JUDGMENT S.C. Pandey, J. 1. This appeal is directed against the judgment dated 13.11.1987 passed by the Special Judge trying the cases under the Prevention of Corruption Act at Rewa in Special Case No. 9/84. The appellant was convicted under Section 161 of the Indian Penal Code and was sentenced to one year's R.I. He was further convicted under Section 5 (2) of the prevention of Corruption Act, 1947 (henceforth the Act) to undergo a sentence of one year R.I. and a fine of Rs. 100/- (Rupees One Hundred) or in default, a further sentence of one month's R.I. The sentences imposed upon the appellant have been directed to run concurrently. 2. It is not necessary to give facts in any detail for the purpose of decision of this case. Briefly stated the facts of this case are that the appellant was working as a Gram Sewak at Village Mahaganwa, Block Rewa. He was serving under the then Block Development Officer Virendra Singh, PW-5. The case of the prosecution was that according to Rural Development Scheme, the State Government decided to grant loan to the persons living below poverty line. The appellant was entrusted with the job of finding out the families in the village living below the poverty line for getting the loan sanctioned from the Bank. Persons needing the loan used to present filled up application forms for this purpose. After getting them duly verified from the Sarpanch of the Gram Panchayat, the beneficiaries of the Scheme were required to get it verified from the appellant. After his verification, the application was forwarded to the Block Development Officer who would sanction the loan. Then only the Bank would give the loan to the benficiaries. It was claimed that the complainant Subhai Kol was one of the applicants who wanted the loan for the purpose of purchasing she-goats. The appellant demanded Rs. 25/- (Rupees Twenty Five) by way of bribe from the complainant Subhai Kol. 3. The complainant Subhai Kol was unwilling to give bribe to the appellant and, therefore, he applied to the Collector, Rewa for taking action against the appellant. The Collector, Rewa directed the Dy. Superintendent of Police, Vigilance Department to take appropriate action against the appellant. Accordingly, a trap was laid against the appellant. 3. The complainant Subhai Kol was unwilling to give bribe to the appellant and, therefore, he applied to the Collector, Rewa for taking action against the appellant. The Collector, Rewa directed the Dy. Superintendent of Police, Vigilance Department to take appropriate action against the appellant. Accordingly, a trap was laid against the appellant. It was decided that the complainant Subhai Kol shall pay the bribe money as per demand of the appellant and on his giving agreed sign, the appellant shall be caught red handed. The Investigating Officer accordingly prepared the trap in usual manner after covering the notes of Rs. 25/- (Rupees Twenty Five) with Sodium Carbonate Solution and, thereafter, washing the hands every one including Subhai Kol the trap party proceeded to the spot. 4. On 16.3.1982, the appellant was at that time found at Block Officer of Rewa. The complainant and the trap witness Mohan proceeded towards the appellant. Thereafter, the complainant Subhai Kol went to the appellant and Mohan stood at some distance so that he could hear talk. Thereafter, when the appellant took Rs. 25/- (Rupees Twenty Five) and kept them in his pocket, Subhai Kol gave the sign to trap party. The appellant was caught. Rs. 25/-(Rupees Twenty Five) were taken out from his pocket, the Sodium Carbonate Solution become red when it was applied to the hands and pocket of the appellant. Similarly, his pocket also became red and so also the notes. After preserving the solution in each case in different bottles, the prosecution made the necessary investigation and filed the challan. 5. The Court below accordingly framed the charge against the appellant who denied his guilt. 6. In this appeal, learned counsel for the appellant argued that Mohan, PW-2 was dis-believed by the Court below and, therefore, this Court should not convict the appellant on the sole testimony of Subhai Kol who himself was the bribe giver. It was also argued that from the very beginning the appellant was saying that he has been falsely implicated. In this connection, the statement of Virendra Singh, PW-5 in cross-examination was read out. It was also faintly argued that conviction of the appellant cannot be up-held on the ground that there was no proper sanction. 7. Miss Maya Verma, learned Panel Lawyer for the respondent/State supported the judgment of the trial Court for the reasons given by it. 8. In this connection, the statement of Virendra Singh, PW-5 in cross-examination was read out. It was also faintly argued that conviction of the appellant cannot be up-held on the ground that there was no proper sanction. 7. Miss Maya Verma, learned Panel Lawyer for the respondent/State supported the judgment of the trial Court for the reasons given by it. 8. In the opinion of this Court, it is necessary to determine if the sanction, Ex. P-10 for prosecution against the appellant granted by V.K. Panchpore, PW-6 could be said to be valid sanction in the eyes of law. The witness Virendra Singh. PW-5 says that the appellant was working as a Gram Sewak at Village Mahasao circle. The witness was working at that time as Block Development Officer. The witness stated that he has given the information to the Dy. Superintendent of Police, Vigilance Department as per his service book since the order of his appointment was not available. That information is Ex. P-9. According to his service book, the appellant was appointed by the Divisional Commissioner, Bilaspur by order No. Q/Dev/63 on 9.12.1963. The appellant joined his duties in the Bilaspur Division atTapkaraon 17.1.1964. It is, therefore, clear that the appellant was appointed by the Divisional Commissioner. There is no evidence on record that the appointment of the appellant was made in Agriculture Department. There is no evidence on record that the appointment was made under any rule. However, it appears that the appointment of the appellant was made in Block Development for the way the appointment was marked as Q/Dev/63. The fact remains that the appellant was serving under the Block Development Officers. The M.P. Civil Services Classification (Control and Appeal) Rules, 1965 (henceforth' the Rules of 1965') came into force on 20.8.1965. Subsequently, the M.P. Civil Services Classification (Control and Appeal) Rules, 1966 (henceforth 'the Rules of 1966') came into force on 7.1.1967. In both these 'the Rules of 1965' and 'the Rules of 1966' there is a schedule appended showing the position of Gram Sewaks. In these rules, the status of the Gram Sewak/Sevika is class-III (Non-Ministerial) under the heading of Planning and Development Department. They are shown to be employed as Block Head quarters under the Block Development Officer. In both these 'the Rules of 1965' and 'the Rules of 1966' there is a schedule appended showing the position of Gram Sewaks. In these rules, the status of the Gram Sewak/Sevika is class-III (Non-Ministerial) under the heading of Planning and Development Department. They are shown to be employed as Block Head quarters under the Block Development Officer. Since the prosecution itself has examined Virendra Singh, PW-5, the Assistant Planning Officer to prove that the appellant was posted at Mahasao Circle when he was serving as a Block Development Officer, Rewa, it can be presumed that the appellant was Appointed under the Planning and Development Department under the Block Development Officer. There is no evidence on record to the effect that the appellant was serving at any time under the Agriculture Department of the State of Madhya Pradesh. However, the sanction was granted by V.K. Panchpore, PW-6 when he was Working as Under Secretary in Agriculture Department. His evidence is that he had granted sanction after seeing the entire record and thereafter, after obtaining the approval of the Agriculture Minister. He deemed to have consulted the Law Department. The document Ex. P-10 is signed by him and has been issued in the name of Governor. 9. The question, therefore, is that could V.K. Panchpore, PW-6 grant the 'Sanction'. It has already been seen that the appellant was appointed by the Commissioner, Bilaspur Division. Was sanction granted by any authority who was superior in grade to the appellant? Normally, sanction should have been granted by the Secretary of the Planning and Development Department. This was not done. Therefore, could it be said that the sanction granted by the order in the name of the Governor was actually granted by the State itself. Assuming for a moment the Rules of Business allocated the grant of sanction to Agriculture Department, although it is very difficult to accept this proposition, could the Governor of the State allocate the grant of sanction to an Under Secretary. Under 'the Rules of 1966" the schedule which is part of those rules, shows that an Under Secretary belongs to Class-II State Executive Service. A Commissioner of a Division is a senior I.A.S. officer belonging to All India Service as per All India Services Act, 1951. His rank definitely above a Class-II officer of State Executive Service. Under 'the Rules of 1966" the schedule which is part of those rules, shows that an Under Secretary belongs to Class-II State Executive Service. A Commissioner of a Division is a senior I.A.S. officer belonging to All India Service as per All India Services Act, 1951. His rank definitely above a Class-II officer of State Executive Service. Any I.A.S. Officer holding the rank of a Collector would be superior in rank to an Under Secretary of the State Executive Service holding Class-II post in accordance with Rule 6 of the Rules of 1966;. Therefore, it is clear that no Under Secretary could have dismissed or removed the appellant from service because he was appointed by the Commissioner. 'The Rules of 1965' or the Rules of 1966' are not retrospective in operation. Even if, they were then the appointing authority of the appellant would be Collector. The Collector is also superior in rank to an Under Secretary. 10. The case of the prosecution is not that actually the Governor of the State granted the sanction. The power of the Governor to remove the appellant could not have been delegated to any authority which is lower in rank than the appointing authority by executive instruction like Rules of Business. The -Governor of the State could not have given to the Under Secretary the power to remove the appellant from service because he was inferior in rank to the appointing authority. So the power of granting sanction could not be delegated to V.K. Panchpore, the Under Secretary, PW-6. This would be contrary to Section 6 of 'the Act'. He could not remove the appellant from service without violating Article 311 of the Constitution of India. There is no magic in the words 'in the name of and by the order of the Governor'. The requirement of law is that the authority sanctioning the prosecution must apply its mind to it. V.K. Panchpore, PW-6 says that it was he who applied his mind and took the approval of the Agriculture Minister and consulted the Law Department. Could the prosecution rely on the constitutional curtain ? In the opinion of this Court, it could not rely on it. Even duly authenticated order in accordance with Article 166 of the Constitution of India is liable to be challenged on the ground that it is in violation of statutory function conferred on the State. Could the prosecution rely on the constitutional curtain ? In the opinion of this Court, it could not rely on it. Even duly authenticated order in accordance with Article 166 of the Constitution of India is liable to be challenged on the ground that it is in violation of statutory function conferred on the State. Sections 6 (1) (b) and (c) of 'the Act' read as under: - Sec. 6 : "Previous sanction necessary for prosecution. -" (1) No Court shall take cognizance of an offence punishable under Sec. 161 (or Sec. 164) or Sec. 165 of the Indian Penal Code (45 of 1860) or under sub-section (2) (or sub-section (3-A) of Sec. 5 of this Act, alleged to have been committed by a public servant except with the previous sanction, - (b) in the case of a person who is employed in connection with the affairs of (a state) and is not removable from his office save by or with the sanction of the State Government of the (State Government); (c) in the case of any other person, of the authority competent to remove him from his office. 11. It would be clear that the appellant could be removed by the Commissioner. He could not be removed by an Under Secretary of Agriculture Department who had granted the sanction. Firstly, the Under Secretary was lower in rank than the appointing authority. Secondly, the appellant was not his sub-ordinate. Nor could the Governor delegate his authority to grant sanction to a person who was incompetent to remove him. This would be contrary to the statute. Taking approval of a Minister of Agriculture did not grant the sanction. Nor did the Law Department whom V.K. Panchpore, PW-6 consulted, advise him properly. This Court is not saying that the order is not duly authenticated. The Court is saying that the sanction was not in accordance with the statute. This view of the Court is supported by the decision of the Supreme Court in the case of M/s Bijoya Lakshml Cotton Mills Ltd. Vs. State of West Bengal and others A.I.R. 1967 S.C. 1145 at paragraph 16 page 1150. 12. The Court is saying that the sanction was not in accordance with the statute. This view of the Court is supported by the decision of the Supreme Court in the case of M/s Bijoya Lakshml Cotton Mills Ltd. Vs. State of West Bengal and others A.I.R. 1967 S.C. 1145 at paragraph 16 page 1150. 12. The result of the aforesaid discussion is that this Court is of the view that sanction was not granted by the competent authority and the plea that the constitutional curtain should not be raised is not available to the respondent/State when delegation was in vilolation of the statute. The sanction Ex. P-10 was ultra-vires the power of V.K. Panchpore, PW-6. The prosecution cannot excape its responsibility by saying that the sanction was made in the name of the Governor and it is the order of the State. 13. Consequently, the appeal succeeds and is allowed. The appellant is entitled to be acquitted and is acquitted of the offence under Section 161 of the Indian Penal Code and under Section 5 (2) of the Prevention of Corruption Act, 1947. The personal and surety bonds executed by the appellant are hereby discharged. The amount of fine imposed upon the appellant by the trial Court, if has already been deposited by him, shall be refunded to the appellant. Appeal allowed