The Bombay High Court has upheld the discharge of an Additional Public Prosecutor accused of demanding a bribe, holding that an Additional Public Prosecutor appointed on a tenure basis is not a public servant for the purposes of prosecution under the Prevention of Corruption Act, 1988. The Court relied on the Supreme Court's ruling in State of U.P. v. Johri Mal, which distinguishes the appointment of Public Prosecutors and Additional Public Prosecutors from that of Assistant Public Prosecutors, who are employees of the State.

Justice Sharmila U. Deshmukh was hearing a criminal revision application filed by the State of Maharashtra challenging an order passed by the Special Judge, discharging the accused from offences under Sections 7, 12 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The accused was serving as an Additional Public Prosecutor, and it was alleged that he had demanded ₹25,000 to favour an accused in a criminal case. The complainant approached the Anti-Corruption Bureau (ACB), following which a trap was arranged.

The accused Bhosale sought discharge under Section 227 of the Code of Criminal Procedure, 1973. The Special Judge held that an Additional Public Prosecutor was not a public servant and could not be prosecuted under the Prevention of Corruption Act. The State challenged the discharge.

The Court noted that there was no basis for accused No. 1 to demand any bribe amount in order to favour the complainant whose appeal was already allowed. It further underlined the discrepancies noted by the Learned Special Judge in the statements of the panch witnesses regarding the incident.

The Court examined the distinction drawn by the Supreme Court in State of U.P. v. Johri Mal between Public Prosecutors and Assistant Public Prosecutors. It noted that Assistant Public Prosecutors are employees of the State, whereas the appointment of a Public Prosecutor or Additional Public Prosecutor is a tenure appointment whose conditions are not governed by statutory rules.

“It is clearly held that a person holding the post of Additional Public Prosecutor is not at all a public servant and therefore, cannot be prosecuted under the provisions of the PC Act,” the Court observed.

Hence, the Court held that a person appointed as an Additional Public Prosecutor was not a public servant and therefore could not be prosecuted under the Prevention of Corruption Act.

Accordingly, the High Court dismissed the State's criminal revision application.

Case Title: State of Maharashtra v. Dhananjay Sakharam Bhosale [Criminal Revision Application No. 497 of 2008]