Jawahar Nath Takru, J. - (1.)Gauri Shankar has filed this appeal against his conviction and concurrent sentences of three years, R.I. Under Sec. 5(2) of the Prevention of Corruption Act and two years' R.I. Under Sec. 161 IPC.
(2.)It is unnecessary to mention the facts of this case at any length, as the appeal is likely to succeed on a preliminary point -to be indicated presently -urged on behalf of the Appellant. The facts, material for the appreciation of the said point, are these:
The Appellant was a Municipal Commissioner and the Chairman of the Marketing Committee of the Municipal Board, Haldwani -cum -Kathgodam in the district of Naini Tal at the material time. The case for the prosecution is that on 14 -5 -1961 at about 8.30 P.M., the Appellant, in his capacity as a Municipal Commissioner and Chairman of the Marketing Committee, by corrupt and illegal means and by abusing his position as a public servant, obtained a sum of Rs. 100/ - as gratification other than the legal remuneration from P.W. 1 Kallu, as a motive or reward for doing an official act in his' favour, to wit, to regularise the continuance of his Tandoor on Municipal land in front of his hotel or restaurant known as Khane -ki -Dukan. The case was investigated by P.W. 10 Shiam Swarup Singh, C.I. under the orders of the District Magistrate, Naini Tal and after completing the investigation, he submitted a charge sheet against the Appellant. Since, however, the intended prosecution was of a public servant the Commissioner of the Kumaon Division and the District Magistrate of Naini Tal wrote to the department of the Local Self Government, UP, asking for the requisite sanction for the Appellant's prosecution. The requisite sanction was accorded in the name of the Governor of Uttar Pradesh in October 1962 and it is the validity of this sanction which was canvassed before me by Sri H.P. Varshney learned Counsel for the Appellant as a preliminary point. The said sanction is, Ex. Ka. 11 and in so far as it is material for the present enquiry, reads thus:

Whereas it has been brought to the notice of the State Government that Sri Gauri Shankar, Member, Municipal Board, Haldwani, was caught red -handed by the police accepting bribe and as a case Under Sec. 161 IPC was registered against him at Police Station Haldwani,

And whereas on giving full consideration to the facts available the Governor of Uttar Pradesh is satisfied that a prima facie case of acceptance of illegal gratification and criminal misconduct is made out against the said member and it is necessary to prosecute him for such offence;

Now therefore in exercise of the powers Under Sec. 197 of the Code of Criminal Procedure 1898 (Act V of 1898) read with Sec. 6 of the Prevention of Corruption Act 1947 (Act No. II of 1947) the Governor is pleased to accord sanction to the prosecution of the said member for the offence Under Sec. 161 of the IPC 1860 (Act XLV of 1860) land under such other provisions of law as may be applicable to the circumstances and facts of the case against the paid Sri Gauri Shankar.

In the name of the Governor of Uttar Pradesh.

Sd. D.P. AryaUp Sachiv

(3.)According to Sri Varshney as the aforesaid sanction does not set out the facts constituting the offence with which the Appellant was charged and there is no other material on the record from which it can be gathered that those facts were before the sanctioning authority when it granted the sanction, Ex. Ka -11, the said sanction was defective and no cognizance of the offence could be taken on the basis of such a defective sanction. After hearing the learned Counsel for the parties and examining the authorities, I am satisfied that the sanction, Ex Ka -11, is not in accordance with law and the prosecution of the Appellant must, consequently, be held to be without jurisdiction and void ab initio.