JUDGMENT

This is a Writ Petition filed under Section Article 226 of the Constitution of India by the sole accused in C.C. No. 1833 of 2021, which emerged from the final report in Crime No. 241 of 2012 of Valiyathura police station. That crime was registered on 24.02.2012 alleging offence under Section 24 of the Emigration Act, 1983, hereinafter referred to as the Act. The final report was laid after obtaining sanction from the Central Government. The allegation against the petitioner can be summarised as follow:

2. On 05.03.2011 at 3.11 AM, the petitioner was working on deputation as Armed Police Sub Inspector in the Emigration Department of the International Airport, Thiruvananthapuram. While he was engaged on duty in the International Airport, he permitted 34 year old Bindu, holder of passport No. J-0285389 and a job visa, to travel to Bahrain without obtaining clearance from the Protector of Emigrants. Thus he had allegedly committed offence under Section 24 of the Act.

3. Admittedly, on 05.03.2011 the petitioner was on duty in the Emigration Wing at counter No. 1 of the International Airport, Thiruvananthapuram. He is an Armed Police Sub Inspector who was working on deputation in the emigration counter of the Airport. Going by the prosecution records, on 05.03.2011 he allowed the said Bindu to travel abroad without a clearance certificate from the Protector of Emigrants as she was holder of a ECR passport (Emigration Check Required) and job visa. Smt. Bindu died in Bahrain by hanging Asphyxia and the matter was brought to the notice of the Director General of Police, Kerala by the Protector General of Emigrants who observed that ECR passport holders are required to obtain emigration clearance under the Emigration Act and that was not adhered to in the case and thus he requested to initiate action against the Emigration Officer on duty, who allowed the said Bindu to travel abroad without clearance from the Protector of Emigrants. Investigation revealed that the petitioner had committed offence intentionally. Ext.P7 Government order indicates that by letter dated 16.05.2018 the Additional Director General of Police, South Zone, Thiruvananthapuram made a request for sanction for prosecution.

That request was considered by the Protector General of Emigrants and by Ext.P6 order dated 8th September, 2020 sanction was accorded for taking cognizance by a competent court of the offences committed by the petitioner. On that basis, the final report was prepared and the charge sheet was laid. The Judicial First Class Magistrate-XI, Thiruvananthapuram has taken the final report on file as C.C. No. 1833 of 2021 alleging offence under Section 24 of the Act against the petitioner.

4. In order to say that the prosecution is bad and illegal, the petitioner has raised two grounds. Firstly, it is pointed out that, even though the said Bindu was the holder of an ECR passport in fact, by virtue of Ext.P5 Office Memorandum issued by the Ministry of Overseas Indian Affairs (Emigration Policy Division), clearance from the Protector of Emigrants was not necessary as she had a passport, a visiting visa, and a return ticket. According to the petitioner, the said Bindu did not possess any job visa at the time of clearing her from his counter on 05.03.2011. In order to prove the same, the relevant extract of passport of the said Bindu has been cited as Ext.P4. Therefore, the petitioner had allowed her to go abroad since she held a valid passport, a valid visiting visa, and a return ticket and that was not a job visa. By virtue of Ext.P5 Office Memorandum, she was not entitled to produce emigration clearance from the Protector of Emigrants and, therefore, the act of the petitioner is justified by the materials including Ext.P5 Office Memorandum.

5. Secondly, it is submitted that the crime was registered on

24.02.2012. But the final report was laid in 2021, after about nine years. The said penal provision under Section 24 of the Act attracts a maximum sentenc