A. N. DIKSHITA, J. ( 1 ) THIS is an appeal against the judgment and order dated 18. 12. 78, passed by Shri P. K. Agarwal, Special Judge, Anti Corruption UP. (East), Dehradun, convicting the appellant Mohd Shafi Ullah Ansari under section 161 I. P. C. and section 5 (1) read with section 5 (2) of the Prevention of Corruption Act and sentencing him one years RI. and a fine of Rs. 100/- respectively and in default of payment of fine to one months RI. The sentences were ordered to run concurrently. ( 2 ) THE prosecution case, in brief, was as follows: The appellant was posted as Ticket Collector at Modinagar railway station in November 1976. Ashok Arora, P. W. 3 (hereinafter referred to as the complainant) was carrying on general merchandise business at Modinagar. It appears that he used to bring his business material from Delhi through rail. Detecting these materials to be in excess of the quantity allowed under the rules the appellant wanted the complainant to pay illegal gratification for such excess goods on regular basis. The complainant made an application Ex. Ka 5 to the Superintendent of Police, C. B. I. , Dehradun for action against the appellant. A trap was laid and the appellant was caught by the trap party while accepting the bribe. Thereupon a first information report was lodged against the appellant. ( 3 ) THE appellant pleaded not guilty and contended that he had been falsely implicated in the case due to enmity with the complainant. ( 4 ) THE trial court after considering the evidence on record found the appellant guilty and he accordingly convicted and sentenced the appellant as already mentioned above. ( 5 ) LEARNED counsel for the appellant contended that in this case there was no valid sanction as contemplated by section 6 of the Prevention of Corruption Act (in short the Act) for the prosecution of the appellant and as such the court had no jurisdiction to take cognizance and the conviction as recorded cannot be sustained. ( 6 ) ON the point of sanction the two relevant witnesses are Sri G. K. Tandon, P. W. 1, the Divisional Commercial Superintendent, Northern Railways, New Delhi, and Sri H. L. Bhatia, Assistant Personnel Officer, Northern Railways, New Delhi. The sanction order Ex. Ka-3 is signed by Sri G. K. Tandon, P. W. 1. ( 6 ) ON the point of sanction the two relevant witnesses are Sri G. K. Tandon, P. W. 1, the Divisional Commercial Superintendent, Northern Railways, New Delhi, and Sri H. L. Bhatia, Assistant Personnel Officer, Northern Railways, New Delhi. The sanction order Ex. Ka-3 is signed by Sri G. K. Tandon, P. W. 1. The contention on behalf of the appellant is that Sri G. K. Tandon was not competent to remove the appellant and as such under the law he could not accord the sanction for the prosecution of the appellant. ( 7 ) SRI G. K. Tandon, P. W. 1, in his examination-in-chief stated that the appointment of the appellant was made by the Divisional Personnel Officer. He also made a bald statement without pointing out to any provisions of the rules or the circulars of the Railway Board that the Divisional Commercial Superintendent was the appointing authority of the Ticket Collectors and that the Divisional Commercial Superintendent and the Divisional Personnel Officer were of the same rank. In his cross examination he stated that though the appointing authority of the appellant was the Divisional Personnel Officer yet under the departmental orders he also could record sanction. He further stated that he could not mention the details of those departmental orders which authorised him to accord sanction. He admitted in his cross-examination that in the sanction order he had referred to other provisions of law but those other provisions of law were not in his knowledge. From the fluctuating and indifferent statement of Sri G. K. Tandon it is not conclusively proved that he was the appointing and removing authority of the appellant. If it was not the removing authority the sanction accorded by him was no sanction in the eyes of law and the court had no jurisdiction to take cognizance of the case. ( 8 ) SRI H. L. Bhatia, Assistant Personnel Officer, P. W. 2, in his statement narrated the procedure of selection of the rail way employees including the Ticket Collectors and admitted that the appointment of the appellant was made by the Divisional Personnel Officer (Transportation ). ( 8 ) SRI H. L. Bhatia, Assistant Personnel Officer, P. W. 2, in his statement narrated the procedure of selection of the rail way employees including the Ticket Collectors and admitted that the appointment of the appellant was made by the Divisional Personnel Officer (Transportation ). He further admitted in his cross examination that in cases where the appointment letters of railway employees were not available the General Manager Railways was deemed to be the appointing authority of those employees and that the General Manager was higher in rank to the Divisional Personnel Officer and the Divisional Commercial Superintendent. He stated that the appellant was under the executive control of the Commercial Superintendent who was his disciplinary authority. From the statement of Sri Bhatia also the prosecution has not been able to prove a valid sanction. ( 9 ) SRI S. K. Sharma appearing on behalf of the C. B. I. submitted that Schedule 2 to the Railway Servants (Discipline and Appeal) Rules, 1968, provides that orders for compulsory retirement, removal of dismissal from service could be passed by the appointing authority or by an authority of equal rank or a higher authority. He contended that Sri G. K. Tandon being of equal rank as Divisional Personnel Officer the sanction accorded by him was a valid one. This submission, however, loses sight of the fact that in this case the appointment of the appellant was made by the Divisional Personnel Officer and the sanction order was passed by the Divisional Commercial Superintendent who could not be conclusively proved to be of the same rank as Divisional Personnel Officer. The prosecution failed to bring on record any evidence to establish this fact. Sri S. K. Sharma then referred to the provisions of section 16 of the General Clauses Act to sustain the sanction order, but those provisions could not be attracted as Sri G. K. Tandon who signed the sanction order was not the appointing authority of the appellant. ( 10 ) FROM the above discussion it is clear that the sanction for the prosecution of the appellant was not made in accordance with section 6 of the Act and the trial court had no jurisdiction to take cognizance of the case. ( 10 ) FROM the above discussion it is clear that the sanction for the prosecution of the appellant was not made in accordance with section 6 of the Act and the trial court had no jurisdiction to take cognizance of the case. ( 11 ) IT was incumbent on the prosecution to prove that a valid sanction had been granted by the sanctioning authority on being satisfied that a case had been made out constituting no offence. The grant of sanction is not an idle formality. It is solemn and sacrosanct act which affords protection to public servants against frivolous prosecutions. It has to be strictly complied with before any prosecution can be launched against the concerned public servant. Moreover, even a presumption under section 4 of the Prevention of Corruption Act cannot be drawn. A presumption is not available to the authority competent to accord sanction as no case is pending in court. Further presumption cannot be drawn automatically but rests on proof of certain circumstances proved by evidence. It is only a court which can draw a presumption on the basis of the evidence placed before it. Such a presumption does not arise at the stage of granting sanction but only at the stage when the proceedings are launched in court. In the case of Mohd Iqbal Ahmed v. State of A. P. 1 it was held that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void abinitio. The Supreme Court further went on to stress that the prosecution cannot be given a chance to produce material in the appeal before the Supreme Court to satisfy that the sanctioning authority had duly applied its mind to the facts constituting the offence. It was also held in a criminal case the Supreme Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. ( 12 ) THE order of the trial court is thus void abinitio, without jurisdiction and deserves to be set aside being based on an invalidly accorded sanction. ( 13 ) SRI S. K. Sharma, appearing on behalf of the C. B. I. then urged that the Court may permit the department to proceed against the appellant departmentally or launch prosecution after obtaining fresh sanction. ( 13 ) SRI S. K. Sharma, appearing on behalf of the C. B. I. then urged that the Court may permit the department to proceed against the appellant departmentally or launch prosecution after obtaining fresh sanction. The department no doubt may have the right to proceed against such delinquent public servant for the misconduct, but after a lapse of about nine years such an initiation of fresh criminal proceedings against the appellant would frustrate a useful purpose except aggravating the agony of the appellant and in view of the age and procrastinated proceedings till now would only help in the ruination of the family. This view is being taken as has been taken by the Supreme Court in S. Gum and others v. Grindlays Bank Ltd. 2 where it was observed: After going through the Judgment of the Magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. Further howsoever reprehensible or condemnable the act of the appellant might be but the circumstances as Sri S. K. Sharma has pointed out could not satisfy me that the prosecution had succeeded in establishing its case against the appellant beyond any shadow of reasonable doubt. ( 14 ) IN the result the appeal succeeds and is allowed. The order of the trial court dated 18. 12. 1978 and the conviction and sentences of the appellant under section 161 I. P. C. and section 5 (3) read with section 5 (2) of the Prevention of Corruption Act are set aside and he is acquitted. The appellant is on bail and he need not surrender. The bail bonds are discharged. Appeal allowed. .