The State Of Maharashtra vs Public Prosecutor
2009 Latest Caselaw 124 Bom

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            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                              
                       BENCH AT AURANGABAD




                                                      
                 CRIMINAL APPLICATION NO. 1563 OF 2009

     The State of Maharashtra                                               APPLICANT




                                                     
           VERSUS

     Smt.Sulbha Copalrao Kulkarni (Vaidya)
     Age-37 years, Occ-Special Assistant




                                       
     Public Prosecutor, 
     Kallamb, Tq-Kallamb
     Dist-Osmanabad
                        ig                                            RESPONDENT

                                     .......
                      
     Mr.N.R.Shaikh, APP for applicant State
     Mr.V.J.Dixit, Sr.Counsel i/b Mr.M.S.Patil, Advocate for respondent 
                                     .......
      

                                                      [CORAM : A.V.POTDAR, J.]
   



                                Reserved on      : 11th December 2009
                                Pronounced on  : 17th December 2009  
     JUDGMENT :

1. Present application is filed by the State for quashing of

the order passed by the learned Additional Sessions Judge,

Osmanabad (Mr.M.V.Kulkarni), below Exhibits-1 and 7 in Anti

Corruption Special Case No.03/2008 thereby discharging the

accused, respondent, u/s 227 of the Cr.P.C.

2. Rule. Rule returnable forthwith. With the consent of

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learned counsel for the parties, heard finally at the stage of

admission itself.

3. At the outset, the facts, which gave rise to file the

present application, can be summarized thus-

a) Present respondent was appointed as an Assistant

Public Prosecutor as per directions of the Director of Public

Prosecution, State of Maharashtra vide letter dated

07.06.2000 to act as an Assistant Public Prosecutor in JMFC,

Courts No.2 and 3 at Kallamb, Dist-Osmanabad. This order

was issued under the signature of District Magistrate,

Osmanabad. The said appointment was on the terms and

conditions mentioned in the order itself.

b) A complaint was lodged by one Rajkumar Gawali,

resident of Shirdhon, who is an accused in regular criminal

case, in connection with CR No.05/2003 registered with

Shirdhon police station, in respect of demand of illegal

gratification by the respondent, to dilute the case of

prosecution against him. This demand was made on

19.08.2007 for which the gratification was to be paid on

29.08.2007. Accordingly, trap was arranged in the premises

of the Court of JMFC, Kallamb, where the respondent was

caught raid-handed while accepting bribe amount. After

completion of requisite legal formalities and investigation,

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charge sheet was filed against the respondent for an offence

punishable u/s 7, 13 (1) (d) r/w 13 (2) of the Prevention of

Corruption Act, 1988. The case was numbered as special

case No.03/2008.

c) Subsequent to the arrest of the respondent, she was

terminated from the post of Assistant Public Prosecutor.

d) During the pendency of the trial, it appears, an

application was moved vide Exhibit-7 for discharge of the

respondent accused u/s 227 of the Cri.P.C. on the ground

that the respondent was not a public servant within the

meaning or as per definition of Public Servant u/s 21 (12) (a)

(b) of the Indian Penal Code as well as under the Law Officers

Rules of 1984 and hence she is not liable to be prosecuted

under the provisions of the Prevention of Corruption Act.

e) The impugned order dated 15.01.2009 was passed by

the learned Additional Sessions Judge, Osmanabad and

discharged the respondent from special case No.03/2008.

Hence, present criminal application.

4. Heard learned APP for the applicant State followed by

the submissions of learned senior counsel Mr.Dixit for respondent.

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5. According to learned APP, the respondent, who was

appointed as an Assistant Public Prosecutor, was covered under

the definition of the public servant as per section 2 (c) (i) of the

Prevention of Corruption Act and the order impugned in the

present application, of holding that the respondent is not a public

servant within the meaning of public servant of the Prevention of

Corruption Act and discharged her, is bad in law. Per contra,

learned senior counsel appearing for the respondent supports the

impugned order on the ground that there is no distinction of the

duties to be performed by the Additional Public Prosecutor,

appointed u/s 24 (3) of the Cr.P.C., which appointment is held to

be not as public servant, and the Assistant Public Prosecutor u/s

25 (3) of the Cr.P.C. Hence, it is urged that it ought to be held that

the respondent is not a public servant and not liable for

prosecution under the provisions of the Prevention of Corruption

Act.

6. "Public Prosecutor" is defined u/s 2 (u) of the Cr.P.C.,

which reads as under:

"2 (u) "Public Prosecutor" means any person

appointed under section 24, and includes any person acting under the directions of a Public Prosecutor;"

From the definition of "Public Prosecutor" it is clear

that the persons, who are appointed u/s 24 of the Cr.P.C. are only

included in the definition of Public Prosecutor and the

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appointments made as per section 25, are not included in the said

definition.

7. The distinction between the appointment as Public

Prosecutor or Additional Public Prosecutor on one hand and the

Assistant Public Prosecutor on the other hand, is discussed by the

Apex Court in the matter of "State of U.P. V/s Johri Mal"

reported in AIR 2004 SC 3800. It is observed in the said judgment

thus-

"37. The Legal Remembrancer Manual clearly states that appointment of a public prosecutor or a district counsel would be professional in

nature. It is beyond any cavil and rightly conceded at the Bar that the holder of an office of the public prosecutor does not hold a civil post. By holding a post of district counsel or the

public prosecutor, neither a status is conferred on the incumbent.

38. A distinction is to be borne in mind between appointment of a Public Prosecutor or

Additional Pubic 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 hold 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 others (2004 (2) JT (SC) 413)

39. The appointment of public prosecutors, on the other hand, are governed by the Code of

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Criminal Procedure and / or the executive instructions framed by the State governing the

terms of their appointment. Proviso appended to Article 209 of the Constitution of India is not

applicable in their case. Their appointment is a tenure appointment. Pubic 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." (emphasis supplied)

8. In the matter of "Naresh Kumar Madan V/s State of

M.P." reported in (2007) 4 SCC 766, the Apex Court has held

thus-

"The Penal Code denotes various persons to be

public servants. It is, however, not exhaustive. A person may be a public servant in terms of

another statute. However, we may notice that a person who, inter alia, is in the service or pay of the corporation established by or under a

Central, Provincial or the State Act, would also come within the purview thereof. Section 2(c) of the 1988 Act also brings within its embrace a person in the service or pay of a corporation established by or under a Central Act."

Thus, from the observations of the Apex Court it is

clear as to who are covered under the definition of Public Servant

u/s 2 (c) of the Prevention of Corruption Act.

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09. Similar view is taken by this Court in the matter of

"Shivdas Jadhav V/s State of Maharashtra" reported in 2008

CR.L.J 3234 and in the matter of "State of Maharashtra V/s

Suresh Gopalrao Gawali" reported in 2008 Cri.L.J. 292. It is

held that an Assistant Public Prosecutor is a public servant while

additional public prosecutor is not a public servant.

10. What is the true test to decide as to whether a

particular person is a public servant or not, is guided by the Apex

Court in the matter of "G.A.Monterio V/s The State of Ajmer"

reported in AIR 1967 SC 13. The Apex Court has observed thus -

"The true test in order to determine whether a person is an officer of the Government, is :-

(1) whether he is in the service or pay of the

Government, and

(2) Whether he is entrusted with the

performance of any public duty.

If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of

an exalted character or very humble indeed. IF therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately auxiliary to those of some one who

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is an office of the Government and is therefore an officer of the Government within the meaning

of S.21 (9)"

11. In the matter of "Vijay Shankar Mishra V/s State of

UP" reported in 1999 Cri.L.J. 521, it is observed in respect of

duties and functions of the Public Prosecutor or what sort of duties

they require to perform -

"7. In Mahadev V.Shantibhai, (1969) 2 SCR 422 Hon'ble Supreme Court held that a lawyer

engaged by the Railway Administration during the continuance of engagement was holding an "office of profit". In Smt.Kanta Kathuria V

Manak Chand Surana, AIR 1970 SC 694, the Constitutional Bench of Hon'ble Court (per Majority Hidayatullah, C.J. And Mitter, J. contra), it was observed that Kathuria (An

advocate appointed as Government Pleader to assist the Government) held an office of profit

under the State Government, but the disqualification (to contest election) stood removed by the retrospective operation of the

Act. In Mundrika Singh V State of Bhiar, (1979) 4 SCC 701: (AIR 1979 SC 1871) the nature of the appointment of the Government Pleaders was held by the Hon'ble Supreme Court as defined in S.2 (7) of the Code of Civil Procedure, 1908 as a

public office. Hon'ble V.K.Krishna Ayer, J. observed in the said case that Governments under our Constitution shall not play with law officers on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. In that case reliance was placed on an earlier decision of the Madras High Court wherein it was clearly

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held that the "duties of the Government Pleader, Madras, are duties of a public nature and the

office of the Government Pleader is a public office." It was further observed that a

Government Pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court mad in Ramchandran

V. Alagiriswami, AIR 1961 Madras 450 and regard the view there, expressed about a Government Pleader's office as broadly correct even in the Bihar set up:

"........ The duties of the Government Pleaders,

Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a

Government Pleader discharges his duties because, if he handles his case badly, they have ultimately to foot the bill."

"I consider that the most useful test to be applied to determine the question is that laid

down by Erle. J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of

opinion that the conclusion that the office is a public office, is irresistible."

12. The object behind the enactment of the Prevention of

Corruption Act, 1988 is thoroughly discussed by the Apex Court in

the judgment in case of "State of Madhya Pradesh V/s Jagdish

Prasad Gupta" reported in AIR 2000 SC 870, which reads thus-

"9. The Act was intended to make effective

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provisions for the prevision of bribe and corruption rampant amongst the public

servants. It is a social legislation defined to curb illegal activities of the public servants and is

designed to be liberally construed so as to advance its object. Dealing with the object underlying the Act this Court in R.S. Nayak V. A.R.Antulay, (1984) 2 SCC 183 : (AIR 1984 SC

684 : 1984 Cri.L.J. 613) Para 18 of AIR Cri.LJ) held:

"The 1947 Act was enacted, as its long title

shows, to make more effective provision for the prevention of bribery and corruption.

Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the Court as would advance the object and

purpose underlying the Act and at any rate not defeat it. If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the

words used in the provision. The question of construction arises only in the event of an

ambiguity or the plain meaning of the words used in the statute would be self-defeating. The Court is entitled to ascertain the intention of the

Legislature to remove the ambiguity by construing the provision of the Statute as a whole keeping in view what was the mischief when the Statute was enacted and to remove which the Legislature enacted the Statute. The

rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two view are possible of a provision, it would be the duty of the Court to adopt that construction which would advance the object underlying the Act, namely, to make effective

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provision for the prevention of bribery and corruption and at any rate not defeat it."

13. The case in hand requires to be considered in the light

of the observations of various Courts, in respect of scope of

interpretation of the status of an employee whether to be

considered as a public servant or not and in the light of the order

of appointment dated 07.06.2000. The terms and conditions of the

said appointment order also require to be considered. Perusal of

the said terms and conditions clearly indicate that the respondent

was receiving remuneration for the services rendered by her for the

State Government. The duties and functions of the respondent

were controlled by the office of Director of Prosecution of the State

Government and in such situation, though it is urged that the

respondent was not performing the public duties, yet this Court is

not in agreement with the same for the simple reason that the

services rendered by the respondent were towards her duty as a

public servant and hence it is the public duty, rendered by her,

and nothing else. For these reasons, the services of the respondent

were squarely covered under the definition of section 2 (c) (i) of the

Prevention of Corruption Act.

14. For the reasons discussed in above paragraphs, the

appointment of the respondent was not at par with the

appointment of the Additional Public Prosecutor. Learned

Additional Sessions Judge, Osmanabad has committed an error in

holding that the respondent is not a public servant within the

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meaning of public servant under the Prevention of Corruption Act

and hence not liable for prosecution for the offence under the

Prevention of Corruption Act and erroneously discharged the

respondent u/s 227 of the Cr.P.C. from the Anti Corruption Special

Case No.03/2008. Hence, the impugned order dated 15.01.2009, of

discharging the respondent, is liable to be quashed and set aside.

15. Accordingly, the application is allowed. The order of

discharge of respondent from the Anti Corruption Special Case No.

03/2008 is hereby quashed and set aside.

16. Rule is thus made absolute, as indicated above.

17. The respondent is directed to appear before the

Sessions Judge / Special Judge, Osmanabad on 30.12.2009.

Thereafter, the Additional Sessions Judge / Special Judge,

Osmanabad to dispose of the Special Case No.03/2008, in

accordance with law, within 6 months of 30.12.2009. Criminal

application stands disposed of accordingly.

[A.V.POTDAR, J.]

drp/criapln1563-09