JUDGMENT V.P. Mathur, J. 1. These three appeals arise out of the judgment and order passed by Mr. J. V. N. Jaiswal, the then Additional Sessions Judge, Saharanpur, on 31-8-1979. The learned Judge convicted Chandrabhan, Ramnath, Sureshpal and Jai Prakash Khanna, under Sections 161 and 120-B, IPC and Section 5 (2) of the Prevention of Corruption Act. He sentenced them on the first count to two years' rigorous imprisonment and a fine of Rs. 500/- each, and in default to undergo 3 months' rigorous imprisonment. On the second and third counts also they have been found guilty and each one of them has been convicted and awarded sentences of two years rigorous imprisonment under each count. All the sentences were, however, made to run concurrently. 2. The appeal filed by Chandrabhan was numbered as criminal appeal no. 2782 of 1979. It appears that Chandra Bhan died during the pendency of the appeal and, therefore, the proceedings have abated. The remaining three appeals were taken up together and arguments of the learned counsel in all were heard and this judgment shall govern all of them. The charge sheet was submitted only against Chandra Bhan to stand trial under Sec. 161 IPC and Sec. 5 (2) of the Prevention of Corruption Act. During the course of the trial when statement of Chandra Bhan was recorded on 22-11-1978, the learned Judge came to the conclusion that he was implicating Sri R. N. Bhatt, the then Assistant Sales Tax Officer, and Sarvsri Suresh Pal and Jai Prakash Khanna, the then Clerks in the Sales Tax Department, also, and, therefore, on the basis of an application moved by the State on 1.-1.-79 purporting to be under Section 190 (1) (c) CrPC the learned Sessions Judge took the cognizance of the case against R. N. Bhatt, Suresh Pal and Jai Prakash Khanna, vide order dated 2-1-1979 and they were also summoned. Their statements under Section 161, CrPC were recorded and then the case proceeded against all the four accused persons. 3. The prosecution story was that a truck load of Chillis proceeded from Ambala between 3rd and 4th of January, 1978. The goods were owned by Nidan Singh and Yudhistra and M/s. Rajeshwar Prasad Rakesh Kumar. Two of the owners Nidan Singh and Yudhistra were on the truck. This truck reached the Sales Tax check-post, Sarsawa, district Sahranpur, at about 9.00 in the morning on 4-1-1978. The goods were owned by Nidan Singh and Yudhistra and M/s. Rajeshwar Prasad Rakesh Kumar. Two of the owners Nidan Singh and Yudhistra were on the truck. This truck reached the Sales Tax check-post, Sarsawa, district Sahranpur, at about 9.00 in the morning on 4-1-1978. The driver stopped the truck near the Check post, and after morning tea etc. were taken, Nidan Singh proceeded towards the office of the Sales Tax Check post alongwith necessary documents. It is contended that Chandra Bhan accused was posted as Peon at the Check post. He obtained the papers from Nidan Singh and telling the latter that he will return shortly entered the office. Nidan Singh accompanied Chandra Bhan inside the check post where Sri R. N. Bhatt, Assistant Sales Tax Officer and clerks Sri Sureshpal and Sri Jai Prakash Khanna were also present. Chandra Bhan again asked Nidan Singh to wait outside and upon this Nidan Singh came out. After sometime Chandra Bhan came out and told Nidan Singh that the valuation of the goods loaded in the truck has not been correctly shown. He said that the goods were worth more than the price that has been shown in the papers. He also said that if Nidan Singh paid Rs. 200/- by way of bribe, then Chandra Bhan will get the documents passed. Nidan Singh did not relish this idea and immediately came inside the office and told the three other accused, who were present there, that his papers were in order and, therefore, his truck should not be detained. Then Mr. Bbatt allegedly told him that he should pay Rs. 200/- if he wanted his truck to be passed. Nidan Singh's requests to the contrary were not heeded. Then Nidan Singh told Mr. Bhatt that since he had no ready money on his person, he was going to make arrangement for the same. Leaving the truck near the Barrier, both Nidan Singh and Yudhistra proceeded to Saharnpur at 11.00 in the morning on a bus. Then they went to the Assistant Commissioner Sales Tax, Saharanpur (Mr. P. L. Sharma) and met him at about 12 noon and told him about the entire occurrence. Mr. Sharma brought these persons to the office of Deputy Commissioner, Sales Tax where, again, the entire story was reiterated by Nidan Singh. Then they went to the Assistant Commissioner Sales Tax, Saharanpur (Mr. P. L. Sharma) and met him at about 12 noon and told him about the entire occurrence. Mr. Sharma brought these persons to the office of Deputy Commissioner, Sales Tax where, again, the entire story was reiterated by Nidan Singh. Then the two officers brought Nidan Singh and Yudhistra to Sri Uma Kant, Additional District Magistrate, Saharanpur, and Nidan Singh got scribed out an application Ext. ka 1 from Yudhistra and handed it over to the Additional District Magistrate. The Additional District Magistrate Sri Uma Kant, then summoned Sri Mahak Singh, Vigilance Inspector PW 1 and directed him to lay a trap. The Inspector brought Nidan Singh and Yudhistra to the office of the Circle Officer City and at his request the Circle Officer City's reader and head constable Daya Ram accompanied the Inspector Sri Mahak Singh. Mr. Mahak Singh informed these persons about the trap that had to be laid down. Nidan Singh gave two currency notes of Rs.100/- each, bearing nos.AH/48-344483 and J. A. R. 087161 to Sri Mahak Singh. The numbers were noted down and the currency notes were initialled by Sri Mahak Singh. They are Ext. 1 and 2. Phenolphthalein powder was applied to these notes and then they were handed over to Nidan Singh. In handling these currency notes Nidan Singh's hand got effected and they were got washed in a solution of sodium corbonate, which turned its colour to light red. The solution was sealed in a bottle and memo Ext. ka 4 was prepared. Nidan Singh was then told to hand over these currency notes to the persons demanding the bribe, Then the party proceeded towards Sarsawa on a Jeep. At the out skirt of the town the Jeep was left. Then the raiding party reached Sarsawa bus stand. From there Nidan Singh was sent to Sales Tax check post. The other members of the party followed and took their position by the side of the Sarsawa Check post Barrier. Meanwhile Nidan Singh went inside the office. Inside the office R. N. Bhatt, Sureshpal and Jai Prakash Khanna were present. They were told by Nidan Singh that they have already arranged for the sum of Rs. The other members of the party followed and took their position by the side of the Sarsawa Check post Barrier. Meanwhile Nidan Singh went inside the office. Inside the office R. N. Bhatt, Sureshpal and Jai Prakash Khanna were present. They were told by Nidan Singh that they have already arranged for the sum of Rs. 200/- demanded by them and they should now leave his truck and they directed Nidan Singh to hand over the money to Chandra Bhan and Chandra Bhan was called inside the office and told to obtain Rs. 200/- and leave the truck. 4. In this manner Nidan Singh and Chandra Bhan came out near the truck and Chandra Bhan asked for the payment of Rs. 200/- as he had got the work done. The currency rotes mentioned earlier were brought out by Nidan Singh, (wrapped in a piece of paper), and given to Chandra Bhan, who obtained them in his left hand. Immediately the raiding party arrived at the scene and Chandra Bhan was taken into custody. A search was made and the currency notes were recovered from his left hand. Mr. Mahak Singh found them to be the same currency notes which had been given for the trap purpose. Chandra Bhan's hands were got washed in the solution of Sodium corbonate. The colour changed to light red. The solution was sealed in a bottle and its memo Ext. ka 5 was prepared. Then the FIR was lodged at the police out-post and currency notes were also handed over there. Mr. Om Prakash Tyagi, another Vigilance Inspector of Meerut Sector, carried out the investigation. 5. When the case started, Chandra Bhan accused admitted the taking of money from Nidan Singh. He also admitted that he was caught red handed on the spot by Sri Mahak Singh. He also admitted that he was on duty at the check post Sarsawa from 8.00 a. m. at 10.00 p. m. on that day but his contention was that the truck had reached there before he commenced his duty. He only admitted that in the evening he was called by Sri R. N. Bhatt, Sureshpal and Jai Prakash Khanna inside the office and they directed him to obtain Rs. 200/- from Nidan Singh and in pursuance of that order he obtained Rs. 200/- from Nidan Singh and then he was caught by the Inspector. He only admitted that in the evening he was called by Sri R. N. Bhatt, Sureshpal and Jai Prakash Khanna inside the office and they directed him to obtain Rs. 200/- from Nidan Singh and in pursuance of that order he obtained Rs. 200/- from Nidan Singh and then he was caught by the Inspector. He took the stand that he never accepted bribe and whatever he obtained, was in pursuance of the order of his superiors. 6. R. N. Bhatt said that he was on duty at the check post from 10.00 a. m. on 3-1-78 to 10.00 a. m. on 4-1-78. He admitted that the truck had reached the check post on 4-1-78. He also admitted that Nidan Singh came inside the office but he had no knowledge of the talks which took place between Nidan Singh and Chandra Bhan. However, subsequently he came to know that Chandra Bhan has been caught red handed while accepting the bribe. He neither accepted nor demanded bribe and has been wrongly roped in the case. Suresh Pal said that he was on duty at the Check post between 10.00 a. m. and 8.00 p. m. on that day but he came late on duty at about noon and left the office early at about 3.00 p. m. and he was not present when the occurrence took place. 7. Jai Prakash Khanna said that he was not on duty at the check post on that date. As he was to be relieved, he came to the check post at about 12 noon for being relieved and remained there upto 2.00 or 2.30 p. m. Thus he was also not present when the occurrence took place. 8. The prosecution examined 8 witnesses in all. Out of them Mahak Singh is Trap Inspector. Nidan Singh PW 2 is the complainant, Om Prakash Tyagi PW 8 is the Investigating Officer and Mr. Banwari Lai PW 7 is the Assistant Commissioner Sales Tax. The other witnesses are formal. So far as the present three appellants are concerned, legal and factual arguments have been advanced against their conviction and sentence. In the first place it is contended that the learned Sessions Judge was not justified in taking cognizance of the case against these appellants because they had not been committed to the court of sessions by the Magistrate and there was no evidence against them. In the first place it is contended that the learned Sessions Judge was not justified in taking cognizance of the case against these appellants because they had not been committed to the court of sessions by the Magistrate and there was no evidence against them. The legal position in this respect should be made very clear. The matter concerns the scope of sections 319 and 193 of the Criminal Procedure Code. Section 319 (1) lays down as follows :- "319 (1) Where in the course of any inquiry into, or trial of, an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed." 9. Section 193 of the Criminal Procedure Code is to the following effect :- "193. Except as otherwise expressly provided by this code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 10. It is clear from a perusal of these provisions of the law that except as otherwise expressly provided by the Code or by any other law for the time being in force, a Sessions Court cannot take cognizance of any offence as a court of original jurisdiction without the case having been committed to it by a Magistrate. This is a prohibition and Sec. 319 is a provision of the law which may amount to removal of this prohibition in certain cases. In this case it appears from the facts brought on the record that the trial of the case had started against Chandra Bhan alone. His statement had been recorded and on the basis of his statement as well as the statement of witness Nidan Singh as recorded in the case diary, the learned Additional Sessions Judge passed an order taking cognizance of the case against R. N. Bhatt, Sureshpal and Jai Prakash Khanna. This order is dated 2-1-1979. There was no other basis for the learned Judge to have come to the conclusion that a prima facie case was made out against these three persons. This order is dated 2-1-1979. There was no other basis for the learned Judge to have come to the conclusion that a prima facie case was made out against these three persons. Now so far as the statement of the accused Chandra Bhan is concerned, against the other accused it is of no avail at these initial stages of the proceedings. Further more, the word 'evidence' which has been used in sub-section (1) of Sec. 319 cannot include the statement recorded in the case diary. IT may be open to a court to consider any material available on the case diary in order to decide whether a charge should or should not be framed against a particular person, but so long as the material on record of the case diary is not formally proved, it is no evidence in the case. Section 193 of the Criminal Procedure Code is not an enabling provision of law, On the contrary, it is a disabling provision. This does not, therefore, empower the court of Sessions to have jurisdiction to summon any person independent of its power under Section 319, CrPC and the scope of Sec. 319 is clearly that the order should be passed during the course of the trial. The word 'inquiry' relates to the proceedings in the committing court and the expression 'trial' similarly relates to the proceedings in the Court of Session or such other court as may be seized of the case. The order summoning a person before the court can, therefore, be passed only during the course of the trial by the Sessions Judge and during the course of the inquiry proceedings by a Magistrate, which will mean that before the inquiry or trial no such order can be passed. Another requirement of the law is that it should appear from the evidence obtained during the course of that trial the some person other than one who is present before the court, has committed an offence, As I have mentioned earlier, the expression 'evidence', when it is read in the context of the words of the section and in the light of sub-section (4), can only mean that the evidence should be the one which is adduced before the court during the trial. To make the position clear, if after the trial has already commenced, the court obtains some evidence on record to the effect that some person other than one who is before the court, is also concerned with the commission of the offence, which the court is trying, then the court can summon that other person also. In the present case the provisions of Sec. 193 and Sec. 319 of the Criminal Procedure Code have not been complied with. Evidence which has been relied upon by the learned Additional Sessions Judge is the statement of the accused Chandrabhan and the statement of Nidan Singh recorded in the case diary. So far as the statement of Nidan Singh recorded under Sec. 161, CrPC is concerned, it is completely inadmissible. Bar of inadmissibility under Sec. 162 operates not only on the statements of the witnesses but also on the statement of the accused, made before the Police Officer. This statement of Nidan Singh cannot be read for any other purpose except to contradict him. It was wrong for the learned Additional Sessions Judge to have placed reliance on this statement under Sea. 161 CrPC and treat it as a piece of evidence. 11. In an earlier case decided by this Court in the matter of Harish. Chandra v. State of U. P., 1982 ACR 57 the same view was expressed. In the case of Doodhnath Lal v. State of U. P., 1981 ACrR 26 also it was held that summoning of other person on the basis of case diary alone without recording any other evidence was illegal. 12. In the light of the legal position, therefore, there was no justification for the learned Additional Sessions Judge to have passed the summoning order dated 2-1-1979 and the present appellants could not have been summoned to have stood their trial for the offences with which they have been charged. There is another legal difficulty in the matter. Section 6 of the Prevention of Corruption Act may also be termed as a disabling provision of law because it starts by saying that no court shall take cognizance of an offence punishable under certain provisions of law if the offence is committed by a public servant, except with the previous sanction of an authority mentioned in sub-sections (a) (b) and (c). Therefore, the very taking of the cognizance is prohibited. Therefore, the very taking of the cognizance is prohibited. One of the sections to which section 9 will apply is Section 5 of the Prevention of Corruption Act. Admittedly the present applicants were all public servants in the employment of the Government in the Sales Tax department. Therefore, a previous sanction was needed before the court could take cognizance of the offence against the appellants. In the present case we find that a letter was addressed by the Superintendent of Police, Vigilance Department, Saharanpur, to the Assistant Commissioner Administration, Sales Tax, Saharanpur Division, seeking sanction under Section 6 (1) (c) to prosecute Chandra Bhan. In para 2 of this letter it was mentioned that against R. N. Bhatt, Jai Prakash Khanna and Sureshpal departmental proceedings may be started but there was no sufficient ground to proceed against them in a court of law. On the basis of that letter (Ext. ka. 11) sanction to prosecute Chandrabhan was only accorded on 7-6-78 vide Ext. ka 1. It means, therefore, that no sanction was obtained to prosecute the present appellants and obviously the bar of Section 6 of the Prevention of Corruption Act would apply to their case and the court could not take cognizance of the offence under Section 5 against them. There is no disharmony between this Section 6 of the Prevention of Corruption Act and Sections 193 and 397 of the Criminal Procedure Code. What the learned Sessions Judge should have done could be that he should have stayed further proceedings in the matter before taking cognizance and after recording finding that there was satisfactory evidence implicating the present appellants, he should have directed the prosecution to obtain sanction under Section 6 against the appellants also and after such a sanction was obtained and filed, he should have proceeded with the case against the appellants. This has not been done. On these two legal points, therefore, the trial is vitiated and is liable to be quashed. But both these points are such that can be remedied and a fresh sanction may be obtained. Now evidence has come on the record and the learned Judge can take cognizance. This means, therefore, that normally the cases of this type are such as may be remanded for re-trial after curing the defect. 13. In the present case, however, I think that on merit the remand will not be justified. Now evidence has come on the record and the learned Judge can take cognizance. This means, therefore, that normally the cases of this type are such as may be remanded for re-trial after curing the defect. 13. In the present case, however, I think that on merit the remand will not be justified. In the first place the occurrence is said to have taken place in early January, 1978 and more than 7 years' period has already passed. In the second place, a perusal of the entire evidence on record will show that there is only the testimony of the complainant Nidan Singh to connect the present appellant with this case. The other witnesses, especially the Trap Inspector do not say a single word against the present appellants. Yudhistra, who accompanied Nidan Singh all along has not been examined and what Nindan Singh says is contrary to this earlier stand. Now before the Sessions Judge he says that the three appellants were present inside the office and they also told him that he should pay Rs. 200/- to have his truck released. He has also specifically said that when he bad entered the office Mr. Bhatt told him that he should pay Rs. 200/- and the truck shall be allowed to pass and at that time the other two appellants were also present. As against this, in his application moved before the Additional District Magistrate, on which the order of Trap was made, he did not mention any body by name amongst the accused, not even Chandrabhan and simply said that one Karamchari was demanding bribe from him. On the basis of this, Fard (Ext. ka 4) was drawn up by Mahak Singh and in that Fard also there is clear mention that one Karamchari was demanding Rs. 200/- for passing the truck. This is also the fact mentioned in the FIR lodged by Sri Mahak Singh after the occurrence. If it was a fact that Nidan Singh had already known the names of all the four culprits, which he claims to have known before 11. 200/- for passing the truck. This is also the fact mentioned in the FIR lodged by Sri Mahak Singh after the occurrence. If it was a fact that Nidan Singh had already known the names of all the four culprits, which he claims to have known before 11. a.m. there is no reason why he should not have mentioned the same in his petition to the Additional District Magistrate: In this view of the matter, the evidence, as adduced, is not sufficient enough to implicate the present appellants in this case and, therefore, remand after such a long lapse would only be harrassment and is uncalled for. 14. In the result, the appeals are allowed and the order of conviction and sentence passed against the appellants by the learned Additional Sessions Judge is set aside. They are on bail and they need not surrender. Their bail bonds and sureties shall stand discharged. Appeal allowed.