Nominal Index [Citations: 2024 LiveLaw (Ker) 135 - 151]State of Kerala v. P Gopalakrishnan alias Dileep 2024 LiveLaw (Ker) 135Meenakshi and ors. v. P Soman Nadar and ors. 2024 LiveLaw (Ker) 136 Vazhuthacaud R.Narendran Nair v State of Kerala 2024 LiveLaw (Ker) 137State of Kerala v Kool Foam Pvt Ltd. & Connected Cases 2024 LiveLaw (Ker) 138Swapna Prabha Suresh v State of Kerala 2024...
Nominal Index [Citations: 2024 LiveLaw (Ker) 135 - 151]
State of Kerala v. P Gopalakrishnan alias Dileep 2024 LiveLaw (Ker) 135
Meenakshi and ors. v. P Soman Nadar and ors. 2024 LiveLaw (Ker) 136
Vazhuthacaud R.Narendran Nair v State of Kerala 2024 LiveLaw (Ker) 137
State of Kerala v Kool Foam Pvt Ltd. & Connected Cases 2024 LiveLaw (Ker) 138
Swapna Prabha Suresh v State of Kerala 2024 LiveLaw (Ker) 139
Ramseena S v State of Kerala 2024 LiveLaw (Ker) 140
Vishnunarayanan v. The Secretary & Connected Cases 2024 LiveLaw (Ker) 141
Pradeep B v. The District Drug Disposal Committee and ors. 2024 LiveLaw (Ker) 142
Vishnunaryanan v The Secretary & Connected Cases 2024 LiveLaw (Ker) 143
National Cadet Corps v Hina Haneefa @ Muhammed Ashif Ali N 2024 LiveLaw (Ker) 144
Fr Edwin Pigarez V State Of Kerala 2024 LiveLaw (Ker) 145
Ahammedkutty Bran v Sukumaran 2024 LiveLaw (Ker) 146
B. v State of Kerala 2024 LiveLaw (Ker) 147
Manuja Mythri v Advocate T K Ajan 2024 LiveLaw (Ker) 148
Dr.Navaneeth K.Unni v State Represented By Public Prosecutor 2024 LiveLaw (Ker) 149
State of Kerala v. Kuniyil Shanoob and ors 2024 LiveLaw (Ker) 150
Manoj v. State of Kerala 2024 LiveLaw (Ker) 151
Judgements/Orders this month
[Actor Assault Case] Kerala High Court Rejects Plea Seeking Cancellation Of Dileep's Bail
Citation: 2024 LiveLaw (Ker) 135
Case Title: State of Kerala v. P Gopalakrishnan alias Dileep
The Kerala High Court has rejected a plea by the Crime Branch seeking to cancel the bail granted to actor Dileep who is an accused in the abduction and sexual assault case of an actress.
A single judge bench of Justice Sophy Thomas stated that the “trial court has made some observations and findings in their order which may tend to appear that the learned judges made up their mind as to the destruction of evidence and influencing, threatening the witnesses etc. alleged by prosecution”.
“It is clarified that the findings and observations made in the trial court in their order as only for the purpose of disposal of criminal appeal and it shall not affect appreciation of evidence in SC 118/2018 (main case)” added the court.
Case Citation: 2024 LiveLaw (Ker) 136
Case Title: Meenakshi and ors. v. P Soman Nadar and ors.
The Kerala High Court has held that the obligation to engross the final decree on stamp paper lies with the appellate court which passed the final decree.
A division bench comprising Justice Anil K Narendran and Justice PG Ajithkumarhas held the decision in Brenda Barbara Francis v. Adrian Miranda 'Halcyon' Pakkattuvila, Kunnukuzhi (2016) to be per incuriam, observing that the obligation to engross the final decree on stamp paper is with the appellate court which passed the final decree.
The bench also noted that the appellate court shall retain the original final decree that is engrossed on the stamp paper which shall form part of the records and only copies shall be provided to the parties.
“The dictum laid down in Brenda Barbara Francis that the original of the final decree shall be given to such person on his making an application is in direct conflict with the provision of Rule 237 of the Civil Rules Practice” said the court.
Citation: 2024 LiveLaw (Ker) 137
Case title: Vazhuthacaud R.Narendran Nair v State of Kerala
The Kerala High Court has reiterated that mere negligence unaccompanied by moral delinquency on the part of a legal practitioner during the profession would not amount to professional misconduct warranting conviction.
While setting aside the order of the Special Judge and allowing the discharge, Justice K Babu stated thus:
“While considering the question of negligence on the part of a lawyer while giving legal opinion in a case where an offence under Section 109 read with Section 420 of IPC was charged against the lawyer in CBI v. K. Narayana Rao (supra) the Supreme Court following P.D. Khandekar v. Bar Council of Maharashtra, [(1984) 2 SCC 556] held that there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. The Supreme Court added that at the most, the lawyer may be liable for negligence if it is established by acceptable evidence and cannot be charged for the offences under Sections 420 and 109 IPC.”
Citation: 2024 LiveLaw (Ker) 138
Case title: State of Kerala v Kool Foam Pvt Ltd. & Connected Cases
The Kerala High Court has stated that the maximum time period for filing an appeal against an award as per Section 74 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (LARR Act) is 120 days.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen while declining to condone the delay in filing the appeal after the maximum time period referred to an order passed by the Karnataka High Court and stated thus:
“Beyond 120 days, no appeal is entertainable by the High Court and there is no power to condone delay.”
Citation: 2024 LiveLaw (Ker) 139
Case title: Swapna Prabha Suresh v State of Kerala
Justice Viju Abraham closed the bail pleas after recording the submission of Public Prosecutor that investigations are going on and there is no intention to arrest Swapna Suresh. She is however required to cooperate in the investigation.
The Counsel for the petitioner-Swapna submitted that she was ready to duly co-operate with the investigation.
Swapna Suresh, the prime accused in the infamous gold smuggling case, had alleged that several persons in the administrative higher-ups, including the Chief Minister, his wife, his daughter, K.T Jaleel and many others, were linked to smuggling activities.
Citation: 2024 LiveLaw (Ker) 140
Case title: Ramseena S v State of Kerala
A second habeas corpus writ was filed by the petitioner-wife of detenu before the High Court challenging the very same detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 stating that there was no bar in filing successive habeas on fresh grounds.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen stated thus:
“...in habeas of simpliciter, the successive writ petition is possible, and judicial practice only discourages fresh writ petitions being brought before the Court as more as a vexatious attempt to redo what the Court already refused. However, relief of habeas sought based on the challenge against detention order stands differently. The essential challenge in that process is against the detention order though ultimate relief is granted, by way of habeas corpus. If the substantial challenge is against the detention order, the very same Court cannot entertain writ petition, even if new grounds have been raised as the Court is precluded from reopening its judgment challenging the validity of detention order which has become final.”
Case Citation: 2024 LiveLaw (Ker) 141
Case Title: Vishnunarayanan v. The Secretary & Connected Cases
The Kerala High Court today dismissed a batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayali Bhramins for appointment as Melshanthi(chief priest) of Sabarimala-Malikappuram temples.
The Division Bench comprising Justice Anil K Narendran and Justice P. G. Ajithkumar rejected the petitioners' argument that the conditions stipulated in the notification would not amount to "untouchability" and violated Article 17 of the Constitution.
Citation: 2024 LiveLaw (Ker) 142
Case Title: Pradeep B v. The District Drug Disposal Committee and ors.
The Kerala High Court has stated that a Special Court under the NDPS Act can grant interim custody under Section 457 of the CrPC of vehicles that have been seized under the Narcotic Drugs and Psychotropic Substances Act.
“Leaving the seized vehicle idle and exposed to sun, rain and the vagaries of nature till the completion of the legal formalities, will only result in deterioration of the vehicle and its value” observed the court.
A bench constituting of Justices A Muhammed Mustaque, Sathish Ninan and Shoba Annamma Eapen was reviewing the decision in Shajahan v. Inspector of Excise and Others (2019), in which a Division Bench of this Court had held that a Special Court does not have the power to consider grant of release of vehicles under the NDPS Act.
Citation: 2024 LiveLaw (Ker) 143
Case title: Vishnunaryanan v The Secretary & Connected Cases
The Kerala High Court dismissed a batch of petitions challenging the notification issued by the Devaswom Commissioner of the Travancore Devaswom Board for the years 2017-18, 2021-22 for appointment of Melsanthies of Sabarimala Devaswom and Malikappuram Devaswom. The challenge was against the eligibility criteria given in the notifications that the applicant shall only be a 'Malayala Brahmin'.
The Division Bench comprising Justice Anil K Narendran and Justice P G Ajithkumar relying upon the Apex Court decision in Sri Venkataramana Devaru v. State of Mysore (1985), Seshammal v. State of Tamil Nadu (1972) stated that Archakas are temple priests who perform essential poojas or ceremonies (Agamas) and it was considered as integral and essential religious practise protected under Article 25 of the Constitution of India.
Citation: 2024 LiveLaw (Ker) 144
Case Title: National Cadet Corps v Hina Haneefa @ Muhammed Ashif Ali N
The Kerala High Court has permitted a transgender woman student to participate in the selection for enrollment to the National Cadet Corp, in the female category.
Section 6 of The National Cadet Crops Act, 1948 only permits enrollment in the male and female category and does not extend to the transgender community.
The Division Bench comprising Justice Amit Rawal and Justice C S Sudha stated that they are hopeful and confident that the Central Government would amend Section 6 of the NCC Act to include transgender community since the Constitutional Court cannot direct the legislature to enact a law.
Citation: 2024 LiveLaw (Ker) 145
Case title: Fr Edwin Pigarez V State Of Kerala
The Kerala High Court has upheld the conviction of a vicar for rape and sexual assault of a minor girl in his parish but has reduced the sentence imposed upon him by the Special Court from life imprisonment for the remainder of his natural life to rigorous imprisonment of twenty years without remission.
“No doubt, rape is a crime which has a severe effect on women and the society...It is an infringement of a person's right to live a dignified life. At the same time, the court cannot ignore the basic principle of sentencing viz, that the sentence imposed should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances...we deem it appropriate to modify the sentence imposed on the first accused for the offence of rape, to rigorous imprisonment for a period of 20 years, instead of imprisonment for the remainder of the natural life imposed by the Special Court” , stated the Division Bench comprising Justice P B Suresh Kumar and Justice Johnson John.
Citation: 2024 LiveLaw (Ker) 146
Case title: Ahammedkutty Bran v Sukumaran
The Kerala High Court has recently decided a question on whether a buyer is entitled to a charged decree on the plaint schedule property under Section 55(6)(b) of the Transfer of Property Act when both the plaintiff (buyer) and defendant (seller) have failed to perform the agreement for the sale of a property after the buyer already paying advance sale consideration.
Section 55 of the TP Act describes the rights and liabilities of the buyer and seller. The charge was provided under Section 55(6)(b) which reads: “The buyer is entitled— unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase- money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.”
Citation: 2024 LiveLaw (Ker) 147
Case title: B. v State of Kerala
The Kerala High Court has upheld the punishment imposed by the Special Court on a stepfather for brutally raping his minor daughter and later threatening and intimidating her by attempting to pour acid in her mouth.
It stated that the minor girl who belonged to a socially and economically backward tribal community who was raped by her stepfather should be adequately compensated under the Kerala Victim Compensation Scheme. The Court thus directed the Kerala Legal Services Authority (KeLSA) to pay an amount of rupees five lakh as compensation to the minor victim.
The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Kauser Edappagath while upholding the punishment imposed by the Special Court stated thus:
Citation: 2024 LiveLaw (Ker) 148
Case title: Manuja Mythri v Advocate T K Ajan
Justice Sophy Thomas while setting aside the summons stated that criminal courts have to be careful in taking cognizance and issuing summons since criminal proceedings could be used as a weapon of harassment or retaliation.
“ Taking cognizance and issuing summons to a person as accused in a criminal case is a serious matter affecting his dignity, self respect and image in the society. So, criminal courts have to be careful while taking cognizance and issuing summons to an accused, as we often see criminal proceedings are being resorted to as a weapon of harassment or retaliation.”
The respondent, an advocate filed a defamation case against the petitioner under Section 500 of the IPC. The petitioner has thus approached the High Court for quashing the proceedings before the Judicial First Class Magistrate Court-I, Karunagapally wherein a summons was issued to her under Section 204 CrPC.
Citation: 2024 LiveLaw (Ker) 149
Case title: Dr.Navaneeth K.Unni v State Represented By Public Prosecutor
Justice Bechu Kurian Thomas stated that inherent powers under Section 482 CrPC have to be used for quashing the complaint to prevent abuse of the process of the Court and to secure the ends of justice.
“While considering the question whether the power under Section 482 should be exercised or not, the Court must always be guided by the principles laid down in the provision itself i.e, to prevent the abuse of process of the Court or to secure the ends of justice. In the instant case, this Court is satisfied that both those parameters are satisfied. The complaint is required to be quashed to prevent the abuse of process of Court and also to secure the ends of justice.”
The Court reached the above conclusion relying upon the decision in Priyanka Mishra v. State of Kerala (2023), wherein it was held that “accused should be protected against vexations and unwanted criminal prosecution and from unnecessarily being put through the rigours of an eventual trial.”
Citation: 2024 LiveLaw (Ker) 150
Case Title: State of Kerala v. Kuniyil Shanoob and ors
The Kerala High Court has acquitted all but one accused in CPM leader P Jayarajan's attempt to murder case. While the court did find the second accused to be guilty, the sentence was commuted.
A single judge bench of Justice P. Somarajan heard the matter.
"There is failure on the part of the prosecution to show and prove the involvement of accused No.1 and 3 to 9 in the alleged commission of offense,” stated the court while ordering the acquittal.
It observed that the recovery of the alleged weapon used in the commission of offense would not give any corroboration as to the involvement of accused No.1 and 3 to 9 simply on the reason that recovery was effected through accused No.2 and not through any other accused.
Citation Number: 2024 LiveLaw (Ker) 151
Case Title: Manoj v. State of Kerala
The Kerala High Court allowed an appeal challenging conviction under Section 20 of the Narcotic and Psychotropic Substances Act, (NDPS Act) for non-compliance with Section 52 of the Act, which requires police officers to certify the inventory of the seized substances by a magistrate.
A single judge bench of Justice K Babu remarked that “the intention of the legislature by incorporating Section 52A in the NDPS Act is to see that the process of drawing the sample has to be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct”.
Other Developments
Sexual Awareness Now Part Of School Curriculum: Kerala Govt Informs High Court
Case Title: Anoop v. State of Kerala
Case Number: Bail Appl. 3273 of 2022
Textbooks for grade 7 now contain sexual awareness programme targeted at informing students, the Kerala government has informed the High Court. Its counsel handed over a copy of Part I of the textbook for STD VII which is about to be rolled out for the coming academic year in the schools following the Kerala syllabus for its curriculum, incorporating sexual awareness programme.
Counsel for the Central Board of Secondary Education also informed the court that CBSE has launched 4 manuals to be released by end of March, 2024 for sexual awareness classes from the next academic year.
“They have got to get it ingrained in their mind,” observed Justice Bechu Kurian Thomas orally.
Case title: XXX v Union of India
Case number: PWC 6527/2024
The Kerala High Court is to consider the question of whether a woman can claim a change of circumstances for seeking medical termination of pregnancy under the Medical Termination of Pregnancy Act 1971 and Medical Termination of Pregnancy Rules 2003 when she has filed a divorce petition and the proceedings are going on.
As per Rule 3 (B) of the Medical Termination of Pregnancy Rules 2003, “change of marital status during the ongoing pregnancy (widowhood and divorce)” would entitle a woman to undergo medical termination of pregnancy up to twenty-four weeks.
The Court was seized with a plea moved by a 25-year-old woman who is 20 weeks pregnant now. She has approached the Court seeking medical termination of pregnancy because she is going through a divorce now. The woman had filed the divorce petition alleging cruelty, marital rape against her husband and stated that she does not wish to continue her pregnancy amid the divorce proceedings.
Case title: K C Ramachandran v State of Kerala & Connected Matters
Case number: Crl.A Nos. 172, 174, 176, 177, 178, 179, 180, 339, 403, 892 of 2014 and Crl.Appeal (Victim) No.571 of 2015
In the TP Chandrashekharan murder case, the Kerala High Court imposed life imprisonment without remission to nine convicts (A1 – Anoop, A2 - Manoj @ Kirmani Manoj, A3 – N.K.Sunil Kumar @ Kodi Suni, A4 – T.K.Rajeesh, A5 – K.K.Muhammed Shafi, A6 – S.Sijith, A7 – K.Shinoj, A8 – K.C.Ramachandran, A11 – Manojan). The Court also sentenced 3 convicts (A10-K K Krishnan, A12-Geothi Babu, A18-P V Rafeek) to life imprisonment without curtailing their right to remission.
TP Chandrashekaran, the leader of the Revolutionary Marxist Party (RMP) was murdered due to political rivalry on May 4, 2012.
“While the crime would certainly rank as a heinous one committed against the victim TP Chandrasekharan, it is also one that threatens to undermine the democratic principles by which the people of the country as a whole has chosen to be governed by. Crimes which have the effect of inducing fear in the people to the point where they are prevented from freely exercising their constitutionally guaranteed freedoms of speech and expression ought to be dealt with firmly for they cannot be tolerated in the society that is governed by the rule of law. While there is under this an element of public interest that is to be safeguarded through the prescription of punishment for the crime, any crime that is committed with the view to silence dissent which is an integral facet of the right to privacy under Article 21 of our constitution has to be seen as a crime against the people at large in a society that has chosen to be governed by democratic principles.", stated the Bench.
Case Number: WP(C) No. 7727 of 2024
Case Title: Binoy Kodiyeri v. The Assistant Commissioner
Binoy Kodiyeri, son of CPM politician Kodiyeri Balakrishnan, has moved a plea before the Kerala High Court against the Income Tax Department alleging that the procedure adopted by the IT department in issuing certain notices to him was "arbitrary, illegal, unsustainable and in gross violation of the principles of natural justice".
The plea alleges that the petitioner and his family "have constantly been the target of vicious, politically motivated campaigns and conspiracies". It mentioned that the petitioner's brother had been wrongfully arrested earlier on "trumped up allegations" and in judicial custody for almost a year.
Case Number: WP(C) No 39109 of 2023
Case Title: Dr. Laxmy Rajmohan and ors. v. State of Kerala and ors.
Gynaecologists working in government hospitals across Kerala have moved the Kerala High Court challenging an amendment order passed by the government which mandates only 'gynaecologists' to be allowed to examine the survivors of sexual offences rather than any 'registered medical practitioner' as provided under Section 164A of the CrPC.
A single-judge bench of Justice Devan Ramachandran will be hearing the matter.
Case title: Confederation of Endosulfan Victim's Rights Collective v State of Kerala
Case number: WPC 8096/2024
A plea has been filed before the Kerala High Court challenging a Government Order classifying 'exposed victims' of Endosulfan by fixing a cutoff date till October 2011. This means, those born after the cut-off date will not qualify for schemes and compensation for the benefit of Endosulfan victims.
The Confederation of Endosulfan Victim's Rights Collective (CERVE) contends that Endosulfan is genotoxic and affects many generations. Thus, setting a cut-off date "without any scientific basis" is arbitrary. The Plea thus challenges restrictive conditions in the impugned government order that hinder victim identification and support and affect the rights of the victims born after the cut-off date who have suffered health impacts by living with exposure to Endosulfan.
Kerala High Court Admits Plea Seeking Assessment Of Damages And Compensation In Thripunithura Blast
Case title: Gopinathan C & Others v State of Kerala & Others
Case number: WPC 8202/2024
Justice Viju Abraham today issued notice to the party respondents and sought instructions from the government pleader as to who was the competent authority for assessing the damages faced by the petitioners.
The Counsel for the petitioners submitted that the explosion caused the loss of 2 lives, injury to 10 persons and huge damage to houses and properties that were located nearby and that maintenance works have to be carried out. It was alleged that the explosives were stored in a densely populated area without following any safety measures. It was alleged that the explosion occurred due to the lack of care and dereliction of duty on the part of the temple officials. It was also alleged that the firecrackers were obtained for fire display and were stored in huge quantities without getting permission and licence from authorities under the Explosives Act and rules thereunder.
Case Title: Ashish AS v. Union of India and ors.
Case Number: WP(C) 8526 of 2023
A plea has been moved beofre the Kerala High CO challenging the naming of a youth festival, 'Intifada' being conducted at NSS College, Nilamel.
The petitioner, a first-year student at the NSS College, Nilamel submitted that naming the youth festival 'Intifada', an Arabic word which translates to 'shake off' cannot be used as it has been “historically linked with the militant/ terror groups like the Hamas of Palestine”.
“There is no place for politics or geopolitics in a youth festival. Israel-Palestine conflict cannot be the point of discussion or the theme of creative expression” states the plea.
Case title: A v Union Of India
Case number: WP(C) 6695/2024
The Kerala High Court today orally observed that it is horrendously immoral to demand a woman to give birth only to a boy child and not a girl child.
The Court was hearing a plea moved by a woman alleging that she was handed over a note by her husband and his family on the first day of her marriage itself, containing instructions on how to conceive a male child. She seeks investigation and action against them under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, of 1994.
Justice Devan Ramachandran orally observed, “This thing should stop, it has to stop. This feeling that girl child is lesser than boy child should stop…It is woman who bring life to the Earth.”