J.B. Koshy, J.

Petitioner, a retired Director General of Police, approached this court under section 482 of the Code of Criminal procedure challenging Annexure C order passed in Crl.M.P.No.239 of 2001 in C.C.No.4 of 1995 on the file of the Special judge (SPE/CBI) – I, Ernakulam and court charge (Annexure D) framed against him in C.C.No.4 of 1995. According to Annexure D charge sheet, he was found in possession of assets worth Rs.62,81,737-38 during the period 30-4-1980 to 20-9-1991 which are disproportionate to his income. It is the contention that the above charge sheet is baseless, illegal contention that the above charge sheet is baseless, illegal and irregular. Final report of the Police (Annexure A) itself and documents produced along with the police report will prove that the charges are ‘ground less’ and nothing is going to be gained by asking the petitioner to face the trial of Annexure D charge except washing the valuable time of the court and causing unbearable hardship and irreparable injury to the petitioner which the irreversible. Annexure D court charge

“That you, while working as public servant during the check period from 30-4-1980 to 20-9-1991, were found in possession of assets worth Rs.62,81,737.38 which are disproportionate to your all known sources of income and for which you could not satisfactorily account and thereby you committed the offences punishable under section 5 (2) r/w 5 (1) (e) of the Prevention of Corruption Act, 1947 and 13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act, 1988 and within the cognizance of this court.”

Even though petitioner approached the Apex Court when there was an order for surrender of his passport while granting bail. Honourable Apex court, though admitted the SLP with regard to that question, further observed that since final report and charge were filed accused can approached the Special Court for discharge or an appeal before the appropriate forum for questioning of the proceedings by Annexure E order. When proceedings were questioned, this court was of the view that that contention has to be argued before the Sessions Court while framing charge and considering the question of discharge. Apex Court also took the same view, but, observed that:

“However, we make it clear that the petitioner would be at liberty to raise all his contentions before the appropriate court. Without prejudice to the same, the special leave petition is dismissed.”

2. Even though a preliminary objection was raised by Advocate Mr. Sreekumar, counsel appearing for the CBI that since petition for discharge was dismissed, petitioner should have revision petition and not a petition under section 482 of the Code of Criminal Procedure, no emphasis was given to that point. In view of the Apex Court decision in M/s. Pepsi Food Ltd. and another v. Special judicial Magistrate and others (AIR 1998 SC 128), the Apex court observed as follows:

“26. Nomenclature under which petition is filed is not relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Art.226, the court can certainly treat the petition one under Art.227 or S.482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief S.482 of the Code or Art.227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts.”

It was further observed as follows:

“29. No doubt, the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under S.482 of the Code or Art.227 of the Constitution to have the proceeding quashed against him when the complaint does not make ou