JUDGMENT 1. - Appellant Gopal Singh was tried for the offences u/Secs. 5(i) (a) and 5(i)(d) of the Prevention of Corruption Act, 1947 and Secs. 120B, 161 and 164 Indian Penal Code and appellant Surendra Singh for the offences under sections 162, 165A, 120B and 170 Indian Penal Code by the Special Judge, Bikaner. By his judgment dated December 9, 1972, the learned Special Judge Convicted Appellant Gopal Singh for the offences under sections 161 and 164 Indian Penal Code and section 5(i)(d) and sentenced him to a fine of Rs. 100/- in default of payment of fine to undergo rigorous imprisonment for four months for the offences under sections 161 and 164 Indian Penal Code each and imprisonment till the rising of the Court and a fine of Rs. 250/- in default of payment of fine to undergo rigorous imprisonment for six months for the offences under section 5 (i)(a)(d) of the Prevention of Corruption Act. Appellant Surendra Singh was convicted and sentenced to a fine of Rs. 100/-, in default of payment of fine to undergo rigorous imprisonment for four months for each of the offences under sections 165A, 162 and 170 Indian Penal Code. 2. Being dissatisfied by their conviction and sentences Gopal Singh and Surendra Singh have preferred this appeal in this Court. The State of Rajasthan felt dissatisfied with the quantum of sentence awarded to the appellants and, therefore, has invoked the revisional jurisdiction of this Court As the appeal filed by the convicts and the revision petition filed by the State of Rajasthan arise out of the same judgment, we propose to dispose them of by one single judgment. 3. Succinctly narrated the facts of the case giving rise to this appeal and revision petition are as under:- 4. On December 3, 1969 Amar Nath (P.W. 9), Harnek Singh (P.W. 8) and Gurchet Singh (P.W. 13) were going with their trucks loaded with Tudi. At about 10:00 a.m. they reached at Jassusar Gate Dharam Kanta, Bikaner. They took their food at the hotel of Dayal Das (P.W 11). At about 3.00 p.m. when they were sitting on a cot Gopal Singh and Surendra Singh appellants were there. Gopal Singh and Surendra Singh appellants went there Gopal Singh introduced himself as the senior R.T.O. and Surendra Singh as the junior R.T.O. They demanded Rs. They took their food at the hotel of Dayal Das (P.W 11). At about 3.00 p.m. when they were sitting on a cot Gopal Singh and Surendra Singh appellants were there. Gopal Singh and Surendra Singh appellants went there Gopal Singh introduced himself as the senior R.T.O. and Surendra Singh as the junior R.T.O. They demanded Rs. 20/- for each truck i.e. Rs 60/- in all from Amar Nath (P.W. 9) and his companions. They also threatened them that in case they would not pay the amount their trucks would be taken in custody. Amar Nath (P.W. 9) told them that as they were having no money with them at the time, they would pay the same in the next trip. The appellants incised for taking the money then and there. Amar Nath (P.W. 9) asked them to wait for an hour or two so that he may arrange for the money. The appellants went away to a distance, Amar Nath (P.W. 9) collected the money from his two companions and then all the three along with the hotel keeper Dayal Das (P.W. 11) went to the office of the Anti corruption. After 45 minutes Dy. S P. Satya Prakash (P.W. 20, arrived in the office and Amar Nath (P.W. 9) narrated the story to him. The Dy. S.P. initialled the six currency notes of ten rupees denomination each which were with Amar Nath (P.W. 9). He also applied anthracene powder to those currency notes and handed them back to Amar Nath (P.W. 9) with the instructions to give them to the persons making then give a signal to him (Dy. S P.). Amar Nath (P.W. 9) and his companions returned to the Dharam Kanta. The appellants were not available there and so they started with their trucks to go to Jodhpur. The anti corruption personnel followed them on their cycles At about 4.00 or 4.15 p.m When the trucks reached near the railway crossing at Rani Bazar. Gopal Singh asked Amar Nath (P.W. 9) whose truck was ahead of the all to stop the vehicle and to give Rs. 60/- as decided at Dharam Kanta. Amar Nath (P.W 9) took out Rs. 60/- from the pocket of his pant and wanted to give them to Gopal Singh but Gopal Singh directed him to hand over the notes to the junior R T.O., meaning thereby Surendia Singh. 60/- as decided at Dharam Kanta. Amar Nath (P.W 9) took out Rs. 60/- from the pocket of his pant and wanted to give them to Gopal Singh but Gopal Singh directed him to hand over the notes to the junior R T.O., meaning thereby Surendia Singh. Surendra Singh took the notes and put them in the pocket of his pant. He also noted the numbers of the three trucks in a note book which he was having with him. Meanwhile at the signal by Amar Nath (P.W. 9) by putting his hand on his head, the Dy. S.P. and the staff with him rushed to the site and demanded the currency notes from Surendra Singh which he had received from the truck owners. Gopal Singh who had left the place after directing Amar Nath (P.W. 9) to give money to Surendra Singh also reached there and objected the Dy. S P. making the recovery. The Dt. S.P. disclosed his identity and then recovered the notes from Surendra Singh. He also took in possession the diary in which entry about the numbers of the truck was made. He prepared the seizure memos and other necessary documents. Subsequently the Pant of Surendra Singh which he was wearing at the time was also taken in possession for the chemical examination of the anthracene powder' as the notes were recovered from his pocket. The currency notes so recovered were sent for examination to the Forensic Science Laboratory, Jaipur. F.C. Puri (P.W. 21), the Assistant Director, Police Forensic Science Laboratory, Jaipur examined the pant, the handkerchief, the currency notes and the packet containing anthracene powder applied to the currency notes. On examination of the articles under the hanovias ultra violet lamp it was found that the inner side of the left pocket of the pant, left hand side of the handkerchief and the six currency notes exhibited flours scene effect which was similar in colour and intensity as was exhibited by the powder sent as sample to him. Gopal Singh was a Sub-Inspector in Police on deputation with the Transport Department at the relevant time and therefore sanction to prosecute him was obtained from Shiv Ram Jain (P.W. 3), Director Transport, Rajasthan, Jaipur. 5. The charge sheet against the two appellants was then filed in the court of Special Judge, Bikaner. The learned Judge charge sheeted the appellants for the aforesaid offence. 5. The charge sheet against the two appellants was then filed in the court of Special Judge, Bikaner. The learned Judge charge sheeted the appellants for the aforesaid offence. Both of them denied the indictment and claimed to be tried. To substantiate its case prosecution examined to witnesses in all. In their statements under Section 342 of the Criminal Procedure Code (Old) the appellants totally denied the allegations levelled against them. Gopal Singh stated that because of his making complaint before the senior officers against the Dy. S.P. Satya Prakash, he was annoyed with him, and, therefore, implicated him in this false case. No defence witness was examined. 6. The learned Special Judge placing reliance on the prosecution witnesses and the documents on record held the appellants guilty for the aforesaid offences and sentenced them as stated earlier. 7. Mr. Chhaterjee learned counsel for the appellants has challenged the justification of the finding of guilt against appellant Gopal Singh mainly on the ground that there is no valid sanction in the case and, therefore, the learned Special Judge should not have taken cognizance against the appellant. The validity of the sanction has been attacked on two grounds. Firstly, Shiv Ram Jain (P.W. 3), Director, Transport, Rajasthan, Jaipur was not competent to accord sanction for the prosecution of Gopal Singh who was a police employee and was only on deputation in the Transport Department. Secondly, Shiv Ram Jain (P.W. 3) while according sanction did not apply his mind which is an essential element to make the sanction valid. 8. Sanction Ex. P. 5 for launching prosecution against appellant Gopal Singh was accorded by Shiv Ram Jain (P.W. 3), Director, Transport Department, Rajasthan, Jaipur, and from the statement of Gopal Singh, it is evident that he was a Sub Inspector in the Police Department. Mr. H.N. Calla, the learned Public Prosecutor did not seriously contest this position but stated that because the appellant was in the Transport Department, at the relevant time, the Director Transport was competent to remove him from service. The argument is devoid of force. Certain documents have been produced by Mr. O.C. Chhattrjee, learned counsel for the appellant in this Court to substantiate his contention that Gopal Singh was on deputation with the Transport Department having his lien with the Police Department. The argument is devoid of force. Certain documents have been produced by Mr. O.C. Chhattrjee, learned counsel for the appellant in this Court to substantiate his contention that Gopal Singh was on deputation with the Transport Department having his lien with the Police Department. These documents relate to his being a sub-inspector on probation and thereafter being confirmed on that post as well as his being sent on deputation to the Transport Department initially for one year and then the period being extended to one year more. From the evidence on record itself this position of Gopal Singh being an employee in the Police Department and being on deputation with the Transport Department at the relevant time is deducible. An important factor throwing light on the point as to who actually was the authority competent to remove him from service is that it was Inspector General of Police, Rajasthan, Jaipur who had dismissed the appellant from service by the order dated September 5, 1975. A photostat copy of that order has been placed on record by the learned counsel for the appellant. The learned Public Prosecutor does not dispute the authenticity of this photostat copy. In this view of the matter, it leaves no doubt that appellant Gopal Singh was having his lien with the Police Department and that must have been the reason for the Inspector General of Police passing the order of his dismissal from service. 9. Sec. 6 of the Prevention of Corruption Act puts a bar on the Courts to take cognizance against a public servant except with the previous sanction of the authority competent to remove him from service for the offences punishable under Secs. 161, 164 and 165 Indian Penal Code and Sub-Sec. 2 of Section 5 of the Prevention of Corruption Act. The sanction to prosecute public servant for the aforesaid offences is therefore, a condition precedent for launching the prosecution. The words "authority competent to remove him from his office" are of great significance. In the case on hand the Director, Transport cannot by any stretch of the relevant provisions of law be held to be competent to remove the appellant who was only on deputation with that department. The power to remove him from service was still with the competent officer of his parent department. In the case on hand the Director, Transport cannot by any stretch of the relevant provisions of law be held to be competent to remove the appellant who was only on deputation with that department. The power to remove him from service was still with the competent officer of his parent department. The very fact of his being dismissed from service by the Inspector General of Police, Rajasthan, Jaipur clarifies the position. We are, therefore, of the opinion that the sanction Ex. P. 5 accorded by Shiv Ram Jain (P.W. 3), Director, Transport Department cannot be said to be a valid sanction so as to authorise the Court to take cognizance against Gopal Singh for the offences he was tried for. 10. The provisions of Section 6 of the Prevention of Corruption Act are mandatory in nature. When there is no valid sanction by the authority competent to remove the appellant from service, it is a case of his being prosecuted and tried without there being any sanction. In this view of the matter, there cannot be any justification for his conviction and sentences in the case. 11. Because we have arrived at a conclusion that the sanction accorded by Shiv Ram Jain (P.W. 3), Director, Transport Department was not a valid sanction for the reason of his not being the authority competent to remove the appellant from service, we need not go into the discussion as to whether Ex. P. 5 suffers from the infirmity because of person according the sanction not applying his mind. 12. The conviction and sentences of appellant Gopal Singh having been held to be unsustainable on the ground of absence of valid sanction for launching prosecution against him, the pertinent question emerging for determination is whether we should order a retrial of the appellant for the aforesaid offences There is no legal hurdle in the launching of fresh prosecution against the delinquent after obtaining a valid sanction for the same, and he may he required to face a fresh trial in respect of the same charges. At the same time Courts have to take peculiar circumstances of a given case in view before arriving at a conclusion whether a retrial is to be ordered or not. 13. At the same time Courts have to take peculiar circumstances of a given case in view before arriving at a conclusion whether a retrial is to be ordered or not. 13. A similar question for determination came before their Lordships of the Supreme Court in the case of R.R. Chari v. State of Uttar Pradesh, AIR 1962 S.C. 1573 . The finding of conviction against the appellant without there being any valid sanction by the authority competent to remove him was held to be erroneous. Their Lordships were reluctant to order a retrial of the appellant in view of the fact that he had to face a long and protracted trial and the prosecution case begging with a charge of comprehensive conspiracy supported by several instances of bribery, was reduced only to a case of bribery offered to by two persons. 14. Offences of the type are of serious nature and the persons involved in. should not be dealt with lightly so as to go unpunished. At the same time there may be circumstances which may be taken into cons:deration for taking a lenient view in directing retrial in case there is acquittal on technical ground. Lapse of time in a trial of course is not always a criteria to be taken into consideration but it does play an important role in such matters. In the present case the incident relates to the year 1969 and after a lapse of a period of about twelve years, we do not consider it proper to order for a retrial especially in view of the nature and circumstances of the case. 15. As regards the appeal of Surendra Singh, his learned counsel Vehemently argued that there is no cogent convincing evidence to substantiate the prosecution case that Surendra Singh had played any role in making a demand for illegal gratification or had personified himself to be junior R.T.O. It has been emphatically urged that the main allegation against Surendra Singh s that he abetted Gopal Singh for the commission of the crime and when the principal accused cannot be held guilty in view of the absence of a valid sanction to launch the prosecution there arises no question of convicting the alleged abettor. It has also been contended that none of the ingredients of Secs. It has also been contended that none of the ingredients of Secs. 162, 165-A and 170, of the Indian Penal Code are there to justify the conviction of Surendra Singh for these charges. 16. Controverting these arguments, the learned Public Prosecutor submitted that Gopal Singhs conviction is erroneous on a technical ground of absence of a valid sanction, hence his acquittal should not come in the way of the proof of the prosecution case against the co-accused Surendra Singh. 17. The evidence against Surendra Singh is that he along with Gopal Singh demanded Rs. 60/- from Amar Nath (P.W. 9) and his companions and at the time this appellant personified himself as junior R.T.O. 18. Another allegation against him is that when Gopal Singh directed Amar Nath (P.W. 9) to handover money to Surendra Singh the latter took the money and put it in his pocket which was recovered by the Dy. S.P. 19. In order to make out whether the charge for the particular offences is made out or not, we think it proper to look into the provisions of those sections. 20. Sec. 162 Indian Penal Code deals with accepting, obtaining, agreeing to accept or attempting to obtain any gratification with a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to foot bear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person. In the case on hand there is no allegation of Surendra Singh accepting the gratification to induce any public servant for the purposes enumerated in this section. The charge framed under this section contains the allegation about the motive of Surendra Singh for inducing Gopal Singh a public servant to do or to forbear to do any official act. Circumstances of the case do not show that there w. s any such motive on the part of Surendra Singh and therefore, we find dull force in the argument advanced by the learned counsel for the appellant that the offences under Section 162 Indian Penal Code cannot be said to be made out against Surendra Singh. 21. The next charge framed against Surendra Singh resulting his conviction is for the offence under Sec. 165-A of the Indian Penal Code. 21. The next charge framed against Surendra Singh resulting his conviction is for the offence under Sec. 165-A of the Indian Penal Code. This section relates to the abetment of any offence punishable under Secs. 161 or 165 Indian Penal Code. On the same reasoning as that offence under Section 162 Indian Penal Code we are inclined to opine that there is no cogent evidence about Surendra Singh abetting Gopal Singh for committing offence under Secs. 161 or 165 Indian Penal Code. 22. Regarding the charge for the offence under Section 170 Indian Penal Code the contention of Mr. Chatterjee is that there is no specific evidence to the effect that it was Surendra Singh who had personified himself as junior R.T.O According to the learned counsel, the misrepresentation about the identity, even if any, might be by Gopal Singh and not Surendra Singh. According to him the evidence does not show that it was Surendra Singh who had introduced himself to be the junior R.T.O. The argument is not appealing in view of the abundant evidence on record establishing that Surendra Singh had represented himself to be the junior R.T.O. Harnek Singh (P W. 8), Amar Nath (P W. 9), Dayal Das (P W. 11), Dharam Singh (P.W. 16) and Sat Pal (P.W. 17) have all stated about Gopal Singh and Surendra Singh demanding money representating that they were R.T O. There is the specific evidence of Amar Nath (P W. 9) that Gopal Singh represented himself to be senior R.T.O. and Surendra Singh represented himself to be junior R.T.O. This being the position the ingredient of Section 170 Indian Penal Code i.e. any person pretending to hold any particular office as a public servant, knowing that he does not hold such office, is fully established and we are of the opinion that the charge against Surendra Singh under Section 170 Indian Penal Code personifying himself to be public servant has been duly established by the prosecution and there is full justification for his conviction for this offence. 23. We now proceed to deal with the revision petition filed by the State of Rajasthan regarding the inadequate sentences awarded to the accused appellants. 23. We now proceed to deal with the revision petition filed by the State of Rajasthan regarding the inadequate sentences awarded to the accused appellants. The conviction and sentences of Gopal Singh having been held to be unsustainable because of the failure on the part of the prosecution to obtain a valid sanction to launch prosecution the revision petition looses much of its worth. As discussed above the only charge found to be established against Surender Singh is that under Section 170 Indian Penal Code which provides the punishment of imprisonment of either description for a term which may extend to two years or with fine or with both. The age of Surendra Singh at the time of his statement under Section 342 of the Criminal Procedure Code (Old) was 25 years. The incident relates to the years 1969. In view of the age of the appellant Surendra Singh and the circumstances of the case if the Learned Special Judge had awarded a sentence of fine of Rs. 100/- in default to undergo four months rigorous imprisonment only, it cannot be said to be improper or unjust so as to call for any interference in this revision petition. 24. Consequently, the appeal filed by Gopal Singh is allowed and his conviction and sentences for the offences staved above are set aside and he is acquitted of the charges. The amount of fine if deposited, shall be refunded. 25. The appeal of Surendra Singh is partly allowed and his conviction and sentences for the offences under Secs. 162 and 165-A Indian Penal Code are set aside and he is submitted of those charges. The conviction of Surendra Singh for the offence under Section 170 Indian Penal Code is however, maintained. The amount of fine for the offences under Secs. 162 and 165-A Indian Penal Code if deposited, shall be refunded. 26. The revision petition filed by the State of Rajasthan is dismissed.Appeal of G Allowed and Appeal of S partly allowed. *******