The main legal point established in the judgment is that the status of a public servant under the Prevention of Corruption Act, 1988 is determined not only by employment status but also by the performance of public duties and the relevant appointment rules.

Oral 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 XXVII 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. v. 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 v. 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 v. State of Maharashtra, 1989 Mah. L. J. 588, the petitioner was engaged by the Superintendent of Customs in a private complaint filed under Section 120B 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 petition