Dismissed

M.S.Rejikumar v. the Superintendent of Police Central Bureau of Investigation

Kerala HC16 Nov 2022Crl.Rev.Pet/12/2022

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a criminal revision petition challenging the Trial Court's refusal to grant discharge under Section 239 Cr.P.C. The Court held that the trial court correctly found ground for presuming the petitioner committed the offence based on the prosecution materials and found no patent error of jurisdiction in the impugned order.

What did the court decide?

The Criminal Revision Petition was dismissed.

M.S.Rejikumar Vs the Superintendent of Police… — Civil Procedure and Limitation | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K. BABU

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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2022/25TH KARTHIKA, 1944

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CRL.REV.PET NO. 12 OF 2022

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(AGAINST THE ORDER DATED 24.12.2021 IN CRL.M.P.NO.46 OF 2021
IN C.C.NO.21 OF 2016 ON THE FILES OF THE HON’BLE COURT OF

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SPECIAL JUDGE, (SPE/CBI)-I, ERNAKULAM)

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REVISION PETITIONER/PETITIONER:

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M.S.REJIKUMAR
AGED 50 YEARS
MANATHANATHU HOUSE, ERAMALLOOR P.O., CHERTHALA,
ALAPPUZHA DISTRICT, PIN-688537, NOW WORKING AS
ARMED POLICE INSPECTOR KERALA POLICE ACADEMY,
RAMAVARMAPURAM, VIYOOR P.O,
THRISSUR DISTRICT, PIN – 680010

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BY ADV C.S.MANU

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RESPONDENT/RESPONDENT:

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THE SUPERINTENDENT OF POLICE
CENTRAL BUREAU OF INVESTIGATION
CENTRAL BUREAU OF INVESTIGATION SCB,
THIRUVANANTHAPURAM, PIN-695008
REPRESENTED BY ASSISTANT SOLICITOR GENERAL OF
INDIA, PIN – 682031.

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BY CGC SRI.SUVIN R MENON

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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Crl.R.P.No.12 of 2022

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ORDER

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This revision petition is filed at the instance of accused No.5 in C.C.No.21 of 2016 on the file of the Court of Special Judge (SPE/CBI)-I Ernakulam.

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FACTS:

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The Emigration Wing of Cochin International Airport Limited (CIAL) and Trivandrum International Airport was handled by the Kerala Police Department till it was taken over on 31.7.2012 by the Bureau of Emigration.

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2.1. As per the regulations then existing, Emigration clearance required (ECR) passport holders, who were travelling abroad for the purposes other than employment, through tourist/visit visa, needed no emigration clearance from Protector of Emigrants (POE). They were only required to produce valid passport, tourist visa and flight ticket including return ticket. Persons who did not hold 10^th class qualification (education) were included in ECR category.

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2.2. It is the responsibility of the Emigration Officer at the departure side of the Airport to check the passport of the passenger with the aid of swiping machine by comparing the photo in the passport

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using Passport Registration and Identification System (PRIDE) or Passport Information Service on Net (PISON) or Ultra Violet Lamb for its genuineness, date of issue, date of expiry, photo substitution, page alteration etc., check Visa for its genuineness, check for lookout circular (LOC) and check for emigration clearance issued by the Protector of emigrants if the emigrant is with ECR passport and is travelling on Employment Visa.

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2.3. The Central Bureau of Investigation got reliable information that a racket consisting of travel agents, their employees, emigration officials, officials repatriated from Kerala Police from emigration duties, involved in organized trafficking of people from India to the Middle East. The investigation revealed the involvement of around 45 persons covering a number of instances during the period 2008-2010. The CBI registered a crime and completed the investigation. Separate final reports were filed before the Court concerned in respect of individual transactions. The present case relates to one of such final reports.

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2.4. Accused No.1 in the case was an Armed Police Sub Inspector of Kerala Police who functioned as Emigration Officer in Cochin International Airport Limited, Nedumbassery from 26.5.2008 to 24.4.2009. Accused No.3 was a Civil Police Officer who worked at CIAL

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Emigration Wing from 3.6.2003 to 5.7.2011. Accused No.4 is the father of accused No.3, who was operating Savings Bank Account at Federal Bank, Kottapadi Branch. A part of bribe money was sent to the account maintained by accused No.4.

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2.5. Accused No.5, the present petitioner was the Armed Police Sub Inspector of Kerala Police who functioned as Emigration Officer at CIAL from 2006-2011. The other accused were travel agents having offices at different parts of Kerala.

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2.6. Smt.Chirayil Shivadas Rohini (CW94), an illiterate lady who studied only up to 7^th standard got emigration clearance on 19.6.2010. Sri.Punnoos (CW98) and his wife who were residing in the Middle East were in need of a maid. CW94, a resident of Ranni, was ready to work as a maid. CW98 obtained an employment visa to Rohini through his friend one Mr.Saif, a local emirate person from Sharjah. Since Rohini was holding ECR passport it was necessary to obtain emigration clearance from POE. One of the friends of CW98 introduced Mr.George John, accused No.1, to him stating that he would be able to get the emigration clearance required at ease. When contacted on 15.6.2010, Mr.George John agreed to process the emigration clearance

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of CW94 and also to arrange ticket for her travel to Dubai. He demanded Rs.25,000/-. Accordingly, Sri.Punnoos transferred

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Rs.25,000/- through his relative Thomas Alexander (CW93) to the account of Sri.Anil Sebastian, accused No.2, as instructed by Mr.George John (A1). Mr.Punnoose, sent copy of the employment visa and passport to accused No.1 on 15.6.2010 itself. On 17.6.2010 in the evening, Sri.Thomas Alexander (CW93) forwarded the flight ticket to Mr.Punnoos and the other attachments sent by accused No.1. The flight ticket was booked to the date 19.6.2010. Accused No.1 told Mr.Punnoos that since Rohini was travelling alone to Dubai, she just had to call him when she reaches the Airport and he would guide her through the Airport. Rohini followed the instructions of accused No.1. She got emigration clearance at ease and reached Dubai. Mr.Punnoos picked Rohini from the Airport and she worked in his house as a maid till 16.12.2011.

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2.7. On the relevant date, that is, on 19.6.2010, the

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petitioner (accused No.5) was the ‘counter officer’ on emigration duty at CIAL Airport, Nedumbassery. The petitioner issued clearance to Rohini and stamped the departure seal in her passport. The petitioner was a party to the conspiracy hatched by accused No.1 and others and in furtherance of the conspiracy the petitioner issued clearance to Rohini who was on her way to take employment abroad, without

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insisting for emigration clearance from POE. Accused No.5 had also shared and received the bribe amount.

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After obtaining necessary sanction from the competent authority the prosecution submitted final report before the trial Court. The petitioner appeared in response to the summons. He filed Crl.M.P.No.46 of 2021 under Section 239 of Cr.P.C. seeking discharge contending that he cleared Rohini for travelling abroad strictly in accordance with the rules and regulations. The petitioner contended that the holder of ECR passport, Smt.Rohini, was travelling not on an employment visa but on a tourist visa. She had produced copy of the tourist visa, embarkation card, boarding pass, to and fro air tickets and also the visa message issued by the flight agency. According to the petitioner, he verified all the documents and Smt.Rohini was cleared following the existing rules and regulations. The prosecution resisted the petition seeking discharge filed by the petitioner. The prosecution contended that there are sufficient materials to establish that Smt.Rohini had gone abroad on employment visa to work as a maid in the house of Sri.Punnoos. According to the prosecution, the copy of the tourist visa relied on by the petitioner was having the same UID number, date and entry permit number as that of the employment visa. The prosecution contended that the tourist visa relied on by the

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petitioner was a forged document created to cover the conspiracy and the illegal acts that followed.

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The Special Judge adjudicated the above referred

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application filed under Section 239, Cr.P.C. and rejected the same. The Special Judge observed in the order thus:-

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“22. I had perused the copies of both visa. From a mere look itself, it can be seen that the so called copy of the tourist visa is a forged document created by just erasing the heading of the employment visa and changing it to that as “Tourist”. Apart from the change in the title there is absolutely no difference. UID number is the same. The date is the same. The name of the sponsor is the same.

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If the contention of the petitioner is correct the copy of tourist visa now produced by the prosecution was the document produced before him at the Emigration counter. Curiously the validity period of visa is not mentioned. Definitely, in a tourist visa the validity period will be there. Again the address of the stay in Dubai during the visiting period is also not seen mentioned. It is an incomplete document. An Emigration officer cannot act upon this document and issue clearance to the passenger to travel abroad. More importantly the profession of this lady is stated as servant. The sponsor is an Emirates citizen. This lady was travelling alone. She is an illiterate lady. All these factors can never go unnoticed by the Emigration officer, and he would have definitely checked and verified the profile of this lady, would have closely analysed the travel documents and be convinced about its genuineness before issuing clearance. This is what we expect to the minimum, from an Emigration officer. More importantly if he had verified the genuineness of the visa with reference to the UID number, definitely he would have noticed that the UID number mentioned is

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that of an employment visa. As spoken by CW95 the Assistant Director, Bureau of Emigration, in the case of illiterate ladies travelling alone on a visiting visa, the Emigration officer shall be exceptionally cautious in verifying her profile.

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In this given set of facts and circumstance, it cannot be said that there are no grounds for presuming that petitioner/A5 has not committed any of the offences charged by the prosecution. In other words, the probative value of the materials placed by the prosecution is sufficient to hold that the petitioner/A5 might have committed the offence. There exist grave suspicion on his culpability. Be it so, the proceedings initiated against petitioner/A5 cannot be stopped in the middle, but shall continue till its culmination after trial. It is true that the investigating officer failed to investigate and find out who had forged the tourist visa and from where. The prosecution has also not incorporated the offence of forgery in the charge. For that reason alone, prosecution charge under Section 120B IPC, Sections 11, 12, 13(2) r/w 13(1)(a), (1)(d) and 14 of PC Act, 1988 and also Section 24 of Emigration Act, 1983 will fail. The materials placed by the prosecution are sufficient to frame charge against the accused including the petitioner herein for those offences. To sum the discussions, I find that the petitioner is not entitled to get a discharge. He has to face trial. The above points are answered against the petitioner.”

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The order in Crl.M.P.No.46/2021 is under challenge in this Criminal Revision Petition.

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Heard Sri.C.S.Manu, the learned counsel for the revision petitioner and Sri.Suvin R.Menon, the learned Central Government Counsel appearing for the respondent.

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The learned counsel for the revision petitioner submitted that the prosecution did not produce any material or evidence to establish the complicity of the petitioner in the alleged conspiracy. It is submitted that the tourist visa produced was genuine. The learned counsel contended that the visa message issued by the Emirates flight agency from Dubai would show that the visa produced was genuine. The learned counsel submitted that as per the existing rules, the visa message was issued by the flight agency on production of the relevant documents namely, passport and to and fro air tickets. The learned counsel contended that prima facie there are no material to proceed against the petitioner.

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Per contra, Sri.Suvin R.Menon, the learned Central Government Counsel submitted that the complicity of the petitioner in the alleged conspiracy is evident from the material produced before the Court.

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Sections 239 and 240 of the Code of Criminal Procedure deal with discharge and framing of charge.

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The obligation to discharge the accused under Section

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239 Cr.P.C. arises when “the Magistrate considers the charge against the accused to be groundless.”

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The primary consideration at the stage of framing

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charge is the test of the existence of a prima facie case. The probative value of materials on record is not to be gone into at this stage.

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The Apex Court in Onkar Nath Mishra and others v.

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State (NCT of Delhi) and another (2008) 2 SCC 561 while considering the nature of evaluation to be made by the Court at the stage of framing of charge held thus:-

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“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the Accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the Accused in respect of the commission of that offence.”

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13. In State of Maharashtra v. Som Nath Thapa (1996)

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4 SCC 659 , while dealing with the question of framing charge or discharge the Apex Court held thus:-

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“32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the Accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the Accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.”

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14. In State of M.P. v. Mohanlal Soni (2000) 6 SCC 338

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the Apex Court held thus:-

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“7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the Accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the Accused.”

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In Sheoraj Singh Ahlawat and others v. State of

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Uttar Pradesh and another (2013) 11 SCC 476 , the Apex Court

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observed that while framing charges the Court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. It was further held that the Court cannot speculate into the truthfulness or falsity of the allegations, contradictions and inconsistencies in the statement of

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witnesses at the stage of discharge.

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Section 239 envisages a careful and objective consideration of the question whether the charge against the Accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the Accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the Accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the Accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the Accused is not entitled to discharge Under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial. (See: V.C. Shukla v. State through CBI (AIR 1980 SC 962) .”

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17. In Superintendent and Remembrancer of Legal

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Affairs, West Bengal v. Anil Kumar Bhunja (AIR 1980 SC 52) the

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Apex Court stated thus:-

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“At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.”

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18. In State by Karnataka Lokayukta, Police Station,

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Bengaluru v. M.R.Hiremath (2019) 7 SCC 515 the Apex Court held

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thus:-

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“25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan (2014) 11 SCC 709) , adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29)

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... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that

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the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the Accused has committed the law does not permit a mini trial at this stage.”

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19. In State through Deputy Superintendent of Police

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v. R. Soundirarasu and Ors. (AIR 2022 SC 4218) the Apex Court

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while dealing with the scope of Section 239 Cr.P.C. held thus:-

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“61. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the offence. The word 'groundless' used in Section 239 of the Code of Criminal Procedure means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the Accused. …......................

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This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the Accused can be said to be "groundless".

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The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the Accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.”

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Therefore, the obligation to discharge the accused under Section 239 Cr.P.C. arises when the Magistrate/Special Judge considers the charge against the accused to be groundless that is, there is no legal evidence or when the facts are such that no offence is made out at all and no detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken.

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I shall turn to consider the rival contentions in the light of the principles discussed above. The prosecution seeks to establish the culpability of the petitioner based on the allegation that as ‘counter officer on emigration duty’ he had issued clearance to CW94 without any proper enquiry and verification of travel documents and profile of the lady and thereby permitted her to travel abroad. Relying on the

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circumstances brought out, the prosecution contends that the dereliction of duty on the part of the petitioner has a direct nexus to larger conspiracy hatched by accused No.1. According to the prosecution, it was in furtherance of that conspiracy the petitioner cleared Smt.Rohini through the emigration corridor and permitted her to travel to Dubai for employment purpose.

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Smt.Rohini(CW94) travelled alone on the relevant day from Nedumbassery Airport. Admittedly, she fell under the category of ECR. She was holding ECR passport. She was going abroad to work as a maid. The prosecution has produced copy of the employment visa arranged by Sri.Punnoos. The UID number of the employment visa is 28271032. It was stamped in the passport of Smt.Rohini. The validity of the employment visa was two years from 7.6.2010. A person holding ECR travelling on an employment visa shall obtain emigration clearance from POE. The petitioner herein on 19.6.2010 issued clearance to Smt.Rohini without insisting for emigration clearance from POE.

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The trial Court found that the tourist visa relied on by the petitioner is a forged document created by just erasing the heading employment visa’ and changing it as that of tourist’. The trial Court noted that the UID number and date are the same in both. The name of

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the sponsor was also the same. The trial Court also noted that the validity period of the visa was not mentioned therein. The Court below took note of the fact that in tourist visa there would be mention of the period of validity. The address of the place of stay at Dubai during the visiting period was also not mentioned therein. The tourist visa relied on by the petitioner is an incomplete document. The Court below noted that an Emigration Officer cannot act upon those documents and issued clearance to the passenger to travel abroad. It is also important to note that an emigration officer could not act upon such a document and issue clearance to a passenger when the profession of the passenger is noted as `servant’. The sponsor of the passenger was an Emirates citizen. The illiterate lady was travelling alone. The trial Court noted that all these factors should not go unnoticed by an Emigration Officer. If the Emigration Officer had verified the genuineness of the visa with reference to the UID number he could have noticed that the UID number noted was that of an employment visa. In this regard, the statement of CW95, the Assistant Director, Bureau of Emigration that in the case of illiterate passengers travelling abroad on visit/tourist visa the Emigration Officer shall be exceptionally cautious in verifying her profile.

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On an analysis of the above mentioned materials this Court is not in a position to conclude that the charges levelled against the petitioner are groundless. There are very strong suspicion found upon the materials which is sufficient to lead the Court to form an opinion as to the existence of factual ingredients constituting the offences alleged.

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in Munna Devi v. State of Rajasthan & Anr. (2001)

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9 SCC 631 the Apex Court held that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.

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In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation (2018) 16 SCC 299) the Apex Court held that interference in the order framing charges or refusing to

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discharge is called for in the rarest of rare cases only to correct a patent error of jurisdiction.

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The finding of the Court below that it could come to the conclusion that the commission of the offences alleged against the petitioner is a probable consequence, requires no interference in revisional jurisdiction.

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This Court is of the view that the order impugned is not affected with any patent error of jurisdiction.

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The Crl.R.P. lacks merits and it is dismissed.

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Sd/K.BABU Judge

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TKS

M.S.Rejikumar v. the Superintendent of Police Central Bureau of Investigation

Case brief

What is this about?

What did the court decide?

M.S.Rejikumar v. the Superintendent of Police Central Bureau of Investigation

Case brief

What is this about?

What did the court decide?

What the court decided

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