel: Mr. V. N. SHINGNAPURKAR
Respondent Counsel: Mr. J. P. YAGNIK

Cases Cited:
State of U. P. Vs. Ramesh Chandra Sharma, AIR 1996 SC 864 [Para 3,13,14]
State of U.P. Vs. Johri Mal, AIR 2004 SC 3800 [Para 3,5,13,14]
Govindrao Namdeorao Shirsat Vs. State of Maharashtra, 2001(3) Bom.C.R. 543 [Para 3,10]
Adi P. Gandhi Vs. State of Maharashtra, 1989 Mah.L.J. 588 [Para 4,9,15]
State of Maharashtra Vs. Suresh Gopalrao Gawali, 2007 ALL MR (Cri) 3366=2008 Cri.L.J. 292 [Para 5,9,15]
State of Maharashtra Vs. Smt. Sulbha Gopalrao Kulkarni, 2010 ALL MR (Cri) 401 [Para 5,9,15]

JUDGMENT

B. H. MARLAPALLE, J.:- This petition has been placed before us on account of the Referral Order dated 14.01.2010 passed by the learned Single Judge and the following two issues have been referred for consideration by the Division Bench:

(a) Whether a Public Prosecutor/Additional Public Prosecutor can be said to be a public servant within the meaning of the said term as defined in Section 2(c) of the Prevention of Corruption Act, 1988?

(b) Whether the view taken in Adi P. Gandhi's case lays down the correct test or whether the decision in Gawali's case and Kulkarni's case can be said to be laying down the correct law?

2. The petitioner came to be appointed way back in 2000 for a period of one year as Assistant Government Pleader under Order 27 of the Code of Civil Procedure and as an Additional Public Prosecutor under Section 24(3) of the Code of Criminal Procedure, 1973. He was issued similar orders and the last of them was dated 23.05.2007 which appointed him likewise, but for a period of two years. In each appointment letter, it was made clear that it was strictly subject to the conditions of service laid down in the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 (for short, "Maharashtra Law Officers Rules, 1984"). It was further stipulated that the Government reserves the right to revoke/modify/annul the order without assigning any reasons.

On 3.07.2009, an FIR No.29/2009 came to be registered against the petitioner with the Gadhinglaj Police Station, for the offences punishable under Sections 7(1), 13(1)(3) of the Prevention of Corruption Act, 1988. He has, therefore, approached this Court to quash the said FIR and all consequential proceedings, if any.

3. As per the petitioner, his appointment as an Assistant Government Pleader or an Additional Public Prosecutor does not fall within the ambit of Section 2(c) of the Prevention of Corruption Act, 1988 and he has only a contractual assignment with the State Government which could be discontinued at any time by either of the parties. He is not subordinate to any officer of the State Government and there is no employer-employee relationship between him and the State Government. It is simply a professional engagement as an Advocate to conduct the cases on behalf of the State Government and, therefore, he cannot be called a public servant as defined under Section 2(c) of the Prevention of Corruption Act. In support of these contentions, he has relied upon the decisions of the Supreme Court in the State of U. P. Vs. Ramesh Chandra Sharma & ors., AIR 1996 SC 864 and State of U.P. & anr. Vs. Johri Mal, AIR 2004 SC 3800. He has also placed strong reliance on the judgment of this Court (DB) in the case of Govindrao Namdeorao Shirsat Vs. State of Maharashtra & ors., 2001(3) Bom.C.R. 543. Mr. Shingnapurkar, the learned counsel for the petitioner, therefore, urged to answer the first issue under reference in the negative.

4. In the case of Adi P. Gandhi Vs. State of Maharashtra, 1989 Mah.L.J. 588, the petitioner was engaged by the Superintendent of Customs in a private complaint filed under Section 120-B of the IPC read with Section 135 of the Customs Act, 1962 and the said engagement was made by the Office of the Directorate of Revenue Intelligence, Zonal Unit, Mumbai, with the approval of the Joint Secretary, Ministry of Law, Government of India by their order dated 3.7.1970. The point for consideration before the learned Single Judge was whether the petitioner would become a public servant within the meaning of clause 12(a) of Section 21 of the IPC. It was alleged against the petitioner that he had demanded an illegal gratification of Rs.2 lacs from the accused and as a motive or reward for showing favour to them by recommending to the authority not to press the charges and also for agreeing not to file any appeal against the order which may be passed by the Directorate. It was further urged that the petitioner had demanded and accepted Rs.1 lac from the accused when a trap was laid and he was intercepted. A charge-sheet was filed against the petitioner in the Special Court at Greater Bombay in Special Case No.19/1981 for the offence punishable under Section 161 of IPC read with Section 5(1)((d) and Section 5(2) of the Prevention of Corruption Act, 1947. The learned Single Judge held, while allowing the petition, that the petitioner Adi Gandhi could not be said to be a public servant as defined under clause 12(a) of Section 21 of IPC.

5. In the case of State of Maharashtra Vs. Suresh Gopalrao Gawali, 2008 Cri.L.J. 292 : [2007 ALL MR (Cri) 3366], a learned Single Judge of this Court, after referring to the decision of the Supreme Court in the case of State of U.P. Vs. Johri Mal (supra), held that the person holding the post of Additional Public Prosecutor is not a public servant at all and, therefore, could not be prosecuted under the Prevention of Corruption Act. This view has been followed in the case of State of Maharashtra Vs. Smt. Sulbha Gopalrao Kulkarni, 2010 ALL MR (Cri) 401. The petitioner before us has relied upon both these judgments as well and urged to allow this petition.

6. Mr. Yagnik, the learned APP, on the other hand, submitted that an Additional Public Prosecutor is appointed under Section 24(3) of Cr.P.C. and such an appointment is governed by the Maharashtra Law Officers Rules. He urged that though the Additional Public Prosecutors are not Government employees, they are certainly public servants as defined under Section 2(c) of the Prevention of Corruption Act. As per Mr. Yagnik, issue No.1 as referred to us is required to be answered in the affirmative.

7. Section 24 of Cr.P.C. deals with the appointment of Public Prosecutors for the High Court as well the subordinate Courts. Section 21 of the IPC has defined the term "public servant" and it denotes a person falling under any of the descriptions. Clause twelthly, below Section 21 reads as under:

"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; and

(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."

8. Section 2(c) of the Prevention of Corruption Act has defined the term "Public servant" and it means any of the persons enumerated therein. It would be appropriate to re-produce Section 2(c) of the Prevention of Corruption Act to the extent relevant for the present case:

"2(c) '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;

(ii) any person in the service or pay of a local authority;

(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)."

The term "public duty' has also been defined under Section 2(b) of the Prevention of Corruption Act and it means a duty in the discharge of which the State, the public or a community at large has an interest.

9. In the case of Adi Gandhi (supra), he was not appointed either as an Assistant Government Pleader or an Additional Public Prosecutor and he was engaged in a singular case filed by way of a private complaint, but by a public servant and in the facts of that case, the view taken by the learned Single Judge is neither contrary nor distinguishable and comparable with the view taken subsequently in the case of Suresh Gawali [2007 ALL MR (Cri) 3366] (supra) and Smt. Sulbha Kulkarni, [2010 ALL MR (Cri) 401] (supra).

10. In the case of Govindrao Shirsat (supra), the petitioner had contended that the appointment of Government Pleaders/Law Officers under the Maharashtra Law Officers Rules is a civil service within the meaning of Article 311 of the Constitution and, therefore, there ought to be a reservation for the post of Law Officers for the SC and ST candidates. While dismissing the petition, this Court held that the Law Officers appointed under the Maharashtra Law Officers Rules do not hold a civil post and they are not the employees of the State Government. The Division Bench held that such appointment was purely contractual and there was no pay scale prescribed and the Government Pleader or the Public Prosecutors do not hold a post so as to describe them as the Government servants. The issue as to whether the Government Pleaders or Public Prosecutors are public servants within the meaning of Section 2(c) of the Prevention of Corruption Act did not fall for consideration in the case of Govindrao Shirsat (supra) and, therefore, the reliance on the said decision by the learned counsel for the petitioner is misplaced.

11. The Maharashtra Law Officers Rules, 1984 govern the appointment of Law Officers viz., the Government Pleaders and Public Prosecutors as well as Special Public Prosecutors. Rule 2 of the said Rules deals with the definitions and it would be appropriate to reproduce the following clauses:

"2(g) "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;

2(j) "Government Pleader" means an advocate appointed to that post under these rules by Government in the Law and Judiciary Department.

2(l) "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, Government Pleader and Public Prosecutor.

2(x) "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 sub-sections (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."

12. The question, therefore, that arises for consideration is whether the Public Prosecutor or the Government Pleader is a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act. He is not a person in the service of the State Government, but under Maharashtra Law Officers Rules, he is paid the prescribed fees. As per Rule 30 of the Law Officers Rules except the Advocate General, all Law Officers shall hold the office during the pleasure of the Government. Under Rule 33, there are limitations regarding advising, appearing or acting against the State or its officers, except with the special sanction of the Government. Except as provided under the Rules, the Government Pleader or Public Prosecutor is debarred from holding any brief against the State or its officers or advising, appearing or acting in any case against the State or its officers. In case, the law officer so appointed advises, appears or acts in any case against the State or its officers, before his appointment as such Law Officer, he shall stop doing so as soon as he is so appointed.

13. In the case of Ramesh Chandra Sharma (supra), the issue considered whether the Additional Pubic Prosecutor or the Additional Government Pleader was a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act did not fall for consideration. Even in the case of Johri Mal (supra), which judgment has been relied by the learned Single Judge in the case of Suresh Gawali, the Supreme Court held, "a distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on one hand, and Assistant Public Prosecutor on the other hand. So far as the Assistant Public Prosecutors are concerned, they are employees of the State. They hold civil posts. They are answerable for their conduct to higher statutory authorities. Their appointment is governed by the service rules framed by the respective State Governments. Appointment of Public Prosecutor, 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".

14. In the case of Ramesh Chandra Sharma (supra), a renewal for appointment as Additional District Government Counsel (Criminal) was denied by the impugned order and the issue as to whether such appointees were public servants or whether an Additional Public Prosecutor as appointed under Section 24 of Cr.P.C. would be a public servant as defined under Section 2(c) of the Prevention of Corruption Act was not for consideration before the Supreme Court. Section 225 of Cr.P.C. states that in every trial before the Court of Sessions, the prosecution shall be conducted by a Public Prosecutor. Section 321 of the said Code empowers the Public Prosecutor or Assistant Public Prosecutor in charge of a case, to withdraw from the prosecution or any person, at any time, with the consent of the Court. As per Section 378 of the Code, it is the Public Prosecutor who presents an Appeal against an order of acquittal under the directions of the District Magistrate or the State Government as the case may be. Thus, the Public Prosecutor has a statutory role to perform and Section 2(u) of the Code, states that the Public Prosecutor means any person appointed under Section 24 of the said Code. In the case of Johri Mal (supra), the Supreme Court held that such appointees discharge public functions in addition to statutory powers which are conferred upon them. The appointments of the Assistant Government Pleader or the Additional Public Prosecutor are made under the Maharashtra Law Officers Rules and though they are contractual in nature, there is undoubtedly no employer-employee relationship between the State Government and such appointees. However, the appointees under the said Rules do perform public duties and they receive their fees as prescribed under the Rules. They are not allowed to appear against the State Government or its officers unless a specific permission in writing is obtained. To conduct prosecution on behalf of the State is nothing short of a public duty and that too when so appointed for a fixed tenure and not for a fixed case, under the Maharashtra Law Officers Rule. Section 25-A has been added to the Code with effect from 23.06.2006 for the appointment of Director of Prosecution. As per sub-section (5) of the said Section, 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 of the Code, to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25, shall be subordinate to the Deputy Director of Prosecution and as per sub-section (4) of the said Section, every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. Under Rule 14 of the Maharashtra Law Officers Rules, the duties of the Government Pleaders and Public Prosecutors have been set out in detail. It is also well known that in the State of Maharashtra there is a separate cadre of Assistant Public Prosecutors and they are State Government employees. Undoubtedly, the Public Prosecutor or Additional Public Prosecutor is not an employee of the State Government, but, in our opinion, he is certainly a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988.

15. Hence, we answer Issue No.1 of the Referral Order in the affirmative and we need not answer issue no.2 in view of the observations made hereinabove, regarding the view taken by the respective Single Judges in the case of Adi. P. Gandhi (supra) on one hand and Suresh Gawali, [2007 ALL MR (Cri) 3366] (supra) and Sulbha Kulkarni, [2010 ALL MR (Cri) 401] (supra) on the other hand. Consequently, the view taken in the case of Suresh Gawali, [2007 ALL MR (Cri) 3366] (supra) and Smt.Sulbha Kulkarni, [2010 ALL MR (Cri) 401] (supra) is declared to be no more a good law. The view taken in Suresh Gawli and Smt.Sulbha Kulkarni, [2010 ALL MR (Cri) 401] (supra) stands overruled.

16. Petition be listed before the appropriate Bench for final disposal.

Ordered accordingly.