Whether It Was a Tourist Visa or Employment Visa Can Only Be Decided at Trial – Kerala High Court Dismisses Discharge Plea of Emigration Counter Officer

“Prima Facie Evidence of Manipulated Visa and Officer’s Collusion – Disputed Facts Demand Trial, Not Pre-trial Exoneration. Court Cannot Pre-judge Visa Classification Without Evidence” – Revisional Jurisdiction Does Not Extend to Factual Determinations at Pre-trial Stage

Kerala High Court, in a significant judgment, refused to interfere with the dismissal of a discharge application filed by a former Armed Police Inspector accused of facilitating illegal emigration through a manipulated visa. Justice A. Badharudeen, delivering the order, firmly held:

“Whether the visa verified by the revision petitioner is an employment visa or a tourist visa is a matter to be decided based on the evidence adduced during trial. Such an exercise cannot be undertaken by this Court at the pre-trial stage.”

The petitioner, M.S. Rejikumar, currently facing trial before the Special Court (SPE/CBI)-I, Ernakulam, had sought discharge on the ground that the visa he verified was genuine and required no emigration clearance. However, the Court found prima facie evidence of a manipulated visa and possible conspiracy, warranting a full-fledged trial.

The prosecution case emerged from an investigation by the Central Bureau of Investigation (CBI), following revelations of a large-scale emigration racket operated through a nexus of travel agents and public servants at Kerala’s international airports. The racket allegedly involved deliberate manipulation of employment visas into tourist visas, allowing travel without the mandatory emigration clearance for ECR (Emigration Check Required) passport holders.

As per the prosecution, CW94, a passenger with an original employment visa, was allowed to travel on what appeared to be a tourist visa. The critical allegation was that the same UID number and visa number appeared on both versions of the visa, with the latter fraudulently labelled as a tourist visa.

“The visa originally issued was an employment visa... subsequently, another visa with the same number was attached with the heading ‘Tourist’, by manipulating the visa.”

The accused officer, then posted at the emigration wing of Cochin International Airport (CIAL), allegedly cleared the passenger without verifying the manipulation, despite having the authority and responsibility to scrutinise such documents.

The key legal issue was whether the accused could be discharged before trial on the plea that he had acted in good faith, and had only verified what appeared to be a tourist visa, thus requiring no emigration clearance.

The Court noted that the Special Court had already dismissed a similar discharge plea in 2021, and that decision had been upheld by the High Court in 2022, and affirmed by the Supreme Court, which granted the petitioner liberty to raise his contentions at the stage of framing of charge.

“This Court also dismissed the challenge... The Apex Court disposed of the SLP... with liberty to urge all contentions at the stage of charge framing.”

In the renewed discharge application, the petitioner argued that the ‘OK to Board’ clearance from Dubai authorities, usually issued after verification of a tourist visa, supported his claim. However, the CBI countered with documentary and email evidence showing that:

“The UID number and visa number remained the same in both the employment and tourist versions, suggesting that the visa had been manipulated after issuance.”

The Court accepted that this discrepancy raised a serious factual dispute, stating:

“The question centres on whether he had occasion to verify an employment visa or a tourist visa... or whether, having known fully well that the visa issued was an employment visa, he deliberately facilitated travel of CW94.”

Such factual assessments, the Court held, are beyond the scope of revisional jurisdiction and must be adjudicated only on the basis of trial evidence.

Conspiracy and Public Servant’s Role – Prima Facie Material Established

Rejecting the officer’s claim of innocence, the Court found that the CBI’s case had sufficient prima facie substance to warrant trial:

“The allegations against the revision petitioner would show his involvement in this crime prima facie.”

The Court noted that the conspiracy involved multiple public officials and travel agents, where money was allegedly collected to facilitate illegal emigration by bypassing PoE clearance requirements.

“There were separate conspiracies between public servants, travel agents and passengers... A share of the money collected was paid to public servants for facilitating clearance.”

The alleged role of the petitioner, as a counter officer with discretionary powers, placed him at the heart of this conspiracy.

The Kerala High Court concluded that disputed facts surrounding visa classification and the petitioner’s knowledge and intent could not be adjudicated at the pre-trial stage:

“In fact, whether the visa verified by the revision petitioner is an employment visa or a tourist visa is a matter to be decided based on evidence during trial.”

Accordingly, the Court dismissed the criminal revision petition, vacated the interim stay, and directed the trial court to proceed expeditiously.

Date of Decision: 28 July 2025