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 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 intere