Judgment This criminal appeal has been filed by R. Sivaraj alias R. Sivarajan alias A. Ananth the accused in Special Judge (Chief Judicial Magistrate of Coimbatore and the Nilgiris), Goimbatore, against his conviction, as charged, of an offence punishable under section 161 , Indian Penal Code, and also of one punishable under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947, and the sentence of rigorous imprisonment for one year awarded under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, without awarding any separate sentence for the offence punishable under section 161, Indian Penal Code. 2. The case of the prosecution was as follows: “The accused was a Junior Assistant in the office of the District Medical Officer, Coimbatore at Erode. Ramakrishnan (P.W.1.) was working as a temporary Male Nursing Assistant in the District Headquarters Hospital, Erode since December, 1975 and he had been transferred to the hospital at Pollachi in March, 1977, and was ultimately ousted from service with effect from 31st May, 1977, as per order Ex.P-3 dated 26th May, 1977. Subsequently P.W.1, made some applications to the Director of Health Services through Kuppuswami (P.W.4), the General Secretary of the Tamil Nadu Nursing Assistants Association, Coimbatore. P.W. 1. met the District Medical Officer, Coimbatore at Erode on 28th June, 1977, after that officer and the Director of Health Services visited the hospital at Pollachi. On 29th June, 1977, the District Medical Officer asked P.W.1, to meet his lay Secretary P.W.2 and submit a letter of apology. Accordingly, P.W.1 met Namboodri (P.W.2) and gave letter of apology to P.W.2 on or about the 3th or the 9th July, 1977. Subsequently, Namboodri (P.W.2) informed P.W.1 that he would discuss the matter with the District Medical Officer and send the order of appointment to him. P.W.1 met the accused in the office of the District Medical Officer on the day after meeting P.W.2 and requested him to put up the file before the District Medical Officer. Then the accused demanded money for that purpose. P.W.1 went away after informing the accused that he was in difficulties and requesting the accused to arrange for him to get the job. On 8th July, 1977, P.W. 1 went to the office of the District Medical Officer and met the accused. Then the accused demanded money for that purpose. P.W.1 went away after informing the accused that he was in difficulties and requesting the accused to arrange for him to get the job. On 8th July, 1977, P.W. 1 went to the office of the District Medical Officer and met the accused. The accused then told P.W.1 that the District Medical Officer was absent and that if P.W.1 gave him a sum of Rs. 200/- he would put up the file before that officer. Even then P.W.1 pleaded his inability to pay the money to the accused. Subsequently, P.W.1, met the accused in the Isolation Ward of the Headquarters Hospital, Erode, on 29th July, 1977, and told him that the order of appointment had not been received from the office of the District Medical Officer. Then the accused told P.W.1 that the District Medical Officer was absent and would return in two days, that on his return he (accused) would arrange for the issue of the order of appointment and that P.W.1 should pay him Rs. 100/-in the first instance if he could not pay Rs.200/-immediately. P.W.1 told the accused that he would somehow manage to get the money. He left the place and went to his sister's house and informed his sister about the matter and requested her to arrange for Rs. 100/-. But, P.W.1 was unable to get the money, and he met the accused on the evening of 28th July, 1977, outside the office of the District Medical Officer. Then, the accused asked P.W.1 whether he had brought the money and P.W.1 told the accused that he could not get the money and would bring it on the next day. Thereupon, the accused asked P.W.1 to bring the money on the next morning. P.W.1 got a sum of Rs. 100/- from his sister at 8-30 a.m. on 29th July, 1977, in ten-rupee notes, and thereafter he proceeded to the Government Headquarters Hospital at Erode. On the way, he heard that the Vigilance Police had come to the Travellers’ Bungalow and so he went there to inform the Vigilance Police before paying the money to the accused. 3. At the Travellers’ Bungalow, P.W.1found the Deputy Superintendent of Police, Vigilance, with the Inspector, Velliangiri (P.W. 5), and some others. On the way, he heard that the Vigilance Police had come to the Travellers’ Bungalow and so he went there to inform the Vigilance Police before paying the money to the accused. 3. At the Travellers’ Bungalow, P.W.1found the Deputy Superintendent of Police, Vigilance, with the Inspector, Velliangiri (P.W. 5), and some others. He made a report which was reduced into writing under Ex.P.1 by the Head Constable P.W. 5 obtained the orders of the Superintendent of Police, Vigilance, and registered a case in Crime No. 7/VAC/77 and prepared the first information report, Ex. P.5, and gave a copy thereof to P.W.1. P.W.5 arranged for the witnesses, Gilbert Rajkumar (P.W. 3), Veterinary Assistant Surgeon at Erode, and Radhaknshnan, Assistant Divisional Engineer. P.W. 3 and Radhakrishnan went to the Travellers’ Bungalow at Erode on 29th July, 1977 at 11 a.m. and they were introduced by P.W.5 to P.W.1. The first information report, Ex.P. 1 was given to the witnesses and they perused the same. P.W.1 confirmed the contents of Ex.P.1 and also showed P.W. 3 and Radhakrishnan the sum of Rs. 100/- in ten-rupee notes (M.O.1 series). Then, P.W.5 explained the phenolphthalein test to P.Ws. 1 and 3 and Radhakrsihnan and demonstrated it to them. Later, P.W.5 smeared phenophthalien powder on M.O.1 series and handed them over to P.W.1 with instructions to pay the money to the accused if he so desired and to give a signal by putting his hands in the pant pockets, in the event of the accused accepting the payment. These things were recorded in the mahazar Ex.P-2, at 11 a.m. and it was attested by P. Ws. 1 3 and 5 and Radhakrishnan, and another, Inspector Loganathan. The party thereafter left the Travellers’ Bungalow at Erode at 12-30 p.m. by walk and proceeded to the office of the District Medical Officer, reaching there at 12.50 p.m. The party barring P.W. 1 remained outside the compound of that office, while P.W.1 alone went inside with the money. P.W.1 met the accused in the office of the District Medical Officer. Then the accused asked P.W.1 whether he had brought the money with him. P.W.1 answered in the affirmative and tried to take out the money from his shirt pocket. P.W.1 met the accused in the office of the District Medical Officer. Then the accused asked P.W.1 whether he had brought the money with him. P.W.1 answered in the affirmative and tried to take out the money from his shirt pocket. Then, the accused asked P.W.1 not to pay the money there and suggested that he might remain at the tea stall situate in front of the Headquarters Hospital and pay it to him when he would be going cut of the office for lunch at 1-30 p.m. P.W.1 accordingly retained the money, returned from the office of the District Medical Officer in about ten minutes and informed P.W.5 and others as to what happened. P.W.1 thereafter stationed himself in front of the tea shall situate opposite to the Headquarters Hospital, while others moved away to a suitable place. The accused came out of the office of the District Medical Officer by cycle at about 1.30 p.m. and called P.W. 1 by signalling with his hand. Then, the accused and P.W.1 proceeded towards the junction of Mettur Road and Idayal Kattu Valasu Road, the accused slowly driving the cycle and P.W. 1 walking along holding the rear portion of the cycle. On reaching the road junction, the accused stopped the cycle and asked P.W.1 whether he had brought the money. Then P.W.1 offered the amount to the accused. The accused asked him to give the amount wrapped in a paper. Then, P.W.1 told the accused that he did not have any paper with him. Thereupon the accused took out a paper from his pocket and tore it into two pieces and gave one piece to P. W. 1 and asked him to fold the money in that paper and give it to him. P.W.1 did accordingly and the accused received the same and he took out a hand-kerchief from his pocket and covered up the amount with it and started moving, holding the hand-kerchief with the money in his hand. Then P.W.1 showed the pre-arranged signed by putting both his hands, in his pant pockets. Thereupon, P.W.5 and others went to the accused. P.W.5 caught hold of the accused and questioned him. Then the accused admitted the receipt of the amount from P.W. 1 and attempted to hand it over to P.W. 5 who, however, asked him to keep it with him. Thereupon, P.W.5 and others went to the accused. P.W.5 caught hold of the accused and questioned him. Then the accused admitted the receipt of the amount from P.W. 1 and attempted to hand it over to P.W. 5 who, however, asked him to keep it with him. The accused told P.W. 5 and others that he had not demanded any money and that inspite of his refusal to accept the same, P.W. 1 gave it to him and requested him to get him a job. The accused told P.W.5 that he was treated with respect in that area and that he might be taken to the Travellers’ Bungalow and nowhere else. A crowd had collected at that place by then. Radhakrishnan (P.W. 3) also endorsed the: suggestion of the accused for being taken to the Travellers’ Bungalow, and the party including the accused proceeded to the Travellers’ Bungalow. After reaching the Travellers’ Bungalow, P.W. 5 asked the accused to place the money folded in the hand-kerchief on the table. The accused did so. Then the phenolphthalein test as conducted by P.W.5 and the accused was asked to dip his fingers in one of the tumblers containing sodium carbonate solution and the solution turned slightly pink. The hand-kerchief was immersed in another tumbler containing sodium carbonate solution and the solution turned pink. The currency notes, which had been wrapped in the hand-kerchief, tallied with the currency notes with respect to the details mentioned in the mahazar Ex. P. 2 referred to above. The accused was asked to produce the other piece of paper and he took out that piece of paper from his pocket and that paper and the paper in which money had been folded were found to form parts of one sheet of paper M.O.3 is the handkerchief, and M.O. 2 series are the two pieces of paper. At that stage, the accused stated that he was feeling giddy, and so he was allowed to rest for a while. The mahazar Ex.P.4 was prepared about what happened in the Travellers’ Bungalow, including the seizure of M.O.1 series, M.O. 2. series and M.O. 3. The accused was arrested by P.W.5 examined P.Ws. 1 and 3 and Radhakrishnan and recorded their statements. Subsequently, P.W.5 took the accused to Coimbatore at 9 P.M. and kept him in the police station. The mahazar Ex.P.4 was prepared about what happened in the Travellers’ Bungalow, including the seizure of M.O.1 series, M.O. 2. series and M.O. 3. The accused was arrested by P.W.5 examined P.Ws. 1 and 3 and Radhakrishnan and recorded their statements. Subsequently, P.W.5 took the accused to Coimbatore at 9 P.M. and kept him in the police station. On the next day 30th July, 1977, the accused, the properties and the mahazars were sent to the Court by P.W.5. P.W.5 examined P.W.2 the Lay Secretary, and P.W.4 the General Secretary of the Association, on 1st August, 1977. P.W.5 has stated that after obtaining the sanction from the competent authority, he filed the charge-sheet on 17th January, 1978, against the accused for an offence under section 161 , Indian Penal Code, and under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act. 4. When examined about the circumstances appearing against him in the evidence, the accused made a long statement, denying any knowledge about the visit made by the District Medical Officer and the Director of Health Services to Pollachi as well as his demand for payment of money by P.W.1 for placing the file before the District Medical, Officer. He further denied that at about 1-30 p.m. on the date of occurrence he went on his cycle and called P.W.1 by signalling to him. He stated that when he was going to his house for lunch, P.W.1 stopped him on the way and inserted the folded kerchief into his hand, that the accused immediately raised an alarm which attracted a crowd to that place, that he told the people who had gathered there about P.W.1 inserting the money, and that he was subsequently taken to the Travellers’ Bungalow by the vigilance police. He denied he took out a paper from his pocket, cut it into two pieces and gave one piece to P.W.1 and asked him to give the money by folding it in that paper and he received the same and concealed it in the hand-kerchief M.O.3 and proceeded on the cycle. He further denied that he admitted before P.W.5 that he received the money from P.W.1 and tried to hand over the money to P.W.5. He further denied that he admitted before P.W.5 that he received the money from P.W.1 and tried to hand over the money to P.W.5. He denied that he kept the money folded in the kerchief or the table in the Travellers’ Bungalow and that any phenolphthalein test was conducted in that office. He denied that he produced one of pieces of paper (M.O. 2 series) from his shirt pocket in the Travellers’ Bungalow and that he told P.W.5 that he was feeling giddy. He denied that P.W.1 met him on the dates mentioned by him in his evidence and stated that P.W.1 met him only once and asked him to give him the appointment order and the accused directed him to meet the Lay Secretary. Finally he submitted that P.W.1 had given a false complaint against him thinking that it was he who was responsible for his being ousted from service. He did not examine any witness on his behalf. The learned Special Judge accepted the evidence tendered by the prosecution and found the accused guilty under both the charges, convicted him hereunder and sentenced him. to undergo rigorous imprisonment for one year under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act, but did not award any separate sentence for the offence under section 161, Indian Penal Code 5. Mr. K.M. Santhanagopalan, learned. Counsel for the accused, at the outset itself, submitted that the sanction said to have been obtained from the competent authority has. Mr. K.M. Santhanagopalan, learned. Counsel for the accused, at the outset itself, submitted that the sanction said to have been obtained from the competent authority has. not been produced in this case though it is seen from the records that it bears the date seal of 21st December, 1977 of the office of the District Medical Officer, Coimbatore at Erode and had been put into the trial Court on 18th January, 1978 before the charges were framed against the accused on 3rd February, 1978, and that consequently the prosecution is void, in view of section 6 (1) of the Prevention of Corruption Act which lays down that no Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or under sub- section (2) or sub- section (3-A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, ( a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government ( b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government (c) in the case of any other person, of the authority competent to remove him from his office. Learned Counsel for the accused submitted that clause ( a) of section 6 (1) of the Act will apply to this case and therefore the necessary sanction as required by law must have been obtained from the District Medical Officer, Coimbatore at Erode and produced in this case. Learned Advocate for the Government, while regretting that the sanction order had not been placed on record as evidence in this case, submitted that it has been filed into Court on 18th January, 1978, itself, and that a perusal of the same would show that the competent authority had applied its mind before according the sanction, that the offence committed by the accused has been taken cognizance of by the learned Special Judge in this case and that therefore the non-production of the sanction in this case as evidence does not invalidate the conviction of the accused. In this connection, he relied upon the decision of Desai, J.,in Ram Pukar Singh v. State1 where the learned Judge has observed thus: “Once he took cognizance of the offence, no question of proving the sanction could arise subsequently. Whether the sanction had been given or not was to be seen before taking cognizance of the offence and not after it. If there were no sanction, no cognizance of the offence could be taken at all. The sanction was required only for the purpose of taking cognizance of the offence; once the cognizance was taken, its utility was exhausted and it was no longer needed, either during the enquiry into the guilt of the accused or for the purpose of convicting him. Whether an accused is guilty or not, does not depend upon whether his prosecution was sanctioned nor is an ingredient of any offence. Nor is it the law that an accused cannot be convicted unless the sanction by the appropriate authority of his prosecution has been proved.” Much water has flown since the decision of this learned Judge and therefore, with respect, it is not possible to agree with this view that once an offence has been taken cognizance of, the sanction order is not needed for convicting the accused. 6. In support of his contention that in the absence of a valid sanction, the prosecution in this case is void, learned Counsel for the accused invited my attention to a number of decisions. 7. Mulla, J., in the Lucknow Bench of the Allahabad High Court, has observed in L.E. Jacobs v. Union of India2 thus: “The rule of sanction as incorporated in section 6, Prevention of Corruption Act, is based on the principle that public servants should be protected from malicious and irresponsible prosecutions. The right to prosecute them has been taken away from individuals and the prosecuting agencies and it has been vested in the departmental heads which are called sanctioning authorities. It is not necessary to enumerate the administrative reasons which have necessitated this salutary rules. This rule acts as a brake on the course of the general law and the sanctioning authorities alone can unloosen this brake.” As observed by the learned Judges in Indu Bhsan Chatterji v. State3. “The provision for sanction is a most salutory safeguard. It is not necessary to enumerate the administrative reasons which have necessitated this salutary rules. This rule acts as a brake on the course of the general law and the sanctioning authorities alone can unloosen this brake.” As observed by the learned Judges in Indu Bhsan Chatterji v. State3. “The provision for sanction is a most salutory safeguard. The sanctioning authority is placed somewhat in the position of a sentinel at the door of criminal Courts in order that no irresponsible or malicious prosecution can pass the portals of the Court of Justice. It was therefore necessary for the prosecution not only to procure the order sanctioning prosecution of an offender but also to satisfy the Court that this order was given after the sanctioning authority had fully”applied his mind to the facts on the basis of which a charge was levelled against the offender.” In the Calcutta case cited above, the learned Judges observed: “It has now been authoritatively decided that where the terms of a section are as imperative as those of section 6 of Act II of 1947, a valid sanction is a condition precedent to a valid prosecution. A valid sanction means sanction given after a consideration of all relevant facts.” In Devanugraham v. State4 Panchapagesa Sastry, J., has observed: “It is conceded by the State Prosecutor that if the sanction granted is illegal then the conviction cannot stand. The ground of objection urged against the validity of the sanction is that the facts relating to the alleged offence were not placed before the sanctioning authority or rather that there is no evidence on behalf of the prosecution that the facts were so placed. Reliance was placed on the decision of the Judicial Committee reported in Gokulchand Dwarkadas v. The King1. That judgment decides that there should be evidence either from the order granting the sanction or other documentary evidence placed before the Court or even oral evidence that the facts were placed before the officer from whom sanction was sought. In the present case Exhibit P. 6 refers to the particular offences for which sanction is being accorded, and also the name of the person; but apart from these two matters, there is nothing to indicate that the facts which are said to have given rise to the offence were placed before the officer. In the present case Exhibit P. 6 refers to the particular offences for which sanction is being accorded, and also the name of the person; but apart from these two matters, there is nothing to indicate that the facts which are said to have given rise to the offence were placed before the officer. There is no independent evidence on record that such facts were placed before him. No doubt there is a reference in Exhibit P-6 to a letter, dated 28th March, 1949, with reference to which sanction is being accorded. That letter, however, was not placed before Court; nor is there any request made to me here for allowing additional evidence by way of placing that letter before this Court. What was urged by the State Prosecutor was that the heading in Exhibit P-6 showed that the conduct of Devanugraham under suspension was the subject-matter of the referenceinrelation to ‘acceptance of illegal gratification’. From this it was sought to be argued that there was sufficient compliance with the requirements of the law as laid down by the Judicial Committee in the case already referred to. I cannot agree with this view. It follows that it is not proved that the sanction accorded is legal. If so, the conviction cannot stand. In this view, it is unnecessary to deal with the question as to whether the offence is brought home to the appellant; nor is it necessary to refer to the other contentions raised by the learned advocate for the appellant”. Sheikh Anwar Ali v. The Crown2 is a decision rendered by a Bench of the Dacca High Court. There the learned Judges have observed: “The learned Magistrate took cognizance of the offence although he did not have in his hand the previous sanction necessary for prosecution. The record shows that such sanction was in fact actually given by the District Judge on 27th February, 1948. We do not know where that sanction remained after it had been granted on 27th February, 1948, but it certainly was in the hands of the Magistrate. So far as we have been able to see from the scrutiny of the record it was in fact not produced until after petitioner's conviction on 30th July, 1948 and after he had filed an appeal before the Sessions Judge against his conviction and his sentence. So far as we have been able to see from the scrutiny of the record it was in fact not produced until after petitioner's conviction on 30th July, 1948 and after he had filed an appeal before the Sessions Judge against his conviction and his sentence. The sanction was actually produced in the appellate Court on 24th September, 1948. Accepting as we do, that under section 6 of Act II of 1947 the previous sanction is necessary in respect of an offence punishable under section 161 of the Code, we have no alternative but to make the rule absolute and set aside the conviction and sentence and we direct accordingly.” In the latest decision of the Supreme Court in Mohd. Iqbal Ahmed v. State of Andhra Pradesh3 we find the following passage: “What the prosecution did was merely to examine two witnesses P.Ws. 2 and 7. P.W. 2 has produced the order implementing the Resolution of the Sanctioning Authority which is Exhibit P-10 and is dated 21st April, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult ( sic-defect) in the prosecution, the entire proceedings are rendered void. ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of of the note mentioned in Exhibit P-16 which was placed before the SanctioningAuthority. ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of of the note mentioned in Exhibit P-16 which was placed before the SanctioningAuthority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject-matter of the sanction by the Standing Committee of the Corporation.” It is clear from the decisions referred to above and relied on by the learned Counsel for the accused, that the sanction to prosecute accorded by the competent authority is a condition precedent not only for the Court to take cognizance of the offence alleged to have been committed by a public servant but also to convict him on any evidence which may be adduced by the prosecution regarding his guilt and that where such sanction is not produced in the case, the prosecution is void ab initio. In these circumstances, I accept the argument of the learned Counsel for the accused and hold that the sanction not having been put in evidence in this case, the entire prosecution including the conviction of the accused of the two charges framed against him in this case is void, and consequently there is no necessity to go into the merits of the case on facts. 8. The appeal is accordingly allowed and the conviction of the accused of both the charges and the sentence awarded by the Special Judge for the offence under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, are set aside. The bail bond shall stand cancelled. S.J. ----- Appeal allowed.