Cuttack: Orissa high court has quashed a three-year-old vigilance case against senior IAS officer Bijay Ketan Upadhyaya, ruling that the prosecution was undermined by a flawed sanction process under anti-corruption law.Upadhyaya, a 2009 Odisha-cadre IAS officer is presently secretary in the Odia language literature and culture department.Delivering the judgment on April 17, the single-judge bench of Justice Sanjeeb Kumar Panigrahi set aside the Jan 16, 2023 order of the special judge, vigilance, Bhubaneswar, which had taken cognisance of offences charged against him under Sections 7 and 12 of the Prevention of Corruption (PC) Act, 1988 and Section 120B of the Indian Penal Code.The case originated from allegations that Upadhyaya, while serving as director of horticulture, demanded and accepted illegal gratification for clearing bills of an empanelled supplier.Considering the criminal miscellaneous petition filed by Upadhyay, Justice Panigrahi focused on the need of prior sanction under Section 19 of PC Act. The petitioner contended that the sanctioning authority had not been presented with key exculpatory evidence, including a recording dated Dec 24, 2019, thereby vitiating the decision.Justice Panigrahi observed, “Cognisance against a public servant under the PC Act is not a matter of mere form, but is conditioned upon existence of a valid sanction granted upon due consideration by the competent authority. If essential material was in fact not placed before that authority, the defect cannot be dismissed as a mere technical lapse.”“It strikes at the fairness of the decision-making process underlying the sanction itself and, consequently, at the legal foundation on which cognisance has been taken,” Justice Panigrahi observed.He added that “the issue relating to sanction discloses a serious procedural infirmity.”The HC also flagged the delay in proceedings, noting that although cognisance was taken over two years ago, charges have not yet been framed. “Allowing the proceeding to continue despite the unresolved defect in sanction would only prolong a prosecution whose very initiation… is procedurally vulnerable,” Justice Panigrahi opined.Holding that the issue went to the “foundational legality of the prosecution,” Justice Panigrahi quashed the cognisance order and all consequential proceedings against the officer. However, the judge clarified that the competent authority is at liberty to reconsider the issue of sanction afresh in accordance with law, after examining all relevant materials.Justifying interfering in the matter, Justice Panigrahi said: “While the scope of interference under the inherent jurisdiction of this court is undoubtedly narrow, but it is equally well settled that where the material placed by the accused is of such unimpeachable character that it completely undermines the factual foundation of the prosecution, the court would be justified in exercising its power to prevent abuse of process and to secure the ends of justice.”
