The court ruled that a special judge's discharge finding is flawed if it performs a mini trial rather than evaluating evidence for the basis of accusations, necessitating a trial.

ORDER :

1. This Revision Petition is at the instance of the Vigilance and Anti Corruption Bureau (`VACB’ for short) represented by the State of Kerala and in this Revision Petition, the order in C.M.P.No.1387 of 2017 in C.C.No.354 of 2016 on the files of the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha, dated 06.01.2024 is under challenge. The sole respondent herein is the sole accused in C.C.No.354/2016, who is the petitioner in C.M.P.No.1387 of 2017.

2. Heard the learned Special Public Prosecutor appearing for the revision petitioner and the learned counsel appearing for the 1^st respondent. Perused the records as well as the order impugned.

3. Here the prosecution allegation is that the accused, who worked as a public servant in the Public Works Department Roads (NH Division), for the period from 01.08.1992 to 29.07.2009, acquired assets worth Rs.36,01,292.00 and incurred expenditure of Rs.39,70,103.00 making a total of Rs.75,71,395.00, whereas his income from known sources during the relevant period would come to Rs.49,21,282.00. According to the prosecution, in view of the above facts, the accused amassed income worth Rs.26,50,112.00, that is, 53.85% more than his known source of income, for which he could not satisfactorily account for, as revealed from statements A to D. On this premise, prosecution filed final report before the Special Court alleging commission of offences punishable under Section 13 (1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act, 1988’ for short), by the 1^st respondent/accused.

4. On appearance before the Special Court, the accused filed C.M.P.No.1387 of 2017 under Section 239 of the Code of Criminal Procedure, 1973 , seeking discharge. The learned Special Judge appraised the contentions and finally discharged the accused for the reasons stated in paragraph 15 of the impugned order, which reads as under:

“As a result of the discussions made above Rs.6,35,023 being the value of car owned by the father of the petitioner must be deducted from Statement B which is the list of assets and Rs.5,83,324 being the investment for the purchase of said car must be deducted from statement D.

The figure of statement B is as follows:

Rs.36,38,042- Rs.6,35,023= Rs.30,03019 The figure of statement D is as follows:

Rs.39,70,103- Rs.5,83,324= Rs.33,86,779.

It was already concluded that the figure of statement C is Rs.63,64,798.6 There is no change in statement A which was Rs.36,750/- and 35 sovereigns of gold. When the formula adopted by the investigating officer namely (B-A) + D)- C is applied, we get the following result:

(30,03019-36750) = 29,66,269+33,86,779 = 63,53,048- 63,64,798.6 =-11750

The assets disproportionate to the alleged known sources of income of the petitioner is Rs.-11750. It is a negative figure. In the matter of assessing disproportionate assets, calculation with mathematical precision is not possible.

What is possible is an approximate assessment. The value of gold in possession of the petitioner at the beginning of the check period and at the end is almost similar. Therefore, it makes no difference in the calculation. It is pointed out that even if the loan of Rs.5 lakhs taken from State Bank of Travancore is excluded from the income of the petitioner, the assets disproportionate to the known sources of income of the petitioner will be Rs.4,88,249 which also less than 10 percent of Rs.63,64,798.”

5. While challenging the finding of the Special Court, it is submitted by the learned Special Public Prosecutor that, in the instant case the learned Special Judge conducted mini trial by adding income from some other sources, as the assets of the accused while adverting to the discharge plea of the petitioner. According to the learned