ORDER : 1. This Criminal Revision Petition has been filed by the State of Kerala represented by Vigilance and Anti-corruption Bureau Special Cell, Ernakulam against the order in C.M.P. No. 810 of 2023 in C.C. No. 21 of 2020 on the files of the Enquiry Commissioner and Special Judge, Muvattupuzha, dated 27.03.2024. Respondent is the sole accused in the above case. Here the revision petitioner assails order in C.M.P No. 810 of 2023 dated 27.03.2024 whereby the learned Special Judge discharged the accused. 2. In this case, the prosecution alleges commission of offences punishable under Section 13 (1)(e) r/w 13(2) of the Prevention of Corruption Act 1988 (for short, PC Act, 1988 hereafter) by the accused. The summary of the prosecution allegation is that the petitioner, who was working as a public servant in various capacities in the Police Department, Government of Kerala in between 01.01.2011 and 31.12.2015, amassed wealth of Rs.33,38,126/- (Rupees Thirty-three lakh thirty-eight thousand one hundred twenty-six) disproportionate to his known source of income, for which he could not account for. 3. The learned Special Public Prosecutor who assailed the order, vehemently submitted that as per order impugned, in paragraph No.25, the learned special judge shown the table of income and expenditure assessed by the special judge and the same during the cheque period (C) is to the tune of Rs.1,12,80,162/- (Rupees One crore twelve lakh eighty thousand one hundred sixty-two) as against Rs.88,36,362/- (Rupees eighty-eight lakh thirty-six thousand three hundred sixty-two) found as the income during the check period by the Investigating Officer, CBI. According to the learned Public Prosecutor, the special court considered Rs.20,93,800/- (Rupees Twenty lakh ninety-three thousand eight hundred) to be the agricultural income and also Rs.3,50,000/- on the premise that the same was sent by his brother through the bank account. According to the learned public prosecutor, the petitioner herein filed Crl. M.C. No.4879/2021 and pressed for quashment of the entire proceedings raising similar contentions, and this court negatived the said contentions and observed that ‘the question whether the income claimed by the petitioner under the above three heads could have been included as the income of the petitioner is a matter of evidence’. M.C. No.4879/2021 and pressed for quashment of the entire proceedings raising similar contentions, and this court negatived the said contentions and observed that ‘the question whether the income claimed by the petitioner under the above three heads could have been included as the income of the petitioner is a matter of evidence’. The learned Special Public Prosecutor submitted further that either the prosecution or the accused failed to bring the order in Crl.M.C.No. 4879 of 2021 dated 06.03.2021 before the special judge or the special judge failed to look into the order communicated to him. Anyhow ignoring the observation made by this court in the Crl.M.C., the trial court discharged the accused by considering and taking the income, which was considered by this court in the Crl. M.C and relegated to be decided during trial. According to the learned public prosecutor, as per explanation Section 13 (e) of the PC Act, 1988 for the purpose of Section 13 , “known source of the income means the income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to public servants.” It is submitted by the learned Special Public Prosecutor further that while exercising the power of discharge, the High Court could not exercise the job of a Chartered Accountant and the power of revision could be exercised to correct manifest error of law or procedure which would occasion injustice if not corrected, and the power of revision could not be equated to that of the power of appeal. Further a revisional court cannot undertake meticulous examination of the materials on record as is undertaken by the trial court or the Appellate court during trial based on evidence. In this connection he placed the decision reported in State through Deputy Superintendent of Police v. R. Soundirarasu, 2022 KHC 6920. 4. Resisting this contention and pointing out the income based on the details of the agricultural income of Sri. In this connection he placed the decision reported in State through Deputy Superintendent of Police v. R. Soundirarasu, 2022 KHC 6920. 4. Resisting this contention and pointing out the income based on the details of the agricultural income of Sri. Bijo Alexander (the accused) during the check period, which would come to Rs.20,93,800/- (Rupees Twenty lakh ninety-three thousand eight hundred only) supported by the statement of the witnesses 16, 19, 20, 21, 22, 26, and 27, the learned Senior counsel appearing for the accused would submit that even though the power of revision available to the High Court is not that of a trial court or an appellate court after recording evidence, it is the well-settled law that at the time of framing of the charge, the probative value of the materials on record cannot be gone into but before framing of charge, the court must apply its judicial mind to the materials placed on record and must be satisfied that the commission of offence by the accused was possible. Indeed, the court has limited scope of enquiry and has to see whether any prima facie case against the accused is made out or not. At the same time, the court is also not expected to mirror the prosecution story, but to consider the broad probabilities of the case, weight of prima facie evidence, documents produced, and any basic infirmities, etc. In this regard, the judgment of the Apex Court reported in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri.) 609 to be profitably referred to for ready reference, and in this connection, learned counsel placed the decision of the Apex Court reported Pushpendra Kumar Sinha v. State of Jharkhand, (2023) 11 SCC 636 . 5. According to the learned Senior Counsel for the accused the agricultural income in fact derived from the property owned jointly by the parents as well as the petitioner together, and the majority of the income derived as that of his father and mother was gifted to him. Further he has submitted that when money was received as gift, the same need not be shown as income before the authority concerned. According to the learned Senior counsel for the petitioner in the statement filed by the Vigilance in this Crl. Further he has submitted that when money was received as gift, the same need not be shown as income before the authority concerned. According to the learned Senior counsel for the petitioner in the statement filed by the Vigilance in this Crl. M.C. in paragraph No.18, it is contended that the Central Vigilance commission (CVC) had constituted a Study Group consisting of Officers of CVC, Income Tax, CPWD and CBI, all of whom are procedurally involved in investigation into disproportionate assets and whose expertise is in this area. The recommendations made by this Study Group have been accepted by the CVC and standards have been prescribed without compromising the integrity of the investigation. As such, the CVC has recommended that unverifiable expenditure such as on kitchen, household, clothing, etc, should be taken at 1/3rd of the Gross Salary. Hence in disproportionate asset cases Kitchen and Living Expenses are to be calculated as 1/3 rd of the Gross Salary of the accused. The learned counsel placed the circular referred in paragraph No.18 i.e., circular No. 24/40/99PD(Pt.) pointing out clause 2(a) which would state that unverifiable expenditure such as on kitchen, household clothing etc, should be taken as 1/3 rd of the gross salary as a last resort after attempting to qualify the expenses broadly under each of these heads by verification. According to him clause 2(a) of the said circular, if applied, the Investigating Officer could not pick the amount required for house construction, which is disclosed as per the property statement of the accused Rs.52 lakh, as Rs.61 lakh, thereby to increase the income of the petitioner. The learned Senior Counsel also placed Ext.9(a) to show receipt of Rs.3,50,000/- (Rupees Three lakh fifty thousand only) in the account of the petitioner maintained with Canara Bank, and as per which as on 12.03.2015 Rs.1,50,000/- (Rupees One lakh fifty thousand only), on 12.03.2005 Rs.50,000/- (Rupees Fifty thousand only) and on 10.04.2015 Rs.1,50,000/- (rupees One lakh fifty thousand only) were received, and the same were considered by the special court along with the agricultural income and accordingly, it was found that on the said calculation that the excess amount would come less than 10% and accordingly, the special court rightly discharged the accused. 6. 6. According to the learned Senior Counsel, even though while exercising power under Section 482 of the Code of Criminal Procedure (for short ‘CrPC hereafter) this Court observed that those calculations were matters of evidence that by itself would not take away the power of the special court to consider the contentions within the ambit of Section 239 of the CrPC, otherwise the said provision would be read as redundant. 7. In the instant case, the calculation of income and expenditure as per the prosecution allegations are as under: 1. Assets at the start of the check period (statement A)- Rs.3189/- 2. Assets at the close of the check period (statement B) - Rs.-1,06,55,580/- 3. Assets during the check period (statement B - statement A) - Rs.106,52,391/- 4. Income during the check period (statement C) - Rs.88,36,362/- 5. Expenditure during the check period (statement D) - Rs.15,22,097/- The extent of Disproportion [(B-A)+D-C] = 33,38,126/- The percentage of disproportion (Extent×100)/C = 37.78% 8. But the calculation made by the special court in the order of discharge in so far as item No.4 (statement-C) is Rs.1,12,80,162/- (Rupees One crore twelve lakh eighty thousand one hundred sixty-two only) instead of Rs.88,36,362/- (Rupees Eighty-eight lakh thirty-six thousand three sixty two only). The contention raised by the accused before the trial court is that if the income from the agricultural source to the tune of Rs.20,93,800/- & Rs.3,50,000/- obtained by bank account taken together, even excluding Rs.6 lakh, which is shown in the property statement of the accused as one secured by selling the gold ornaments, there is no disproportionate income so as to fasten criminal culpability upon the accused under section 13(1)(e) r/w Section 13 (2) of the PC Act,1988. 9. In this case, it could be gathered that if the contention raised by the accused to consider Rs.20,93,800/- & Rs.3,50,000/- also as his income during the check period is appreciable, it could not be found that he had amassed disproportionate assets. It is true that while considering the quashment petition at the instance of the same petitioner, this Court found that “the question whether the income claimed by the petitioner under the above three heads could have been included as the income of the petitioner is a matter of evidence.” Ignoring this specific finding, the special court addressed the same in a plea of discharge. As far as the matters to be considered by the trial court while considering the plea of discharge the same is well settled. In the decision reported in Vishnu Kumar Shukla v. State of Uttar Pradesh , 2023 KHC OnLine 1006 : 2023 KHC 1006 : 2023 (7) KHC SN 18 : 2023 INSC 1026 : 2023 Live Law (SC) 1019 : 2023 SCC OnLine SC 1582 : 2023 KLT OnLine 2015 : AIR 2024 SC 90 also the Apex Court reiterated the same and the same includes the power to consider the broad probabilities of the case, weight of prima facie evidence, documents produced and any basic infirmities etc as referred in Prafulla Kumar Samal ’s case (supra). 10. The legal position as regards to the matters to be considered within the mandate of Sections 227 and 228 of CrPC is not in dispute, as argued by the learned counsel for the petitioner, with reference to the decisions he has placed. In Pushpendra Kumar Sinha’s case (supra) and Vishnu Kumar Shukla’s case (supra), also the Apex Court reiterated the same principle. 11. The parameters that would govern, when plea of discharge under Sections 239 and 227 of Cr.P.C or under sections 250 and 262 of Bharatiya Nagarik Suraksha Sanhita (for short, ‘BNSS’ hereafter) has been raised or proceeding with and framing of charge under Sections 240 and 228 of Cr.P.C or under sections 263 and 250 of BNSS the same are as under: (i) Matters to be considered at the time of considering discharge and while framing charge are not aimless etiquette. Concomitantly the same are not scrupulous exertion. Keeping an equilibrium in between aimless etiquette and scrupulous exertion, the trial judge need to merely examine the materials placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of police charge/final report. The trial Judge shall look into the materials collected by the investigating agency produced before the Court, to see, prima facie, whether those materials would induce suspicious circumstances against the accused, so as to frame a charge and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged. But if the court is of the opinion, after such consideration of the materials there are grounds for presuming that the accused has committed the offence/s which is/are triable, then necessarily charge shall be framed. (ii) The trial Judge has to apply his judicial mind to the facts of the case, with reference to the materials produced by the prosecution, as may be necessary, to determine whether a case has been made out by the prosecution for trial on the basis of charge/final report. (iii) Once the accused is able to demonstrate from the materials form part of the charge/final report at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at this stage. The main intention of granting a chance to the accused of making submissions as envisaged under Sections 227 and 239 of CrPC or under section 250 and 262 of BNSS is to assist the court to determine whether it is required to proceed to conduct the trial. (iv) At the stage of considering an application for discharge the court must proceed on an assumption that the materials which have been brought on record by the prosecution are true and evaluate said materials, in order to determine whether the facts emerging from the materials taken on its face value, disclose the existence of the ingredients necessary of the offence/s alleged. (v) The defence of the accused not to be looked into at the stage when the accused seeks discharge. The expression "the record of the case" used in Section 227 and 239 of CrPC or under Section 250 and 262 of BNSS is to be understood as the documents and objects, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the prosecution. (vi) The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record shall not be evaluated. The submission of the accused is to be confined to the material produced by the prosecution. (vi) The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record shall not be evaluated. (vii) At the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial. (viii) In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which are really the function of the trial Judge, after the trial. At the stage of Section 227 and 239 of CrPC or under section 250 and 262 of BNSS, the Judge has merely to sift the prosecution materials in order to find out whether or not there are sufficient grounds to proceed with trial of the accused. (ix) Strong suspicion in favour of the accused, cannot take the place of proof of his guilt at the conclusion of the trial. But at the time of framing charge, if there is suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. In such case also charge needs to be framed to permit the prosecution to adduce evidence. (x) If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 12. (x) If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 12. Addressing the question as to whether the observations made by the High Court in a quashment petition filed under Section 482 of the CrPC or under Section 528 of BNSS would have any influence on the trial court while deciding a discharge petition filed under Section 227/239 of the CrPC or under Sections 250 and 263 of the BNSS, it must be noted that such observations may not be binding as findings of fact or law, unless specifically so directed. The trial court is expected to independently evaluate the materials and apply its own mind. However when the High Court, while dismissing the quashment petition, makes specific finding on question of law or directed the trial court to proceed in a particular manner, those directions would bind the trial court. When the High Court observed that “there is sufficient materials to frame charge then it is difficult for a special court to ignore the said finding and to take a contra view while submitting discharge petition.” Thus the law emerges is that when a specific direction is issued or a specific observation is made the same would necessarily bind the trial court. 13. In the instant case while considering Crl. M.C. No. 4879 of 2021 this court dismissed the same holding that this is not a fit case where the extraordinary jurisdiction vested in the high court under section 482 of the CrPC could be invoked. At the same time this court made clear that this order would not preclude the petitioner from filing a petition for discharge before the special court. In the instant case this court addressed the contention raised by the accused regarding non inclusion of agricultural income to the tune of Rs.20,93,800/- during the check period and also non-inclusion of Rs.3,50,000/- and found in paragraph No.11 as under:- “11. The final report reveals that during the investigation, the petitioner claimed that he has been receiving agricultural income from his joint family property owned by him, his father and his mother. The final report reveals that during the investigation, the petitioner claimed that he has been receiving agricultural income from his joint family property owned by him, his father and his mother. At the request of the investigating officer, the District Collector, Pathanamthitta calculated agricultural income from the joint family property of the petitioner for the check period of five years as `20,93,800/-. But the said agricultural income was not taken for computation by the investigating officer because there was no documentary evidence to prove the receipt of the said income by the petitioner. The petitioner did not intimate the agricultural income to the income tax authorities as well. In so far as `6,00,000/- allegedly received from the sale of gold is concerned, the investigating agency found that the bills produced by the petitioner to substantiate the same were fake and hence it was not taken for computation. The petitioner has also claimed that he has received `2,00,000/- on 12/3/2015 and `1,50,000/- on 10/4/2015 totalling `3,50,000/- from his brother-in-inlaw Sri.Tom Joseph. However, the receipt of the said income was not intimated by filing annual property statements for the year 2015. Hence, the said amount was also not taken for computation. The question whether the income claimed by the petitioner under the above three heads could have been included as the income of the petitioner is a matter of evidence. Such a disputed fact cannot be decided in a proceeding under section 482 of Cr.P.C. The exercise of power under section 482 of Cr.P.C in case of this nature is an exception and not the rule. It is settled that the High Court cannot appreciate the evidence or adjudicate disputed facts while exercising the jurisdiction under section 482 of Cr.P.C.” 14. On reading the observation of this court in Crl.M.C. No. 4879 of 2021 this court made a specific finding that inclusion of the income now considered by the special court to allow discharge under the three heads was a matter of evidence and such a dispute could not be decided in a proceeding under section 482 of CrPC. When this Court observed that the said aspect is a matter of evidence, before adducing evidence, the special court could not consider the income by doing the job of a chartered accountant without adducing evidence. When this Court observed that the said aspect is a matter of evidence, before adducing evidence, the special court could not consider the income by doing the job of a chartered accountant without adducing evidence. To put it otherwise, strongly disputed fact in issue could not be considered at the stage of considering discharge petition i.e. at the pre-trial state and the said exercise shall be relegated to the stage of trial. If so the contention raised by the revision petitioner challenging the discharge is having force and in such view of the matter the revision would succeed. 15. In the result the revision petition is allowed. The order impugned is set aside with direction to the respondent accused to appear before the special court on 15.09.2025 without fail and to acooperate with the trial. 16. It is specifically made clear that the observations in this order have no binding effect while deciding the case on merits, and the same are intended to address the plea of quashment. The Registry is directed to forward a copy of this order to the trial court for information and compliance.