Nominal Index [Citation: 2023 LiveLaw (Ker) 144-157]Jollyamma Joseph @ Jolly V State of Kerala 2023 LiveLaw (Ker) 144xxx v. State of Kerala 2023 LiveLaw (Ker) 145D. Kumar v. A. Raja 2023 LiveLaw (Ker) 146Sudheesh.U V The Revenue Divisional Officer Palakkad 2023 LiveLaw (Ker) 147Sumesh G.S @ Sumesh Marcopolo V State Of Kerala 2023 LiveLaw (Ker) 148Megha Oshin v State of Kerala 2023...
Nominal Index [Citation: 2023 LiveLaw (Ker) 144-157]
Jollyamma Joseph @ Jolly V State of Kerala 2023 LiveLaw (Ker) 144
xxx v. State of Kerala 2023 LiveLaw (Ker) 145
D. Kumar v. A. Raja 2023 LiveLaw (Ker) 146
Sudheesh.U V The Revenue Divisional Officer Palakkad 2023 LiveLaw (Ker) 147
Sumesh G.S @ Sumesh Marcopolo V State Of Kerala 2023 LiveLaw (Ker) 148
Megha Oshin v State of Kerala 2023 LiveLaw (Ker) 149
Dr. Usha V. Parameswaran and Others V State of Kerala and Others 2023 LiveLaw (Ker) 150
Omar Abdul Vahab & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 151
T Peethambaran V State of Kerala 2023 LiveLaw (Ker) 152
Adv. Richard Rajesh Kumar V State of Kerala 2023 LiveLaw (Ker) 153
P.T. Jose & Ors. v. State of Kerala & Anr. and other connected matters 2023 LiveLaw (Ker) 154
Kerala Public Service Commission V. Arjun Geetha & Others 2023 LiveLaw (Ker) 155
Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors 2023 LiveLaw (Ker) 156
Ajin K.A. & Ors. v. The Joint Deputy Director & Ors. 2023 LiveLaw (Ker) 157
Judgments/Orders This Week
Kerala High Court Refuses To Interfere With Trial Court's Order For In-Camera Proceedings In Koodathayi Murder Case
Case Title: Jollyamma Joseph @ Jolly V State of Kerala
Citation: 2023 LiveLaw (Ker) 144
The Kerala High Court refused to interfere with the order of the trial court that directed proceedings to be held in-camera in the trial for the murder of Roy Thomas, where his wife Jolly Joseph is the prime accused.
A single bench of Justice Bechu Kurian Thomas said,
"Unless the applicant is able to show that prejudice has been caused on account of the order directing in-camera proceedings to be held, this Court ought not, in exercise of the inherent jurisdiction, interfere with the satisfaction exercised by the trial Judge".
False Promise Of Marriage: Kerala High Court Refuses To Quash Rape Case, Says Accused Obtained Consent Only For Sexual Relations
xxx v. State of Kerala
Citation: 2023 LiveLaw (Ker) 145
The Kerala High Court recently refused to quash the criminal proceedings that had been initiated against a person for allegedly raping a woman under the false promise of marriage, on the ground that the facts prima facie established that he had never intended to marry her.
Justice K. Babu perused Section 90 of the Indian Penal Code which refers to the expression 'consent', and noted that for the purposes of Section 375, consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.
‘Practising Christian, Not A Scheduled Caste Member’: Kerala High Court Annuls CPM MLA A Raja's Election From Reserved Constituency
Case Title: D. Kumar v. A. Raja
Citation: 2023 LiveLaw (Ker) 146
The Kerala High Court declared CPM candidate A. Raja's 2021 election from the Devikulam Assembly constituency as void.
Justice P. Somarajan said Raja is not a member of 'Hindu Parayan' within the State of Kerala and thus not qualified to be chosen to fill the Devikulam Assembly constituency that had been reserved for Scheduled Caste among Hindus.
[Kerala Wetland Act] Property Cannot Be Termed 'Paddy Land' For Sole Reason That It Is Lying Fallow: High Court
Case Title: Sudheesh.U V The Revenue Divisional Officer Palakkad
Citation: 2023 LiveLaw (Ker) 147
The Kerala High Court recently reiterated that a property cannot be termed as paddy land under the Kerala Conservation of Paddy Land and Wetland Act, 2008 for the sole reason that property is lying as fallow. The court observed that the Revenue Divisional Officer must also be satisfied that the land is suitable for paddy cultivation apart from it being fallow, for it to fall under the category of paddy land under the 2008 Act.
A single bench of Justice Viju Abraham observed that: “Going by the definition in Section 2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of Section 2(xii) of the Act, 2008.”
Media Or Govt Agencies Have No Right To Peep Into Private Lives Of Citizens Without Any Valid Reason: Kerala High Court Slams Online Media Channels
Case Title: Sumesh G.S @ Sumesh Marcopolo V State Of Kerala
Citation: 2023 LiveLaw (Ker) 148
The Kerala High Court recently came down heavily on certain online media channels for broadcasting private moments of a woman and said it is disheartening to note that some online news channels "are in the habit of publishing sleaze more than news."
A single bench of Justice VG Arun while criticising the recent media trend of publishing private content of individuals in the name of news said: “In my opinion, publication of another person's private moments for public viewing is, by itself, an offensive act, even if there is no law preventing such action. No person, whether it be the media or Governmental agencies, have the right to peep into the private lives of the citizens of this country, without there being a valid reason.”
Preventive Detention Order Can Be Passed Against Person Already In Judicial Custody On Subjective Satisfaction Of Detaining Authority: Kerala High Court
Case Title: Megha Oshin v State of Kerala
Citation: 2023 LiveLaw (Ker) 149
The Kerala High Court recently held that an order of preventive detention can be passed against a person already in judicial custody if the detaining authority is satisfied of its necessity.
A division bench comprising of Justice Alexander Thomas and Justice C.S. Sudha held that based on parameters such as the immediate possibility of release of the detenu from judicial custody and if released on bail, the likelihood to continue to indulge in prejudicial activities must be considered by the detaining authority while passing an order of preventive detention when the person is already in judicial custody.
Prescribing Qualifications In Addition To UGC's Minimum Qualification For Teaching Posts To ‘Uplift Education Quality’ Constitutional: Kerala High Court
Case Title: Dr. Usha V. Parameswaran and Others V State of Kerala and Others
Citation: 2023 LiveLaw (Ker) 150
The Kerala High Court recently upheld the constitutional validity of Section 45A of the Kerala University of Fisheries and Ocean Studies Act, 2010 (KUFOS Act) on the ground that the qualifications for teaching posts prescribed in addition to the UGC Regulations is for uplifting the quality of education.
A single bench of Justice Sathish Ninan was considering a plea challenging the constitutional validity of Section 45A of the KUFOS Act on the ground that it was repugnant to the qualifications prescribed by the University Grants Commission (UGC) Regulations. The petitioners also challenged the employment notification issued by the Kerala University Of Fisheries And Ocean Studies for filling up posts prescribing the above qualifications.
Enacting Movie Scene Doesn't Mean Actors Actually Consumed MDMA: Kerala High Court Quashes NDPS Case Against Makers Of 'Nalla Samayam'
Case Title: Omar Abdul Vahab & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 151
The Kerala High Court recently quashed the criminal proceedings that had been initiated against the Director and Producer of the Malayalam movie 'Nalla Samayam' on the allegation that trailer of the movie depicted a scene wherein one of the characters lauded MDMA to give energy and happiness to users.
Justice V.G. Arun observed that Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) which stipulates punishment for consumption of narcotic drug or psychotropic substance would not apply, since mere enactment of scenes in a movie could not lead to the assumption that the actors had actually done what they had enacted.
"I am certain that Section 27 will not apply, since enactment of scenes in a movie cannot lead to the assumption that the actors had actually done what they had enacted. If that reasoning is adopted, actors in villainous roles stand the risk of being tried and convicted for murder, arson and rape," the Court observed.
Application For Condonation Of Delay Not Required When Victim Appeals Against Acquittal, Affidavit Explaining Delay Sufficient: Kerala High Court
Case Title: T Peethambaran V State of Kerala
Citation: 2023 LiveLaw (Ker) 152
The Kerala High Court on Tuesday held that when a victim belatedly files an appeal against a judgement of acquittal, it is not essential to file an application for condonation of delay and that an affidavit explaining the delay would suffice.
The court also held that it is not necessary for the appellate court to pass a specific order in relation to the delay.
A single bench of Justice Bechu Kurian Thomas observed, “A delay condonation petition is not required to be filed by a victim who prefers an appeal even after a delay of more than 90 days. The only requirement is to file an affidavit explaining the delay. If the Appellate Court is satisfied with the explanations offered, the court is entitled to proceed to consider admission of the appeal.”
Article 243ZE | Kerala High Court Directs State To Constitute Metropolitan Planning Committee For Kochi Without Further Delay
Case Title: Adv. Richard Rajesh Kumar V State of Kerala
Citation: 2023 LiveLaw (Ker) 153
The Kerala High Court recently directed the State Government to complete the process of constituting the Metropolitan Planning Committee (MPC) for Kochi as mandated under Article 243ZE of the Constitution without further delay.
A division bench comprising Chief Justice S Manikumar and Justice Murali Purushothaman while considering a Public Interest Litigation (PIL) filed by natives of Kochi City, recorded the submission of the Additional Chief Secretary that the setting up of the Metropolitan Planning Committee was already in motion. The court also directed the State to take immediate steps to form the Kochi Metropolitan Development Authority, to ensure proper urban planning for the Kochi Metropolitan area:
“Having given due consideration to the material on record, in particular, the averments that steps have been taken to constitute a Metropolitan Planning Committee for the Metropolitan area of Kochi, as mandated under Article 243ZE, taking note of the length of time, i.e. nearly 2 decades, we direct the Chief Secretary, Secretariat, Thiruvananthapuram, the Additional Chief Secretary to the Government, Local Self Government Department, Thiruvananthapuram, and the Principal Director, Local Self Government Department, respondents 1, 3 and 4 respectively, to finalize the preparation of the process already undertaken and as explained in the foregoing paragraphs of the counter affidavit filed by the 3rd respondent, and constitute the Metropolitan Planning Committee for Kochi, as mandated under Article 243 ZE, and also to take immediate steps for the formation of Kochi Metropolitan Development Authority, for the purpose of implementing, coordinating and supervising the orderly development of Kochi Metropolitan area, within four months from the date of receipt of a copy of this judgment.”
No Criminal Action Merely On Allegation Of Wrong Order Passed By Public Servant: Kerala HC Quashes Corruption Case Against Deputy Collector, Others
Case Title: P.T. Jose & Ors. v. State of Kerala & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 154
The Kerala High Court has made it clear that criminal proceeding cannot be initiated against a public servant merely on the ground that a wrong or incorrect order was passed by him/her.
Stating thus, it quashed the FIR and proceedings initiated against Taluk Land Board Chairman, Deputy Collector (LR) and Tahsildar of Thrissur, other Board members under the Prevention of Corruption Act.
Justice Kauser Edappagath found the prosecution case unsustainable, no allegation of any illegal gratification was made. It observed, "If a public servant acting as a quasi-judicial authority under a statute passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order."
Kerala High Court Dismisses Public Service Commission's Plea Against KAT Order Permitting Transgender Person To Apply
Case Title: Kerala Public Service Commission V. Arjun Geetha & Others
Citation: 2023 LiveLaw (Ker) 155
The Kerala High Court recently dismissed the plea of the Kerala Public Service Commission (KPSC) challenging the interim order of the Kerala Administrative Tribunal that had permitted a transman by the name of Arjun Geetha, to apply for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion.
A division bench comprising Justice S V Bhatti and Justice Basant Balaji considering the plea of the Public Service Commission stated, “we are compelled to observe that the State Government/2nd respondent examine protection granted to the transgender persons by the Act, and the needful is done without subjecting them to avoidable litigation”.
Doctrine Of Pleasure Subject To Rule Of Law: Kerala High Court Quashes Governor's Order Removing 15 Senate Members From Kerala University
Case Title: Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors
Citation: 2023 LiveLaw (Ker) 156
The Kerala High Court on Friday quashed the order of Governor Arif Mohammed Khan, Chancellor of the University of Kerala, withdrawing the nomination of 15 members of the University Senate.
A single bench of Justice Sathish Ninan held that the order of the Chancellor withdrawing the nominations of the members invoking the doctrine of pleasure was unsustainable in law and arbitrary:
“it is evident that the order is not based on any reason, but, was rather founded on prejudice. It was an unreasoned act, without regard to the facts and circumstances”, the court observed.
Deputationist Has No Indefeasible Right To Continue In Borrowing Department, Repatriation Permissible If Work Not Satisfactory: Kerala High Court
Case Title: Ajin K.A. & Ors. v. The Joint Deputy Director & Ors.
Citation: 2023 LiveLaw (Ker) 157
The Kerala High Court on Wednesday dismissed the petition filed by Civil Police Officers who had been deputed to the Bureau of Immigration, seeking to continue on deputation till the expiry of their period.
Reiterating that deputationists do not have a right to claim that they should be permitted to complete the entire tenure in the borrowing department, the Single Judge Bench of Justice N. Nagaresh, went on to state that the concept of repatriation was also inherent in deputation as long as the deputationist has not been permanently absorbed in the borrowing Department.
"A deputationist does not have indefeasible right to continue in the borrowing Department. Repatriation can be resorted to on the grounds of unsuitability or unsatisfactory work. As long as the repatriation of the petitioners does not amount to reversion or imposition of penalty and as long as the decision is not vitiated by bias, the petitioners cannot have any legal grievance in the matter," the Court observed.
Other Significant Developments
Plea Filed In Kerala High Court Against Water Authority Alleging Trespass, Erection Of Hoarding On Private Property
Case Title: Johny George v. The District Collector, Ernakulam & Ors.
The Kerala High Court has sought response of the local authority on the plea of a Kochi resident accusing the Water Authority of trespassing on his private property and putting up hoardings thereon.
Justice Shaji P. Chaly directed the Tahsildar of Kanayannur Taluk in Ernakulam to file the report within three weeks.
The 53 years old petitioner claims to be the owner in possession of 8.1 Ares of property in Poonithura Village, having absolute right and ownership over the land. It is alleged that the Executive Engineer of the Kerala Water Authority (6th respondent) placed a notice board on his land stating that the it belonged to the Authority.
In A Democracy, Media Personnel Can't Be Jailed For Reporting: Kerala Court Grants Anticipatory Bail To Asianet Journalists
Case Title: Sindu Suryakumar & Ors. v. State of Kerala
A local Court at Kozhikode on Saturday granted pre-arrest bail to the Executive Editor and other employees of Asianet News in connection with the allegations of airing a 'staged interview' of a minor girl who was made to say that she was a victim of drug abuse and sexual exploitation.
Finding that there were no serious allegations against the petitioners herein, the Special Judge Priya K., observed, "They are the officials of a news channel and they are apprehending that they will be put in jail, for broadcasting a news item. In a democratic country like lndia, which gives liberty to the fourth estate which are press and media, media personnel cannot be put in jail alleging criminal offences. If at all any offence is committed by them, it can only be decided after a fair trial".
Padma Lakshmi Becomes Kerala’s First Transgender Lawyer
Padma Lakshmi became the first transgender woman to be enrolled as an advocate with the Bar Council of Kerala on Sunday.
She was one among over 1500 law graduates who were admitted on the rolls of the Kerala Bar Council as advocates, in the enrollment ceremony held on March 19.
Senior Advocate & Former Advocate General Of Kerala K.P. Dandapani Passes Away
Senior Advocate and former Advocate General of Kerala K.P. Dandapani passed away on Tuesday.
He served as the Advocate General of Kerala from 2011 to 2016, during the tenure of the UDF Government.
Plea In Kerala High Court Challenges Delay By Lok Ayukta In Passing Verdict On Matter Reserved For Orders One Year Ago
Case Title: R.S. Sasikumar v. The Kerala Lok Ayukta
A plea has been filed in the Kerala High Court challenging the "unexplained" delay by the Lok Ayukta in passing verdict in a matter which was heard and reserved for orders on March 18, 2022.
The petitioner, R.S. Sasikumar, had approached the Lok Ayukta under Section 9(1) of the Kerala Lok Ayukta Act, challenging the Cabinet decision taken on July 27, 2017, to give financial aid to the families of the deceased political leader Uzhavoor Vijayan and a deceased police officer, and also to write off the debts of the deceased political leader KK Ramachandran, and to give the son of the deceased leader a government job. After deciding the issue of maintainability in favour of the complainant, members of the Lok Ayukta and Upa Lok Ayukta had demitted their office and after a gap, appointments had been made to fill up the vacancies. After elaborate hearing, covering all the points, the case was reserved for orders on March 18, 2022.
The petitioner pointed out in his plea filed through Advocate Nisha George that one year has elapsed since the conclusion of the hearing. The petitioner submitted that the delay in passing the order had resulted in loss of faith in the machinery of Lok Ayukta as would be evident from the substantial reduction of cases before the entity over the years.
'Brahmapuram Fire Indicator Of Lurking Disasters': Kerala High Court To Monitor Implementation Of Solid Waste Management Rules
Case Title: Suo Motu v. State of Kerala
The Kerala High Court on Tuesday declared that it would be monitoring the implementation of the Solid Waste Management and Handling Rules, 2016 in the state. The court was hearing the suo motu proceedings initiated by it in the wake of the fire at the Brahmapuram Solid Waste Management Plant.
The division bench of Justice S.V. Bhatti and Justice Basant Balaji ordered that the first phase of the implementation of the Rules in the State shall consist of collection, segregation, handling and handing over solid waste generated as per the Rules.
Brahmapuram Fire | State Or Cochin Corporation Can File Separate Application Against NGT Order, Will Consider Objectively: Kerala High Court
Case Title: Suo Motu v. State of Kerala
The Kerala High Court on Tuesday observed that if the State government or the Kochi Municipal Corporation was aggrieved by the imposition of Rs. 100 crore on the Corporation by the National Green Tribunal, they could approach the Court by way of an application against the same.
Assuaging the concerns of the Advocate General, who made mention of a particular paragraph in the NGT order that he said runs counter to the directions of the bench, the Division Bench of Justice S.V. Bhatti and Justice Basant Balaji said, "They [the State Government or Kochi Corporation] can independently come by way of an application; whichever way we will have to objectively consider it, we will consider".
EPF Pension | Kerala High Court Seeks Response Of PF Authorities On Plea Against Limiting Higher Pension For Not Exercising 'Fresh Joint Option'
Case Title: Vikraman Nair S. & Ors. v. Union of India & Ors.
The Kerala High Court on Wednesday sought the response of the Central Government and the Provident Fund authorities in the plea challenging the initiation of steps by the PF Commissioner to curtail/limit/stop the higher pension that is being received by the retired employees of KELTRON on the ground that they had not exercised a fresh joint option.
Justice Raja Vijayaraghavan V. posted the matter for further consideration on March 27, 2023.
Reversal Of Burden Of Proof Under PMLA Seems To Be Very Dangerous: Kerala High Court Says During Bail Hearing
Case Title: M. Sivasankar v. Union of India & Anr.
The Kerala High Court on Thursday heard the arguments in the bail application filed by M Sivasankar, former Principal Secretary to the Chief Minister, in the money laundering case in relation to LIFE Mission bribe case.
Senior Advocate Jaideep Gupta, appearing for Sivasankar, submitted that predicate offences under Prevention of Money Laundering Act are usually investigated by State government, while money laundering is investigated by the Enforcement Directorate (ED). "That is why it has led to a serious controversy since in certain cases it is felt that it [ED] is being used as a weapon by the Central Government to attack certain persons in certain States," the Senior Counsel said. However, the senior lawyer quickly went on to add that he shall not be getting into that line of argument at present.
During the hearing today, Senior Advocate Gupta also pointed took the Court through the Apex Court decision in Vijay Madanlal Choudhary v. Union of India (2022), in which the Court had upheld the reverse burden of proof under Section 24 of the Act and said that it has "reasonable nexus" with the objects of the Act. Justice Badharudeen at this juncture, asked the Senior Counsel whether a review had been filed in the said judgment, which would be considered by a larger Bench, to which the senior counsel answered affirmatively. "The reversal of burden of proof seems to be very very dangerous," the Court remarked.
Kerala High Court Directs Forest Department To Refrain From Capturing Wild Tusker 'Arikomban' Till March 29
Case Title: In Re Bruno v. Union of India & Ors.
The Kerala High Court in a late night sitting on Thursday directed the Forest and Wildlife Department to refrain from capturing wild tusker 'Arikomban' that had allegedly been foraging in the Chinnakana area, and causing damage to the property in the human settlement areas.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. however, permitted the department to continue tracking its movements around human settlements, with the idea of containing it and preventing it from damaging the properties of the human settlers in the area. The Court added that the same could be done by the Forest Department using their personnel and machinery, and also deploying additional forces of the State Government, if the need arises.