IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.Rev.Pet.No. 553 of 2009() ----------------------------- AGAINST THE ORDER DATED 21/01/2009 IN IN CC 52/2004 IN CRMP.115/2007 of ENQUIRY COMMISSIONER & SPL.JUDGE, KOZHIKODE .................... PETITIONER(S): PETITIONER:ACCUSED: ------------------------------------------------------------ P.A. ANAND, DEPUTY SUPERINTENDENT OF POLICE (MOTOR TRANSPORT), OFFICE OF THE INSPECTOR GENERAL OF POLICE, CENTRAL ZONE, ERNAKULAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): RESPONDENTS/STATE: --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL CELL, KOZHIKODE. R1 & R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P NO.553 of 2009 ---------------------------------------- Dated the 28th Day of January, 2011 ORDER The challenge in this second round litigation in this court is against the denial of the request of the petitioner for discharge in C.C.No.52/2004 which is pending before the court of Enquiry Commissioner and Special Judge, Kozhikode. 2. Petitioner is the sole accused in the above case which is instituted upon the charge sheet preferred by the Superintendent of Police, Vigilance and Anti-corruption Bureau, Special Cell, Kozhikode, in VC-3/2001 for the offence punishable under section13(2) read with Section 13 (1)(e) of the Prevention of Corruption Act, 1988 for amassment of wealth, disproportionate to the known source of income of the petitioner, to the tune of Rs.3,94,854.09. The prosecution has taken the check period as 1.1.1989 to 24.5.2001. 3. Initially, the revision petitioner had preferred Crl.R.P.NO.553/09 -:2:- Crl.M.P No.115/2007 before the lower court under section 239 seeking discharge from the above case. That petition was dismissed by the court below and hence he approached this Court by preferring Crl.R.P.No.2509/2008 and this Court allowed the same by order dated 13.112008 by setting aside the order impugned therein and remanded the matter to the same court for fresh consideration. It is based upon the above direction issued by this court, the learned Judge of the Enquiry Commission and Special Court issued the order impugned in this Crl.R.P. 4. I have heard Sri Elvin Peter, the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the revision petitioner vehemently submitted that in spite of the direction issued by this court vide Annexue A13 order, the court below failed to consider the contentions raised by the petitioner properly. It is also the contention of the learned counsel that the court below has found that on a calculation of the statement showing the salary income of the petitioner and from the Crl.R.P.NO.553/09 -:3:- statement given by the Investigating Officer along with the charge, the difference comes to Rs.79,061/- , and if that be so, the findings of the court below declining the request for discharge, according to the learned counsel, is illegal and arbitrary. On the other hand, the learned Public Prosecutor submitted that, the court below has considered all the contentions raised by the petitioner and considering the documents, not only produced by the prosecution but also the documents produced by the revision petitioner as well, the court is of opinion that there are grounds to proceed against the revision petitioner and, therefore, the petition for discharge was dismissed. Thus according to the learned Public Prosecutor, there is no scope for any interference. 6. I have carefully considered the arguments advanced by both the counsel for the revision petitioner as well as the Public Prosecutor. 7. Going by the order impugned. it can be seen that the learned Judge has considered almost all the documents which appears to be relevant and material that produced by Crl.R.P.NO.553/09 -:4:- the prosecution. The court below also perused the documents relied and produced by the revision petitioner/accused. After the perusal of the documents in the light of the contentions advanced by the accused, the learned Special Judge is of the opinion that there is no ground for discharging the revision petitioner/accused at this stage. It is also discernible from the order that the learned Judge has considered the various source of income and withdrawal of cash from various accounts connected with the petitioner, either through his wife or his in-laws. Of course, the correctness of the findings of the court below and the claim of the prosecution as well as the defence, are subject to the evidence to be adduced during the trial of the case and therefore according to me it is not proper for the his court to interfere with the order of the learned Special Judge, at this stage, who got the opportunity to examine the entire records produced by the prosecution as well as the defence. I have no hesitation to observe that, at the time of framing of charge or consideration of the application for discharge at Crl.R.P.NO.553/09 -:5:- the instance of the accused, the trial court is not expected to look into the materials or documents produced by the defence. However, this Court, as per Annexure A13 order set aside the earlier order of the Enquiry Commissioner and directed to consider the matter afresh on the basis of the discrepancy that considered by this Court connected with the documents obtained by the Investigation Officer from the treasury as well as the documents produced by the the petitioner from the very same treasury. It is after the consideration of those documents as well as other documents produced by the defence, the learned Special Judge came into a conclusion that there is a prima facie case against the accused for framing charge and the documents produced by the prosecution are sufficient to proceed with the case against the accused. As I indicated earlier, the petitioner is free to take all his contentions, on the basis of the evidence that may be produced by the prosecution as well as from the side of the defence and in that event it is for the court below to come into a conclusion after proper evaluation and Crl.R.P.NO.553/09 -:6:- appreciation of the evidence and materials as to whether the allegations against the petitioner is proved or not. Therefore, it is not proper for this court to interfere with the impugned order at this stage. In the result, there is no merit in the Crl.R.P . Accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.NO.553/09 -:7:-