The prosecution cannot ignore a material source of income of the accused which the prosecution was aware of and that income would have a vital bearing in the matter of framing of charge.

G. B. PATNAIK, J.

( 1 ) THE order of the learned Special Court dated 11-11-1993 in Special Court Case No. 12 of 1993 refusing the petitioner's prayer for discharge is being challenged in this writ application.

( 2 ) THE petitioner is the accused before the learned Special Court and is facing a charge under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "act") on the allegation that he was found to be in possession of assets disproportionate to his known sources of income to the tune of Rs. 5,49,060. 31 paise which he acquired by corrupt and illegal means by abusing his official position as the Chief Minister of Orissa during the period from 9-6-1989 to 7-12-1989. Before the learned Special Court, an application was filed on behalf of the accused-petitioner under Section 227 of the Code of Criminal Procedure (hereinafter referred to as the "code") indicating therein that as there is no sufficient ground for proceeding against the accused, the Court shall discharge the accused. The entire basis of the petitioner's case in the application for discharge was that the prosecution has not taken into consideration one of the known sources of income, namely the income of the petitioner's wife Smt. Jayanti Patnaik, which she had drawn as a Member of Parliament and if that is taken into account, then the alleged disproportion to the tune of Rs. 5,49,060. 31 paise would be easily covered and, therefore, the accused cannot be said to have committed any criminal misconduct within the meaning of Section 13 (2) read with Section 13 (1) (a) of the Act. It is to be stated that though the prosecution had initially alleged that the accused petitioner had in his possession disproportionate assets to the tune of Rs. 9,45,437. 00 which he acquired by corrupt and illegal means by abusing his official position as the Chief Minister of Orissa, but while filing the charge-sheet, the quantum of disproportionate asserts was shown to the tune of Rs. 5,49,060. 31 paise. As the Special Court is a sitting Judge of the High Court, against his order dated 11-11-1993 rejecting the application filed under Section 227 of the Code, the petitioner had approached the Supreme Court in Criminal Miscellaneous Petition No. 2140/94, but withdraw the same for filing a Criminal Revision in the High Court, as is apparent from the order of their Lordships of the Supreme Court dated 5-5-1994. An order framing a charge and rejecting the application of the accused for discharge could have been assailed in the High Court by invoking power under Section 482 of the Code, but since in the case in hand, the order is that of a Special Court who happens to be a sitting Judge of the High Court jurisdiction of this Court under Article 227 of the Constitution has been invoked.

( 3 ) THE main thrust of the petitioner's case is that while the prosecution was aware of the fact that the wife of the accused had received a substantial sum of money as a Member of Parliament during the check period under the provisions of the Salaries, Allowances and Pension of Members of Parliament Act, 1954, as well as the Rules framed thereunder, yet, it purposely did not try to find out the same just to make out a case of disproportionate assets in the hands of the accused and, therefore, the impugned order directing framing of charge and rejecting the prayer of the accused for discharging him is liable to be interfered with by this Court. Learned Government Advocate appearing for the prosecution, on the other hand, contends that the prosecution having attempted to know the income of Smt. Jayanti Patnaik during the check period but having failed in its attempt as the Lok Sabha Secretariat did not intimate and that Smt. Patnaik having not shown the same in the income-tax return filed by her, it would be a matter for consideration during trial as to what is the amount of income and what part of it could be reasonably said to be the saving