Kerala High Court
State Of Kerala vs Bijo Alaxander on 9 September, 2025
CRL.REV.PET NO. 877 OF 2024
1
2025:KER:66691
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
TUESDAY, THE 9 DAY OF SEPTEMBER 2025 / 18TH BHADRA, 1947
CRL.REV.PET NO. 877 OF 2024
CRIME NO.14/2016 OF VACB, ERNAKULAM, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 27.03.2024 IN CMP 810/2023 IN CC NO.21
OF 2020 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA
REVISION PETITIONER/COMPLAINANT/RESPONDENT:
STATE OF KERALA
REP.BY THE PUBLIC PROSECUTOR, PIN - 682031
BY ADV PUBLIC PROSECUTOR
RESPONDENT/PETITIONER/ACCUSED:
BIJO ALAXANDER
AGED 53 YEARS
S/O. K.M.ALAXANDER,DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH,
THRISSUR, RAMAVARMAPURAM, THRISSUR, PIN- 680631,(RESIDENT OF HOUSE
NO.19/351/D OF TRIPUNITHURA MUNICIPALITY, VALLIALIL KALLUKATTIL
HOUSE NADAMA VILLAGE,TRIPUNITHURA P.O, ERNAKULAM DISTRICT, PIN -
682301
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.S.RAJEEV
SRI.M.S.ANEER
SHRI.SARATH K.P.
SHRI.PRERITH PHILIP JOSEPH
SHRI.ANILKUMAR C.R.
SHRI.K.S.KIRAN KRISHNAN
SRI.V.VINAY
OTHER PRESENT:
SPL P.P RAJESH A. SR PP SMT. REKHA S.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
08.08.2025, THE COURT ON 09.09.2025 DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 877 OF 2024
2
2025:KER:66691
"C R"
A. BADHARUDEEN, J
============================
Crl.Rev.Petition No. 877 of 2024
==============================
Dated 09th day of September 2025
ORDER
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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'. 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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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 2022
KHC 6920 State through Deputy Superintendent of
Police v. R. Soundirarasu.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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 (1979) 3
SCC 4 : 1979 SCC (Cri.) 609 Union of India v. Prafulla
Kumar Samal to be profitably referred to for ready reference,
and in this connection, learned counsel placed the decision of
the Apex Court reported (2023) 11 SCC 636 Pushpendra
Kumar Sinha v. State of Jharkhand.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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. 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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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 1/3rd 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 1/3rd of the gross salary as a last
resort after attempting to qualify the expenses broadly under
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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. 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.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
[2023 KHC OnLine 1006 : 2023 KHC 1006 : 2023 (7)
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
KHC SN 18 : 2023 INSC 1026 : 2023 LiveLaw (SC) 1019 :
2023 SCC OnLine SC 1582 : 2023 KLT OnLine 2015 :
AIR 2024 SC 90], Vishnu Kumar Shukla v. State of
Uttar Pradesh, 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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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. 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.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
(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.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
(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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
(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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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 aco-operate with the trial.
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
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.
Sd/-
A.BADHARUDEEN, JUDGE
RMV
CRL.REV.PET NO. 877 OF 2024
2025:KER:66691
APPENDIX OF CRL.REV.PET 877/2024
PETITIONER ANNEXURES
Annexure A CERTIFIED COPY OF C.M.P NO. 810/2023 DATED
27.03.2024 IN CC NO.21/2020 ON THE FILE OF
THE COURT OF THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, MUVATTUPUZHA
