ORDER S.N. Katju, J. - The Appellant--Ram Lautan Pande--was charged u/s 161 IPC and Section 5(2) of the UP Prevention of Corruption Act. It was alleged that he had accepted illegal gratification of Rs. 40/- while acting as a Public servant in the Government Roadways Bus Station at Fatehpur on 17-4-1960. The court below convicted the Appellant under the aforesaid sections and sentenced him to one year's R.I. u/s 5(1)(d) and (2) of the Prevention of Corruption Act but did not impose any separate sentence u/s 161 IPC. 2. One of the questions raised before the learned Special Judge was whether there was a proper sanction for the prosecution of the case against the Appellant. The validity of the sanction (Ext. Ka 13) was assailed on three grounds: viz. (1) that it was accorded after the Special Judge had taken cognizance of the case, (2) that it had been accorded by the Deputy Transport Commissioner UP and not by the Transport Commissioner, (3) that it had been accorded by the Transport Commissioner without applying his mind to the facts of the case. Admittedly the sanction was given on 24-7-1967. The investigating agency submitted the, charge-sheet on 24-9-1966. The case I was put up before Sri Srivastava, Special Judge on 25-5-1967. He issued I summons for the appearance of the Appellant before him on 1-6-1967. Sri Srivastava was subsequently transferred and the case came before Mirza Murtiza Husain, Special Judge, who tried and convicted the Appellant as stated above. The learned Special Judge appears to have been in error in holding that since nothing was done by Sri Srivastava besides issuing summons to the Appellant for appearance in his Court and the proceedings before him viz. Mirza Murtiza Husain, started after sanction had been accorded on 24-7-1967 therefore the proceedings in the case were not vitiated on account of want of a valid sanction for the prosecution of the Appellant. The investigation in the case had been completed before 24-5-1967 when the charge sheet was presented before Sri Srivastava. The learned Special Judge issued summons to the Appellant for appearance in his court. Admittedly there was no sanction for prosecuting the Appellant on 25-5-1967. Once the Special Judge issued summons to the Appellant for his appearance in court that amounted to taking cognizance of the case. It was observed by the Supreme Court in R.R. Chari Vs. The learned Special Judge issued summons to the Appellant for appearance in his court. Admittedly there was no sanction for prosecuting the Appellant on 25-5-1967. Once the Special Judge issued summons to the Appellant for his appearance in court that amounted to taking cognizance of the case. It was observed by the Supreme Court in R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 : Moreover, in the present case, on 25-3-1949 the Magistrate issued a notice u/s 190 Code of Criminal Procedure against the Appellant and made it returnable on 2-5-1949. That clearly shows that the Magistrate took cognizance of the offence only on that day and acted u/s 190 Code of Criminal Procedure. 3. The Supreme Court in Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, AIR 1959 SC 1118 observed as follows: As to when the cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceedings u/s 200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or u/s 204 Ch. 17 of the Code that it can be positively stated that he had applied his mind and therefore, had taken cognizance. 4. In the present case the learned Special Judge, when he issued summons to the Appellant on 25-5-1967 for his appearance in his court, had taken cognizance of the case and was acting u/s 204 Code of Criminal Procedure. The stage of investigation was over, a charge-sheet had been submitted before him and the issue of summons to the Appellant clearly amounted to taking cognizance of the case by the learned Judge. 5. I have no hesitation in holding that there was no sanction for the prosecution of the case against the Appellant when Sri Srivastava took cognizance of the case against the Appellant. In these circumstances the trial of the Appellant was vitiated for want of a valid sanction. 5. I have no hesitation in holding that there was no sanction for the prosecution of the case against the Appellant when Sri Srivastava took cognizance of the case against the Appellant. In these circumstances the trial of the Appellant was vitiated for want of a valid sanction. In this view of the matter it is not necessary to consider the other grounds on which the validity of the sanction was assailed by the Appellant. 6. Learned Counsel for the State contended that I should order a retrial of the Appellant. More than 2-1/2 years have elapsed since the date of the incident. The amount of the alleged illegal gratification was only Rs. 40/-. Considering the circumstances of the case I am not inclined to order a re-trial of the Appellant. I set aside the conviction and the sentence imposed on the Appellant and acquit him. The Appellant is on bail, his bail bonds are discharged. The appeal is allowed.