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BOMBAY HIGH COURT
H. Suresh, J.
Adi P. Gandhi - Appellant
versus
State - Respondent
Crl. Rev. Application No. 338 of 1985
Decided on 24-4-1989
Counsels for the parties:
Mr. F.D. Damania with Mr. V.G. Madbhavi & Mr. H. D. Mirza, Advocates - For the Appellant
Mr. P.R. Narnjoshi Spl. P.P. with Mrs. K.D. Ranadive, P.P. - For the Respondents.
Held: If an advocate has to be regarded as a public servant, he must either hold an office in the government or must be in the pay of the government. Just because he has paid his fees, he does not become a public servant. That is why Pendse J., did not accept the contention that Mr. Chandrika Kenia had become a public servant, even though she was regularly appearing for the government from a panel of lawyers, which penal had no right to appear against the government. When the law was amended it was not intended to include any person who receives fees or remuneration for the performance of a public duty by the government, to become a public servant. The use of the term 'every' person is significant in this context. The word 'any' normally excludes limitation or qualification. But, the word 'every' is always indicative of a restricted meaning. It must necessarily mean that every person who by the very nature of is duties, does a public duty and is paid fees by the government, becomes thereby a public servant. If a receiver or a liquidator or a commissioner is not in the pay of the government, but receives a fee or remuneration becomes a public servant under clause 12(a) of Section 21 of the Indian Penal Code, that is because a receiver or a liquidator has no duty except the duties prescribed by the statute or the order of the Court, and if he works for fees from the government he becomes a public servant. So also the Commissioner. When an advocate is engaged by a government official he has no duty prescribed by such engagement or under the statute in relation to such engagement. An advocate so engaged does no other work except as an advocate, and that is no public duty. He is free to return the brief at any time. He is free to appear against the government in the very next case. The engagement, if any, is only to act as an advocate. But, in the face of a Public Prosecutor or a Government Pleader, it is the office that makes him a public servant, I think, that makes all the difference. (Para 21)
Result: Petition dismissed.
JUDGMENT
H. Suresh, 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 complaint 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. 1979. 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 Yakalatnama 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 propping of certain charges for which the appellant took time to enable the applied 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 pub
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