Judgment A.N. Dikshita, J. 1. THIS appeal has been preferred by Rewa Chand Khattar against his conviction under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (in short the Act) and the sentence of imprisonment till the rising of the court and a fine of Rs. 2000/- and his conviction under Sections 420, 468 and 471 IPC and the sentence of imprisonment till the rising of the court as recorded by Sri B. N. Misra, Special Judge, Anti Corruption (Central) U. P., Lucknow, vide his judgment and order dated 6-11-78. 2. IN brief the relevant facts are : The appellant was working as a Grade II Officer in the State Bank of India, Main Branch, at Kanpur, at the relevant time in 1975. Under the rules he was entitled to leave fare concession, namely, travel expenses for himself and the members of his family. On 16-4-1975 he applied for leave and the sanction for availing of such concession for going to Bombay was granted to him. He took an advance of Rs. 1500/- on 13-5-75 for the purpose. On 16-7-75 the appellant submitted a bill showing his departure from Kanpur on 19-5-75 and return journey on 29-5-75 alongwith Money Receipt issued by the Railways claiming Rs. 1060.25 as 1st Class Railway fare. He gave out in the bill tickets nos.14560 to 14564 and child ticket no. 01579 for going to Bombay and ticket nos.02432 to 02436 and child ticket no. 00309 for the return journey from Bombay to Kanpur. The amount of Rs. 1060.25 was sanctioned and the appellant received the same. The case of the prosecution was that neither the appellant nor the members of his family undertook the journeys as aforesaid and the appellant by adopting corrupt and illegal means and by abusing his position as a public servant submitted a false bill and charged the amount of Rs. 1060.25 as fare. It was alleged by the prosecution that the Money Receipt submitted by the appellant was a forged document and the tickets of which numbers were given by the appellant were in fact sold to other persons both at Kanpur and at Bombay. 3. AFTER the necessary sanction dated 15-12-1976 accorded by the General Manager (Operations) exercising the powers of the Chief General Manager, State Bank of India, the prosecution was launched against the appellant. 4. 3. AFTER the necessary sanction dated 15-12-1976 accorded by the General Manager (Operations) exercising the powers of the Chief General Manager, State Bank of India, the prosecution was launched against the appellant. 4. IN support of its case the prosecution examined as many as 24 witnesses. The appellant pleaded not guilty and denied commission of the offences with which he was charged. He asserted that he and his family members had undertaken the journeys from Kanpur to Bombay and from Bombay to Kanpur and that he had not submitted a wrong or false bill. 5. THE learned Special Judge, Anti Corruption (Central) U. P., Lucknow, who tried the case after considering the evidence on record both oral and documentary came to the conclusion that the appellant was guilty of the offences under Sections 420, 468 and 471 IPC and Section 5 (1) (d) lead with Section 5 (2) of the Act and accordingly he convicted and sentenced the appellant as above. Hence this appeal. 6. I have heard Sri A. D. Giri, learned counsel for the appellant and the learned State Counsel as also Sri S. N. Verma, learned counsel appearing on behalf of the State Bank of India, and Sri S. K. Sharma on behalf of CBI at length. Learned counsel for the appellant submitted that an important legal question which arises in this case and which goes to the very root of the matter may be decided first. Elaborating his argument Sri Giri submitted that there was no proper sanction in this case for the prosecution of the appellant as laid down under Section 6 of the Act and as such the entire proceedings and the trial of the appellant were void. In support of his contention Sri Giri placed reliance upon Parmanand Dass v. State of Andhra Pradesh, AIR 1978 SC 1745 . 7. THERE is no dispute that the sanction in this case was accorded by means of the order dated 15-12-1976 Ex Ka 27 which was signed by Sri M.B. Dutta, General Manager for Chief General Manager. Section 6 of the Act envisages that the Court will take cognizance if it is satisfied that the sanction has been accorded by such authority who was competent to remove the delinquent official. It is not disputed that the authority to remove the appellant was the Board. Section 6 of the Act envisages that the Court will take cognizance if it is satisfied that the sanction has been accorded by such authority who was competent to remove the delinquent official. It is not disputed that the authority to remove the appellant was the Board. According to the learned counsel for the appellant a bare perusal of the sanction order dated 15-2-1976 shows that it was passed by the General Manager for the Chief General Manager and not by the Board and as such it was not a valid sanction order On the other hand learned counsel for the State and the learned counsel appearing on behalf of the State Bank of India submitted that the sanction order may not be read in isolation but other material may also be seen and circumstances examined which go to show that the Board had accorded sanction for the prosecution for the appellant on 1-12-1976 and the sanction order dated 15-12-1976 was merely a communication conveying the decision of the Board. It was submitted on behalf of the prosecution and the State Bank that on 26-11-1976 the General Manager had written to the Board to accord the requisite sanction lor the prosecution of the appellant. The Board accorded sanction on 1-12-1976 and consequent thereto on 15-12-1976 the General Manager conveyed the decision of the Board for the prosecution of the appellant. THERE is no doubt that if the Court was required to complete the chain of circumstances in the manner suggested on behalf of the prosecution and the State Bank the sanction order dated 15-12-1976 will have to be held a valid one in conformity with Section 6 of the Act. The difficulty, however is that the prosecution has failed to bring on record anything showing the actual sanction by the Board on the recommendation of General Manager vide his alleged communication dated 26-11-76. This court cannot act on surmises and conjectures and will not be guided by extraneous considerations or matters which are not on record. It was very frankly conceded on behalf of the prosecution that the sanction order if read alone, does indicate that it was passed by Sri M.B. Dutta, General Manager, exercising the powers of the Chief General Manager and not by the Board. It was very frankly conceded on behalf of the prosecution that the sanction order if read alone, does indicate that it was passed by Sri M.B. Dutta, General Manager, exercising the powers of the Chief General Manager and not by the Board. It will not be out of place to mention here that the language used in the sanction order dated 15-12-76 amply shows that it was Sri M. B. Dutta who was according sanction for the prosecution of the appellant and not the Board. I am not impressed by the submission or behalf of the prosecution and State Bank that as a matter of face the sanction order was not happily worded though it was an order by this Board, 8. HOWEVER, to examine the merits of the sanction order the record pertaining to this aspect were summoned and produced before this Court Admittedly Sri S. E Dutta, Chief General Manager was granted leave with effect from 20-10-76 to 19-12-76 both days inclusive by the Central Office. To ensure a proper and smooth working of the Bank and in view of the administrative convenience Sri M. B. Dutta, General Manager (Operations) wa authorised to exercise within bis respective spheres of activities the financial powers in respect of the staff under various service rules and award from 20-10-1976 until Sri S. K. Datta reports back for duty Sri M. B. Datta; was also deputised for Sri S. K. Datta at the meetings of the Kanpu Local Board and its committees in Sri S. K.Datta's absence. a. memorandum to that effect was submitted to the Local Board on 11-10-1976 and it wa resolved on 13-10-1976 that the matter be submitted to the Executiv Committee of the Central Board for their sanction. It was during th absence of Sri S. K. Datta that Sri M. B. Datta was exercising the powers for and on behalf of Chief General Manager. A memorandum in regard to according sanction was made by Sri M. B. Datta for Chief General Manager It was recommended that sanction may please be accorded for the prosecution of Sri R. C. Khattar (Ossardas) the appellant. Paras 3, 4 and 5 of th memorandum which are reproduced below are very material for the determination of the controversy regarding grant of sanction : "3. Paras 3, 4 and 5 of th memorandum which are reproduced below are very material for the determination of the controversy regarding grant of sanction : "3. HOWEVER, in January 1976 on a complaint having been made to them by someone, the Central Bureau of Investigation, Lucknow, took up the investigation of the case and took into their possession all the document pertaining to the bill. As it appears, they have now completed the investigations and come to the conclusion that Sri Khattar had obtained reimbursement of the bill from the Bank fradulently and dishonestly or 1 otherwise abusing his official position. They consider that it is a fit case which criminal prosecution should be launched against the officer and have therefore, approached the Bank for sanction under section 6 (1) (c) of the Prevention of Corruption Act (Act II) of 1947. 4. We have examined the position. The request of the CBI is in order we, therefore, recommend that sanction may please be accorded for the prosecution of Sri Khattar. 5. We shall keep the Board advised of developments." There is not a whisper on the part of the authorities or even Sri M. B. Dal that he has examined the merits of the case for according sanction. A solemn and sacrosanct act was thus turned into an idle formality. HOWEVER, it not for Sri M. B. Datta to have examined the position but for the Board which was competent to examine whether it was a fit case for granting sanction or not. The matter which was put up before the Board is recited here extenso : "Kanpur Main Branch : Sri R. C. Khattar:(Issardas), Officer Grade II (Under suspension) : Submitted a memorandum dated the 26th November 1976 requesting that, for the reasons stated therein, sanction be accorded for the prosecution of Sri R. C. Khattar (Issardas) by the Central Bureau of Investigation." With a cryptic word ' sanctioned ' the resolution before the Board was adopted. No material or the relevant documents or even the recommendations of the CBI were produced or placed before the Board. In the absence of such material it cannot be said even for arguments sake that the Board while according sanction was seized of the relevant material and the documents for the prosecution of the appellant. No material or the relevant documents or even the recommendations of the CBI were produced or placed before the Board. In the absence of such material it cannot be said even for arguments sake that the Board while according sanction was seized of the relevant material and the documents for the prosecution of the appellant. Adding fuel to the fire in the teeth of the opposition as regards the validity of the sanction the sanction order dated 15-12-76 nowhere mentions that the Board before whom the material was placed was satisfied that sanction ought to be accorded. This letter termed as sanction order further goes on to show that Sri M. B. Datta exercising the powers of Chief General Manager was the authority competent to remove the appellant from office. This is divorced from truth as Sri M. B. ; Datta was not competent to remove the appellant from service as it was the Board. Furthermore it has also been recited in the sanction order that Sri M. B. Datta had fully and carefully examined the material which had been placed before him in regard to the allegations and the circumstances of the case. The achievement of this requirement for according sanction did not lie with the Chief General Manager or any person exercising the powers of the Chief General Manager but was exclusively to be exercised by the Board, as provided under rule 5 (5) of the SBI (Supervising Staff) Service Rules. While appearing as PW 17 on 20-3-1980 Sri M.B. Datta has stated that the Chief General Manager is the appointing and removing authority of Grade II Officer which the appellant was. This is also admitted by Sri M.B. Datta, PW 17, that the appellant was a Grade II officer on that date the entire prosecution case rests on the edifice that the Chief General Manager is the removing authority of the appellant and any further development would be of no avail in regard to the validity of sanction. In his statement recorded under Section 313 Cr. P.C. the accused has nowhere admitted that Sri M.B. Datta was the person competent to remove him. Learned counsel for the State Bank of India as well as the learned counsel appearing for CBI had tried to show that the appellant had admitted while replying question 41 that Sri M.B. Datta was the authority competent to remove him. Question no. P.C. the accused has nowhere admitted that Sri M.B. Datta was the person competent to remove him. Learned counsel for the State Bank of India as well as the learned counsel appearing for CBI had tried to show that the appellant had admitted while replying question 41 that Sri M.B. Datta was the authority competent to remove him. Question no. 41 and its reply are reproduced below 3 "Q. 41, It is in the evidence of the prosecution that Sri M.B. Datta, General Manager (Operations) was the competent authority to remove you from service and that he gave sanction Ex Ka 27 under Section 6 (1) (c) of the Prevention of Corruption Act to prosecute you of the offences with which you stand charged. What have you to say ? A, My appointing authority was the Chief General Manager and at the relevant time Sri M. B. Datta was officiating as Chief General Manager." From a perusal of the above it is nowhere borne out that Sri M. B. Datta was the authority competent to remove the appellant from service. It was then submitted that it will be presumed that the Chief General Manager had signed the sanction order for and on behalf of the Board. There is no merit in this contention and it is not necessary to dwell upon such a fallacious submission when PW 17 Sri M. B. Datta himself admits that he was the person Competent to remove the appellant from service. A confusion is sought to be created but it is of no avail either to the Bank or the CBI. The trial court has placed much reliance and has sought shelter in the decision of the Board dated 1-12-76. As discussed above this view of the trial court was wholly erroneous and absolutely illegal and contrary to the provisions of Section 6 of the Act. No witness was produced to prove the order dated 1-12-76 nor the material was exhibited. A prejudice wa thus caused to the appellant as it was not put to the appellant. As discussed above this view of the trial court was wholly erroneous and absolutely illegal and contrary to the provisions of Section 6 of the Act. No witness was produced to prove the order dated 1-12-76 nor the material was exhibited. A prejudice wa thus caused to the appellant as it was not put to the appellant. The trial court has erred in law in reading the sanction order dated 15-12-76 with the aid of the memorandum dated 26-11-76 and the order dated 1-12-76 The sanction order dated 15-12-76 cannot stand on its own legs and no aid or assistance would help to show that the order dated 15-12-76 has bee passed according to the provisions of Section 6 of the Act. Even if for pause it is accepted that the Board had granted sanction on 1-12-76, the too this sanction would be of no avail and would be a nullity in law as no material or document was placed before the Board for its satisfaction while according sanction. It must be held that the sanction order dated 1-12-76 also illegal and of no avail. It was then urged that an application was filed on 3-11-78 on behalf of the prosecution for bringing on record copies of the papers and for adducing oral evidence. The Court allowed the photostat copy of the memorandum dated 26-11-76 and the order date 1-12-76 to be brought on record However, permission to adduce oral evidence was refused. This attempt on the part of the prosecution at such a belated stage was only to reconcile the proceedings for granting sanction by the Board. The appellant was not given an opportunity that such an evidence as regards the order dated 1-12-76 was being used against him and which would tentamount to a prejudice being caused to him As these facts were not put to him it clear that they cannot be used against him. 9. IN Parmanand's case (supra) the Special Officer appointed under Section 2 of the Hyderabad Municipal Corporations (Amendment) Act 11 of 1970 was empowered to accord the requisite sanction. He was also 1 perform the duties and discharge the functions of (1) the Corporation, (2) the Standing Committee, and (3) the Commissioner. 9. IN Parmanand's case (supra) the Special Officer appointed under Section 2 of the Hyderabad Municipal Corporations (Amendment) Act 11 of 1970 was empowered to accord the requisite sanction. He was also 1 perform the duties and discharge the functions of (1) the Corporation, (2) the Standing Committee, and (3) the Commissioner. A note was put up before the Standing Committee requesting to accord the sanction for the prosecution of the appellant under Section 6 (1) (c) of the Act and the Standing Committee purporting to act as such granted the requisite sanction. The draft sanction order was signed by the Special Officer with a note that 1 was the officer authorised by the Standing Committee to sign the sanction order Repelling the argument on behalf of the prosecution that the Standing Committee and the Special Officer were one and the same authority the Supreme Court held that the sanction was not accorded legally as it w not signed by the Special Officer in his capacity as a Special Officer or 1 himself exercising the powers of the Standing Committee but issued the sanction order in pursuance of the sanction given by the Standing Committee. 10. THE grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirement must therefore, be strictly complied with before any prosecution could be launched against a public servant. THE policy underlying Section 6 is that the should not be an unnecessary harassment of a public servant-See C.R. Bansi v. State of Maharashtra, AIR 1971 SC 786 . It is well settled law that existence of a valid sanction is a prirequisite of taking of cognizance by courts and the courts before taking cognizance must enquire whether there was a valid sanction to prosecute the public servant for the offences alleged to have been committed by him as public servant-See R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684 . 11. A trial without a valid sanction where one is necessary under section 6 of the Act has been held to be a trial without jurisdiction-See R.R. Chari v. State of U. P., AIR 1962 SC 1573 . 12. IN the case of Mohd. 11. A trial without a valid sanction where one is necessary under section 6 of the Act has been held to be a trial without jurisdiction-See R.R. Chari v. State of U. P., AIR 1962 SC 1573 . 12. IN the case of Mohd. Iqbal Ahmad v. State of U. P., AIR 1979 SC 677 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." It was incumbent on the prosecution to have proved that a valid sanction had been granted by the sanctioning authority on being satisfied that a case had been made out constituting the offence. The grant of sanction is not an idle formality. It is a 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 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. 13. 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. 14. THE order of the trial court is thus void abinitio, without jurisdiction and deserves to be set aside being based on an in validly accorded sanction. 14. THE order of the trial court is thus void abinitio, without jurisdiction and deserves to be set aside being based on an in validly accorded sanction. Sri S.N. Varma, learned counsel for the State Bank of India and Sri S. K. Sharma appearing for C.B.I. then adopted a similar argument that even if the conviction of the appellant under section 5 (1) (d) read with section 5 (2) of the Act fails still then the conviction of the appellant under sections 420, 468 and 471 IPC deserve to be maintained. The plea howsoever fascinating may be, deserves to be rejected. The entire chain of event and circumstances have to be examined in unition. Section 5 (1) (a) of the Act provides as under : "5. Criminal misconduct (1) A public servant is said to commit the offence of criminal misconduct. (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Sec. 161 of the Indian Penal Code (45 of 1860) ; or " Where a public servant commits a criminal misconduct 'then punishment is provided under section 5 (2) of the Act which is reproduced below : " (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine ; Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less then one year)." 15. IT is on the basis of the criminal misconduct having been committed by the appellant as alleged by the prosecution in regard to claiming of false T. A. bill that the ingredients of sections 420, 468 and 471 IPC were attracted and such criminal; misconduct as contemplated would constitute a criminal misconduct under section 5 (1) (a) of the Act. In the instant case the provisions of sections 420, 468 and 471 IPC cannot be isolated with that of the provisions as enshrined in section 5 (1) (a) of the Act. They have to be examined and read harmoniously. For the prosecution of the cases under the Act sanction is required whereafter the Special Judge takes cognizance. In the instant case the provisions of sections 420, 468 and 471 IPC cannot be isolated with that of the provisions as enshrined in section 5 (1) (a) of the Act. They have to be examined and read harmoniously. For the prosecution of the cases under the Act sanction is required whereafter the Special Judge takes cognizance. IT is on the basis of the sanction dated 15-12-1976 that the trial court has taken cognizance and assumed the jurisdiction to try the case under the Act. If the case had proceeded only under sections 420, 468 and 471 IPC then it had to be tried by a Magistrate or a Judge but not by a Special Judge. Another aspect has also to be considered and cannot be lost sight of Section 7 of the Criminal Law (Amendment) Act, 1952, which is recited below, provides for trial of the offences by Special Judges in regard to sub-section (1) of section 6 of the Prevention of Corruption Act : "7. Cases triable by Special Judges. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in sub-section (1) of section 6 shall be triable by Special Judges only. (2) Every offence specified in sub-section (1) of section 6 shall be tried by the Special judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government. (3) When trying any case, Special judge may also try any offence, other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial." From a perusal of the above it is clear that on being appointed as a Special judge for the area within which the offence was committed the Special judge has the powers to try the offences specified in sub-section (1) of section 6 of the Act. Sub-clause (3) further confers power on the Special Judge to try any other offence, other than an offence specified in section 6 with which an accused may be charged but at the same trial. 16. Sub-clause (3) further confers power on the Special Judge to try any other offence, other than an offence specified in section 6 with which an accused may be charged but at the same trial. 16. SECTION 6 of the Prevention of Corruption Act clearly indicates 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) of section 5 of the Prevention of Corruption Act which is alleged to have been committed by a public servant. A rider is enjoined that such a cognizance has to be taken only when a previous sanction has been obtained. It is the factum of sanction which may be existing whereafter the Special Judge is competent to take cognizance but not otherwise. As has been held that there was no sanction in law the Special Judge would cease to have any jurisdiction in respect of offences which may have been committed but for which he is not competent to try it. In Konsam Tharongou Singh v. The Union Territory of Manipur, 1972 Cr. L.J. 802 following the view taken in Ramautan Mahton v. State, AIR 1961 Patna 203 and in Shriram v. State AIR 1966 Raj. 191 it was observed that if the trial by the Special Judge for an offence mentioned in section 6 of the Act lacks validity then the trial of an offence other than the one described in section 6 must stand invalidated because normally such a case is tried by the Sessions Judge only on commitment made to him by a competent Magistrate. Where the proceeding before the Special Judge in a case relating to an offence under section 5 (2) of the Act is no trial at all because of lack of valid sanction under section 6 of that Act, the Special judge has no jurisdiction under section 7 (3) of the Criminal Law (Amendment) Act, 1952, to try the offence under section 409 IPC also. In the instant case, therefore, the trial court could not have assumed jurisdiction in respect of offences under sections 420, 468 and 471 IPC and the conviction of the appellant for those offences of the Indian Penal Code cannot sustain for lack of jurisdiction. In the instant case, therefore, the trial court could not have assumed jurisdiction in respect of offences under sections 420, 468 and 471 IPC and the conviction of the appellant for those offences of the Indian Penal Code cannot sustain for lack of jurisdiction. It was then urged by the counsel appearing for the C.B.I, that fresh prosecution may be launched against the appellant after obtaining fresh sanction. Likewise the counsel for the State Bank of India contended that permission be granted for drawing departmental proceedings against the appellant. After a lapse of about ten years such an initiation of fresh criminal or departmental proceedings against the appellant would only frustrate any useful purpose except that it would only aggravate the agony of the appellant. Moreso, considering the age of the appellant and the procastinated proceedings involving him till now I find that no sacred or legal purpose would be achieved by granting the permission sought for. This has been my view also in the case of Mohd. Shafi Lilian Ansari v. State, 1986 A. Cr. R. 418. This view further finds support from a decision of the Supreme Court in S. Guin v Grindlays Bank Ltd., AIR 1986 SC 289 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" 17. IN view of the above discussion the appeal succeeds and the appellant deserves to be acquitted. 18. IN the result the appeal is allowed, the conviction and sentences of the appellant are set aside and he is acquitted of the charges levelled against him. The security furnished by the appellant for the stay of realisation of fine in terms of the order of this Court dated 9-11-78 stands released. Appeal allowed.