IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 WP(C).No. 14622 of 2011(C) ---------------------------------------- PETITIONER(S): ----------------------- THAZHATHEVEETTIL NOUZHAD, S/O.HASSAN, AGED 32 YEARS,RAHMATH MANZIL, THIKKODE P.O.,QUILANDY, KOZHIKODE DISTRICT BY ADV. SRI.T.K.KUNHABDULLA RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY DEPUTY SUPERINTENDENT OF POLICE EMIGRATION WING, KOZHIKODE AIR PORT, KARIPUR, MALAPPURAM DIST 2. COMMISSIONER OF POLICE, COIMBATORE CITY, COIMBATORE, TAMIL NADU STATE. 3. DEPUTY SUPERINTENDENT OF POLICE SPECIAL INVESTIGATION TEAM, CB CID, COIMBATORE, DR.BALASUNDARAM ROAD, P.R.S.CAMPUS COIMBATORE-18 BY GOVERNMENT PLEADER SRI.MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.14622/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 7.4.2011 IN CRL.MC. 1064/2011. P2:- COPY OF THE AGREEMENT OF CELL PALANCE ELECTRONICS TRADING ATTESTED BY DUBAI COURT'S NOTARY. P3:- COPY OF THE ORDER DTD. 13.5.2011 IN CMP. 1252/2011. P3(a):- COPY OF THE AFFIDAVIT BEFORE THE SESSIONS COURT (VACATION COURT), KOZHIKODE. P4:- COPY OF THE ORDER DTD. 6.2.2004 OF THE HIGH COURT OF JUDICATURE AT MADRAS. P5:- COPY OF THE MEMORANDUM DTD. 19.5.2011 ISSUED BY THE 3RD RESPONDENT RECEIVED BY THE PETITIONER. P6:- COPY OF THE CLINIC RESERVATION SLIP AND FINAL BILLS ISSUED BY ARAVIND EYE HOSPITAL, MADURAI TO THE PETITIONER TOWARDS THE TREATMENT OF THE PETITIONER AND HIS DAUGHTER. P7:- COPY OF THE ORDER DTD. 7.6.2011 IN CRL.OP.12493/2011 OF THE HONOURABLE HIGH COURT OF MADRAS. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 14622 OF 2011 ----------------------------------------------------- Dated this the 18th day of August , 2011 J U D G M E N T Petitioner is an accused in crime No.2111/02 of B-4 Race Course Police Station, Coimbatore. He is also an accused in Sessions Case No.788/07 on the file of the Second Addl. Assistant Sessions Court, Kozhikode. 2. In so far as the Crime No.2111/02 is concerned, the case is under investigation and Ext.P7 is the order dated 7.6.2011 passed by the Madras High Court in Crl.O.P.12493 of 2011 filed by the petitioner. Ext.P7 order reads thus; “The petitioner seeks a direction to the respondent to interrogate the petitioner at his native village in Kerala in the presence of his lawyer in connection with a case in Crime No.2111 of 2001. W.P.(C) No. 14622 OF 2011 :2 : 2. Heard learned counsel for the petitioner and also learned Additional Public Prosecutor. 3. Recording the submission of the learned Additional Public Prosecutor that the interrogation of the petitioner stands completed and his presence is no further required, this petition shall stand dismissed.” 3. Therefore the petitioner is no longer required for interrogation in connection with the aforesaid case. 4. In so far the Sessions Case No.788/07 arising out of Crime No.584/02 of Nadakkavu Police Station is concerned Ext.P3 is the order passed by the Court of Sessions, Kozhikode in Crl.M.P.1252/11. That was an application filed by the petitioner seeking an order releasing his passport and deleting the condition to the effect that the petitioner should not leave the jurisdiction of the Kozhikode District without permission of the W.P.(C) No. 14622 OF 2011 :3 : Sessions court. Considering the said application and after hearing the Prosecutor, Ext.P3 order was passed allowing the prayer. The order of the Court reads thus: “It seems that the petitioner was the 1st accused in SC788/2007 pending before the Additional Assistant Sessions Court- II, Kozhikode. Subsequently, the case was transferred to the register of long pending cases as LP15/2010. On his surrender, he was released on bail directing him to surrender his Passport and also on condition that he should not leave the jurisdiction of Kozhikode District without the previous permission of the court. Now the petitioner wants to go to UAE in connection with his business and for the renewal of his wife's Visa. He also wants to go to Aravind Eye Hospital, Madurai in connection with the treatment of him and his daughter who are partially W.P.(C) No. 14622 OF 2011 :4 : blind. The petitioner has produced documents in support of his contentions. It seems that the prosecution has not disputed the documents produced by the petitioner. The documents produced by the petitioner would show that the petitioner and his daughter is partially blind and they are undergoing treatment at Aravind Eye Hospital, Madurai. For that purpose, he has to leave the jurisdiction of Kozhikode District. The documents produced would also show that the petitioner is doing business in UAE and his wife's Visa is expiring on 18.6.2011. Therefore he has to go to UAE in connection with that and for his business purposes. It is true that the petitioner is the accused in a Sessions Case and his case was transferred to the register of long W.P.(C) No. 14622 OF 2011 :5 : pending cases due to his absence. But taking into account the facts and circumstances of this case, I am of the view that the Passport of the petitioner can be returned to him on filing an undertaking that he will be present before the court in connection with the trial as and when his presence is needed and he shall make all necessary arrangements for the progress of the trial. Since the petitioner wants to go to UAE and Madurai in connection with his business and treatment, the condition that he shall not leave the limits of Kozhikode District is to be lifted. In the result, the petition is allowed and the Passport of the petitioner shall be returned to him on filing an undertaking affidavit that he shall appear before the court as and when his presence is necessary for the progress of the trial. The condition that the W.P.(C) No. 14622 OF 2011 :6 : petitioner shall not leave the limits of Kozhikode district is hereby lifted.” 5. Therefore the court permitted the petitioner to leave the limits of Kozhikode District and released his passport in order to enable him to undertake his journey abroad. 6. The grievance now is that when he reached the Calicut Airport to board his flight to U.A.E., where he is employed, the 3rd respondent, Deputy Superintendent of Police prevented the petitioner from boarding the Aircraft and refused to grant him emigration clearance on the ground that a look out notice issued by respondents 2 and 3 is in force. It is in these circumstances this writ petition is filed with the following prayers. “a) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to allow the petitioner to go to Dubai W.P.(C) No. 14622 OF 2011 :7 : without any hindrance; b) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent No.1 to clear the Emigration of the petitioner to go to Dubai without considering the Look Out Circular issued by the Coimbatore Police.” 7. Along with the memo dated 24th June, 2011, the learned Government Pleader has produced a communication received from the 3rd respondent. In this communication the 3rd respondent has pointed out the petitioner's involvement in crime No.2111/02 of the B-4 Race Course Police Station, Coimbatore and crime No.584/02 of Nadakkavu Police Station, Kozhikode, from out of which Sessions Case No.788/02 arose. It is stated that the presence of the petitioner is necessary for the purpose of investigation in the event of arrest of the co- W.P.(C) No. 14622 OF 2011 :8 : accused and that appropriate legal steps are being take to impound his passport. In so far as the presence of the petitioner is concerned as seen in Ext.P7 order, the Madras High Court has already recorded the submissions on behalf of the 3rd respondent that the interrogation of the petitioner stands completed and that his presence is not required any longer and the stand now taken is virtually contradictory. 8. As far as crime No.584/02 of Nadakkavu Police Station is concerned by Ext.P3 order, the Sessions Court has permitted the petitioner to go abroad. Further, as at present, no steps have been initiated for impounding his passport also and in such circumstances the involvement of the petitioner in the aforesaid criminal cases, could not have been a reason for denying the petitioner's emigration clearance particularly in the light of Exts.P3 and P7 orders. Even otherwise, if the presence of the petitioner is W.P.(C) No. 14622 OF 2011 :9 : essential for any reason at a later point of time, and if the petitioner fails to respond to the notices issued, it is always open to the authorities to get the passport of the petitioner impounded. Therefore, declining of emigration clearance was not justified. In that view of the matter, I dispose of the writ petition clarifying that involvement of the petitioner in the criminal cases mentioned above shall not be the reason for denying emigration clearance to the petitioner. Sd/- ANTONY DOMINIC, JUDGE ul/- [true copy] P.S. to Judge