Kerala High Court Weekly Round-Up: April 15 – April 21, 2024
Rubayya Tasneem
22 April 2024 12:30 PM GMT
Nominal Index [Citations: 2023 LiveLaw (Ker) 244-255]Monson MC @ Monson Mavungal v. State of Kerala 2024 LiveLaw (Ker) 244Leric Reeches v Income Tax Officer 2024 LiveLaw (Ker) 245Sreekumar v. SK Valsalan and anr. 2024 LiveLaw (Ker) 246 Syama M. v. State of Kerala & Ors. 2024 LiveLaw (Ker) 247Nimesh and Anr. v. State of Kerala and ors. 2024 LiveLaw (Ker) 248 Faizal v State of Kerala...
Nominal Index [Citations: 2023 LiveLaw (Ker) 244-255]
Monson MC @ Monson Mavungal v. State of Kerala 2024 LiveLaw (Ker) 244
Leric Reeches v Income Tax Officer 2024 LiveLaw (Ker) 245
Sreekumar v. SK Valsalan and anr. 2024 LiveLaw (Ker) 246
Syama M. v. State of Kerala & Ors. 2024 LiveLaw (Ker) 247
Nimesh and Anr. v. State of Kerala and ors. 2024 LiveLaw (Ker) 248
Faizal v State of Kerala 2024 LiveLaw (Ker) 249
Syamkrishna KR and anr. v. State of Kerala and anr. 2024 LiveLaw (Ker) 250
B Anandan v Union of India 2024 LiveLaw (Ker) 251
Suresh Kumar K R V District Magistrate (District Collector) & Connected Cases 2024 LiveLaw Ker 252
Cochin Devaswom Board V The Deputy Director 2024 LiveLaw (Ker) 253
Anand Joseph v The District Collector 2024 LiveLaw Ker 254
Fazid v XXXXX 2024 LiveLaw Ker 255
Judgements/Orders This Week
Case Citation: 2024 LiveLaw (Ker) 244
Case Title: Monson MC @ Monson Mavungal v. State of Kerala
The Kerala High Court has dismissed a plea by Monson Mavunkal to suspend the execution of his life imprisonment sentence passed by the trial court in a sexual assault case.
“It is to be noted that the petitioner has been awarded the imprisonment for life on three different counts by the learned Additional Sessions Judge. Suspending the sentence for life imprisonment can be resorted only in exceptional cases. The heinous nature of the offence allegedly committed by the petitioner/accused cannot be ignored" observed Justice PB Suresh Kumar and Justice S Manu.
Citation: 2024 LiveLaw (Ker) 245
Case title: Leric Reeches v Income Tax Officer
The Kerala High Court has quashed an assessment order passed under the Income Tax Act on finding that the assessee was not provided an effective hearing. In the facts of the case, the assessee was unable to log in through the link for video conferencing due to technical failure and did not get an opportunity for an effective hearing.
Allowing the writ petition, Justice Dinesh Kumar Singh held that the impugned assessment order was issued contrary to the principles of natural justice since there was no effective hearing. The bench said:
“Considering the above submissions and taking note of the fact that the petitioner was not given effective hearing and without providing the effective hearing the impugned assessment order has been passed, I am of the considered view that the order suffers from violation of the principles of natural justice and, therefore, the same is set aside".
Case Citation: 2024 LiveLaw (Ker) 246
Case Title: Sreekumar v. SK Valsalan and anr.
The Kerala High Court has clarified that the power under Section 256 of CrPC which allows for the acquittal of the accused in case of non-appearance or death of the complainant should not be indiscriminately exercised.
“It is well settled that the Magistrate can invoke the power under Section 256 Cr.P.C only after arriving at a definite conclusion that the complainant no longer desires to prosecute the complaint and the said power is to be exercised judicially and that the same cannot be indiscriminately exercised whimsically and mechanically for the statistical purposes of disposal” observed Justice Johnson John while allowing the plea.
Citation: 2024 LiveLaw (Ker) 247
Case Title: Syama M. v. State of Kerala & Ors.
The Kerala High Court has held that all departments undertaking infrastructural or developmental projects should implement the circular dated December 18, 2023 issued by the Kerala State Disaster Management Department (KSDMA) for standardization of the process of integrating measures for prevention of disaster and mitigation.
While disposing of the petition on the assurance of the government that the circular will reduce complaints qua future developmental projects undertaken by the Government, Justice Devan Ramachandran observed,
“I record the submissions of the learned Senior Government Pleader – Sri.K.V.Manoj Kumar, that the Government have issued the afore extracted circular dated 18.12.2023 and that its contents and directives therein will be implemented unreservedly with respect to every developmental project or action, which is to be initiated or pursued by them and its Agencies and Departments in future”, stated the Court
Case Citation: 2024 LiveLaw (Ker) 248
Case Title: Nimesh and Anr. v. State of Kerala and ors.
The Kerala High Court has rejected a petition to quash proceedings for an offence punishable under Section 306 (abetment of suicide) holding that an affidavit by the relative of the victim could not be grounds for quashing if the materials placed on record indicate the commission of the offence.
“When the facts of the case placed on materials and other materials prima facie would suggest commission of offence punishable under Section 306 IPC by the accused persons, merely because the sister of the 1st accused filed an affidavit regarding settlement, shall not be a ground to quash the same” observed Justice A Badharudeen.
Citation: 2024 LiveLaw (Ker) 249
Case Title: Faizal v State of Kerala
The Kerala High Court reiterated that the same court shall try cross cases. On analyzing judicial precedents pertaining to trial of cross cases, The Court laid down the following reasons to state that the same court shall try cross cases.
“The judicial precedents underline the reason for such a procedure as (a) it prevents the danger of an accused being convicted before his whole case is before the court, (b) it deters conflicting judgments being delivered upon similar facts (c) in reality, the case and the counter-case are different or conflicting versions of one incident to all intents and purposes", stated Justice K Babu
Case Citation: 2024 LiveLaw (Ker) 250
Case Title: Syamkrishna KR and anr. v. State of Kerala and anr.
The Kerala High Court has allowed an application for anticipatory bail in a matter relating to abetment of suicide, stating that there should be evidence to suggest, prima facie, that the accused intended by such acts to instigate the deceased to commit suicide.
“The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide” observed Justice A Badharudheen.
The petitioners, who are the 1st and 2nd accused in a matter under Section 306 read with Section 34 of the Indian Penal Code, moved this court with an application for anticipatory bail. The deceased, an assistant public prosecutor, had committed suicide on the 21st of January 2024. The suicide note revealed the 1st accused and the 2nd accused as the reason for the victim's death resulting in a crime being registered under Section 304 (abetment of suicide) read with Section 34 of the Indian Penal Code.
Citation: 2024 LiveLaw (Ker) 251
Case Title: B Anandan v Union of India
The Kerala High Court held that authorities cannot be expected to continuously offer appointments on compassionate grounds to the legal heirs of a deceased employee.
“It cannot be construed that the scheme of compassionate appointment permits the members of the family to raise repeated claims for appointment. One must remember that the compassionate appointment is not a method of appointment and is only intended to get over the penury caused to the family of deceased”, stated Justice Easwaran S.
Citation: 2024 LiveLaw Ker 252
Case Title: Suresh Kumar K R V District Magistrate (District Collector) & Connected Cases
Justice Shoba Annamma Eapen observed that the District Collector passed the prohibitory order to prevent any untoward incident and for public good since a lot of devotees and non-devotees will be gathering to watch the Thrissur Pooram. However, the Court stated that the closure of shops selling liquor, toddy etc for almost two days would cause huge losses to persons who pay huge license fees to run toddy and liquor shops.
Accordingly, the Court modified the timings in the prohibitory order and held thus:
“The prohibited time period stipulated in the impugned order passed by the District Collector as “from 2 am on 19.04.2024 to 2 pm on 20.04.2024” shall stand modified as “from 2 am on 19.04.2024 to 10 am on 20.04.2024”.”
Citation: 2024 LiveLaw (Ker) 253
Case title: Cochin Devaswom Board V The Deputy Director
The Kerala High Court directed that no part of Sree Vadakkunnatha Kshetra Maidan should be used by the Cochin Devaswom Board or Thrissur Municipal Corporation for disposal of biodegradable or non-biodegradable waste generated during the Thrissur Pooram. Thrissur Pooram is celebrated this year on April 19 and 20, 2024; the festivities have already begun.
The Division Bench comprising Justice Anil K. Narendran and Justice Harisankar V. Menon held thus:
“In view of the directions contained in the orders of this Court dated 26.07. 2023 in DBP No.32 of 2023 and DBP No.35 of 2023, no part of Thekkinkadu Maidan (Sree Vadakkunnathan Kshethra Maidan) shall be used by Cochin Devaswom Board or Thrissur Municipal Corporation for the disposal of biodegradable or non-biodegradable waste generated during Thrissur Pooram Festival, exhibitions, etc."
The Court passed the above order in a Devaswom Board Appeal (DBA) filed seeking directions regarding solid waste management in the compound of Sree Vadakkunnathan Temple (Sree Vadakkunnatha Kshetra Maidan) during Thrissur Pooram of the year 1199 ME (2024).
Citation: 2024 LiveLaw Ker 254
Case Title: Anand Joseph v The District Collector
The Kerala High Court held that writ jurisdiction cannot be invoked against the Ernakulam District Rifle Association which is a society registered under a society registered the Travancore Cochin Literary, Scientific and Charitable Societies Act, 1955. The Court stated that a writ petition is not maintainable against a Society registered under the provisions of the Travancore Cochin, Literary, Scientific and Charitable Societies Act, 1955.
Justice Easwaran S. relying upon Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) and Shabajit Tewary v Union of India (1975), held that a society need not necessarily come under 'other authorities' under Article 12 of the Constitution of India.
“….only if the control of the State over such body is deep and pervasive, the same would come within the definition of State. On the other hand, if the control is merely regulatory whether under the Statute or otherwise then it would not serve to make the body a State. Applying the aforesaid principles, this Court finds that the writ petition under Article 226 of the Constitution of India against the affairs of the 3rd respondent is not maintainable”, stated the Court
Citation: 2024 LiveLaw Ker 255
Case Title: Fazid v XXXXX
The Kerala High Court held that the order of dismissal of discharge should be a reasoned order and not cryptic.
“As far as the legal position regarding the essentials of an order of discharge is well settled. While passing an order of discharge by allowing the same or dismissing the same the Courts must have to state reasons for passing such orders and an order without recording reasons in the form of cryptic and non-speaking stature would not sustain under the law” stated Justice A. Badharudeen
The Revision Petitioners were accused of committing offences alleged under Sections 323 (punishment for voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous means or weapons), 294(b) (obscene act and songs), 354 (assault or criminal force with intent to outrage modesty of woman), 354-A(1) (punishment for sexual harassment)), 354-C (Voyeurism), 406 (criminal breach of trust) and 498A (cruelty by husband or relative of husband) read with Section 34 (criminal intention) of IPC.
Other Developments
Case title: Adv. Adarsh S v Union of India
Case number: WP(C) NO. 15148 OF 2024
The Kerala High Court has directed the Union Government represented by the Secretary of the Ministry of Information and Broadcasting to immediately address violations of broadcasting regulations and advisories in connection with telecasting Big Boss Malayalam Season 6.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice M.A.Abdul Hakhim stated that the union government can direct to desist telecasting shows if violations of advisories were found.
“In such circumstances, We direct 1st respondent to immediately address the violations of advisories if necessary by instructing the party respondents herein to desist from telecasting such shows in the electronic media. The petitioner is also permitted to forward a copy of the captured video of the telecast to the 1st respondent.”
The Court passed the above interim order in a writ petition filed by Advocate Adarsh S alleging that the Indian Reality Show- Big Boss Malayalam Season 6 violates broadcasting regulations and advisories issued by the Union Government by telecasting scenes of physical assault on national television. The petitioner also produced images and videos of physical assault telecasted on national television.
[Thrissur Pooram 2024] Kerala High Court Mandates Six-Metre Distance Between Elephants And Crowd
Case Title: In Re: Bruno
Case Number: WP(C) 13204/ 2021
The Kerala High Court has allowed for the revised instructions to be implemented during the Thrissur Pooram, including a minimum distance of 6 meters to be maintained between elephants when being paraded and artists who may be performing at the time.
The court also highlighted the extreme heat in Kerala while directing that the 'theevetti' (fire torch) shall be placed at a minimum 6 meters away from the elephants.
The Additional Advocate General had submitted that considering the impracticalities of the earlier circular issued by the Principal Chief Conservator of Forests and based on the directions issued by the court on the April 12, a new circular had been issued modifying the conditions.
Case Title: P. GOPALAKRISHNAN @ DILEEP v XXXX
Case Number: WA 581/ 2024
Justice N. Nagaresh and Justice P.M. Manoj heard the arguments of counsel appearing on behalf of the actor and the Survivor and reserved its order.
The Counsel appearing for the actor stated that the victim cannot file interim applications in a petition that attained finality since it was disposed of on December 7, 2023. Relying upon Apex Court judgments, it was argued that the applications could not be filed in a case that was disposed of since there were no pending proceedings. It was stated that the order of the single was not maintainable since the judgement had attained finality.
On the other hand, Advocate Gaurav Agarwal appearing on behalf of the survivor stated that the fact-finding inquiry was conducted at her insistence since her fundamental rights were violated due to alleged illegal access of the memory card. It was argued that the impugned order of the single judge was made in a writ petition under Article 226 and was thus maintainable. It was also submitted that the accused has no right to state that the victim should not be provided copies of statements of witnesses examined during an inquiry conducted at her insistence. It was also argued that the single judge would hear on the maintainability of the interim applications on May 30, 2024, and the present appeal was filed only to delay reliefs to the survivor.
Case Title: Adv K Praveen Kumar v The Election Commission of India
Case Number: WP(C) 15968/2024
Justice Shoba Annamma Eapen has posted the plea, which seeks video recording of the polling process and deployment of central forces in 1186 polling booths of the constituency, on April 19 for the statement of the Election Commission. Polling in the region is set for 26th this month.
The plea alleged that even though various steps were taken by the Election Commission to ensure a free and fair election, bogus voting and election atrocities continue taking place in the Vadakara constituency. It is stated that the Vadakara constituency including areas from Kannur and Calicut districts are hypersensitive areas.
It is alleged that bogus votes are cast in the name of persons, who were dead, abroad or working elsewhere. The plea alleges that there are high chances that CPI(M) might cadres attack voters and rival party workers to sabotage a free and fair election.
Case Title: Varkala Kahar v. The Election Commission of India and Ors.
Case Number: WP(C) No. 16024 of 2024
Ahead of the 2024 General Elections, the Chief Election Agent of MP Adoor Prakash has moved the Kerala High Court alleging double entries in the final voters list at the Attingal Parliamentary Constituency. The plea asked for technology to be deployed to identify and remove double entries in the voter's list.
Justice Shoba Annamma Eapen heard the matter.
The plea was moved by the Chief Election Agent of Adoor Prakash, MP, who is the Congress-I candidate nominated to contest from Attingal Parliamentary Constituency in the polling scheduled to be held on 26.04.2024.
The Supreme Court Collegium headed by Chief Justice of India D.Y. Chandrachud, has recommended the name of Advocate Sreeja Vijayalakshmi as the Judge of the Kerala High Court.
On December 5, 2023, the Kerala High Court Collegium recommended the name of Advocate Sreeja Vijayalakshmi for appointment as a judge. On March 12, 2024, the consideration for recommendation was deferred and a report was sought from the Chief Justice of Kerala High Court in consultation with members of the High Court Collegium on the suitability of the candidate. Accordingly, the Chief Justice of Kerala High Court submitted a report dated March 21, 2024, The Chief Minister and the Governor of the State had also concurred with the recommendation.
Case Title: Safiya v. State of Kerala and ors.
Case Number: WP(C) 15558 of 2024
A plea has been moved before the Kerala High Court against police misbehaviour seeking compensation for the wrongful death of the petitioner's son.
The petitioner is the mother of Muhammed Farhaz who died due to a police chase on the 25th of August 2023. The petitioner alleges that the victim along with 3 other students had left the school in a car for the Juma prayers and had been stopped by the accused police officers of the Kumbla Police Station. The students had started the car following a violent outburst from the officers, resulting in a chase.
The petitioner relied on the provisions under Section 5(f) to argue that no two-wheeler rider should be pursued in a hot chase in order to book them for failing to wear a helmet.
Case Title: Aarya Thomas v Union of India and Others
Case Number: WPC 16079/2024
A plea has been moved before the Kerala High Court seeking a direction to the Union Government and State Government for the formulation of welfare measures to ensure legal representation of Non-Resident Indians in foreign courts.
Justice Shoba Annamma Eapen issued a notice to the Union Government and State Government.
The petitioner is a 39-year-old woman who is working in Dubai. Both the petitioner and her husband are employed in Dubai. The petitioner and her husband got married in Kerala under the Christian Laws and have permanent residence in Pathanamthitta district in Kerala. They have two children who were also residing with them in Dubai, UAE. The children are Indian citizens
The petitioner's husband filed for divorce and custody of the children before the Dubai Court of First Instance. The Court in UAE granted divorce without giving an opportunity of hearing to the petitioner and gave joint custody to the parties without considering Indian laws of marriage or custody. She alleges that she was unaware of foreign legal proceedings and had no sufficient legal representation
