H. SURESH, J.

( 1 ) 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 prpfessional work as fixed by the Directorate of Revenue Intelligence. The case was conducted in the Magistrates 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 chargesheet 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 (l) (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 raise J a preliminary point about the maintainability of the prosecution under Section 161 of the Indian Penal Code and Section 5 (l) (d) of the prevention of Corruptipn 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 public character". It is against this order, the present Revision Application has been preferred.

( 5 ) THE arguments have been lengthy both, before the learned Special judge and also before me, though not to the same extent as in the special Court. But more or less the same authorities and precedents have been cited on either side, as have been cited in the Special Court.

( 6 ) ON behalf of the applicant it has been argued that the question involved is no longer res Integra and that there are number of decisions which say that in the absence of any office such a person cannot be said to be a public servant. On the other hand Mr. Namjoshi submits that none of the cases deals with a position as is contemplated under Clause 12 (a) of Section 21 of the Indian Penal Code in so far as it applies to the facts of this case. His argument is simple. He says that the Government has no private duty and that, therefore, if the Government prosecutes a private person the Government is doing a public duty. He further says that when an advocate is engaged by the Government the advocate, as long as the engagement lasts, necessarily discharges a public duty, and if the advocate is paid remuneration, he becomes a public servant, liable for prosecution as contemplated under the provisions of Prevention of Corruption Act.

( 7 ) SECTION 21, Clause 12 (a) of the Indian Penal Code is as follows :

"the words "public servant" denote a person falling under any of the descriptions hereinafter follow ing, namely : clause 12 (a) : Every person in the service of pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government. " there are two explanations at the foot of this provision which are equally relevant and they are as follows ; "explanation 1.- Persons falling under any of the above descriptions are public servants whether appointed by the Government or not. Explanation 2.- Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. "

As far as the Prevention of Corruption Act, 1947 is concerned, there is no other definition of a public servant than the definition as defined in Section 21 of the Indian Penal Code.

( 8 ) BEFORE I proceed further I must make it clear that the learned judge was wholly in the wrong when he said that the applicant was conducting "a public prosecution" and hence was a Public Prosecutor. This is plainly wrong public "prosecutor" is a well defined position under Section 24 of the Criminal Procedure Code. The applicant was never appointed as public Prosecutor by the Government. He was engaged as an advocate to appear for and on behalf of the complainant in the said case. Again under the Customs Act, the complaint is a private complaint and not a police case in which a Public Prosecutor appears for the prosecution. It may be that the complainant is prosecuting an accused in respect of offences committed under the Customs Act. But, thereby the case does not become a public prosecution. In a sense, when any person is charged with an offence under any statute, it is an offence against the State. If such a person is prosecuted, not by the police, the prosecution does not become a public prosecution. In all such cases the complaint proceeds as if it is a private complaint and the complainant will be at liberty to engage any advocate of his choice, and the advocate does not become a Public prosecutor.

( 9 ) IN fact, the prosecution had some difficulty in describing the applicants position when he acted for the complainant. In the draft charge he has been described as "special Counsel", appointed for performing public duties for and on behalf of the Department of Directorate of revenue Intelligence and that he was being prosecuted for committing certain offence while he was acting in his capacity as a Special Counsel for the said department. This would at once make it clear that he was never a Public Prosecutor nor did he hold any office in the Government as such.

( 10 ) MR. Damania, appearing for the applicant, drew my attention to a number of cases, both, English and Indian. He cited cases in respect of various persons such as Doctors, Chartered Accountants, University examiners etc. acting or performing duties for and on behalf of the government and companies, but, all have been held as not servants or public servants. One of the earlist cases is the case of In Re Imperial Land co. of Marseillers, 1870 Law Reports Equity Cares 298, wherein a banker was charged for misappropriating certain monies belonging to a certain company for which he was "working as an official and the Court held that the banker cannot be said to be an officer of the company. Similarly a solicitor who does certain business for the company for remuneration has been held to be not an officer of the company (In Re Great Western forest of Dean Coal Consumers Co. , (1886) 31 Ch. D. 496 ). This has been followed in the next case of R. Carpenter and Bristol Corporation, (1907) 2 kb 617. So long as solicitors are merely being employed as such and remunerated in their usual way by payment of ordinary costs and charges to which they are professionally entitled, they are not officers within the meaning of certain Local Government Act referred to therein. In the case of Great Western Railway Co. v. Bater, (1920) 3 KB 266 we have the locus classicus of Rowlatt, J. , which has been referred to and quoted with approval in several Indian cases with regard to the definition of "office". The learned Judge says : "it is argued, and to my mind argued most forcibly, that that shows that what those who used the language of the Act of 1842 meant when they spoke of an office or an employmennt of profit was an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filed it, and which went on and was filled in succession by successive holders, and that if a man was engaged to do any duties which might be assigned to him, whatever the terms on which he was engaged, his employment to do those duties did not create an office to which those duties were attached ; he was merely employed to do certain things, and the so-called office or employment was merely the aggregate of the activities of the particular man for the time being. myself think that that contention is sound. " in the case of Opershaw v. Ex Fletcher, (1916) 31 TLR 372, the observation is to the effect that when a doctor renders his services to his patient, it is not because of his appointment he becomes the servant of the patient. He renders services because he is a doctor and as a doctor he is in no sense under the control o. r direction of the patient. So also a person who is appointed for the purpose of conducting an independent investigation in respect of a Company is an expert, a person with skill and in no sense he is under the control or direction of the Company.

( 11 ) NOW, we come to several Indian cases. One of the earlier cases is the case of R. K. Dalmia and others v. Delhi Administration, AIR 1962 SC 1821 [LQ/SC/1962/148] wherein the Supreme Court held that a Chartered Accountant appointed by the Central Government to investigate into the affairs of an insurance Company and remunerated by the Government for the work he was entrusted with, does not hold office and is not a public servent. In the case of Kantha Kathuria v. Manak Chand, AIR 1970 SC 694 [LQ/SC/1969/419] , it has been expressly held that an advocate appointed as Special Government Pleader to conduct a particular case does not hold any office of Government. This case, of course, has arisen in relation to an election petition under the Representation of the People Act, 1951 on the basis that Advocate mrs. Kathuria who contested the election and was declared as elected, had held the office of Special Government Pleader which was said to be "the Office of profit" under the Government of Rajasthan. Under the said Act, if any person holds any office of profit under the Government, that was a disqualification. It is in that context the Supreme Court approved what Rowlatt, J , observed. It took note of the fact that the aggregate of her work and her activities could not have created an office nor could she have been described as anything but advocate. However, the State Government had removed this disqualification by a retrospective amendment of the Act, and, therefore, in any event, she suffered no disqualification. But what is important is the authoritative statement of the Supreme Court that there could be no office of profit unless it existed independently of a person appointed to the said office. In that context this is what the Supreme Court said : "we cannot visuaise an office coming into existence, every time a pleader is asked by the Government to appear in a case on its behalf. " 11a. This case has been followed and considered in a number of other cases. Pendse, J. , considered that in an unreported judgment in ms. Chandrika Kenias case, delivered by him on August 19/20, 1985. The question was whether Chandrika Kenia, an advocate, who bad contested an election and won was disqualified because she was holding an office of profit being on the panel of Government Pleaders of State Government in list b. The learned Judge went into the question in detail as to how government advocates are appointed for the purpose of conducting cases and how they are included in various panels. In that he took note of the fact that Government litigations in Courts and conduct of the legal affairs are regulated by the Maharashtra Law Officers (Appointment, conditions of Service and Remuneration) Rules, 1984. The appointment of b panel Counsel was subject to certain conditions, the most important condition being that such an advocate shall not advise, act or appear against the State or its officers, in any civil case without the previous permission of the Remembrancer of Legal Affairs and that normally such a Counsel shall not decline a brief offered on behalf of the State or its officers. At the same time it was made clear that the counsel on the penal are only offered briefs when an occasion arose and the counsel on the panel have no right to represent or appear on behalf of the State government unless a specific brief is entrusted. The learned Judge following kathurias case (supra) held that despite these restrictions she held no office of profit which had an existence independent from the person who filled it. In case of a counsel of b panel, the panel was elastic and can be expanded or reduced. The counsel in panel b has no duties of permanent nature constituting the office of profit. The penal was not a fixed one with special duties and discipline. In case any counsel on the panel withdraws, then there is no office like office of panel counsel and that, therefore, the critical test of independent existence of the position irrespective of the occupant was not satisfied. He further took note of the fact that the panel merely indicates that the Government had selected some counsel to whom the briefs are to be given by the Advocate-General in case of requirement of the Government. The empanelment of a counsel does not make him subordinate of the Government Pleader, nor such empanelment creates an office independent of its holder.

( 12 ) FOLLOWING Mrs. Kathurias case a doctor on the panel of Surgeons general of a State has been held to be no public servant (Madhukar v. Jaswant, AIR 1976 SC 2283 [LQ/SC/1976/120] ).

( 13 ) ONE of the recent cases is Antulays case (R. S. Nayak v. A. R. Antulay, AIR 1984 SC 684 [LQ/SC/1984/43] ). This is a case which arose under the provisions of Prevention of Corruption Act, 1947, and the question was whether a member of Legislative Assembly was a public servant within the meaning of clauses 4 and 12 of Section 21 of the Indian Penal Code. Here, I must mention that till 1964 the legal position was somewhat different inasmuch as clause 12 was applicable to "an officer", whereas by an amendment in that year it was changed to "every person". Therefore ; one of the con-tentions in that case was that the scope of anyone being a public servant has been widened after the amendment in 1964 and, therefore, any person who was in the service or pay of the Government or remunerated by fees or commission for performance of public duty would become a public servant. In other words it is not necessary to hold an office as such or that he should be in the service of the Government. If a person gets remuneration for the performance of any public duty by the Government, such a person becomes a public servant within the meaning of Section 21 of the Indian Penal Code. This aspect was considered by the Supreme Court in Antulays case. The Supreme Court, in particular, observed that the amendment did not make any difference and the relevant observation is as follows : "the amendment keeps the law virtually unaltered. Last part of clause 9 was enacted as Clause 12 (a ). If M. L. A. was not comprehended in Clause 9 before its amendment and dissection, it would make no difference in the meaning of law if a portion of Clause 9 is re-enacted as clause 12 (a ). It must follow as a necessary collary that the amendment of Clauses (9) and (12) by Amending Act 40 of 1964 did not bring about any change in the interpretation of Clause (1) and Clause (12) (a) after the amendment of 1964. " the Supreme Court then referred to certain earlier cases, and in particular to the case of : "state of Gujarat v. Manshanker Prabhashanker Dwivedi, (1973 (1)SCR 313 [LQ/SC/1972/260] : AIR 1973 SC 330 [LQ/SC/1972/260] ). The accused in that case was charged for having committed offences under Section 161, Indian Penal Code and Section 5 (2) of the 1947 Act. The facts alleged were that the accused was an examiner appointed by the University for the first year. B. Sc. examinations. He was alleged to have accepted gratification of rs. 500/- other than legal remuneration for showing favour to a candidate by giving him more marks than he deserved in the Physics practical examination. The learned Special Judge convicted him. In the appeal the High Court after taking note of Clause (9) and Clause (12) of section 21 prior to their amendment by Act 40 of 1964 held that for clause 9 to apply the person should be an officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty "and that such pay or remuneration or commission must come from the Government".

It was further held that the context of the whole of the Ninth Clause, as it stood prior to its amendment in 1964, indicated that the connection with the Government was necessary either in respect of the payment of remuneration or in respect of the performance of the public duty. It was further held that the use of the word officer read in the context of the words immediately preceding the last part would indicate that the remuneration contemplated was remuneration by the Government. The High Court further held that the amendment made in 1964 and in particular the addition of the words "by the Government" in sub-clause (a) of Clause Twelfth showed the legislative interpretation of the material portion of Clause Ninth as it stood before the amendment under consideration. After extracting these reasons which appealled to the High Court, this Court observed that the reasoning of the High Court does not suffer from any infirmity. It would transpire that payment by the Government was implied without the use of the expression, by the Government in Clause (9 ). The words by the Government are added in Clause 12 (a) amended. This apparently does not make any difference. It would, therefore, necessarily follow that the amendment of Clauses (9) and (12) did not bring about any change in the coverage and construction of the two clauses prior to and since their amendment. If that be so, it would follow as necessary corollary that if M. L. A. was not a public servant within the meaning of the expression prior to Act 40 of 1964, since the Act, the law, legal effect and coverage of expression public servant remains unaltered and hence m. L. A. is not a public servant comprehended in Clause 12 (a ). " it is worthwhile to note that the Supreme Courts while analysing Clause 12 (a), observed that there are three independent categories comprehended in Clause 12 (a) and if a person falls in any one of them he would be a public servant. The three categories are : (i) A person in the service of the Government, (ii) A person in the pay of the Government. (iii) A person remunerated by fees or commission for the performance of any public duty by the Government. The Supreme Court observed that one can be in the service of the Government and may be paid for the same. One can be in the pay of the government without being in the service of the Government in the sense of manifesting master-servant relationship. The Supreme Court elaborated this aspect of the provision and held : "one can be in the pay of another without being in employment or service of the other. We are not inclined to accept the submission that in the pay of must in the context, imply master-servant relationship for the obvious reasons that the Court has to construe the phrase in the pay of in its setting where it is preceded by the expression in the service of the Government and succeeded by the expression remunerated by fees or commission for the performance of any public duty by the government. The setting and the context are very relevant for ascertaining the true meaning of the expression. In order to avoid the charge of tautology, the phrase in the pay of the Government in Clause 12 (a)may comprehend a situation that the person may be in the pay of the government without being in the employment of the Government or without there being a master-servant relationship between the person receiving the pay and the Government as payer. " the Supreme Court then considered the question as to whether an M. L. A. performs any public duty or not. The Supreme Court did not accept the contention that an M. L. A did not perform any public duty. But it was saisfied that it was unquestionable that he was not performing any public duty either directed by the Government or for the Government, though he did perform public duties cast on him by the Constitution and his electorate The Supreme Court then took note of the fact that there is separation of powers under the Constitution and an M. L. A. cannot be said to be in the pay of the Government in the sense of executive Government or is not remunerated by fees for performing any duty by the executive government and that, therefore, he cannot be considered as a "public servant" within the meaning of expression" in Clause 12 (a ).

( 14 ) IF one goes through the entire judgment it becomes clear that antulays case came to be decided only on the considerations relating to first two categories of person contemplated under Clause 12 (a) of Section 21 of Indian Penal Code. But it was made clear that these three categories of persons have been considered disjunctively. Similarly it has been made very clear that for the purpose of being a public servant he need not hold any office nor need there be any master-servant relationship between the person and the Government. Therefore, the question is if a person is not in the service of the Government, not in the pay of the Government, but, is remunerated by fees or commission for the performance of any public duty by the Government, can it be said that such a person, even though he is appointed for a particular act of the Government, becomes a public servant within the meaning of Section 21 of the Indian Penal Code.

( 15 ) BOTH, Antulays case and Mrs. Kathurias case, have been referred to and followed in very many subsequent cases. In the case of Ramesh balkrishna Kulkarni v. State of Maharashtra, AIR 1985 SC 1655 [LQ/SC/1985/238] it has been held that a Municipal Councillor is not a public servant (although there is a deeming provision in Section 302 of the Maharashtra Municipal Corporation act under which a Municipal Councillor is deemed to a public servant ). In the case of A. R. Puri v. State, 1988 Cr LJ 311 the Delhi High court held that an Insurance Surveyor is not a public servant. Similarly the Punjab High Court in the case of State of Punjab v. Kesari Chand, 1987 cr LJ 549, held that the President and Secretary of a Co-operative Society are not public servants. Our own High Court in the case of N. Vaghul and others v. State of Maharashtra, 1987 Cr LJ 385 held that the Bank officers are not public servants though the same came to be decided under Clause 12 (b) of Section 21 of the Indian Penal Code. The Madras High Court in the case of State v. K. Srinivasan, (1984 Law Weekly Criminal 127) held that authorised medical attendants (Government Civil Assistant Surgeons)discharging duties under Central Government Medical Attendance Rules, 1944, are not public servants within the meaning of Section 21, even though they are remunerated by the Government for the services rendered by them. It is in this case, the learned Judge took note of the three categories of persons as set out in Clause 12 (a) of Section 21 of the indian Penal Code and elaborated the third category of persons who are remunerated by fee or commission for the performance of any public duty by the Government. The learned Judge observed as follows : "the second part of sub-clause fa), which forms the third limb to bring a person within the ambit of Clause 12 is that is that a person should be remunerated by fee or commission for the performance of any public duty by the Government. The payment of salary is not an essential hall mark of a public servant under this requirement. What it requires is that (1) the person must be remunerated by a fee or commssion,

(2) he must be remunerated for the performance of a public duty, and (3) he must be remunerated by the Government. Therefore, in order to bring a person within the ambit of the latter part of Clause 12 (a) the above three necessary conditions should be fully. satisfied. The authoritative judicial pronouncements in the last part of clause (9)viz, "every officer in the service of pay of the Government or remunerated by fees or commission for the performance of any public duty," were to the effect that unless a person had himself authority to act on behalf of the Government, he would not be an officer falling within the definition of the above part. Therefore, the Parliament in its wisdom, thought of substituting the expression "every person" in the place of the expression "every officer", so as to widen the scope of the definition, while incorporating the above clause in the present Clause 12 (a ). But, the Parliament has carefully added the words "by the Government" after the words "performance of any public duty" occurring in the above Clause 12 (a ). If the expression by the Government had not been added, the above said last part of Clause 12 (a) would read as if every person remunerated by fee or commission for the performance of any public duty would come within the definition. This would read to the anomalous position and that even persons who are remunerated by any person or entity other than the Government, also would fall within the definition of public servant. . . ,if such an interpretation is given, then every person who does some kind of public duty and who is remunerated therefor (not necessarily by the Government) would fall within the definition. This position would be quite against the. general understanding of the term public servant. That is why the Parliament has carefully and cautiously added the words "by the Government" so that only persons who are remunerated by the Government for the performance of a public duty rendered by them would come within this definition. Thus, the most impof tant ingredient in the third limb of Clause 12 (a) is the expression "remunerated by the Government. " " but, of course, in this case the learned Judge held that the authorised medical attendants were not public servants because they were not in any way remunerated by the Government.

( 16 ) THE Calcutta High Court in the case of V. K. Godhwani v. State and another, AIR 1965 Cal. 79 [LQ/CalHC/1963/120] expressly held that an advocate engaged by the Collector of Customs is not a Public Prosecutor. It was contended that even though the advocate concerned was not a Public Prosecutor "directly" appointed by the State Government, he can still be considered a Public prosecutor engaged "derivatively" to conduct a prosecution under the direction of a Public Prosecutor as is mentioned in definition in Section 4 (1) (t) of the Criminal Procedure Code. It is here, he have ananalysis of a distinction between "engagement" and appointment". The relevant observation is as follows;

"or Kar advanced an argument that the word "engage" has the same connotation as the word "appoint". Not only this argument does violence to the English language but also neglects an essential part in the definition given in Section 4 (1) (t) of the Code of Criminal Procedure. The second part in that definition, as I have already mentioned, includes "any person acting under the directions of a Public Prosecutor", as distinct from the first part in the same definition which mentions "any person appointed under Section 492". A person acting under the directions of a Public Prosecutor is obviously a person engaged by the public Prosecutor. That it is so appears from the several provisions in the Legal Remembrancers Manual, 1930. Particular mention may be made of -I. Sub-rule (4) of Rule 5 in Chapter I of that Manual which says : "when the Deputy Legal Remembrancer is unable to dispose of the work entrusted to him he may engage a Barrister or a Pleader (including the assistant Government Pleader ). . " and 2. Sub-rule (9) of Rule 6 in Chapter II of that Manual which says : "whenever the Public Prosecutor of the district is not available for the purpose of conducting prosecution in Magistrates Court the Magistrate of the district may engage any pleader of sufficient standing at the bar to take the duties of the Public Prosecutor subject to the sanction of the the Lega Remembrancer only be understood as those provisions in the Manual can only be understood as implementing the second part of the definition of "public Prosecutor" in Section 4 (1) (t) of the Code of criminal Procedure. There cannot be any doubt in my view, therefore, that appointment under Section 492 of the Code of Criminal Procedure by the State Government is very much different from an engagement by the Public Prosecutor of another person to act under his directions to conduct the prosecution. "

( 17 ) WHILE Mr. Damania has heavily relied on Antulays case and mrs. Kathurias case Mr. Namjoshi sought to submit that none of these cases deals with the third part of Clause 12 (a) of Section 21 of the Indian penal Code, particularly after the amendment of the year 1964. Mr. Namjoshi further submitted that under this clause it becomes necessary for the Court to give a wider meaning so as to apprehend every person who gets remuneration from the Government for the performance of a public duty by the Government, so that if a such as person indulges in any act of corruption he can be properly prosecuted under the said Act. If a person does not hold any office of the Government and is not in the pay of the Government, but does some work for the Government and gets paid for the same, can it be said that such a person would fall within the scope of that provision Suppose, a carpener is engaged by the Government and is paid remuneration, can it be said that he becomes a public servant so also any other person who by virtue of a contract enters into an agreement with the Government and gets paid for the same, can it be said that such a person becomes a public servant If Mr. Namjoshis argument is extended to its logical conclucion, it could well be said that every person who is engaged by the Government which does no work other than public work, during the period of such employment or engagement, becomes, automatically, a public servant. I think, this is too wide a proposition to be accepted. If one has regard for the reason for the amendment it become clear that the amendment was brought in for the purpose of bringing within the purview of the definition of public servant" certain "additional categories of persons, such as persons performing adjudicatory functions under law, like liquidators, receivers, commissioners etc. " In fact, the law Commission of India in its 42nd Report on Indian Penal Code had expressly suggested that the definition should not be extended so as to include amongst others "pleaders, advocates and attorneys". Therefore, in this context can it be said that an advocate or for that matter a Counsel senior or junior, who is engaged by the Government to represent the government in a particular matter, during that engagement becomes a public servant

( 18 ) WHEN an advocate appears for a party, in any litigation, what does he do He cannot identify himself with his client. He is not his clients servant. He is not his clients mouthpiece, though he speaks for him, in Court. Whatever he does, he does in discharge of his duty as an advocate and he does not step into the shoes of his client. When he appears in the Court, he brings in a sense of objectivity, with no feeling of fear or favour, but never misleading the Court, the client or for that matter his own conscience. If there is any misdemeanour, he is answerable to the Court and is liable to be censored by his own Association. If his conduct amounts to an offence, he can be prosecuted and punished.

( 19 ) WOULD his role change when he appears for the Government he still acts and appears for his client, the Government, just as he acts for a private party. He is still an advocate, acting, appearing and pleading for his client, to the best of his abilities and knowledge, there being no guarantee of success or failure. He does no function of his client, be it the government or a private citizen. It may be the function of the Customs officer to file a complaint and prosecute an offender under the Customs act. The Officer may engage an advocate for the purpose of representing him or the Government. But thereby the advocate does not become the customs Officer, nor can it be said that he becomes vested with any of the powers or duties of the customs officer. At best, it could be said that the customs Officer gets the benefit or the assistance of the knowledge and skill of the advocate. The advocate discharges his duty as an advocate and not any of the duties assigned to the customs officer. The learned judge fell into a fundamental error rambling into a theory of delegation as if when a client engages an advocate, he delegates his powers and duties to the advocate. He is only entrusted with the responsible task of looking after the interests of the client. But that is not because of the entrustment by a particular client but because of the ethics which bind him as a member of the Bar.

( 20 ) MR. Namjoshi submitted that when the government gives a brief, for a fee, to any Senior Counsel for any legal opinion, such Senior Counsel for the said purpose becomes a public servant, a position which no counsel senior or otherwise would ever envisage to accept. He gives his opinion not because he is a public servant, but because it is his professional duty to give such opinion as he thinks proper. When a witness is examined by the government he does no public duty but his oath binds him to tell what he has seen and heard. When a mason is engaged by a Government Official, he does no public duty, but only executes what he knows. Mr. Namjoshi seems to be obsessed with the proposition that the Government has no private duty and whoever is associated with the duty of the Government, by that reason alone does a public duty - a proposition which is not wholly true. The learned Social Judge appears to have been so carried away by these submissions as to hold that an advocate in such circumstances so places himself in a position as to discharge duties of public character. Essentially there is no difference in his duties when an advocate appears for a private citizen or a public official.

( 21 ) IF an advacate 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 is paid his fees he does not become a public servant. That is why Pendse, J. , did not accept the contention that Ms. Chandrika Kenia had become a public servant, even though she was regularly appearing for the Government from a panel of lawyers, which panel 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 his 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 afee 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 the 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 agai nst the Government in the very next case. The engagement, if any, is only to act as an advocate. Bu, in the case 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.

( 22 ) MR. Namjoshi indicated, though not argued elaborately that the prevention of Corruption Act has been amended in 1988 and it now contains the definition of "public servant" which virtually incorporates the clause Twelfth (a) of Section 21 of the Indian Penal Code and that, therefore, the present petition will be an academic exercise. He wanted to suggest that in any event the Act as amended now, would be retrospectively effective and can be made use of in the present prosecution. Mr. Damania, on the other hand, submitted that retroactive criminal legislation is prohibited under Article 20 (1) of the Constitution of India. He also submitted that the definition introduced in the Prevention of Corruption Act, 1988, in so far as it relates to the present case, makes no difference and an advocate engaged by the customs authority or for that matter by any government Official, does not become a public servant, just because of his engagement. I am inclined to agree with Mr. Damania. In the result, I pass the following order : rule is made absolute in terms of prayer (a) and the prosecution stands quashed, and the bail-bond stands cancelled. At this stage Mr. Namjoshi makes an application for a certificate to apply to the Supreme Court under Article 134 of the Constitution of india. The application is rejected.