Sri Narayan Shukla, J. - (1.) Heard Mr. Anil Kumar Tiwari, learned Counsel for the petitioner and Mr. Rajendra Kumar Dwivedi, learned A.G.A. The petitioner has challenged the order dated 14.10.2008 passed by the Special Judge (Anti Corruption), Lucknow in Criminal Case No. 1/2003, whereby the petitioner's application B72 for discharge from the charges has been rejected in light of the investigation report dated 1.1.2002. Learned Counsel for the petitioner attacks the order on the ground that before passing the said order under the direction of the state authority further investigation was already done in the matter and the report was submitted on 3.6.2004, wherein it was found that the total expenditure and assets of the petitioner between 16.10.1978 to 31.12.2000 was 7 7,03,643.80, whereas the total income of the petitioner was Rs. 6,57,524.70 and accordingly only expenditure of Rs. 46,119/- was found more than the source of income, but the learned Special Judge has not cared it and relying upon the earlier report in which the petitioner's income was found disproportionate to the tune off Rs. 6,23,433.70 paise rejected the petitioner's application, whereas the further investigation report was on record. Thus, the learned Special Judge (Anti Corruption), Lucknow has committed manifest error in not taking cognizance of the further investigation report. He submits that after comparing the figure of expenditure and income the amount which is found as expend more than the income is less than 10% and the same is permissible under law, as in the case of Krishnanand v. The State of Madhya Pradesh, 1977 (14) ACC 41 (SC) the Hon'ble Supreme Court has held that "the assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small, it is less than ten per cent of the total income of Rs. 1,27,715.43, we do not think it would be right to hold that the as sets found in the possession of the appellant were disproportionate to his known sources of income a so as to justice the raising o the presumption under sub-section (3 of section 5."
(2.) Section 227, Cr. P C. is relevant which is reproduced as under : "227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in his behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." In the light of the aforesaid provisions as well as after going through the contents of the further investigation report and the order passed by the Special Judge (Anti Corruption) I find that the further investigation report requires consideration. from the Special Judge (Anti Corruption) on the application moved by the petitioner. Therefore, I hereby set aside the order dated 14.10.2008 passed by the Special Judge (Anti Corruption) in Criminal Case No. 1/2003 and remit the matter to the Court concerned to consider the petitioner's application a fresh in the light of the further investigation report dated 3.6.2004 and pass a fresh order after providing opportunity of hearing to the petitioner. The petitioner is permitted to pursue his application through Counsel. The petition is allowed. Petition Allowed.;