JUDGMENT - SaldANHa M.F., J.:—This appeal raises certain important issues that have arisen for the first time and which therefore require adjudication. They are summarised as follows : a) Whether sanction for prosecution is a condition precedent in respect of an offence punishable under section 12 of the Prevention of Corruption Act, 1988? b) Whether an offence under section 12 of the said Act is an independent offence or whether it is essentially linked to an offence under section 7 of the Act? The judgment answers these issues in the affirmative. 2. It is necessary to first refer briefly to the relevant facts. The appellant, an employee of the Central Railway was at the relevant time working at Solapur as an Unloading Foreman. It is alleged that on 4-5-1988 while unloading wagon 33577 containing 1987 cement bags, the accused is alleged to have been responsible for diverting 13 of those cement bags, which were kept aside and that he thereafter lodged a complaint to the effect that these 13 bags were received short. The matter was being investigated into by the complainant Sarkate who was the R.P.F. Inspector and it is alleged that the accused met him on three occasions and requested him not to report anything adverse for which purpose he would, pay him Rs. 4,000/ -. Sarkate refused to do anything other than what was required under the Rules and Sarkate alleges that he also refused to accept any money from the accused. He, therefore, went to the Anti-Corruption Bureau authorities on 9-5-1988 and lodged a complaint wherein he stated that the accused had indicated his intention to come to the R.P.F. Office at about 7.00 p.m. that evening and that he was insisting on offering a bribe of Rs. 4,000/- which Sarkate had refused to accept. The Anti-Corruption Bureau Inspector Kadam recorded the complaint and sent for two panchas Shirke and Potdar. 3. One of these persons namely Potdar accompanied Sarkate to his office and it is alleged that the accused came there at about 7.45 p.m. along with the Superintendent of his Department. He is alleged to have once again conveyed his request to Sarkate to hush up the matter and showed the amount of Rs. 4,000/- which he took out from his pocket and he thereafter opened the right side drawer of Sarkate's table and put the money into the drawer. He is alleged to have once again conveyed his request to Sarkate to hush up the matter and showed the amount of Rs. 4,000/- which he took out from his pocket and he thereafter opened the right side drawer of Sarkate's table and put the money into the drawer. It is material to state that even on this occasion Sarkate is alleged to have clearly told him that he will not budge from his line of duty and that he will follow the requirements of the Rules. On a signal being given by Sarkate, Inspector Kadam and the raiding party came inside and apprehended the accused. They recovered the money from the drawer and drew up the requisite panchnama. On completion of the investigation the accused was put on trial before the learned Special Judge, Solapur who convicted him for the offence punishable under section 12 of the Prevention of Corruption Act and awarded him a sentence of rigorous imprisonment of one year and to pay a fine of Rs. 500/- in default rigorous imprisonment for three months. It is against this conviction that the present appeal has been directed. 4. At the stage of admission Mr. Mengane, learned Counsel appearing on behalf of the appellant pointed out that the entire proceeding would stand vitiated by virtue of the fact that no sanction has been accorded for the present prosecution of the appellant who admittedly is a public servant and therefore prayed that the appeal be disposed of expeditiously as on this ground he was confident of success. The appeal was therefore expedited and taken up for hearing. 5. Mr. Mengane, learned Counsel appearing on behalf of the appellant submits that admittedly the appellant was a Railway Officer and that he is a public servant in whose case sanction is condition precedent for a valid prosecution. He contends that the trial on a corruption charge cannot even be instituted as the wording of section 19 of the Act is very clear, that a Court cannot take cognizance of a corruption offence without the pre-requisite of a valid sanction. He contends that the findings of the learned Special Judge that no sanction is required for an offence under section 12 is erroneous in law. What Mr. He contends that the findings of the learned Special Judge that no sanction is required for an offence under section 12 is erroneous in law. What Mr. Mengane submits is that the offence under section 12 is inter-dependent on section 7 in so far as section 12 makes an act of abetment punishable as long as it is an off-shoot of an offence or a charge under section 7 of the Act. Mr. Mengane submits that the substantive offence is what will determine the issue of sanction and therefore that the present accused could not have been put on a trial without a valid sanction. He submits that the case law is now more than well settled on the point that if sanction is a pre-requisite and no sanction has been obtained or no valid sanction has been obtained that the entire proceeding is void and still born. 6. This proposition is vehemently opposed by Mr. Lambay, learned Counsel appearing on behalf of the respondent-State. Mr. Lambay states that section 19 must be strictly construed and that there is no dispute about the fact that section 19(1) does not mention section 12 at all. Section 19(1) reads as follows: “19. Previous sanction necessary for prosecution.—(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction...” 7. Mr. Lambay submits that the Legislature has deliberately omitted to mention section 12 and the reason put forward by him is that the abetment of an offence under section 12 can be committed by a member of the public in whose case. Sanction to prosecute will not be necessary. He further submits that it was open to the Legislature to decide whether or not sanction to prosecute is a condition precedent and if the Legislature has deliberately excluded section 12 that sanction in such cases is unnecessary. Section 12 reads as follows: “12. Punishment for abetment of offences defined in section 7 or 11.—Whoever abets any offence punishable under section 7 or 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and shall also be liable to fine.” 8. Mr. Mr. Lambay further contends that the offence set out in section 12 is an independent, distinct and different offence from the ones enumerated in the other sections of the Act and to this extent therefore the requirement of sanction in respect of other sections is not applicable as far as section 12 is concerned. Mr. Lambay has also pointed out to me that he has done considerable research for purposes of trying to ascertain whether there is any available case law on this point. He rightly points out to me that this is a new Act which governs only those of the offences which have been registered after the year 1988 in which hardly any of the cases have been disposed of and that probably explains why there is no decided case law under section 12. The added reason is because there is no corresponding section in the Prevention of Corruption Act, 1947. Mr. Mengane also informs me that he has done an equal amount of research but that he was also unable to find any decided case on this point. The two issues canvassed in this proceeding therefore will have to be decided independently of any such background material. 9. Undoubtedly, section 12 makes an offence of abetment punishable and it is competent for a Court to frame a charge under section 12 independently or along with any other charges under the Act. What one cannot however overlook is that it is impermissible to argue that the offence described in section 12 though independently punishable is an independent offence in the sense that it does not stand apart, from the other offences enlisted under the Act. A plain reading of section 12 will indicate that there is a direct reference to sections 7 and 11 and it is in respect of the abetment of these two offences that section 12 speaks of. To that extent therefore, while I uphold the submission of Mr. Lambay that it is permissible to independently charge an accused under section 12 of the Act, it is necessary for me to also qualify that this offence cannot be treated as being wholly distinct or independent from sections 7 and 11 because it speaks of abetment of those offences. In other words, the offence under section 12 does not have a distinct existence from sections 7 and 11. In other words, the offence under section 12 does not have a distinct existence from sections 7 and 11. It was, to my mind, therefore unnecessary for the Legislature to specifically mention section 12 in section 19 while enumerating the necessity of sanction as a pre-condition. As long as sanction is required for punishment of the main offence namely the ones under section 7 or 11 sanction would be equally necessary in respect of the punishment of an offence described in section namely abetment of those offences. To this extent, therefore, the submissions canvassed by Mr. Lambay, learned Counsel appearing on behalf of the State that sanction is unnecessary for the offence under section 12 is incorrect. 10. The issue may be tested from a more reliable and independently different angle. The Criminal Procedure Code governs the conduct of the proceedings before the Special Court. Section 197(1) of the Criminal Procedure Code reads as follows: “197(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.” It is quite explicit from this section that such a person who is accused of an offence committed by him in the course of the discharge of his official duties cannot be prosecuted save and except after obtaining sanction from the Competent Authority of that Government. Section 2(n) of the Criminal Procedure Code reads as follows: “2(n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871 (1 of 1871);”. It is quite clear from this definition that an offence punishable under the provisions of the Prevention of Corruption Act would come within the ambit and scope of section 197(1) in so far as the accused is a public servant. Sanction for prosecution would therefore be a pre-condition and viewed from this angle also, the submission canvassed by Mr. It is quite clear from this definition that an offence punishable under the provisions of the Prevention of Corruption Act would come within the ambit and scope of section 197(1) in so far as the accused is a public servant. Sanction for prosecution would therefore be a pre-condition and viewed from this angle also, the submission canvassed by Mr. Mengane that the learned Special Judge was in error in having held that sanction was not a requisite in the present case deserves to be upheld. 11. It is essential to record that Mr. Lambay advanced an argument which to my mind is not only ingenious but of some consequence. He contended that the facts are required to be viewed at from two distinct dimensions. The shortage of cement from the wagon is something that related to the discharge of the official duties of the accused who was the unloading foreman. To that extent Mr. Lambay submits that if the charge related directly to anything connected with the unloading of the cement or shortage thereof etc. that the provisions of section 197 would apply. Mr. Lambay contended that if the accused had met the complainant and requested him several times to hush up the case in return for a bribe of Rs. 4,000/- that the Act of offering a bribe to a public servant had nothing to do with the official duties of the accused and therefore that section 197 would not have any application in this case. 12. The status of the accused as a public servant is not disputed. The fact that Sarkate was holding an enquiry into the cement shortage is also not disputed. The fact that the enquiry related to the official duties of the accused and that he had been called several times in the course of that enquiry for the purposes of the same is also a matter of record. Under these circumstances to my mind, even if the offering of a bribe to a public servant is certainly not part of the official duties, that act cannot be torn out of the context of the overall picture and cannot be so projected as to have nothing to do with the official duties. In the aforesaid circumstances, it will have to be held that the incident was related to and connected with the official duties. Mr. In the aforesaid circumstances, it will have to be held that the incident was related to and connected with the official duties. Mr. Lambay's submission proceeds on the footing that the Privy Council in Morarka's and the Supreme Court in several cases thereafter have undoubtedly held that doing an illegal act can never be construed as part of official duty. The courts have however clarified that if the illegal act takes place in or around the work station and if it is related to the other official duties of the public servant, that for the purposes of accord of sanction, it will have to be treated as being an act, may be an illegal one, but performed in the course of or in relation to the official duties. Under these circumstances, to my mind, the applicability of section 197, Criminal Procedure Code cannot be disputed and therefore the sanction was most certainly a necessary pre-condition. I do not need to refer to the elaborate case law on this point but it is well defined without any basis of doubt whatsoever that a prosecution of the present type which proceeds without sanction would vitiate the entire proceeding and render it void ab initio. 13. Mr. Lambay has drawn my attention to a special provision that is contained in section 19(3)(a) of the Prevention of Corruption Act, 1988. Section 19(3)(a) reads as follows: “19(3)(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;” 14. Mr. Lambay contends that on the basis of this provision even if there is absence of the requisite sanction that the prosecution will not stand vitiated. The validity of this provision has not been challenged and I therefore refrain from making any observations with regard to it. Mr. Lambay contends that on the basis of this provision even if there is absence of the requisite sanction that the prosecution will not stand vitiated. The validity of this provision has not been challenged and I therefore refrain from making any observations with regard to it. The intention of the Legislature appears to be that in a given case, and that too at the appellate stage, if the question of sanction is raised for the first time that unless the absence of the sanction order results in a failure of justice, that it will not be permissible to raise the plea that the proceedings are vitiated for want of sanction. Mr. Lambay's contention is two fold. He firstly contends that the Legislature has specifically provided for situations where technical objections are canvassed with the sole objective of a criminal getting out of a conviction which is otherwise unassailable on merits. Secondly he contends that such objections must be canvassed at the earliest point of time and if it is not done that it will have to be demonstrated that there is a failure of justice and in the absence of this it will not be permissible to uphold such an objection. Section 3(a) of section 19 starts with the clause “notwithstanding anything contained in the Criminal Procedure Code” this would therefore mean that the requirement of sanction under section 197, Criminal Procedure Code is taken care of. That would however not be good enough because section 19 of the present Act itself makes sanction as a condition precedent. Sub-clause (3) does not refer to the provisions of this Act as in that case we would have found a clause stating “or any other provision of this Act”. 15. Under these circumstances to my mind these provisions will not be of much assistance, but I shall be required to examine as to whether or not on the facts of the present case, a failure of justice can be said to have resulted. But for this aspect of the matter it would not have been necessary for me to examine the merits of the case which has become essential. 16. The charge as framed confines itself to two incidents only. The first of them relates to an offence of cheating punishable under section 420 of the Indian Penal Code. But for this aspect of the matter it would not have been necessary for me to examine the merits of the case which has become essential. 16. The charge as framed confines itself to two incidents only. The first of them relates to an offence of cheating punishable under section 420 of the Indian Penal Code. The appellant is acquitted by the trial Court in respect of this offence. As regards the second head of charge it confines itself to what had happened on 9-5-1988 at about 10.40 hours. On that day the accused is alleged to have once again repeated his offer to the complainant that he should hush up the case and accept a bribe, of Rs. 4,000/- and he also stated, that he would come in the evening at 7.00 p.m. with the money. Mr. Mengane, has taken me through the evidence of the complainant, the evidence of panch Potdar, the evidence of panch Shirke, evidence of Inspector Kadam and all other supportive evidence. It is his contention that the only evidence that we have in respect of the alleged placement of the money in the table drawer of Sarkate is from the complainant himself and supported by Potdar in respect of what actually transpired on that evening. There are some variations in the evidence of these two witnesses but what really goes to the root of the matter is the submission canvassed by Mr. Mengane that this was not a case in which the complainant accepts the position that at any point of time he had agreed to take the bribe and that the money was paid to him pursuant to such an understanding. There are distinct references made both by Sarkate and panch Potdar that the accused is alleged to have come there and taken out the money and told the complainant that the payment was brought and was being made “as per the agreement”. 17. Mr. Mengane points out that there was never any such understanding or agreement that was either arrived at or concluded and under these circumstances that the whole truth has been suppressed from the Court. 17. Mr. Mengane points out that there was never any such understanding or agreement that was either arrived at or concluded and under these circumstances that the whole truth has been suppressed from the Court. The defence of the accused was that in the course of the investigation P.S.I. Sarkate had been harassing him that he had called him 10 to 15 times which is admitted by Sarkate, and the accused further contends that as a result of this situation there had been an exchange of hot words and abuses between the two of them and that this was the background for Sarkate to falsely implicate the accused on this charge. Mr. Lambay, on the other hand has pointed out that Sarkate was investigating into an act of serious misconduct and that it was essential for him to call the accused several times and if necessary to interrogate him. He states that it is too far fetched to allege that even if there was a quarrel or unpleasantness which Sarkate has denied, that he would go to the extent of foisting a false case against the present accused who himself was a Government employee. Apart from this it is Mr. Lambay's contention that the offence under section 12 would be complete as soon as it is demonstrated that the accused has made an offer and that section 12 is very clear that even if the offence is not complete i.e. even if the main offence of accepting the bribe is not complete, that the accused can still be convicted for having made an offer. 18. Mr. Lambay is right with regard to this submission in so far as in law it is the offer that is made punishable. Mr. Lambay has cited numerous instances of cases where such attempts were made and where such offers are put forward and he contends that in order to maintain the purity of public life, under the new Prevention of Corruption Act such attempts or offers themselves are made criminally punishable. As far as the legal aspect is concerned, Mr. Lambay is perfectly correct. Unfortunately the charge totally excludes the earlier incidents when the accused is alleged to have also made similar offers and consequently in respect of that part of the transaction we have nothing on record except the bare word of the complainant. As far as the legal aspect is concerned, Mr. Lambay is perfectly correct. Unfortunately the charge totally excludes the earlier incidents when the accused is alleged to have also made similar offers and consequently in respect of that part of the transaction we have nothing on record except the bare word of the complainant. Even as far as that aspect goes the law as enunciated by the Supreme Court in respect of corruption cases categorises the complainant as being a person who is in the position of an accomplice and therefore as of necessity before a conviction can be based on the complainant's evidence it is essential that corroboration should be available. I am, therefore, unable to take any cognizance of the earlier offers that are alleged against the accused even if they appear in the narration. 19. As regards what has transpired on the night of 9th May, the position that emerges is that Sarkate himself is quite categorical and he is supported in this regard by the panch Potdar that quite apart from his earlier refusal to accept any bribe from the accused and his unequivocal statement to him that he will go strictly by the Rules and the law that even on 9th of May, when the accused is alleged to have come there, that Sarkate told him that he would not accede to his request to hush up the case. This leads to a totally incongruous situation because it renders the evidence of Sarkate self contradictory. If he had refused to hush up the case and if he has refused to help, it is impossible to believe that the accused would still put the money into his drawer. Mr. Lambay argues that the accused was insisting and he was hopeful of persuading the complainant and that he was probably confident of the fact that regardless of what the complainant said he would assist him if he left the money there. To my mind, this reasoning is too far fetched. In cases of bribery and corruption it will have to be very clearly demonstrated that the object of the illegal gratification was in order to secure unfair advantage or a favour. Where the evidence states that the favour was not going to be done it would be impossible to thereafter accept the prosecution story that the illegal gratification was still given for this purpose. 20. Where the evidence states that the favour was not going to be done it would be impossible to thereafter accept the prosecution story that the illegal gratification was still given for this purpose. 20. There are one or two other hurdles in the way of the prosecution, the first of them being that Sarkate disregarded the instructions given to him by Inspector Kadam. Obviously the investigating officer was aware of the fact that the nexus between the bribe money and the accused would have been of crucial importance and for this purpose he directed Sarkate to accept the money from the accused when offered. Sarkate states that he refused it and thereafter states that the accused put it in the drawer of the table. As far as Sarkate is concerned, the Investigating Officer had taken the prosecution of making an inventory of the items and the cash on his person but no such inventory had been made in respect of the room and in particular of the table and it is Mr. Mengane's case that having regard to the hostility that had developed because of the accused having lost his temper and abused the complainant that Sarkate was infuriated that he has obviously put his own money in his drawer and alleged that the accused has given it to him. On the facts of this case where it is essential that the prosecution proves the charge to the satisfaction of the Court through credible evidence and there is ambiguity in the evidence of this nature, I find it difficult to reconcile the aforesaid position. Mr. Lambay has advanced the submission that as far as this last aspect of the matter is concerned that the presence of the accused in the cabin of Sarkate is a circumstance against him. He points out that if the accused had not come there to offer illegal gratification that there was no reason for him to be found at that place. This again to my mind is incorrect for the simple reason that Sarkate has admitted that he had called the accused in connection with the investigation on as many as 10 to 15 occasions and therefore if the accused was found in his cabin to my mind, it is a totally innocuous circumstance rather than an incriminating one. 21. This again to my mind is incorrect for the simple reason that Sarkate has admitted that he had called the accused in connection with the investigation on as many as 10 to 15 occasions and therefore if the accused was found in his cabin to my mind, it is a totally innocuous circumstance rather than an incriminating one. 21. I have referred in some detail to these aspects of the prosecution case for the purposes of illustrating that had the Sanctioning Authority examined the case on the point of whether to accord sanction or not he would obviously have applied his mind to these aspects of the matter and there is every possibility that having regard to these lacunae that he would have decided that a prosecution may not be essential. There is good reason for me to conclude that this was a possibility and to this extent therefore the fact that sanction was not applied for has certainly resulted in failure of justice to a public servant. The commencement of the prosecution is disastrous as far as his career is concerned and under these circumstances the non-application for sanction to my mind would be unjust and would result and has resulted in a failure of justice. Viewed at from the provisions of section 3(a) also therefore, it would not be possible to conclude that the prosecution can be condoned from having gone on without valid sanction. 22. In the result, the appeal succeeds. The conviction and sentence awarded to the appellant are set aside. The fine, if paid, is directed to be refunded. The bail bond of the appellant to stand cancelled. (Having regard to complexities of this appeal, fees of the Learned A. P. P. are specially quantified at Rs. 1,500/- per day. These being Special Fees, the same shall not be subject to any ceiling). Appeal allowed. -----