1. This Criminal Revision Petition has been filed by the CBI challenging the order in Crl.M.P.No.48/2021 in C.C.No.23/2016 on the files of the Special Judge, (SPE/CBI)-I, Ernakulam, whereby the 18th accused, who is the respondent in this petition, has been discharged by the learned Special Judge on finding that no prima facie materials are available to proceed against him by framing charge.

2. Heard the learned Special Public Prosecutor appearing for the CBI as well as the learned counsel appearing for the respondent/accused No.18.

3. In this matter, the prosecution alleges commission of offences punishable under Section 120B of the Indian Penal Code and under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act, 1988’ hereinafter) and also under Section 24 of the Emigration Act, 1983, by the accused. The prosecution case is that the 1st accused, a public servant employed in the Kerala Police as a Civil Police Officer, had worked in the Emigration Wing of the Cochin International Airport from 03.06.2003 to 15.06.2003 and from 13.12.2007 to 05.07.2011. The 2nd accused is the father of the 1st accused, who was operating a Savings Bank Account at the Federal Bank, Kottapadi Branch, and it is alleged that a part of the bribe money was transferred to this account. Accused Nos.3, 4, 6 to 16 and 20 are individuals and proprietors of travel agencies having offices in different parts of Kerala and are mainly engaged in the business of processing travel documents of emigrant workers proceeding to Middle East countries. The 5th accused is a private company having different concerns in Middle East countries and is engaged in recruiting unskilled workers from India for its projects. Accused Nos.17 to 19 and 21 are Sub-Inspectors of the Kerala Police who worked at CIAL, Nedumbassery, as Emigration Officers during different periods.

4. The contentions raised by the respondent/accused No.18 before the Special Court was that there were no materials against him warranting trial and the prosecution records did not disclose any prima facie materials to proceed against him. The learned Special Judge accepted these contentions and discharged the respondent/accused No.18.

5. While challenging the order of discharge, the learned Special Public Prosecutor appearing for the CBI emphasised the statements of witnesses Nos.11, 12, and 13 to substantiate that there were ample materials prima facie to show the involvement of the respondent/accused No.18. According to him, the respondent/accused No.18 was posted as the Emigration Officer at the departure spot of the Airport with the responsibility of checking the passenger’s passport by using the swiping machine to compare the photograph in the passport with that of the passenger, and to verify the genuineness of the passport through the Passport Registration and Identification System (PRIDE), Passport Information Service on Net (PISON), or the Ultra Violet Lamp. His duties also included checking the date of issue and expiry of the passport, detecting photo substitution or page alterations, verifying the genuineness of the visa, checking for lookout circulars (LOC), and ensuring that passengers holding ECR passports possessed emigration clearance issued by the Protector of Emigrants when travelling on an employment visa. According to the learned Special Public Prosecutor, CW12, who originally held the passport in his name, had stated that his passport was lost and that thereafter, after removing the head portion of his photograph, the head portion of the photograph of CW11 was affixed in the passport. The manipulated passport was then produced along with the travel documents issued by one Hamza who had also entrusted the passport to CW11, before accused No.18, the respondent herein. But the respondent/accused No.18 failed to thoroughly check the passport and detect the forgery, and he permitted CW11 to travel with the forged passport, even though CW11 was later deported from the Dubai Airport on detection of the forgery, by the Airport officials in Dubai. According to the learned Special Public Prosecutor, there are sufficient materials to go for trial in the above circumstances, and therefore, the discharge of the respondent/ accused No.18 is unwarranted. Thus, the learned Special Public Prosecutor pressed for interference in the impugned order.

6. While supporting the order of discharge, the learned counsel appearing for the respondent/accused No.18 justified the order by referring to the relevant paragraphs of the impugned order and submitted that the findings of the learned Special Judge clearly demonstrate the innocence of the respondent/accused No.18, and in such circumstances, there is no reason for this Court to interfere with the impugned order.

7. In paragraph Nos.26 and 32 of the order impugned, the learned Special Judge addressed the argument tendered by the respondent/accused No.18 while discharging him from the offences and the same are as under:

                  “26. Points: The passenger who got immigration clearance through the petitioner is CW11. One Hamza is said to be the person who arranged forged passport and visa to CW11 after receiving a payment of Rs.50,000/-. If the prosecution case is believed there is a racket involving the travel agents and immigration officials and through this nexus illegal immigration clearance is being obtained and ineligible persons go abroad for taking jobs, the under dealing is nothing but illegal gratification and through definite channels bribe money is being handed over to the immigration officers which is later shared by them. A1 a Civil Police Officer and his father A2 are said to be the channels through which bribe money flowed and A1 used to share it with the other immigration officers who facilitated easy clearance to the job seekers abroad. That means, the nexus is said to be in between Hamza, A1, A2 and the petitioner. The investigating officer was not able to even identify the so called Hamza. He is neither an accused in this case nor a witness. There is absolutely no material on record to prove that the petitioner and A1 are known to each other. There is absolutely no material on record to prove that any amount was parted by either Hamza or CW11 to the petitioner directly or through A1 and A2. The investigating officer had not even collected the bank account statement of the petitioner. That means, there is absolutely no evidence to prove that the petitioner is a party to the conspiracy agreement. In this factual background, the evidence made available before the court are to be gone into.

                  32. There is no evidence available on record to prove what actually happened in Dubai Airport. The statements of the embassy officials at Dubai Airport were not recorded by the investigating officer. The only person who can give some insight is CW11, but he had not stated anything about it. It is not clear whether he got perplexed when immigration officials at Dubai questioned him. It is submitted by both sides that, in case of suspicion, the Dubai Immigration has the added advantage to compare the finger impression of the actual person who obtained the job visa and the person who is travelling with the forged passport. In this scenario, only for the reason that the immigration officials at Dubai airport detected fraud during immigration check itself cannot be taken as a piece of evidence to prove the culpability of the petitioner in his failure to detect the forgery at the departure airport.”

8. On scrutinising the reasons stated by the learned Special Judge for allowing the discharge along with the contentions raised by the learned Special Public Prosecutor for CBI, it is emphatically clear that, as per the statement of CW11, one Hamza was the person who arranged a forged passport and visa for CW11 after accepting Rs.50,000/- from him. However, the prosecution failed to identify who Hamza is, and no investigation was conducted in this regard. The statement of CW11 further shows that he had obtained the forged passport from Hamza and, upon reaching the Airport, he had produced the same before the respondent/accused No.18. The respondent/accused No.18 allegedly enquired about CW11’s previous visit to Dubai and thereafter permitted him to proceed, pursuant to which CW11 reached Dubai. Nevertheless, he was deported by the Airport authorities in Dubai, and a case was registered, he remained in custody for 27 days in the said case and was released on bail thereafter.

9. On scrutiny of the prosecution materials, the same do not, in any manner, establish any familiarity or nexus between accused Nos.1 and 2 and accused No.18, though the prosecution specifically alleges involvement of accused Nos.1 and 2 in granting emigration clearance and permitting passengers to travel abroad without a valid visa, passport, or emigration clearance is concerned. It is pertinent to note that in order to see prima facie whether two accused persons hatched conspiracy, there must be some materials to support meeting of minds between them and consequential illegal overt acts thereof, without which, the allegation of conspiracy could not be found prima facie. In the instant case, no such ingredients could be found. It is true that the respondent/accused No.18 failed in discharging his official duty properly, but the same cannot be found as the outcome of any conspiracy as alleged, as already discussed. Thus, it emerges that, inasmuch as the respondent/accused No.18 is concerned, no prima facie case of criminal misconduct or any other offence is made out, to go for trial.

10. Law is well settled that when considering an application for discharge, the courts have to peruse the prosecution records with a view to find out whether prima facie the offences alleged are made out against the accused or at least a strong suspicion to show the involvement of the accused. In this regard, mere suspicion also is quite insufficient.

                  The learned Special Judge therefore, rightly discharged the respondent/accused No.18, and in such view of the matter, no interference in the impugned order is warranted.

                  Accordingly, this Criminal Miscellaneous Case is dismissed.

                  Registry is directed to forward a copy of this order to the Special Court, forthwith, for information.