An Advocate engaged by the Government to conduct a particular matter does not become a public servant within the meaning of Clause 12(a) of section 21 of the Indian Penal Code.

JUDGMENT - SURESH H., J.:—If an Advocate is engaged by the Government to conduct a particular matter, can it be said that he becomes a public servant within the meaning of Clause 12(a) of section 21 of the Indian Penal Code? That is the question which has to be determined in this application.

2. The applicant is an Advocate. He was engaged on behalf of the complainant, as a junior to Senior Counsel Mr. K.J. Khandalwala in a customs case filed against the firm of M/s. Mohanlal Devdanbhai Choksey and others, on a charge of conspiracy and certain other acts of illegally exporting silver out of India punishable under section 120-B of the Indian Penal Code read with section 135 of the Customs Act, 1962. The case was filed by way of a private complaint and the complainant in the case was the then Superintendent of Customs, Mr. J.S. Wagh.

3. The engagement of the applicant as Advocate was made by the office of the Directorate of Revenue Intelligence, Zonal Unit, Bombay, with the approval of the Joint Secretary, Ministry of Law, Government of India, Bombay, by their order dated July 3, 1970. The applicant appeared in the case for which he was being paid his fees for professional work as fixed by the Directorate of Revenue Intelligence. The case was conducted in the Magistrate's Court and the learned Magistrate framed five charges against the accused. As against this, both, the accused and the Directorate of Revenue Intelligence, filed Criminal Revision Applications in the High Court. The applicant was again engaged as an Advocate in the said Criminal Revision Applications with the approval of the Joint Secretary, Ministry of Law, Government of India, on fees for professional work fixed by the Directorate of Revenue Intelligence. In the said Criminal Revision Application, the applicant filed his Vakalatnama and appeared for the complainant Mr. J.S. Wagh. It appears that the matter was argued before the learned Judge and according to the applicant at a certain stage the learned Judge suggested dropping of certain charges for which the applicant took time to enable the applicant and the officer instructing him in Court, to take instructions from the authorities of the Directorate of Revenue Intelligence. It is the prosecution case that at this stage, the applicant allegedly demanded Rs. 2,00,000/- from the accused, as gratification and as a motive or reward for showing favour to them by recommending to the authority not to press the charges and also by agreeing not to file any appeal against the order which will be passed in the High Court in the Criminal Revision Application. The further allegation is that on November 22, 1980 the applicant demanded and accepted Rs. 1,00,000/- from the accused when a trap was laid and he was intercepted. Thereafter a charge-sheet was filed against the applicant in the Special Court at Greater Bombay in Special Case No. 19 of 1981 and he was charged under section 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, and the case is now pending.

4. At the stage of framing the charges as against the applicant, he raised a preliminary point about the maintainability of the prosecution under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1947, on the basis that he was not a public servant within the meaning of the Act, and that, therefore, this prosecution was not maintainable. The learned Additional Special Judge by his order dated August 9, 1985 held that he was a public servant, mainly on the basis that he was remunerated by fees by the Government, and that he was conducting a public prosecution and was hence a public prosecutor and that thereby he fulfilled the two ingredients of Clause 12(a) of section 21 of the Indian Penal Code. He said that the applicant as a "Special Counsel" was holding an office, in the sense, of a "position to which certain duties are attached, especially one of a more or less

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