Kerala High Court Annual Digest 2023: Criminal Law
Rubayya Tasneem
12 Jan 2024 4:02 AM GMT
Can't Test Veracity Of Material When Cognizable Offence Disclosed: Kerala High Court Dismisses Cop's Plea For Quashing Of Corruption CaseCase Title: T. A. Abdul Sathar v. The State of Kerala and Ors.Citation: 2023 LiveLaw(Ker) 3The Kerala High Court observed that a finding on the veracity of the material in a case where the allegations levelled by the prosecution disclose a cognizable offence,...
Case Title: T. A. Abdul Sathar v. The State of Kerala and Ors.
Citation: 2023 LiveLaw(Ker) 3
The Kerala High Court observed that a finding on the veracity of the material in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 CrPC to quash a criminal proceeding.
Justice K. Babu observed that "it is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C."
Human Sacrifice Case | Kerala High Court Dismisses Laila Bhagawal Singh's Bail Plea
Case Title: Laila Bhagaval Singh v. State of Kerala
Citation: 2023 LiveLaw(Ker) 5
The Kerala High Court dismissed the bail application moved by Laila Bhagawal Singh, one of the accused in the Human Sacrifice Case.
Justice Bechu Kurian Thomas observed that,"the active involvement of the petitioner in the crime and in another crime is asserted by the prosecution and the materials collected, prima facie reveal her involvement in the present crime...Having regard to the circumstances of the case and also taking note of the prima facie involvement of the petitioner in the crime, I am of the view that this is not a fit case where the petitioner can be released on bail."
Case Title: Dimple Lamba @ Dolly v. State of Kerala
Citation: 2023 LiveLaw (Ker) 15
The Kerala High Court granted bail to Dimple Lamba alias Dolly, who allegedly facilitated the gang rape of a 19 year old model in a moving car in Ernakulam.
Justice Bechu Kurian Thomas passed the above order.
"The victim had specifically stated, at the initial stage itself, that the petitioner had an active role in the crime committed. The sequence of events as pointed out by the learned Public Prosecutor also indicates prima facie, the possibility of an active role played by the petitioner. However, taking note of her young age, and the period of detention already undergone including the stage of investigation, I am of the view that no further purpose would be served by continuing the petitioner in detention. Moreover she is a woman falling within the beneficial provision of the first Proviso to Section 437 of Cr.P.C.", it was observed.
'Consensual Relationship, Promise To Marry Was Not False': Kerala High Court Quashes Rape Case
Case Title: Emmanvel Peter v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 31
The Kerala High Court quashed rape case against a 31-year-old man, observing that he and the complainant were in a consensual relationship and his promise to marry her was not with an intention to deceive her.
Justice Kauser Edappagath reiterated that in an allegation of rape on false promise of marriage, the courts have to carefully examine whether the accused actually wanted to marry the victim or had malafide motives and had made a false promise to this effect.
The Court took note of the Apex Court decisions in Deepak Gulati v. State of Haryana (2013) and Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (2019) and said it has been observed that if an accused had not made the promise with the sole intention to seduce the victim to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or clandestine motives, it would be a clear case of rape.
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
Citation: 2023 LiveLaw(Ker) 38
The Kerala High Court allowed anticipatory bail applications of former Police and Intelligence Bureau officers, including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews, in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case.
A bench of Justice K. Babu passed the order. The Court directed that the accused must appear before the CBI for interrogation on January 27 between 10 AM and 11 AM. In the event of their arrest, they shall be released on bail on executing bonds for Rs 1 lakhs each with two solvent sureties each for the like sum. They cannot leave India without the permission of jurisdictional court.
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
Citation: 2023 LiveLaw(Ker) 38
The Kerala High Court, while allowing the anticipatory bail applications of former Police and Intelligence Bureau officers-including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews- in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case, observed that prosecution has failed to prima facie establish any element of conspiracy to hold that a foreign power had a hand in persuading the petitioners in the registration of the two crimes against Narayanan.
Justice K. Babu, after perusing the Case Diary and DK Jain Committee Report, observed that he was unable to find any credible material to prima facie find any elements of conspiracy as contended by the Additional Solicitor General.
"I am of the view that the prosecution has so far not prima facie established any element of conspiracy as projected by the learned Additional Solicitor General...have carefully examined the Case Diary and the Justice D.K.Jain Committee Report. I am unable to find any credible material to prima facie find any elements of such conspiracy. There is absolutely no indication or credible material to prima facie hold that a foreign power had a hand in persuading the petitioners/accused in the registration of the two crimes referred to above."
Case Title: Jeby James v. State of Kerala
Citation: 2023 LiveLaw (Ker) 43
The Kerala High Court reiterated that indulging in similar or other criminal activities would be a reason for cancellation of the bail, particularly, when there is such a condition imposed in the initial bail order.
The Single Judge Bench of Justice A. Badharudeen, while dismissing a petition seeking the bail cancellation order passed by the court below to be set aside, observed,
"Since the law is settled that indulging in similar or other criminal activities is a reason for cancellation of the bail, particularly, when a condition imposed in the initial bail order is to that effect, involvement of the accused in a similar offence by itself is a reason to cancel the bail granted, cancellation of bail on the said finding is to be justified".
Kerala High Court Suspends Conviction Of Lakshadweep MP Mohammed Faizal In Attempt To Murder Case
Case Title: Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep
Citation: 2023 LiveLaw(Ker) 42
The Kerala High Court suspended the conviction and sentence of Lakshadweep MP Mohammed Faizal and three others in a case of attempt to murder.
Lakshadweep MP Mohammed Faizal had moved an appeal challenging the decision of the Court of Session, Kavaratti to convict and sentence him and three others to 10 years in jail in a case of attempt to murder.
Case Title: Gireesh Kumar N v. Rajani K V and Anr.
Citation: 2023 LiveLaw (Ker) 46
The Kerala High Court reiterated that an unmarried daughter who attained majority cannot claim maintenance from her father under Section 125(1) CrPC, merely on the ground that she does not have means for her sustenance.
The Court observed that an unmarried daughter unable to maintain herself by reason of any physical, mental abnormality or injury is entitled to claiming maintenance under Section 125(1) CrPC, however, pleadings and evidence in this regard are mandatory.
Case Title: xxx v. yyy
Citation: 2023 LiveLaw (Ker) 60
The Kerala High Court said the law is well settled that an agreement by which a wife waives her right of maintenance under Section 125 of CrPC is an agreement against public policy and the same is ab initio void and not enforceable.
"Therefore, the claim for allowance of maintenance by the wife cannot be disputed or denied on the basis of a void agreement and the wife is entitled to get maintenance ignoring the said void agreement," said Justice A. Badharudeen.
Cause Title: Dr. Balachandran v. State of Kerala and other connected matters
Citation : 2023 LiveLaw (Ker) 61
The Kerala High court has observed that a mere deviation from normal professional practice or an accident or untoward incident is not enough to prove medical negligence. Gross and culpable negligence beyond a reasonable doubt needs to be established for a medical professional to be convicted for criminal negligence, said the court.
A single bench of the court was hearing criminal appeals by three doctors and three nurses convicted by a lower court under sections 304A and 201 read with Section 34 of India Penal Code, 1860 for medical negligence. They were sentenced to simple imprisonment for a year for the offence under section 304A r/w 34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC.
Justice Kauser Edappagath while acquitting the accused persons noted that the action of the medical professional should be the proximate or direct cause of death of the patient to establish a case of medical negligence and such evidence is lacking in the case. According to the court, nothing was brought on record to show gross and culpable negligence on part of the medical professionals.
“There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action.”
Case Title: Sudheesh Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 63
The Kerala High Court refused to quash an FIR against a man accused of attempt to murder under Section 307 of the Indian Penal Code, 1860 despite the dispute being settled between the accused and the de facto complainant.
Justice A. Badharudeen was hearing two petitions filed by a man accused of offences under Sections 324 and 307 of the IPC and under Sections 3(1) (s), 3(2) (va) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 2015. The first petition was for quashing the FIR filed against him and the second petition was to quash the order of the Special Court that refused to release the car involved in the above crime.
The court observed that if on prima facie analysis by the court the chances of conviction under Section 307 are strong, it can refuse to quash the FIR despite settlement between parties. However, if the chances of conviction are low, the court may permit the quashing of the FIR as it could result in harmony between the parties.
Case title: Shabna Abdulla v. Union of India & Others
Citation: 2023 LiveLaw (Ker) 66
The Kerala High Court held that a detention order can be invalidated on the ground that documents were not supplied to the detenu only if he can prove that prejudice was caused to him due to the non-supply of such documents. It is the obligation of the detenu to explain why such documents are relevant for issuing a detention order, the court observed.
A division bench of Justice Anil K Narendran and Justice P G Ajithkumar was considering a plea seeking a writ of habeas corpus alleging illegal detention of the petitioner. Contraband gold weighing 14763.300 grams valued at Rs.7,16,16,768/- concealed in the compressors of refrigerators of the detenu was found and seized. Following which a detention order was issued against the petitioner by the detaining authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). This detention order was also challenged by the petitioner in the writ petition.
The court held that under Section 3(3) of the COFEPOSA Act, it is the right of the detenu to get documents relied on by the detaining authority in issuance of the detaining order, if such documents were necessary to reach subjective satisfaction. However, if the documents/materials demanded by the detenu only have a casual connection with the cause for the detention, it is for the detenu to explain the relevance of the documents and what prejudice will be caused to him due to non-supply of the material.
Principles Of Res Judicata Would Apply To Criminal Proceedings, Reiterates Kerala High Court
Cause Title: Mrs. Sasikala Menon V. State of Kerala and Another
Citation: 2023 LiveLaw (Ker) 68
The Kerala High Court held that principles of res judicata and constructive res judicata would squarely apply not just to civil proceedings but to criminal proceedings as well.
Justice A. Badharudeen was hearing a petition filed under Section 482 of the Code of Criminal Procedure, 1973 to quash a complaint pending before Magistrate Court, where she was alleged to have committed offences under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of two cheques worth Rs.15,00,000/- and Rs.11,00,000/-.
The Respondent had previously been booked under the Narcotic Drugs and Psychotropic Substances Act, 1985 and had applied for bail, pleading the ground of mental instability. The petitioner argued that since a mentally ill person is not capable of entering into a contract, there could be no transaction between the petitioner and complainant.
However, the court held that since the current petition was filed on the ground of the mental insanity of the complainant and since the same ground had already been contended before the court in an earlier petition and had been dismissed, the current petition would fail too as it would be hit by the principle of res judicata.
Case Title: Vijay Kirgandur & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 73
The Kerala High Court granted anticipatory bail to Vijay Kirgandur and Rishab Shetty, the Producer and Director respectively of the Kannada superhit movie 'Kantara' in a case under the Copyright Act 1956 over plagiarism allegations relating to "Varaharoopam" song.
Justice A. Badharudeen, while allowing the anticipatory bail plea filed by the petitioners imposed the specific condition that,
"the petitioners shall not exhibit the film `KANTARA' along with the music `VARAHAROOPAM' in the film till an interim order or final order after addressing infringement of copyright in this matter will be passed by a competent civil court. It is made specifically clear that the petitioners also can move before the competent civil court at their instance at the earliest in this regard to have a meritorious decision as regards to the allegation of infringement of copyright, as per law".
Case Title: Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency
Citation: 2023 LiveLaw (Ker) 76
The Kerala High Court has dismissed the applications seeking suspension of sentence of three persons, who were last year convicted for attempting to travel to Syria for allegedly joining the ISIS. The applicants had argued they have undergone more than five years in custody, and were even never released on bail during trial.
The Division Bench of Justice Alexander Thomas and Justice Sophy Thomas noted that the Apex Court decision in Satender Kumar Antil vs. Central Bureau of Investigation (2022) that the delay in taking up the main appeal coupled with the benefit conferred under Section 436A of Cr.P.C among other factors ought to be considered for releasing the applicants on bail, was only meant to be a guideline, and that each case pertaining to a bail application had to be decided on its own merits.
"Here is a case where the applicants/appellants acted against the interest of the nation as they wanted to wage war against Syria, an Asiatic power at peace with the Government of India. So, even if the applicants/appellants have undergone major portion of the sentence imposed on them, it is not safe to release them on bail, as we do not know whether they still entertain the idea of performing Hijra to Syria for indulging in violent jihad," the court observed.
Case Title: Siji V State of Kerala
Citation: 2023 LiveLaw (Ker) 77
The Kerala High Court held that a person accused of offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot directly approach the High Court seeking bail.
A single bench of Justice A. Badharudeen, was hearing the anticipatory bail application filed by the petitioner who was accused of offences under Section 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act. The petitioner had on an earlier occasion approached the Special Court under the SC/ST (POA) Act, for grant of anticipatory bail. However, the same was refused by the special court. The petitioner later approached the High Court by filing an appeal under Section 14A of the SC/ST Act, which was also dismissed.
Case Title: Femeena E. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 79
The Kerala High Court set aside a Magistrate court's order under Section 156(3) CrPC, insofar as it did not order Police investigation in an alleged case of theft.
Single Judge Bench of Justice K. Babu observed that in a case where the allegations warrant a recovery under Section 27 of the Evidence Act, it would be necessary to entrust that task to the Police.
"If it is alleged that the documents or other material objects are in the physical possession of the accused or other persons then, in the interest of justice, the Police would be given the task of investigating and recovering them by resorting to the power under the Cr.P.C. In such cases, without ordering an investigation as provided under Section 156(3), the complainant cannot be in a position to retrieve the relevant evidence regarding his allegations. This may lead to putting the complainant handicapped in that he would be failing to prove his case without being able to bring the relevant materials having probative value on record."
Case Title: Manu Dev V XXX and Another
Citation: 2023 LiveLaw (Ker) 82
The Kerala High held that principles of fair trial demands that no party be denied the opportunity to correct its errors and that courts must be magnanimous in allowing such mistakes to be corrected.
A single bench of Justice K Babu observed that an error or omission on the part of a party to trial is not to be confused with lacuna. While a lacuna points to an intrinsic weakness in the case of a party, an error might be a mere oversight or omission. The court cannot deny a fair trial by refusing any party an opportunity to correct these errors.
“The lacuna in a case need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses. Such an error or an omission cannot be understood as “lacuna”, which a Court is not expected to allow the parties to fill up. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The Court should be magnanimous in allowing such mistakes to be corrected. The function of a criminal Court is the administration of criminal justice and not to concentrate on omissions and errors.”
Case Title: Anilkumar & Anr. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 91
The Kerala High Court set aside the order of a Trial Court that rejected the prayer for summoning a witness cited by the accused, where there was nothing to indicate that the accused had attempted to defeat the ends of justice through seeking the examination of such proposed witness.
"Unless it is established that the application to summon a witness is made for vexation or delay or for defeating the ends of justice, the trial Court has no discretion in the issuance of process to compel the attendance of any witness cited by the accused. The trial Court is bound to issue process to the witness proposed by the accused in a case where there is nothing to show that the attempt of the accused is to defeat the ends of justice", the Single Judge Bench of Justice K.Babu observed while setting aside the impugned order of the Judicial First Class Magistrate Court, Kalamassery.
Case Title: C.V. Balan & Ors. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 94
The Kerala High Court reiterated that the requirement of sanction under section 19 of the Prevention of Corruption Act is a prerequisite for presenting private complaint against a public servant alleging the commission of an offence specified in sections 7, 11, 13 and 15 of the Act, for investigation.
The Single Judge Bench of Justice Kauser Edappagath, held that in the absence of such sanction, no such complaint could be forwarded for the conduct of an investigation under Section 156(3) of the Cr.P.C.
Case Title: Sunil N.S. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 96
The Kerala High Court allowed Sunil N.S., also known as 'Pulsar Suni', who is the main accused in the 2017 Actor Assault Case, to remain physically present before the trial court to witness the proceedings.
Justice K. Babu allowed the petition and observed that the same ensures fair trial.
"Fair trial is the main object of criminal procedure, and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused, the victim, and of society. Fundamentally, a fair trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced," the court observed.
Case Title: Thachanalil Shyju V State of Kerala
Citation: 2023 LiveLaw (Ker) 98
The Kerala High Court held that an additional document can be produced after prosecution evidence is complete if the omission of such document was a bonafide mistake and the document is purported to be vital.
A single bench of Justice Bechu Kurian Thomas was considering a challenge to an order of the Additional Sessions Court that permitted the prosecution to produce an FIR to show the motive of the accused, after the prosecution had completed its evidence. The accused who is being tried for offences under Section 302 and 307 of the Indian Penal Code, opposed the production of the additional document. The court however, observed that
“…there is no embargo on the production of additional documents during a trial if they are essential for arriving at a proper decision. If the requirements of justice command the production of such a document, the trial judge can permit such production, based on principles of fair play and good sense. No fetter can be placed on the right of the party to produce such a document.”
Case Title: Yasin Sunu V State of Kerala
Citation: 2023 LiveLaw (Ker) 102
The Kerala High Court held that a trial court is not bound to conduct a detailed enquiry into whether an accused is of unsound mind simply based on a submission made by the counsel for the accused.
A single bench of Justice K Babu observed,
“If there is something in the demeanour of the accused or in the facts of the case, which raise doubt in the mind of the Court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the Court to try the said fact before proceeding with the trial into the charge.”
Granting Anticipatory Bail In Cases Of Attacks Against Doctors Would Lead To 'Dangerous Situation'
Case Title: Jamshid P.V. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 104
The Kerala High Court refused to grant anticipatory bail to a person who had attacked a doctor who examined his wife, alleging that the Doctor had misbehaved towards her.
The Single Judge Bench of Justice A. Badharudeen was of the view that granting anticipatory bail in such a case would lead to a 'dangerous situation', whereby doctors, who are duty bound to treat patients as part of their oath, would not get protection and the the proper maintenance of health of the public at large would also be in peril.
Leniency Cannot Be Shown When Officers Of State Are Accused Of Heinous Crimes
Case Title: Pradeep and Others V State of Kerala and Others
Citation: 2023 LiveLaw (Ker) 107
The Kerala High Court while refusing bail to two army personnel held that when the accused is an officer of the State, "leniency is not the sanction of law, instead rigidity is the rule of law" .
A single bench of Justice A.Badharudeen was hearing an anticipatory bail application where initially the offences registered against the petitioners were bailable, but subsequently the non-bailable offence of Section 307 (Attempt to Murder) of the Indian Penal Code, was added.
Case Title: Vimal K. Mohanan & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 110
The Kerala High Court recently considered whether in cases where final report is filed within the statutory time limit of investigation, accused person's entitlement for bail under Section 167(2) CrPC would subsist, if the charge sheet is found defective, and returned for curing the defects after the statutory time limit is over.
Single Judge Bench of Justice V.G. Arun observed,
"when faced with the Public Prosecutor's application seeking extension, or that of the accused demanding statutory bail, the court's consideration should be whether the final report was filed after completing the investigation. If the final report is found to have been filed after completing the investigation in all respects, minor defects in the report, by itself, will not confer the accused with any right to be enlarged on default bail. On the other hand, if the final report is filed without completing the investigation, in order to stultify the mandate of Section 167(2) and later returned to the investigating officer for completing the investigation, that would definitely entitle the accused to demand that he be released on default bail, if the final report, after completing the investigation and curing the defects, is not re-submitted in court before the 180th day".
Case Title: Sabu @ Eetty Sabu v State of Kerala
Citation: 2023 LiveLaw (Ker) 111
The Kerala High Court held that the absence of a test identification parade, does not necessarily invalidate identification of an accused in court.
A single bench of Justice Bechu Kurian Thomas held that: “The object of a test identification parade is to test and ascertain the trustworthiness of the evidence regarding the identification of the accused. Test identification parade is only a rule of prudence. It is intended to be a measure of corroboration of the identification of the accused by the witnesses in court, especially when the accused are strangers. However, if the ocular evidence and the identification of the accused by the witnesses in court are impressive, nothing restricts the court from relying upon the said identification, as recognising the accused in court is the substantive evidence, while test identification parade is not an evidence of that character”
Case Title: Rajeev A R V State of Kerala and Others
Citation: 2023 LiveLaw (Ker) 114
The Kerala High Court denied pre-arrest bail to the President, Secretary and staff member of BSNL Engineers Co-operative Society who have been accused of misappropriating crores from the fixed deposits of the society.
The accused persons have been booked for misappropriating over 44 crores from the Society between 1st June 2019 and 16th June 2020. A single bench of Justice A. Badharudeen observed that while considering anticipatory bail applications for economic offences involving huge sums of money, extra care must be taken to ensure that granting such bail would not hamper the investigation.
“In this connection, it has to be observed that when persons apprehending arrest in non-bailable offences approach the Courts by resorting to Section 438 of Cr.P.C, the Courts having power to grant the relief of pre-arrest bail, not as a matter of right, but purely, as a matter of discretion, should evaluate the materials available prima facie to see the culpability of the accused and the consequence of granting pre-arrest bail. If grant of pre-arrest bail is akin to hampering the investigation where arrest and custodial interrogation are necessary, the Courts shall not exercise the discretion in favour of the persons who seek the discretionary relief. When misappropriation of huge amount of money is involved, the care must be more, in order to ensure that effective investigation shall not either be stalled or disturbed by granting pre-arrest bail".
Case Title: K.Sasi v. State of Kerala rep. by Chief Secretary to the Govt & Ors.
Citation: 2023 LiveLaw (Ker) 119
The Kerala High Court held that merely because there is a typographical error in showing the designation of the person accused in the sanction order to prosecute such person under Section 19(1)(b) of the Prevention of Corruption Act (P.C. Act), it cannot be said that the sanction order is bad.
Justice Kauser Edappagath passed the above order and observed,
"For the simple reason that there is a typographical error in showing the designation of the petitioner, it cannot be said that the sanction issued is bad. The question whether the sanctioning authority has applied his mind or not, is something which cannot be agitated in a writ petition".
Kerala High Court Refuses Bail To Pulsar Suni In 2017 Actor Assault Case
Case Title: Sunil N.S. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 120
The Kerala High Court dismissed the bail application of Sunil N.S., also known as 'Pulsar Suni', the main accused in the 2017 Actor Assault Case.
Justice P.V. Kunhikrishnan while dismissing the bail application, observed,
"The prosecution case is very serious. The prosecution case is that, the victim was taken in a car and she was sexually harassed brutally by the petitioner/accused and others turning a deaf ear to her begging to release her. A conspiracy is also alleged. Whether the victim is a cine artist or not is not at all a factor. The prosecution case is that a lady was brutally attacked. The truth has to come out after the trial. Simply because the petitioner/accused is in jail for six years, it cannot be a ground to release him in such a serious case. The prosecution and the Court are taking every possible effort to conclude the trial as expeditiously as possible. The Apex Court is also supervising the trial and is granting time to the Trial Court to complete the trial. The Trial Court now says that the sessions case itself can be disposed of within six months. I believe that in such a situation this Court need not entertain this bail application. Whether the prosecution succeed in this case or the defence succeed in this case is not a criteria in these types of cases. When there is serious allegation against an accused affecting the conscience of the society, this Court cannot allow bail application solely on the ground of personal liberty".
Witness Examination Through Virtual Mode Does Not Affect The Rights Of Accused
Case Title: Gopal C V Central Bureau of Investigation
Citation: 2023 LiveLaw (Ker) 121
The Kerala High Court held that the examination of a witness during trial may be conducted through video linkage mode as per the provisions of the Electronic Video Linkage Rules for Courts (Kerala), 2021 and that the same would not affect the rights of the accused.
A single bench of Justice A Badharudeen noted that under Rule 8(25) Electronic Video Linkage Rules for Courts (Kerala), 2021 witness examination via video conferencing is to be treated as compliance of the provisions of the Code of Criminal Procedure 1973, Code of Civil Procedure, 1908, Criminal Rules of Practice, Kerala and Civil Rules of Practice, Kerala. It is also applicable to any other law requiring personal appearance of parties in Subordinate Courts or Tribunals in relation to any enquiry, trial or any other proceedings, the court noted.
Case Title: XXXXXX V State of Kerala
Citation: 2023 LiveLaw (Ker) 124
The Kerala High Court held that while considering bail applications related to offences under the POCSO Act that involve allegations of child abuse by a parent, courts should approach the matter with great care, especially when there is litigation between parents over the custody of the child.
A single bench of Justice Ziyad Rahman while allowing a bail application filed by a father who was accused of sexually assaulting his 10 year old son cautioned that :
“In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone's personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India”
Kerala High Court Grants Bail To POCSO Accused, Doubts Fabrication Of Prosecution Case
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 128
The Kerala High Court granted bail to a person accused of offence under the Protection of Children from Sexual Offences Act (POCSO Act), on doubting the veracity of the prosecution version.
Justice Kauser Edappagath took note that the victim in the case had given a complaint to the police for the first time after more than five years after the alleged incident.
"There is absolutely no allegation of rape alleged to have been taken place in the year 2017. It appears that on the next day, a crime was registered against the victim on the complaint of the applicant for the offence punishable under Section 326 of Indian Penal Code as Crime No. 2148/2022".
Case Title: Adv. Antony Raju v. State of Kerala and Others
Citation: 2023 LiveLaw (Ker) 130
Citing technical reasons, the Kerala High Court quashed the trial court proceedings against Transport Minister of Kerala, Antony Raju in connection with the evidence tampering case against the Minister pending before Judicial First Class Magistrate Court, Nedumangad, in Thiruvananthapuram.
However, the single bench of Justice Ziyad Rahman clarified that this would not preclude the competent authority or the court concerned from taking up the matter and pursuing the prosecution in compliance with the procedure contemplated under Section 195(1)(b) of the Code of Criminal Procedure.
Case Title: George Kurian @ Pappan v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 133
The Kerala High Court recently held that the three factors laid down in Susanta Ghosh v. State of West Bengal (2012) by the Apex Court while considering grant of bail to an accused, namely, chances of tampering with the evidence; chances of interfering with the investigation; and chances of absconding, are not exhaustive.
The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same.
Case Title: Haris and Others V State of Kerala and Another
Citation: 2023 LiveLaw (Ker) 134
The Kerala High Court recently refused to defer the trial of 15 persons who are accused of murdering BJP leader Ranjith Sreenivasan on account of political rivalry. The accused are said to be the Socialist Democratic Party of India/Popular Front of India (SDPI/PFI) workers. The accused persons allegedly had gathered in an unlawful assembly and committed Sreenivasan's murder with deadly weapons like hatchets and hammers in December 2021.
The investigation officer last year submitted the final report against accused 1 to 15 who allegedly committed the murder. Accused Nos.16 to 35, the petitioners who approached the high court, allegedly participated in the larger conspiracy which led to the murder. However the investigation officer reserved the liberty to submit an additional chargesheet after completing the investigation against them.
The plea filed by Accused 16 to 35 challenging the “split-chargesheet” filed by the investigation officer was dismissed by a single bench of Justice K Babu.
Kerala High Court Grants Parole To 'Ripper Jayanandan' For Attending Daughter's Wedding
Case Title: Indira v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 142
The Kerala High Court granted parole for a period of fifteen days to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the wedding of his daughter. In the petition filed by the wife of the convict, their daughter, Advocate Keerthi Jayanandan had appeared as the counsel.
Justice Bechu Kurian Thomas, while allowing the petition, observed,
"... this Court cannot be oblivious to the glorious right to liberty enshrined in Article 21 of the Constitution of India. The liberty of every individual and the right to life guaranteed under the aforesaid constitutional provision has been interpreted to include the right to live with human dignity. Though a convict, petitioner's husband also enjoys the facets of right to life and liberty within the limits of law. Normally the opportunity to participate in the wedding of a daughter has to be treated as part of that liberty. When the statute permits the grant of emergency parole, there is no reason why such a facet of his liberty ought to be denied to him despite him being a convict".
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".
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.
Case Title: T Peethambaran V State of Kerala
Citation: 2023 LiveLaw (Ker) 152
The Kerala High Court 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.”
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."
Case Title: Nithinram R.S. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 160
The Kerala High Court remanded a bail application in a POCSO case for fresh consideration by the trial Court, while exercising its jurisdiction under Section 482 Cr.P.C.
The Single Judge Bench of Justice K. Babu directed the Trial Court to consider the entitlement of the petitioner for regular bail before March 30, 2023.
Case Title: Rajan V State of Kerala
Citation: 2023 LiveLaw (Ker) 161
The Kerala High Court recently quashed proceedings against a witness who had turned hostile in the 'Kalluvaathukkal liquor tragedy' case.
The court was of the view that since the main accused persons were convicted in the trial and the evidence of the hostile witness did not have any impact on the case, prosecuting the witness 21 years after giving evidence, would be an abuse of the process of the court.
A single bench of Justice Bechu Kurian Thomas observed that: “It is not any and every statement made by a witness that the court should initiate action for perjury. If such a course of action is adopted, there would be very little time for courts for any serious work other than directing prosecution for perjury. The gravity of the false statement, the circumstances under which such statement was made and the repercussion of such a statement, are matters which the court ought to bear in mind before initiating a prosecution for the offence of perjury. Resiling from an earlier sworn statement need not in every circumstance result in initiating action for giving false evidence. Individual discretion must be exercised based on the factors mentioned above.”
Case Title: Varghese Abraham & Ors. v. Shinu P. & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 165
The Kerala High Court refused to quash the complaint against the elected members of the governing committee of the Parish of St.Johns Salem Orthodox Church, Ayroor, for the alleged defamatory statement against other members of the Parish in the representation submitted to the Metropolitan Bishop.
Justice K. Babu observed that the facts of the present case do not fall within the ambit of those circumstances wherein it could exercise the power to quash the criminal proceeding that had been initiated. It observed that the petitioners had not taken reasonable care in including the alleged defamatory statements against the other Parish members in the representation before the Metropolitan Bishop.
Case Title: Suni @ Sunil V State of Kerala
Citation: 2023 LiveLaw (Ker) 169
The Kerala High Court held that the police is not competent to register an offence under Section 195A (threatening any person to give false evidence) of the Indian Penal Code and that only a court is competent to consider an offence in relation to false evidence.
A single bench of Justice A. Badharudeen observed that
“When the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195 A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed.”
Case Title: Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 174
The Kerala High Court held that any purposeful attempt made to create an impression that a convict is not a well-behaved person in turn to deny leave to him is illegal.
Justice Bechu Kurian Thomas, while allowing a petition seeking ordinary leave for a convict, observed that
“There has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal…an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself”.
Case Title: Anand Mahadevan V State Of Kerala
Citation: 2023 LiveLaw (Ker) 175
The Kerala High Court has reiterated that the police cannot arrest a person under Section 151 of the Code of Criminal Procedure (arrest to prevent the commission of cognizable offences), without the knowledge of the existence of a design to commit a cognizable offence and a belief that the commission of the offence can only be prevented by the arrest of the person.
A single bench of Justice Bechu Kurian Thomas observed that since extraordinary powers of arresting without a warrant has been granted to the police in case of knowledge of a design to commit a cognizable offence, strict interpretation of section 151 was important to avoid any misuse of such powers:
“The object of Section 151 of the Code is one of preventive justice and before invoking the said provision, it must be evident that there is imminent danger. Unless the arrest under Section 151 of the Code is based upon a bonafide belief of the existence of a design to commit a cognizable offence and without arresting the person, the threat of commission of offence cannot be averted, only then can the Police Officer be clothed with the power to arrest under Section 151 of Code. The corollary of the above is that, without the knowledge of a design and without an imminent threat to commit a cognizable offence, a Police Officer cannot arrest, that too without a warrant from the Magistrate in exercise of the power under Section 151 of the Code.”
Case Title: State of Kerala v. Sreeram Venkitaraman and Wafa Najim @ Wafa Firoz v. State of Kerala
Citation: 2023 LiveLaw (Ker) 188
The Kerala High Court set aside a Sessions Court order dropping culpable homicide charges against IAS Officer Sreeram Venkitaraman in the infamous road rage case.
The order was however upheld to the extent it discharged Venkittaraman under Sections 184 and 185 of the Motor Vehicles Act, that relates to dangerous driving and drunken driving, and Section 3(2) of the Prevention of Damage to Public Property.
Justice Bechu Kurian Thomas observed, "Driving vehicles after consuming alcohol can lead to temporary or partial impairment of cognitive faculties. This disability can lead to error in judgment relating to distance calculation, distinguishing objects, speed control and even other factors that are essential for safe driving. Blurred vision and reaction to sudden stimuli are also known consequences of alcohol consumption. Thus, when a motor vehicle is driven after consuming alcohol, road accidents become a predictable consequence. In such a scenario, attributing knowledge to the driver of the vehicle that death can be likely consequence of drunken driving is legally tenable".
Case Title: Chaithanya V Union of India
Citation: 2023 LiveLaw (Ker) 192
The Kerala High Court refused to set aside the order of a Special NIA court denying bail to two Andhra Pradesh natives for their alleged involvement in the terrorist organization CPI(Maoists).
The accused persons are alleged to have been involved in radicalizing youth and persuading them to join the terrorist organisation. The AP natives are said to have been recruiting members to Dalams, the armed wing of the CPI (Maoist), in Wayanad area. They have also been accused of providing them with training, with the aim of posing a threat to the unity, integrity, and sovereignty of India.
A Division Bench of Justice Alexander Thomas and Justice C S Sudha denied bail to the accused persons noting that the offences alleged against them are of a 'grave and serious' nature: “Since there are materials to show that A-5 & A-6 have been actively involved in the above terrorist organization and that too, located in various States, there is serious likelihood of both of them absconding or fleeing away from the long arm of the law, in case they are released on bail”.
Case Title: Anu Mathew V State of Kerala
Citation: 2023 LiveLaw (Ker) 198
The Kerala High Court recently held that it may not be appropriate to grant anticipatory bail in circumstances where the accused fled the country being fully aware of a non-bailable offence registered against him/her.
The court also observed that while considering a bail application filed by an accused who is abroad, courts must consider imposing the condition that the accused shall be available for interrogation by a Police Officer, as and when required and that the accused shall not leave India without the previous permission of the Court.
A division bench of Justice Alexander Thomas and Justice C S Sudha observed:
“if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad,” the court observed.
Case Title: Anu Mathew V State of Kerala
Citation: 2023 LiveLaw (Ker) 198
The Kerala High Court recently held that anticipatory bail application is maintainable even if the accused is in a foreign country at the time of filing the application.
In view of the reference made by a single bench of the Court, the division bench comprising of Justice Alexander Thomas and Justice C S Sudha was considering the question of whether a person who is outside India can file an application for anticipatory bail.
The reference was made by a single bench of Justice P.V Kunhikrishnan as it differed from the law laid down by the single bench of Justice Bechu Kurian Thomas in the case of Vijay Babu v. State of Kerala [2022 (4) KLT 24] where it was held that a person who is outside India can file an anticipatory bail application, as long as before the final hearing, the accused is in India. The single bench while making the reference had opined that when the Court in Shafi S.M. v. State of Kerala and Anther [2020 (4) KHC 510] had already held that an application under Section 438 Cr.P.C. cannot be filed by an accused sitting in a foreign country, then the single bench in Vijay Babu's case ought not to have decided the matter without referring the same to the Division Bench.
The division bench took the view that a pre-arrest bail can be entertained in a case where the accused is in a foreign country at the time of filing of the application under Sec.438 Cr.PC. The Court referred to the decisions in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565] and to Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. [(2020) 5 SCC 1] to observe that the Supreme Court has consistently stated that courts should be cautious about imposing unnecessary limitations on the scope of Section 438 as denial of bail amounts to deprivation of personal liberty.
Case Title: XXX & Ors. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 200
The Kerala High Court recently reiterated the view that the High Court, while exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se.
The Single Judge Bench of Justice K. Babu relied upon a catena of Apex Court decisions such as State of West Bengal v. Swapan Kumar Guha (1982), State of Kerala v. O.C. Kuttan (1999), M/S Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra & Ors. (2021), and Minakshi Bala v. Sudhir Kumar & Ors., to observe that, the High Court has no jurisdiction to examine the correctness or otherwise of the allegations raised in such documents.
Case Title: Nishad H. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 205
The Kerala High Court recently held that mere settlement of an attempt to murder case between the parties by itself could not be a ground for granting bail to an accused.
The Single Judge Bench of Justice A. Badharudeen observed that the grant of bail shall be subject to the merits of the matter, including the antecedents of the petitioner.
"Going by the available materials, the allegations are very serious and the same are supported by medical evidence and statements of the other witnesses. Merely because the injured persons submitted that they have settled the matter, that by itself is not a reason to grant bail to the accused in a crime involving offence punishable under Section 307 of IPC, since the other witnesses if depose at the time of evidence in support of the prosecution, conviction and sentence are possible," the Court observed.
Case Title: M/S De-Fab V Priya Varma
Citation: 2023 LiveLaw (Ker) 209
The Kerala High Court recently held that it is not obligatory for the court to conduct a joint trial under Section 220 of the CrPC as it is the discretion of the court to allow a joint trial or not.
A single bench of Justice V G Arun was considering a matter pertaining to certain disputes that arose between partners of a firm. The Court had referred the parties to mediation and the matter was settled on the term that one of the partners (2nd Petitioner) would pay Rs. 2 Crores to the Respondent as full and final settlement in 32 instalments.
Case Title: Muhammed Shiraz @Shiraz v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 214
The Kerala High Court held that the registration of a First Information Report (FIR) under Section 57 of the Kerala Police Act (hereinafter, 'K.P. Act') is only for the purposes of locating a missing person, and the same cannot be treated as an FIR under Section 154 Cr.P.C.
Explaining the intent of Section 57 of the K.P. Act, the Single Judge Bench of Justice K. Babu observed that,
"when a Station House Officer receives information reasonably sufficient to suspect that any person is missing and there are circumstances to believe that such person is in danger or not under the lawful protection of guardianship or such person may be subjected to danger or absconding to prevent someone from implementing a lawful right declared by any court, the information shall be entered in a register in a manner similar to the procedure prescribed for a cognizable offence. The Station House Officer shall then take immediate action to locate the missing person".
Case Title: Sanjeev S. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 220
The Kerala High Court recently explained the scope and extent of Section 153 of the Indian Penal Code, 1860 which refers to the offence done malignantly or wantonly to give provocation to the extent of causing a riot.
The Single Judge Bench of Justice Bechu Kurian Thomas elucidated that the presence of the two expressions, 'malignantly' or 'wantonly' in the provision indicates that there ought to be a higher degree of malice or evil that is projected or evident in the act alleged.
Case Title: Petro David v. State of Kerala
Citation: 2023 LiveLaw (Ker) 225
The Kerala High Court recently set aside the order of a Magistrate Court by which the latter vacated its own order allowing cross-examination of certain witnesses, merely on the ground that the counsel for the accused could not appear on the day the witnesses were examined.
Observing that the impugned order issued by JFCM Court at North Paravur was unjustifiable, the Single Judge Bench of Justice C.S. Dias observed:
"Having considered the facts and circumstances of the case, and the materials on record, I am of the definite view that the court below after applying its mind, exercising its discretion and by holding that the injured and the occurrence witnesses have to be examined on the same day, it was unreasonable and unjustifiable on the part of the court below to have vacated the said order for the mere reason that the counsel for the petitioner was absent on the day when the witnesses were examined. This is an addition to the fact the court below had imposed a cost of Rs.4,000/- on the petitioner to meet the expenses of CWs 1 to 4, who were present before the court below and were put to inconvenience".
Case Title: Muhammed Abdulla Sha V State of Kerala
Citation: 2023 LiveLaw (Ker) 228
The Kerala High Court recently held that when a court transfers a case to another court, the transferor court must issue notice to the accused and sureties without which bail bonds cannot be cancelled.
A single bench of Justice Bechu Kurian Thomas observed,
“When a case is transferred, that too after suo motu advancing it from the next posting date, it is imperative that the transferor court issues notice or intimates the transfer to the accused and the sureties. In the absence of such a notice to the accused and sureties, the bail bonds cannot be cancelled. If after transfer the accused fails to turn up, proceedings to forfeit the bond of the sureties ought to be resorted to only if notice had been served on the surety. If the transferor court had not issued notice to sureties, then, atleast the transferee court must issue notice to the sureties before forfeiting the bond.”
Case Title: Unni Mukundan V State of Kerala
Citation: 2023 LiveLaw (Ker) 230
The Kerala High Court dismissed an application filed by Malayalam film actor Unni Mukundan challenging an order of the Sessions Court that confirmed the order of the trial court refusing to discharge the actor in a case where he is facing prosecution for offences under Sections 354 (Assault of criminal force to woman with intent to outrage her modesty) and Section 354-B (Assault or use of criminal force to woman with intent to disrobe) of the Indian Penal Code,1860.
The case relates to an ongoing trial court proceeding against the actor, which was initiated based on a complaint filed by a woman in 2017, accusing the actor of sexual harassment. The complainant alleged that the actor forcefully kissed her and attempted to rape her when she visited the actor at his residence in Kochi to discuss a movie project.
A single bench of Justice K Babu dismissed the actor's application holding that “the materials placed by the prosecution prima facie disclosed the existence of all the ingredients constituting the alleged offences.”
Case Title: Niyasali v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 232
The Kerala High Court declared that it is the duty of every Police Officer to contact the office of the Prosecutor before arresting an accused, when a bail application is pending before a court of law, to verify whether there is any interim order passed by the Court.
Justice P.V. Kunhikrishnan observed,
"Without verifying the same from the office of the prosecutor, it is not proper on the part of the Police Officer to arrest an accused when an interim order is in force."
Case Title: Joseph Thomas V State of Kerala
Citation: 2023 LiveLaw (Ker) 244
The Kerala High Court recently held that a Magistrate cannot refuse a person accused of an offence, permission to surrender to its jurisdiction under Sections 436 and 437 of Code of Criminal Procedure, 1973.
A single bench of Justice K Babu observed:
“When the Code permits a person accused of an offence to surrender before the Court having jurisdiction over the subject matter, it cannot refuse permission. When an accused appears before the Court and applies for surrender, his prayer shall be accepted.”
Case Title: Rasiya P.M. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 247
The Kerala High Court held that a detention order issued against a person can be quashed on the basis of unexplained delay in issuing the order of detention after the last prejudicial activity of the detenu, as per the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter, 'KAAPA').
The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha observed,
"It is trite that there has to be a live link between the prejudicial activity and the order of detention and if the said link is snapped, the order of detention would be bad. In other words, an unexplained delay in issuing the order of detention after the last prejudicial activity would certainly vitiate the order of detention, for the delay would snap the live link between the prejudicial activity and the detention order".
However, the Court observed that if there is a satisfactory explanation for the delay, the same would not affect the order, and added that the question of satisfactory explanation of delay would have to be ascertained on the basis of the facts of each case. The Bench further added that the Statute as such contemplates detention only for a period of six months in order to achieve its purpose.
Kerala High Court Elucidates Mode In Which Accused Must Request Court For Adducing Defence Evidence
Case Title: Muhammed Rafi Kunnulpurayil v. Sub Inspector of Police & Anr.
Citation: 2023 LiveLaw (Ker) 250
The Kerala High Court recently addressed the question as to the mode in which an accused ought to request the Court for adducing the defence evidence.
Justice Bechu Kurian Thomas, perused Section 233 Cr.P.C. which stipulates 'Entering Upon Defense', and observed that as per the provision, if the accused applies for the issue of any process for compelling the presence of any witness or the production of any document or thing, the judge shall issue such process, unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It thus noted that the action of making a prayer or a request is the meaning to be ascribed to the word 'applies' as provided in Section 233 Cr.P.C.
When Application For Anticipatory Bail Is Not Pressed Interim Bail Stands Vacated: Kerala High Court
Case Title: Mukesh @ Nandu V State of Kerala
Citation: 2023 LiveLaw (Ker) 251
The Kerala High Court recently held that a person who was granted interim bail after executing the bail bond cannot rely on the interim bail order to submit that the main bail application has become infructuous. The Court held that as a consequence of the main application being dismissed as not pressed, the interim order granting bail to the petitioner would be vacated and the bail bond executed would cease to exist.
A single bench of Justice A Badharudeen observed,
“It is held that since the petition has been not pressed and dismissed and the interim bail granted stands vacated, the petitioner is relegated back to the date of filing of the anticipatory bail application and it is ordered that the petitioner is not on bail as of now and the police is at liberty to arrest the petitioner and proceed with the investigation in this matter, since the allegations are very serious.”
Case Title: Sundaran V. State of Kerala
Citation: 2023 LiveLaw (Ker) 253
The Kerala High Court recently held that there is no embargo on prosecution producing a relevant document even after submission of the final report or charge sheet, with the court's permission. The Court also held that genuineness and veracity of the documents produced at a later stage could be dealt with during the trial.
A single bench of Justice Raja Vijayaraghavan V relied on the Apex Court decision in Central Bureau of Investigation v. R.S. Pai and another [2002 (5) SCC 82] to hold that if a mistake is made by the investigating officer by not producing some document of relevance at the time of submitting the report or the charge sheet, it is open to the investigating officer to produce it with the permission of the court.
The Court also relied on the decision in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re. v. State of Andra Pradesh and Ors. to hold that the Court may allow the document to be received on file and examine the genuineness and veracity of the document produced at the trial stage:
“the Presiding Officer has to decide objections to questions during the course of the proceeding or failing it at the end of the deposition of the witness concerned. This will result in de-cluttering the record and, what is more, also have a salutary effect of preventing frivolous objections.”
Case Title: Sanu & Anr. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 254
The Kerala High Court on Friday granted bail to two persons accused of assaulting a female Advocate Commissioner who had been deputed by the Munsiff's Court at Varkala to execute an Order, and the accompanying Advocate Clerk, during the local inspection.
Justice Ziyad Rahman A.A. noted that although the allegations against the petitioners were of serious nature, the petitioners had remained in custody for about 50 days since the date of arrest, and that there has also been substantial progress in the investigation.
"...after taking into account all relevant aspects, including the fact that the petitioners have been under judicial custody since 12.04.2023, I am inclined to grant bail to the petitioners subject to appropriate conditions to ensure that they are not influencing the witnesses. This is mainly because, taking note of the period of detention undergone by the petitioners and the stage of the investigation, further incarceration of the petitioners appear to be not necessary," the Court observed.
Misuse Of Liberty By Accused Sufficient Ground For Bail Cancellation: Kerala High Court Reiterates
Case Title: Navas V State of Kerala
Citation: 2023 LiveLaw (Ker) 255
The Kerala High Court recently reiterated that the misuse of the liberty granted to a person released on bail is sufficient ground to cancel the bail.
The Court held as above while considering the challenge to an order of the Special Judge that cancelled the statutory bail granted to a man booked under the NDPS Act for possession of 40.5kgs of Ganja, who was subsequently found in possession of 14.250 kgs of Ganja and 850 gms of Hashish oil and armed weapons with three others.
A single bench of Justice Raja Vijayaraghavan V while refusing to interfere with the order of the Special Judge observed:
“As the petitioner has misused the liberty granted to him, the learned Special Judge was well justified in canceling the bail. In that view of the matter, the impugned order does not warrant any interference. However, it is made clear that the above order shall not stand in the way of the petitioner surrendering before the jurisdictional court and seeking regular bail. “
Accused Has No Vested Right To Seek Joint Trial: Kerala High Court
Case Title: Jithin P V State of Kerala
Citation: 2023 LiveLaw (Ker) 262
The Kerala High Court recently held that an accused has no vested right to seek a joint trial under Section 220 of the Code of Criminal Procedure,1973. The Court observed that if the offences form part of the the same transaction, they can be tried together in a joint trial.
A single bench of Justice K Babu observed as follows about Section 220 (Trial for more than one offence) of the Cr.PC:
“The Section is an enabling provision. It permits the Court to try more than one offence in one trial. The Court may or may not try all the offences together in one trial. If the Court tries the offences separately, it does not commit any illegality. The accused in a case has no vested right to seek joinder of charges and trial of more offences in one trial.”
Case Title: Justin T.J v. State of Kerala
Citation: 2022 LiveLaw (Ker) 309
The Kerala High Court recently held that the accused must be produced either physically or virtually while considering the application for extension of remand filed under Section 36A(4) of the NDPS Act and that neglect of the same goes beyond a simple procedural violation. Justice Raja Vijayaraghavan V pointed out that failure to do so would be equivalent to legally stripping the accused of their right to claim default bail.
Case Title: Harikrishnan v. State of Kerala & Ors.
Citation: 2022 Livelaw (Ker) 311
The Kerala High Court recently held that a delay in initiating proceedings under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 does not always severe the live link between prejudicial activity and the initiation of legal action. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that an accused engaging in yet another prejudicial activity shortly after receiving such an order bolsters the necessity of the order.
Case Title: Dheera N.G. & Anr. v. Simesh S. and Simesh S. v. Dheeran N.G. & Anr.
Citation: 2023 LiveLaw (Ker) 267
The Kerala High Court recently enhanced the monthly maintenance allowance of the paralyzed estranged wife and son of a headload worker, on taking note of the latter's neglect and refusal to maintain his wife and child.
The Single Judge Bench of Justice V.G. Arun observed that in such cases, Court ought to be aware of the dominant purpose behind Section 125 Cr.P.C. that stipulates for maintenance, which is that of ensuring that the neglected wife, child and parents are not left in a 'helpless state of distress, destitution and starvation'.
"The court should also be convinced about the existence of the following factors; i) that the respondent has neglected or refused to maintain the claimant. (ii) the claimant do not have the means to maintain herself/himself. (iii) the respondent has sufficient means for maintaining the claimant," it added.
Case Title: Rajesh @ Malakka Rajesh & Anr. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 271
The Kerala High Court reiterated the position that while granting statutory bail, the Magistrate cannot impose any other condition for deposit of cash security.
The Single Bench of Justice Raja Vijayaraghavan V. relied upon the Apex Court decision in Saravanan v. State represented by the Sub Inspector of Police wherein it was held that while granting default bail/statutory bail under Section 167(2) Cr.P.C., the condition of deposit of amount cannot be imposed.
The bench noted that the Apex Court had clarified in the said decision that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail.
Case Title: XXX V State of Kerala
Citation: 2023 LiveLaw (Ker) 273
The Kerala High Court recently dismissed the anticipatory bail application filed by a father accused of sexually abusing his minor daughter.
A single bench of Justice Ziyad Rahman observed that as per Section 438 (4) of the Criminal Procedure Code, there is a specific bar against entertaining an application for anticipatory bail where offences Section 376(3) or section 376AB or section 376DA or section 376DB of the Indian Penal Code are alleged. However, the Court may entertain an application for anticipatory bail if the materials placed before the Court does not attract the specific offences under Section 376 IPC:
“As per Sub Section 4 of Section 438 of Cr.P.C., the prohibition in entertaining an application in this regard would come into play when there is an accusation against the accused for having been involved in the offences referred to therein. Therefore, what is relevant is the accusation made against the petitioner. In this case, the allegations constituting the offence under Section 376(3) of IPC can be found in the form of various statements made by the victim before the learned Magistrate. The aforesaid accusations would make out a prima facie case. Thus bar contemplated under Sub Section 4 of Section 438 would come into play.”
Case Title: Kripesh Krishnan v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 290
The Kerala High Court quashed criminal proceedings against a married man, who was alleged to have committed rape on a married woman.
Justice K. Babu observed that in the present case, the prosecutrix (2nd respondent herein) was a married woman with children, and aware that the petitioner accused was also married. The Court noted that despite the same, she maintained sexual relations with the petitioner on many occasions.
"It is difficult to conclude that the prosecutrix had not given consent for the sexual relationship with the petitioner under any misconception of facts so as to hold that the petitioner is guilty of having committed rape within the meaning of Section 375 of IPC," the Court thus noted.
Case Title: K.R. Muhammed Nazer v. State of Kerala
Citation: 2023 LiveLaw (Ker) 296
The Kerala High Court recently dismissed the appeal preferred by a Village Officer who had been convicted under the Prevention of Corruption Act, 1988, for obtaining bribe for issuing a location map for a property.
"Admittedly, the appellant was a public servant as defined under Section 2(c) of the P.C. Act working in his capacity as Village Officer on the date of the alleged incident. The sequence of events and circumstances narrated above clearly proves that the appellant has accepted Rs.500/- as illegal gratification from the decoy witness by abusing his official position as public servant and availed pecuniary advantage by adopting corrupt and illegal means. Thus, the court below was absolutely justified in convicting the appellant for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act," the Single Judge Bench of Justice Kauser Edappagath observed while upholding the sentence and conviction.
Case Title: Shajan Skaria v. State of Kerala
Citation: 2023 LiveLaw (Ker) 298
The Kerala High Court dismissed the appeal filed by the editor and publisher of YouTube Channel Marunadan Malayali, Shajan Skariah, against rejection of anticipatory bail by Special Court in a case against him for allegedly broadcasting derogatory news item against MLA Sreenijin.
"It is pertinent to note that the allegations levelled against the second respondent include murder and contains insinuation against the second respondent's father in law, aspersions on unnamed judicial officers and bestows the title 'Mafia Don' on the second respondent. As such, it can unhesitatingly be held that the video contains insults, which are intended to humiliate the second respondent (MLA Sreenijin) in public view," the Single Judge Bench of Justice V.G. Arun observed while passing the order.
Case Title: Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 299
The Kerala High Court dismissed the anticipatory bail pleas of the former Principal of Christian College, Kattakada, G.J. Shyju, and Student Federation of India (SFI) leader Visakh A in the case related to alleged impersonation, falsification of documents and misrepresentation during the college elections held in May 2023.
Justice Bechu Kurian Thomas, on being informed that the accused were willing to surrender before the Investigating Officer on July 4, 2023, directed that,
"...in the event of the two petitioners surrendering before the IO on or before 04.07.2023, they shall be subjected to interrogation, and thereafter, the procedure as contemplated under law shall be complied with".
Case Title: Ambika B. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 303
The Kerala High Court quashed the detention order of a person who had been detained under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 on the ground of unreasonable delay on the part of the detaining authority in seeking additional particulars from the sponsoring authority. The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha on taking note of the factual circumstances of the case held that the time consumed by the detaining authority for seeking additional particulars in the case could not be said to be reasonable, thereby justifying the delay.
Case Title: Govindarajan @ Govind v. Vidya & Anr.
Citation: 2023 LiveLaw (Ker) 304
The Kerala High Court recently reiterated that an application for amendment can be permitted by a Family Court despite the absence of provisions for amendment in the Code of Criminal Procedure (Cr.P.C.). The Single Judge Bench of Justice V.G. Arun relied upon various precedents and proceeded to observe that technicalities would not have any place in maintenance cases under Section 125 of Cr.P.C.
Case Title: Shamir T.J v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 305
The Kerala High Court has recently held that inherent powers under Section 482 CrPC can be invoked to secure justice and to prevent abuse of court process despite the availability of a revisional remedy under Section 397. Justice Ziyad Rahman A.A disagreed with the findings in Bayyarapu Suresh Babu v. State of Andra Pradesh & Ors (2021) and observed that the availability of a revisional remedy is not an absolute bar from the Court exercising its inherent powers on a matter.
Case Title: Thushar Nirmal Sarathy v. State of Kerala
Citation: 2022 LiveLaw (Ker) 306
The Kerala High Court recently highlighted the vital role of lawyers as officers of the court in criminal cases and observed that when lawyers visit their clients in prison, it is the duty of prison officials to respect their professional duties and avoid unnecessary delays or detentions. Justice P.V. Kunhikrishnan expressed shock after a lawyer who was forced to approach the Court to obtain the signature of his client convicted in a criminal case lodged at Central Prison. The Judge made it clear that any unwarranted obstacles faced by lawyers in meeting their clients in jail will be viewed seriously by the Court going forward.
Case Title: V. Anilkumar & Ors. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 308
The Kerala High Court recently dismissed the appeal preferred by certain forest officers against the refusal of anticipatory bail in a case pertaining to false implication and torture of a tribal youth in connection with an alleged wildlife offence. Justice V.G. Arun passed the order on finding prima facie materials to attract the offence under Section 3(p) (Punishment for instituting false, malicious or vexatious suit or criminal or other legal proceedings against a member of SC/ST) of the SC/ST (Prevention of Atrocities) Act, 1989.
Kerala High Court Quashes FIR Against Beauty Parlour Owner In Fake Drugs Case
Case Title: Sheela Sunny v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 310
The Kerala High Court quashed the FIR against Sheela Sunny, the owner of a beauty parlour in Chalakudy, who had been accused of possessing 0.106 grams of the drug LSD stamp. Sunny had sought the case to be quashed on the ground that the case was false and that the chemical analysis report was negative and no LSD had been detected in the stamp. Justice Kauser Edappagath passed the Order.
Case Title: Jayaprakash P.P v. Sheeba Revi
Citation: 2022 LiveLaw (Ker) 313
The Kerala High Court has recently held that a mere threat or abuse by a man towards a woman would not attract the offence of stalking under Section 354-D of IPC. Justice K. Babu added that to qualify as stalking, a man must have repeatedly followed a woman and made contact or attempted to contact her, despite clear indications of disinterest from the woman, particularly demonstrating sexual interest or lewd behaviour by the man.
Case Title: Afeefa C.S & Anr v. Director General of Police & Ors.
Citation: 2023 LiveLaw (Ker) 314
The Kerala High Court on Wednesday passed an interim order granting police protection to a lesbian couple who alleged that they were being targeted by their parents and henchmen. This comes less than a month after a Division Bench closed a habeas corpus petition filed by one of the women (Sumayya) seeking the release of her lesbian partner Afeefa from the custody of her family. While directing the police to provide the couple with adequate protection, Justice P.V. Kunhikrishnan also issued notice to the concerned authorities of the State police and to Afeefa's parents.
Case Title: Joseph Thomas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 315
The Kerala High Court recently held that a Magistrate cannot conclude that the accused was not in the custody of the Court when he voluntarily surrenders to its jurisdiction; it should take such accused in custody and deal with him as per law. Justice K. Babu added that when CrPC permits an accused to surrender before the Court having jurisdiction over the subject matter, the jurisdictional court cannot refuse permission.
Case Title: State of Kerala v. Arumugham and connected matters
Citation: 2022 LiveLaw (Ker) 317
The Kerala High Court reiterated that a minor's consent is irrelevant for the offence of kidnapping under Section 361 of the Indian Penal Code (IPC) and that it is the guardian's consent that determines whether the act falls within its scope.
Justice K Babu added that the use of force or fraud is not necessary; even persuasion by the accused that leads to the minor willingly leaving the legal guardian's custody is sufficient to invoke the section. If the minor is moved out of the guardian's custody with their consent, without any fraud, force, or deceit, it still constitutes an offence under Section 361.
Case Title: Smrithy George v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 319
The Kerala High Court observed that the object of Section 294 of CrPC was to expedite trials and avoid unnecessary delay by recording irrelevant evidence. Section 294 provides that no formal proof is required for certain documents filed before any court.
Justice Raja Vijayaraghavan V also added that endorsement of admission or denial of such document by the defence counsel or the Public Prosecutor, as the case may be, is sufficient for compliance with Section 294.
"The object of Section 294 of the Code is to accelerate the pace of the trial by avoiding the time being wasted by the parties in recording unnecessary evidence. Where the genuineness of any document is admitted or its formal proof is dispensed with, the same may be read in evidence. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 of the Code personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence on the document filed by the prosecution or on the application/report with which the same is filed is sufficient compliance of Section 294 of the Code."
Case Title: K. Suresh Kumar v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 320
The Kerala High Court set aside a detention order which was issued by the detaining authority without determining the nature of the bail conditions already imposed on the detenu.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed,
"It is trite that when an accused in a criminal case, who is enlarged on bail with conditions is sought to be detained in preventive detention, it is incumbent on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities and despite the conditions, if the detaining authority still considers that the detenu is required to be detained, the detaining authority is at liberty to pass an order of detention. In other words, the duty of the detaining authority is that he should pointedly consider the order passed by the court granting bail to the detenu and the conditions thereof and after due application of mind, pass orders, either to detain or not to detain the detenu."
Case Title: M. Sivasankar v. Directorate of Enforcement & Anr.
Citation: 2023 LiveLaw (Ker) 322
Former Principal Secretary to the Chief Minister of Kerala, M. Sivasankar withdrew his plea seeking interim bail in the Life Mission money laundering case on grounds of ill-health, after the Kerala High Court expressed disinclination to pass orders amid pendency of his SLP before the Supreme Court against refusal of regular bail.
Justice A. Badharudeen noted that Supreme Court was going on summer break and had therefore granted him liberty to approach special court in case of any medical emergency. Since the special court declined his plea, he moved the High Court. However, now that the Top Court has reopened, Justice Badharudeen said it is doubtful whether it can consider Sivasankar's plea anymore.
"Whether this Court can consider at present - that is the doubt. Otherwise, I have no hesitation to pass any order. If I pass an order, that may be criticized on the ground that since the Supreme Court has reopened, how can the High Court interfere," the judge observed orally.
Following this the petition was withdrawn.
Case Title: Mathrubhumi Printing & Publishing Co. & Ors. v. Station House Officer & Ors.
Citation: 2023 LiveLaw (Ker) 323
The Kerala High Court directed the Director General of Police & State Police Chief to consider the representations filed by the Malayalam media house, Mathrubhumi Printing and Publishing Company regarding the alleged harassment meted out by the police, and to take appropriate steps in that regard in accordance with law.
At the same time, the Court clarified that that the police is free to investigate the FIR registered against the crew of Mathrubhumi News.
Justice P.V. Kunhikrishnan passed the order on a plea filed by Mathrubhumi that some of the employees of the Company were being subjected to continuous police harassment.
Murder Case: Kerala High Court Grants Interim Bail To Minor To Visit His Ailing Mother
Case Title: X v. State of Kerala
Citation: 2023 LiveLaw (Ker) 331
The Kerala High Court recently granted interim bail to a minor, accused of murder among other offences, to enable him to visit his ailing mother and consult his lawyer.
Justice P.V Kunhikrishnan noted that the petitioner is already serving a prison sentence in another case, while granting one week of interim bail to him.
"It is an admitted fact that the petitioner is convicted in another case and is undergoing imprisonment. It is also submitted that the petitioner will get parole if one week bail is granted in this case. I do not want to make any observation about the same. Considering the facts and circumstances of the case, I think one week bail can be granted to the petitioner. The local police is free to make surveillance as far as the petitioner is concerned for one week," said the bench.
Case Title: Shajan Scariya v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 339
The Kerala High Court directed that Shajan Skaria, editor of YouTube channel Marunadan Malayali, shall not be arrested without first issuing a notice under Section 41A Cr.P.C. or a notice intending to arrest stating a non-bailable offence against him. The Court further directed that such notice shall grant Skaria 10 days' time.
The Court passed the order while considering the plea filed by Skaria seeking directions to be issued to the State Police Chief not to arrest him without granting him sufficient opportunity to explain his stand, or without issuing notice under Section 41A Cr.P.C. The petitioner further sought necessary directions to be issued to the Home Secretary to to issue necessary directions in light of the Apex Court decision in Kumar Antil v. Central Bureau of Investigation & Ors. (2022), wherein it had been held that the accused would be entitled to be in case of any non-compliance of Section 41 and 41A Cr.P.C..
Justice P.V. Kunhikrishnan orally asked why Skaria was sought to be arrested without issuing notice.
"Supreme Court also passed an order in this regard...now you're behind this man. Don't arrest him without any notice. He should be given an opportunity to content his case as per law. I will make it clear that if there is any ground to arrest, after complying with Section 41A, you can arrest," the Court orally remarked.
Case Title: Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 343
The Kerala High Court granted bail to the former Principal of Christian College, Kattakada, G.J. Shyju, and Student Federation of India (SFI) leader Visakh A in the case related to alleged impersonation, falsification of documents and misrepresentation during the college elections held in May 2023.
The Single Bench of Justice Ziyad Rahman A.A. took note of the period of detention already undergone by the petitioners and the fact that there was substantial progress in the investigation during which necessary recoveries were already affected.
Anticipatory Bail Not Available For Offences Under UAPA Under Any Circumstance: Kerala High Court
Case Title: Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr
Citation: 2023 LiveLaw (Ker) 346
The Kerala High Court held that exclusion of application of Section 438 CrPC to cases under the Unlawful Activities (Prevention) Act, 1967 is absolute and thus no application for anticipatory bail is permissible for offences punishable under the UAPA under any circumstances.
A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that if it were interpreted differently and anticipatory bail was allowed, it would create an absurd situation where accused individuals could get anticipatory bail unconditionally, while regular bail would be subject to specific conditions.
"If the scheme of the UAP Act is that no person accused of an offence punishable under Chapter IV and VI of the UAP Act shall be released on bail unless the twin conditions referred to in subsection (5) of Section 43D are satisfied, there cannot be any doubt that the Statute does not contemplate grant of anticipatory bail to accused under any circumstance whatsoever, for if the provision is interpreted to hold that the Statute does not bar absolutely the application of Section 438 of the Code, in the absence of any restriction in the Statute in the matter of granting anticipatory bail, it would lead to an anomalous and absurd position that anticipatory bail can be granted to a person accused of an offence punishable under the UAP Act unconditionally and restrictions would apply only in the matter of claiming regular bail."
Case Title: Sumesh v. State of Kerala & Anr
Citation: 2023 LiveLaw (Ker) 349
The Kerala High Court recently held that if a Magistrate forwards a complaint involving both cognizable and non-cognizable offences to the police, and the police investigation reveals only a non-cognizable offence, the Magistrate is legally authorised to proceed with the trial for that offence.
Justice A. Badharudeen reiterated that if a case involves both cognizable and non-cognizable offences, the police can investigate and file a charge sheet for all the offences as per Section 155(4) of CrPC.
"...if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) [of Section 155] provides that even a noncognizable case shall, in that situation, be treated as cognizable."
"Since the law is settled in the facts of the given case, though the Magistrate forwarded a complaint involving offences cognizable and non-cognizable in nature to the police and the police files a report finding that non-cognizable offence was committed, the Magistrate is legally empowered to proceed with the trial."
Tanur Boat Accident: Kerala High Court Grants Bail To Chief Surveyor And Senior Port Conservator
Case Title: Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 350
The Kerala High Court granted bail to Chief Surveyor of the Kerala Maritime Board, Sebastian Joseph, and the Senior Port Conservator, Baypore, Prasad V.V., who had been arrested in connection with the tragic Tanur boat accident that claimed 22 lives, including 15 children in Malappuram district.
Justice Ziyad Rahman A.A. passed the order on noting that substantial progress had been made in the investigation and further incarceration of the petitioners was not required.
The petitioners had been arrested on June 11, 2023, and have been in judicial custody ever since.
"...now the petitioners have been in judicial custody since 11.6.2023, and as on the date, more than 40 days have elapsed since the date of their arrest. Even though the learned ADGP highlighted that there are high chances of the evidence being tampered with and the witnesses being influenced, if the petitioners are released on bail, I do not find any justifiable reason to accept the contention. It is reported that, both the petitioners are already under suspension, and therefore, I do not find any possibility of them tampering with the evidence. Moreover, it is evident from the report of the investigating officer that the records kept in the office of the petitioners in connection with the incident were already seized," the Court observed while allowing the bail applications.
Case Title: Enose v. State of Kerala
Citation: 2023 LiveLaw (Ker) 351
The Kerala High Court recently upheld the conviction of a Lower Division Clerk (L.D. Clerk) working on deputation in the Directorate of Higher Secondary Education, Thiruvananthapuram, under the Prevention of Corruption Act, 1988, for embezzlement of certain amount and forgery of document in that regard.
Justice Kauser Edappagath observed that an amount of ₹74,789/- that had been entrusted with the appellant-accused was misappropriated by him.
"To attract the offence of criminal breach of trust, the prosecution has to prove that there was entrustment of property with the accused and he has dishonestly misappropriated the same for his personal use. Once the entrustment is established by the prosecution, the burden shifts to the accused to account for the property entrusted. It is settled that if the entrustment is proved and the explanation given by the accused is not satisfactory, then it can be presumed that the accused has committed the offence of criminal breach of trust and misappropriation. The modus operandi of the accused, how he committed the misappropriation etc. need not be proved by the prosecution. The fraudulent intention of the accused can be inferred from the attending circumstances. The same ingredients of criminal breach of trust and misappropriation have to be proved by the prosecution for establishing the offence under section 13(1)(c) of the PC Act as well," the Court explained while finding the accused guilty of the offence.
Case Title: Kochu Mani & Anr v. State of Kerala
Citation: 2023 LiveLaw (Ker) 352
The Kerala High Court recently held that merely recovering the object does not establish guilt unless there are other materials connecting the accused to the commission of the offence.
Observing so, Justice Ziyad Rahman A held that the trial court's reliance on the disclosure statements without sufficient corroborative evidence was unjustifiable.
"...apart from the aforesaid disclosure statement, there is nothing to connect the accused persons with the commission of the offences, and since I have found that the disclosure statements are inadequate for holding the appellants guilty, the only irresistible conclusion possible is that the prosecution miserably failed in establishing the guilt of the accused."
Case Title: Kallantavide Ramesan v State of Kerala
Citation: 2023 LiveLaw (Ker) 353
The Kerala High Court recently observed that glaring discrepancies in the witness statements become significant in politically charged situations and that they cast doubt on the credibility of the prosecution case.
Justice Ziyad Rahman A added that a mere strong or probable suspicion, not supported by proper and positive evidence, is inadequate to prove the guilt of the accused as it fails to establish the truth beyond doubt.
"....as all of the independent witnesses including the victim belong to a particular political party, and the accused belong to the rival political party, the evidence has to be scrutinized with care and caution. In such circumstances, the discrepancies and contradictions as mentioned above have to be given much more emphasis...in the light of the principles laid down by the Hon'ble Supreme Court, it appears to be fatal to the prosecution case."
"...suspicion, however strong or probable it may be, is not sufficient to hold the accused guilty. The distance “may be true” to “must be true” has to be covered by the prosecution by adducing proper and positive evidence."
Case Title: Bipin Sunny v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 356
The Kerala High Court recently observed that if the High Court denies anticipatory bail to a person, the successive applications citing change in circumstances should also be filed before the High Court and not before the Sessions Court.
Justice A. Badharudeen deprecated the practice of filing of subsequent anticipatory bail applications before the Sessions Court, after dismissal of the anticipatory bail plea by the High Court, by suppressing such adverse order. The Court opined that the said practice could not be justified.
"Therefore, in order to keep judicial discipline in tact, in cases where the High Court rejected anticipatory bail plea, second or successive anticipatory bail applications, pointing out change in circumstances, have to be filed before the High Court and not before the Sessions Court," it held.
Case Title: Raju v. State of Kerala
Citation: 2023 LiveLaw (Ker) 360
The Kerala High Court recently observed that the evidence provided by a prosecutrix under Section 376 IPC should not be discredited merely because the sexual abuse began when she was a child but she did not disclose it until she was much older.
A Division Bench of Justice P.B Suresh and Justice C.S Sudha added that the credibility of the prosecutrix evidence in such cases would differ from case to case.
"A child who was subjected to sexual assault by her father, not disclosing the same to anyone during her childhood, is no reason to think that what is spoken to by her at a matured age is false. The question whether the evidence tendered by such a person is reliable, is to be decided having regard to the facts and circumstances of each case."
Case Title: S. Surendran v. State of Kerala and K. Sudhakaran v. State of Kerala
Citation: 2023 LiveLaw (Ker) 363
The Kerala High Court allowed the anticipatory bail applications filed by former DIG S Surendran and MP, President of Kerala Pradesh Congress Committee K. Sudhakaran, in the case pertaining to their alleged involvement in the cheating case involving controversial antique dealer Monson Mavunkal.
The Single Judge Bench of Justice Ziyad Rahman A.A. made its interim order granting them anticipatory bail absolute.
Case Title: Mohandas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 365
The Kerala High Court recently held that approaching a criminal court and filing a criminal complaint subsequent to filing of a civil suit, suppressing the pendency of the civil suit is a form of harassment.
Justice Sophy Thomas, while quashing criminal proceedings pending before a Magistrate Court in Thiruvananthapuram observed thus:
“As he had already approached the civil court resorting to the civil remedy, the subsequent criminal complaint filed by him, suppressing pendency of the civil suit, can be viewed only as a weapon of harassment".
Quarrying Outside Permissible Limits Warrants Police Investigation For Theft: Kerala High Court
Case Title: Dotty Shiby v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 367
The Kerala High Court recently took the view that police investigation is necessary in a case involving quarrying of granite stones outside the permissible limits of the quarry area.
The Single Judge Bench of Justice Raja Vijayaraghavan V. set aside the order of the Magistrate which had held that no police investigation was required in the matter, and thereby directed it to reconsider the issue in light of the principles laid down in Femeena E. v. State of Kerala (2023). In the said case, the Court had laid down that the test to be applied, while considering the question whether a complaint is to be referred to the Police for investigation, is the 'need for Police investigation', which in turn would depend upon the nature of the allegations.
Case Title: Suresh K M v. State of Kerala
Citation: 2023 LiveLaw (Ker) 370
The Kerala High Court has reiterated that a material change in fact situation or law is sine qua non for the Court to entertain a second application for pre-arrest bail.
Single bench of Justice Kauser Edappagath held,
“Even though there is no absolute embargo in filing the subsequent application for pre-arrest bail, it can be entertained only if there is a substantial change in the facts and circumstances of the case, which requires the earlier view be interfered with or where, the earlier finding has become obsolete. Ordinarily, the grounds canvassed in the earlier application cannot be permitted to be reurged in the subsequent application.”
Case Title: Deepak K. Balakrishnan v State of Kerala
Citation: 2023 LiveLaw (Ker) 379
The Kerala High Court refused anticipatory bail to a college student accused of committing rape upon her junior, after intoxicating her.
While the accused claimed they were in a consensual relationship, Justice A Badharudheen noted that prosecutrix, who is a member of a Scheduled Caste community, had alleged that accused forcefully fed her a cake and some water after which she felt her eye sight was diminishing and she reached a semi unconscious stage.
In this backdrop the bench held that a prima facie case under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter, the Act) is made out, barring anticipatory bail.
It therefore dismissed the accused person's appeal stating,
“In this case the specific case of the defacto complainant is that she was subjected to rape after giving her a cake and a bottle of water by the accused and later she felt that her eye sight was diminishing and when she was at a semi conscious stage. In such a case, it cannot be held that the overt act alleged by the defacto complainant is one arose out of consent. Therefore, the prosecution allegations are well made out prima facie and as such anticipatory bail cannot be granted in view of the specific bar under Section 18 and 18A of the SC/ST Act.”
Case Title: Luciya Francis v State of Kerala
Citation: 2023 LiveLaw (Ker) 381
The Kerala High Court has reiterated that preventive detention orders under Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA) are issued for maintenance of public order and not as a penal measure.
A division bench comprising Justice A Muhamed Mustaque and Justice Sophy Thomas held thus:
“The preventive detention law cannot be used as a punitive measure and as a substitute of criminal trial. What cannot be achieved through a trial cannot be achieved through preventive detention. It can be invoked only for maintenance of public order when activities of a person become threat or adverse to the society. The detaining authority failed to address the issue keeping the perspective of the objectives to be secured under the KAA(P)A. In such circumstances, we order that the detention order is illegal and the detenue is set at liberty. He shall be released forthwith.”
Wooden Stick Can Be Considered As 'Weapon' Under Section 326 IPC: Kerala High Court
Case Title: Vineesh v State of Kerala
Citation: 2023 LiveLaw (Ker) 386
The Kerala High Court recently decided whether 'wooden stick' can be considered as a 'weapon' to attract Section 326 (voluntarily causing grievous hurt by dangerous means or weapons) of the IPC.
Justice Ziyad Rahman A.A. held that the expression “any instrument which is used as a weapon” in the provision gives a broader scope to Section 326. Here, the Court noted that 'wooden stick' may not be considered as a weapon in its original form, but it can be considered as an instrument of weapon if it was used to cause grievous hurt. The Court held thus:
"The expression “any instrument which is used as a weapon”, gives a significantly broader scope to the said provision, capable of taking within it, any instrument which does not have the characteristics of a weapon under normal circumstances, provided the same was used as a weapon to cause grievous hut. Thus, the emphasis is on any “instrument which used as a weapon” and it is not necessary that the instrument as such should be a weapon in its original form.”
Parole May Be Refused Even To An Eligible Prisoner For Cogent Reasons: Kerala High Court
Case Title: Sandhya v Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 388
In an important ruling, the Kerala High Court held that prisoners do not have an inherent right to claim parole or leave and that the right to seek temporary release is contingent on meeting the statutory conditions under the Prisons Act and Rules and the discretion to grant or deny such release lies with the competent authority.
A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that even in a case where a convicted prisoner satisfies the eligibility conditions, the authority is entitled to refuse leave for cogent reasons, clarifying that Rule 397 does not provide an absolute entitlement for leave and that such an interpretation would be incomprehensible as it would prioritise the Rules over the Act.
"For example, if there exists a real threat of a potential breach of peace and tranquility in the locality, or to the safety and security of the prisoner himself as envisaged in subrule (h) to Rule 397, the authority can refuse leave. The same is the case for a convicted prisoner with a high proclivity or propensity to commit crimes. An interpretation otherwise, construing Rule 397 as an absolute entitlement for leave, would amount to the Rules assuming paramountcy over the Act, which is incomprehensible."
Case Title: Sandhya v Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 388
The Kerala High Court recently held that Section 389 of the CrPC does not contemplate an interim suspension of sentence and release of the prisoner for short-term requirements such as disease or marriage, while clarifying that such release should be sought under the Prisons Act and Rules through the process of leave or parole.
A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the provision is meant for suspending the execution of the sentence during the pendency of an appeal on its merits.
"Enabling release under Section 389 for short-term requirements is neither statutory, nor conducive, besides being subversive and in disregard of the special provisions of the Prisons Act and Rules."
Case Title: Faizal K V v. State of Kerala & Anr
Citation: 2023 LiveLaw (Ker) 389
The Kerala High Court recently held that until specific provisions are enacted in CrPC, Magistrates are empowered to order the collection of handwriting samples of accused for investigation purposes and that such orders do not inherently violate Article 20(3) of the Constitution (right against self-incrimination).
Justice Raja Vijayaraghavan added that Magistrates have the jurisdiction to pass orders for the collection of measurements and specimen handwriting under Section 5 of the Criminal Procedure (Identification) Act, 2022, even in the absence of the accused's formal arrest, which was further supported by the incorporation of Section 311A into CrPC.
"If a Magistrate believes it is necessary for any investigation or legal proceeding under the Code of Criminal Procedure or any other law, the Magistrate can issue an order directing a person to provide measurements under this Act. The person must comply with the order and allow the measurements to be taken according to the specified directions."
"When an accused person is called upon by the court or any other authority holding an investigation to give a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness giving ...specimen writings by way of identification are not included in the expression 'to be a witness'. It would be pertinent to note that the above observations were made prior to the incorporation of Section 311A and Section 5 of the Act 2022 in the Statute Book."
Mandatory For Magistrate To Examine Approver Before Committal Of Case: Kerala High Court
Case title: Suo Moto v State of Kerala
Citation: 2023 LiveLaw (Ker) 391
The Kerala High Court recently held that it is mandatory for the Magistrate to examine an accused who was tendered pardon under section 306(4)(a) of CrPC, prior to committing the case to the Sessions Court.
Section 306 of the Code deals with tendering pardon to an accomplice, who turns approver. An approver is also an accused in the crime, but has now agreed to provide details regarding the crime to aid the criminal proceedings in return of being tendered pardon. Section 306(4)(a) provides that an approver shall be examined as a witness by the Magistrate as well as in the subsequent trial.
Justice Bechu Kurian Thomas, held thus:
“Without examining the person accepting the tender of pardon as a witness, the Magistrate could not have committed the case to the Sessions Court, excluding that person from the array of accused. Such a process is without authority and is irregular…If any of the accused was accepted as an approver, then that person should have been examined before committing the case to the Sessions Court treating him as an approver.”
Case Title: Shajan Scariya v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 393
The Kerala High Court allowed the anticipatory bail plea moved by Shajan Skaria in the case alleging that he interacted with a priest through his YouTube channel 'Marunadan Malayali' with the intention to insult a religion.
The Single Bench of Justice K. Babu found "force" in Skaria's contention that he was implicated in criminal cases at the instigation of some influential persons against whom he reported corruption. Moreover, it observed that some parts of the alleged video reflect Skaria's secular views.
The bench further observed that the prosecution had miserably failed to prove that the Skaria's custodial interrogation was necessary in the matter.
Case title: Thressiamma Jose v State of Kerala
Citation: 2023 LiveLaw (Ker) 394
The Kerala High Court recently held that premature release cannot be completely denied to convicts for the only reason that they have murdered a woman or a child. Also, the Court held that the decision on premature release must be taken based on the policy prevalent on the date of conviction and not based on policy on the date of considering the application.
Discerning that such a blanket restriction against premature release was opposed to the concept of reformation in a welfare society, Justice Bechu Kurian Thomas held thus:
“A blanket stance that all persons who have murdered a woman or a child shall not be prematurely released de hors any other circumstances is not conducive to a welfare State. Such a stance will be contrary to the principles that govern the commutation of imprisonment. Commutation is based on the principles of reformation of the individual and intended to bring the convict back to society as a useful member. The supervening factors that are conducive to the convict must be taken into reckoning, while considering the issue of premature release.”
Case Title: Vineet Ganesh v. Priyanka Vasan
Citation: 2023 LiveLaw (Ker) 395
The Kerala High Court laid down that proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) before a Judicial Magistrate of the First Class (JFCM) cannot be transferred to a Family Court.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar reasoned that the Legislature had been fully conscious in enacting the D.V. Act much after the Family Courts Act, 1984, and thereby confining the jurisdiction to entertain an application under Section 12 of the D.V. Act ('Application to Magistrates') to the Judicial Magistrates.
"As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court," the Bench observed.
Case Title: Shaju v. State of Kerala
Citation: 2023 LiveLaw (Ker) 396
The Kerala High Court recently observed that the burden on the accused to prove that his case comes under the general exceptions given in the Indian Penal Code does not counteract the initial burden on the prosecution to prove his guilt beyond reasonable doubt.
A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that the burden on the accused to prove exceptions is not as stringent as the prosecution's burden and that the accused merely has to show that the preponderance of probability supports their plea.
"The burden which rests on the accused to prove the exceptions is not the same rigour as the burden of the prosecution to prove the charge beyond reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probability is in favour of his plea. It is not necessary for the accused to lead any evidence to prove his defence, because such proof can be offered by relying on the evidence led by the prosecution, the materials elicited by cross examining the prosecution witnesses and the totality of the facts and circumstances emerging out of the evidence in the case."
Case Title: Sajith N.K. v. Jishabai Puthukudi & Anr.
Citation: 2023 LiveLaw (Ker) 398
The Kerala High Court recently considered the question as to whether an aggrieved party can file a private complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate in relation to offence of perjury (enumerated in Section 195(1)(b) Cr.P.C.) and answered the same in the negative.
Thus in this case where the aggrieved party approached the Magistrate Court with a private complaint under Section 200 of CrPC, instead of approaching the Family Court where the false evidence had been given, the Single Judge Bench of Justice Kauser Edappagath, observed,
"A party who is aggrieved by the inaction on the part of the court, where offences enumerated in Clause (b) of Sub Section (1) of Section 195 Cr.P.C. was committed, in initiating action under Section 340 of Cr.P.C. ('Perjury') can only move to such court with an application under Section 340(1). He cannot directly move the jurisdictional Magistrate Court with a private complaint under Section 200 of Cr.P.C".
Case title: Pauly v State of Kerala
Citation: 2023 LiveLaw (Ker) 402
The Kerala High Court that reliance on the identification testimony without conducting a test identification parade was fatal if the witnesses were not familiar with the accused at the time of occurrence.
Justice A Badharudeen added that when the witness is not familiar with the accused, a test identification parade corroborates the testimony of the witnesses.
“It is true that if a witness, who doesn't know the accused at the time of occurrence, had an occasion to see the accused, not as a fleeting glance so as to imprint his face and body structures on his mind with certainly and thereafter identifies the accused at the dock, there is no reason to hold that his testimony in the matter of identification could not be relied on for want of corroboration, by way of test identification parade. But the situation is different when the witness identifies the accused, who is not familiar to him, at the dock and he did not give statement before the police regarding the identity of the accused and the manner in which such identification was imprinted in his mind with certainty, in such cases corroboration by test identification parade should have been resorted to and in such cases, non conduct of test identification parade (TIP) is fatal.”
Case Title: Gopi v State of Kerala
Citation: 2023 LiveLaw (Ker) 404
The Kerala High Court recently emphasised the objective nature of determining the legal distinction between murder and culpable homicide not amounting to murder under the Indian Penal Code, unrelated to the offender's intention.
A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that neglecting the difference between the two can lead to a miscarriage of justice.
"It is trite that if the distinction between murder and culpable homicide not amounting to murder is overlooked, it would result in miscarriage of justice."
Case Title: M A Mohanan Nair v State of Kerala
Citation: 2023 LiveLaw (Ker) 406
The Kerala High Court stated that time bound disposal of anticipatory bail applications is significant for completion of effective investigation.
Justice A Badharudeen directed the Registrar (Judicial) to ensure posting of anticipatory bail applications where 'not to arrest' interim orders were passed before appropriate benches for its timely disposal.
The direction was made after the Court noted hundreds of cases, in which after filing anticipatory bail applications and on getting interim protection 'not to arrest' the bail applicants avoided arrest in many cases where very serious offences are alleged to be committed by them. It observed,
"It is disgust to note that in view of the interim order passed by this court 'not to arrest', the hands of the Investigating Officer have been chained and therefore, proper investigation of serious crimes, where custodial interrogation, recording of statement of the accused, recovery of weapon-facts, at their instance were curtailed and in such a way the possibility of conviction in serious crimes has been given a go-bye as a result of ineffective investigation."
Case title: Usha Kumari v Santha Kumari
Citation: 2023 LiveLaw (Ker) 409
The Kerala High Court has recently held that pleadings of parties filed in a court partake the nature of a public document under Section 74(2) of the Indian Evidence Act.
Justice Sathish Ninan clarified that private party pleadings, upon submission to the Court, transform into public records due to Court custody and association with a public office, falling within the purview of Section 74 (2).
“Though pleadings of a party are private in character, once filed in Court, the Court is to retain custody of the same. Therefore, it becomes a record maintained by the Court which is a public office. Records held by a public office partake the character of public records. Therefore pleadings, which are private documents, once filed in Court, form part of public records kept in the Court, thus attracting clause 2 of Section 74 of the Act.”
Case title: Rejis Thomas @Vayalar V State of Kerala
Citation: 2023 LiveLaw (Ker) 417
The Kerala High Court held that every person who is mentally diseased is not ipso facto exempted from criminal responsibility. Court added that mere lack of motive will not bring a case within the ambit of Section 84 of the IPC to take general exception of unsoundness of mind.
A Division bench comprising of Justice P.B. Suresh Kumar and Justice C.S. Sudha held that intent and act must concur for constituting a crime, but in the case of insane persons, no culpability can be fastened on them as they have no free will. Court added that the benefit of unsoundness of mind is available only if it is proved that during the commission of the offence, the accused due to defect of reason and disease of the mind was unable know the nature and quality of the act he was doing or that it was contrary to law.
It observed thus:
“It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. The law recognises nothing but incapacity to realize the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to comprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot, in the absence of a plea and proof of legal insanity, bring the case within this section.”
Case title: Chandhini T.K. V State of Kerala
Citation: 2023 LiveLaw (Ker) 427
The Kerala High Court recently held that the term 'relative' appearing in Section 498A of IPC would not include husband's girlfriend, or a woman with whom a man has sexual relationship outside of marriage.
Section 498A, IPC defines and provides punishment for cruelty committed by the husband or relative of the husband of a woman.
Justice K. Babu added that Section 498-A being a penal provision, has to be construed strictly. The Court held thus:
"The specific language of the Section and the Explanation thereof lead to the conclusion that the word 'relative' would not include a woman with whom a man has had sexual relations outside of the marriage. By no stretch of imagination, a girlfriend or even a woman who maintains sexual relations with a man outside of marriage in an etymological sense would be a 'relative'. The word 'relative' brings within its purview a status. Such status must be conferred either by blood or marriage, or adoption. If no marriage has taken place, the question of one being relative of another would not arise. S.498A, IPC being a penal provision, would deserve strict construction, and unless a contextual meaning is required to be given to the statute, the said statute has to be construed strictly.”
Case title: Naveen v State of Kerala
Citation: 2023 LiveLaw (Ker) 428
The Kerala High Court acquitted seven members of the RSS who were allegedly involved in the murder of CPI(M) activist, Shihab.
A division bench comprising of Justice P.B. Suresh Kumar and Justice C.S. Sudha stated that they were constrained to acquit the accused not because they are were not the real culprits, but because of flawed investigation and lack of evidence. It held thus:
“…we are constrained to acquit the accused not because we find that they are not the real culprits in the case, but because of the flawed investigation and lack of evidence. We do not find fault with the investigating officer in proceeding with the investigation in the case on the premise that on the facts of this case, the activists of the rganization, RSS must have committed the crime. Our anguish on the other hand, is with regard to the manner in which he jumped into the conclusion without collecting sufficient materials that it is the accused who committed the crime.”
Case title: S Sukumaran Chettiyar V State of Kerala
Citation: 2023 LiveLaw (Ker) 431
The Kerala High Court recently held that a police officer who registered a a suo moto case cannot be asked to compensate the accused after acquittal under Section 250 of CrPC.
Justice Bechu Kurian Thomas held that under Section 250 CrPC, compensation can only be ordered when a case was instituted upon a complaint or upon information given to a police officer. It held thus:
“The said provision contemplates specific instances when such compensation can be ordered. The provision commences with the words “instituted upon complaint or upon information given to a police officer or to a Magistrate”. The intention of the legislature is very clear from the words used, since the code has defined the terms 'complaint' in Section 2(d) Cr.P.C., as excluding a police report.”
Case Title: Vinayakumar K.R. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 434
The Kerala High Court analysed the scope of Section 451 CrPC which empowers the criminal courts to make orders for interim custody of seized property produced before it during trial and inquiry of an offence.
The Single Judge Bench of Justice Raja Vijayaraghavan V. was of the considered view that when a property is so produced before the criminal court, the said court would have the discretion to make such an order as it thinks fit for the proper custody of such article, pending the conclusion of the enquiry or trial. However, it cuationed,
"Where the property, which has been the subject matter of an offence, is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases."
Case title: Lalitha V Krishna Pillai
Citation: 2023 LiveLaw (Ker) 435
The Kerala High Court has held that the power of a revisional court under Section 397 to 401 of the Criminal Procedure Code, 1973 ("CrPC") cannot be equated to that of an Appellate Court.
The Bench comprising Justice K Babu thereby upheld the order of dismissal passed by a Magistrate.
“Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”
Case title: Karthik S Nair V State of Kerala
Citation: 2023 LiveLaw (Ker) 439
The Kerala High Court held that recalling a witness under Section 311 CrPC must be done only when there is a strong and valid reason to do which should be recorded by the competent authority.
Justice K Babu held thus, “Recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision.”
The Court added that the power of recalling a witness must not be used arbitrarily or capriciously to cause prejudice to the accused.
“The prejudice to be caused to the accused is highly important in this regard. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is the main object of the criminal procedure and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused.”, the Court stated.
Case Title: XXX v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 441
The Kerala High Court has held that bar on grant of anticipatory bail for certain rape offences, as indicated under Section 438(4) of CrPC, will not be attracted if such offences are prima facie not made out from the material placed on record or the allegations appear to be false.
Section 438(4) bars anticipatory bail to an accused allegedly involved in offences punishable under Sections 376(3) (rape of woman under 16 years of age), 376 AB (rape on woman under twelve years of age), 376 DA (Gang rape on a woman under sixteen years of age) and 376 DB (Gang rape of a woman under 12 years of age).
Single Bench of Justice Ziyad Rahman A.A. observed that merely because any of the offences under Sections 376 (3), 376 AB, 376 DA and 376 DB are incorporated amongst other offences in the FIR, the valuable rights of the accused cannot be denied if a prima facie case is not made out.
"When there are no convincing reasons to find out such a prima facie case as to the said offences, the prohibition contained in the said provision should not be brought into force automatically, without any application of mind, thereby denying the personal liberty of a person, which is a fundamental right under the Constitution of India. When there are reasonable and valid grounds to suspect the veracity of the allegations, the court should not hesitate to pass appropriate orders to protect the personal liberty of the person against whom such accusations are made," the Bench noted.
Case Title: Anu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 443
The Kerala High Court granted anticipatory bail to a 21-year-old who has been accused of catching hold of a 15-year-old girl's hand, with an intention to outrage her modesty.
The prosecution case against the petitioner-accused was that he, along with the second accused in the case, came on a bike, and caught hold of the minor girl's hand intending to outrage her modesty. The duo has been booked under Section 354 IPC ('Assault or criminal force to woman with intent to outrage her modesty'), and Sections 8 ('Punishment for sexual assault') r/w 7 ('Sexual assault') and 16 ('Abetment of an offence') of the POCSO Act.
Justice Kauser Edappagath observed that the First Information Statement did not reveal that the said act was done by the applicant with 'sexual intent' or with the intention to outrage the modesty of the victim.
“The only allegation is that the applicant came in a bike and caught hold of the hand of the victim. There is nothing to suggest in the F.I.S. that, the said act was done by the applicant with sexual intent or with the intention to outrage the modesty of the victim. The applicant has no criminal antecedents. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary. For these reasons, it is a fit case where pre-arrest bail can be granted to the applicant,” the Court observed.
Case title: Maheen Ali V State of Kerala
Citation: 2023 LiveLaw (Ker) 446
The Kerala High Court granted pre-arrest bail to an 18 year old boy under Section 438 of CrPC who was alleged to have kidnapped and raped a 17 year old girl. The Court held that the applicant and victim were having consensual sexual relationship and that she went voluntarily with him as they were involved in a romantic relationship.
Justice Kauser Edappagath, while allowing the anticipatory bail application observed thus:
“The reading of FIS would show that, the applicant who was aged 18 years and the victim who was aged 17 years, got acquainted through Instagram two years back and they were in romantic relationship. The FIS would further show that, on 09.04.2023, the victim voluntary went along with the applicant to his friend's house. On 15.07.2023 also, the victim voluntarily went to the house of the applicant. An over all reading of the FIS shows that the alleged sexual act was consensual in nature.”
Case Title: Umesh v. State of Kerala
Citation: 2023 LiveLaw (Ker) 450
The Kerala High Court granted anticipatory bail to a 46-year old, who was accused of committing gang rape on a woman and transmitting her sexually explicit video online, on finding that the intercourse was consensual in nature, and an amount of Rs. 5,000/- was also paid to the woman after the alleged incident.
The prosecution allegation was that the petitioner and the 1st accused person stupefied the victim after giving her liquor, and indulged in the alleged acts, and thereby committed the offences under Sections 376D IPC ('Gang Rape'), and Section 67A of the Information Technology Act ('Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form').
Justice Kauser Edappagath perused the screenshot of the WhatsApp chat between the petitioner-accused and the woman, and observed:
"WhatsApp screenshot would show that the victim voluntarily went to the hotel knowing very well that the applicant and the accused No.1 were there in the hotel. The WhatsApp chat would further show that the sex they had at the hotel was consensual in nature. Annexure -4 receipt for payment of Rs.5,000/- coupled with her WhatsApp chat would show that the applicant paid Rs.5,000/- to the victim after the alleged incident of rape. Moreover, there is a delay of 12 days lodging the FIR. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary".
Case Title: State of Kerala V P M Kunhappan
Citation: 2023 LiveLaw (Ker) 460
While reversing an order of acquittal in a bribery case against a village officer, the Kerala High Court recently observed that CrPC does not mandate the appellate court to differentiate between the appeals against judgments of conviction or acquittal and that they have the same powers while dealing with both.
Justice Kauser Edappagath relying upon various Apex Court decisions stated that in an appeal against acquittal, the High Court has full power to review facts and law and to reconsider evidence to decide if an order of acquittal should be reversed.
“It is true that in the case of acquittal, there is double presumption in favour of the accused, and an order of acquittal cannot be interfered with as a matter of course. However, there is no difference in power, scope, jurisdiction, or limitation under the Cr. P.C. between the appeals against judgment of conviction or acquittal. The appellate court is free to consider fact and law, despite the self-restraint that has been ingrained into practice, while dealing with the judgment of acquittal considering the interest of justice and fundamental principles of presumption of innocence.”
Case name: Sunil Kumar V State of Kerala
Citation: 2023 LiveLaw (Ker) 461
The Kerala High Court recently quashed the criminal proceedings initiated against a Defence aspirant for allegedly abetting the suicide of his college-girlfriend by keeping away from their relationship after passing out.
Single bench of Justice K Babu cited plethora of precedents to reiterate that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence and an active act of instigation which led the deceased to commit suicide.
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained," the Court held.
Case title: Anil Kumar V State of Kerala
Citation: 2023 LiveLaw (Ker) 465
The Kerala High Court held that conviction for rape can be made on the sole testimony of the prosecutrix and no corroboration such as test identification parade would be required if the evidence of the victim was reliable and inspires the confidence of the Court.
Justice A. Badharudeen observed thus,
“PW5 [prosecutrix] had enough time to have an imprint of the face and features of the accused, who had subjected her to sexual intercourse, despite her resistance and later identified the accused as the culprit while he was sitting in an autorickshaw, by chance, and later identified him at the dock also. In such a case, there is no reason to disbelieve the identity, as argued by the learned counsel for the appellant, and the said contention is found to be unsustainable.”
Kollam Doctor Murder: Accused Sandeep Withdraws Bail Plea From Kerala High Court
Case Title: Sandeep v. State of Kerala
Citation: 2023 LiveLaw (Ker) 469
The bail application moved before the Kerala High Court by Sandeep, sole accused in the brutal murder of the 23 year old house surgeon Vandana Das, was withdrawn.
The Single Bench of Justice Gopinath P. accordingly dismissed the plea as withdrawn.
"After arguing for some time, the learned counsel for the petitioner seeks permission to withdraw the bail application. Dismissed as withdrawn," the Court said.
Case Title: Vishnu K.B. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 472
The Kerala High Court recently held that a notarised affidavit signed by the de facto complainants exonerating the accused person cannot be taken in isolation to discharge the accused.
Justice N. Nagaresh explained that to discharge an accused person under Section 227 of the CrPC, the Court ought to determine if there are sufficient grounds to proceed against them. If such grounds are found, an order of discharge cannot be passed and the accused would have to face trial.
"The purpose of Section 227 of the Code is to ensure that the Court should be satisfied that the accusations made against the accused is not frivolous and that there is some material for proceeding against the accused. If there is sufficient ground for presuming that the accused has committed an offence, an order of discharge cannot be passed and the accused has to face trial... A notarised affidavit subsequently signed by the de facto complainants cannot be taken in isolation by the Court so as to discharge the accused."
Case title: Aneesh V State of Kerala
Citation: 2023 LiveLaw (Ker) 473
The Kerala High Court quashed criminal proceedings initiated against a man who was arrested by the Police from roadside for watching pornography on his mobile phone.
Justice P.V.Kunhikrishnan stated that "privately" watching obscene photos or videos on one's phone without distributing or publicly exhibiting it will not attract the offence of obscenity under IPC. It added that watching such content is a person's private choice and the Court cannot intrude into his privacy.
"The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy," Court observed.
Case Title: Unni Mukundan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 485
The Kerala High Court quashed the proceedings against Malayalam film actor Unni Mukundan where he was facing prosecution for offences under Sections 354 (Assault of criminal force to woman with intent to outrage her modesty) and Section 354-B (Assault or use of criminal force to woman with intent to disrobe) of the IPC, based on a settlement between the parties.
Justice P. Gopinath observed thus:
“The learned Counsel appearing for the petitioner would submit that the entire issue between the petitioner and the de facto complainant have been settled. It is submitted that at the instance of the petitioner certain complaints were filed against the de facto complainant and those proceedings have also been terminated on the ground of settlement between the petitioner and the de facto complainant. It is submitted that the this is a fit case where the further proceedings against the petitioner can be terminated on the ground of settlement.”
Bar On Anticipatory Bail U/S 438(4) CrPC In Cases Of Rape Of Minors Not Absolute: Kerala High Court
Case Title: XXX v. State of Kerala & Ors. and connected matter..
Citation: 2023 LiveLaw (Ker) 499
The Kerala High Court reiterated that Section 438(4) of the Code of Criminal Procedure (CrPC) does not create an absolute bar in the grant of anticipatory bail to an accused alleged of raping a minor girl when no prima facie materials exist warranting the arrest of the accused.
Section 438(4) excludes the grant of pre-arrest bail to offences under Sections 376(3), 376-AB, 376-DA or 376-DB of the IPC, which pertain to the offence of rape or gang rape with a minor woman under the age of twelve or sixteen years.
Justice Kauser Edappagath, while noting that the grievous nature of the afore offences certainly warranted and justified the exclusion of pre-arrest bail, however, added that where such cases were patently false or motivated allegations, such exclusion would not come into play.
"If the exclusion of the provision for pre-arrest bail embodied in Section 438(4) of Cr.P.C. is treated as absolute, there will be no protection available to innocent persons against whom false and motivated accusations are made. Protecting the innocent is equally important, like convicting the guilty. The criminal justice system needs to strike a balance between punishing the guilty and protecting the innocent. Thus, the exclusion clause cannot, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. Limiting the exclusion to genuine cases is essential to protect the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India," the Court observed.
Kerala High Court Grants Bail To Four Accused In Tanur Drugs Case
Case Title: Mansoor & Ors. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 513
The Kerala High Court granted bail to four persons arrested in connection with the alleged possession of narcotic drugs in Tanur, Malappuram.
Justice Mohammed Nias C.P. passed the order.
Case title: Finil Biju V State of Kerala
Citation: 2023 LiveLaw (Ker) 519
The Kerala High Court discharged a person charged under Section 304 IPC stating said that the offence of 'culpable homicide not amounting to murder' will not be attracted to motor accident death caused by him late at night, when roads are deserted.
Justice N. Nagaresh observed that knowledge and intention of causing an accident or death could not be presumed in this case and thus the accused would have to be tried for offence under Section 304 A of IPC.
“The petitioner was riding the motorcycle during night hours and at about 1.45 am when ordinarily roads will be deserted...There is no allegation that the petitioner had any intention to cause death of the deceased. The petitioner's offence would clearly fall within the ambit of Section 304A IPC. In the circumstances, I am of the view that the petitioner ought to have been charged under Section 304A IPC instead of Section 304 IPC. The rejection of the application for discharge as far as Section 304 IPC is concerned is therefore unsustainable.”
Case Title: Malathy Ravi v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 520
The Kerala High Court declared that the State Government ought to confirm the detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA, 2007') within 3 months from the date of its execution.
The Division Bench comprising Justice Anu Sivaraman and Justice C. Jayachandran observed that while Article 22 (4) of the Constitution does not create an embargo for detention beyond the period of three months, the Apex Court had held in Ujjal Mondal v. the State of W.B (1972) that unless the power of confirmation is exercised within 3 months from the date of detention, further detention upon expiry of the said period would be without the authority of the law.
Case Title: Akhila Nandakumar v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 526
The Kerala High Court has closed the petition filed by the Chief Reporter of Asianet News Channel Akhila Nandakumar to quash the FIR registered against her for allegedly conspiring to defame CPI(M)'s student wing leader PM Arsho in connection with the Maharaja's College examination controversy.
Justice P.V. Kunhikrishnan passed the order, taking note of the submission made by the Public Prosecutor that Nandakumar had already been removed from the array of accused in the crime.
Case title: Suo Moto v State of Kerala
Citation: 2023 LiveLaw (Ker) 537
In a recent suo moto case on missing properties from court custody, the Kerala High Court noted that Rule 184 of Criminal Rules of Practice, 1982 dealing with maintenance of property registers was not in consonance with the technological advancements of present times.
Justice V.G Arun noted that amendments have to be made in Rule 184 for introducing recent technological advancements including digitizing records and registers.
“In my opinion, Rule 184 ought to be amended and provision should also made for digitizing the registers and records, in consonance with the recent developments. Digitization of the registers and introduction of electronic tracking system will help in preventing the stalemate of cases due to the missing, pilferage or damage of properties produced in court. I am expressing this opinion, being conscious of the fact that the case at hand is not an isolated instance of the missing of properties produced in court.”
Case Title: Dawood v. State of Kerala
Citation: 2023 LiveLaw (Ker) 541
The Kerala High Court has set aside the conviction of a person accused of displaying obscene books for sale in a shop room on the ground that the prosecution had failed to prove that the books were obscene or that the accused was in possession of the shop room from where the books were seized.
The Single Judge Bench of Justice C.S. Dias noted that the material prosecution witnesses, i.e. the police officers who conducted the search, had neither stated that the books were obscene nor had they proved ingredients for the offence under Section 292(2)(a) IPC ('Sale of obscene books, etc.') against the accused.
"The prosecution having failed to state anything on the contents in the books and no incriminating circumstances being put to the accused under Section 313 Cr.P.C., the action of the courts below in scrolling through the books and then concluding that they are obscene is erroneous and unjustifiable. The action of the courts below has caused prejudice to the accused, because he has been denied an opportunity to explain the exercise carried out by the courts below. Hence, this Court is of the view, there is a total failure of justice in the courts below holding that the books are obscene and, therefore, the accused is guilty of committing the offence," Justice Dias declared.
Case Title: A.C. Pavithran & Ors. v. State of Kerala and Connected cases
Citation: 2023 LiveLaw (Ker) 545
The Kerala High Court has acquitted four of nine BJP activists who were convicted for committing the murder of a CPI(M) worker due to political rivalry, while they were all lodged in Central Prison at Kannur, serving their sentences in a different case.
The bench of Justice P.B. Suresh Kumar and Justice P.G. Ajith Kumar observed that prisons are meant for reformation of detainees and not for indulging in factionalism or political activities. It quoted Mahatma Gandhi and stated, "Crime is the outcome of a diseased mind and jails must have an environment of hospital for treatment and care."
Court said prison is no place for factionalism and questioned the prison authorities over housing prisoners in different blocks based on their political allegiance.
“We fail to understand how the authorities of the Central Prison, Kannur could house prisoners in different blocks based on their political allegiance. That, in fact, leads to incidents like the instant one. Like prison officers, prisoners also shall not indulge into any political activity inside the four walls of prisons.”
Case Title: Noushad Flourish v. Akhila Noushad & Anr.
Citation: 2023 LiveLaw (Ker) 550
The Kerala High Court has held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC, after effecting Khula.
Divorce by 'Khula' is a divorce at the instance of, and with the consent of the wife, by which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Perusing Section 125 (4) of Cr.P.C., Justice A. Badharudeen noted that no wife shall be entitled to receive an allowance for the maintenance or interim maintenance, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
"When the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C. If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of Cr.P.C.," the Bench observed.
Case title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 551
The Kerala High Court dismissed the anticipatory bail application of the mother of a minor daughter for facilitating the stepfather to commit rape and sexual assault on the minor child.
Justice Gopinath P. observed that the allegations against the mother, if proved true, were an insult to the motherhood. The Court also noted that since biological mother was arrayed as an accused, she might be in a position to influence or intimidate the minor child to give evidence in favor of the accused persons.
“I am of the view that the petitioner is clearly not entitled to anticipatory bail. The allegation against the petitioner are very serious and if true they are an insult to motherhood. The apprehension expressed by the learned Public Prosecutor appears to be real. The petitioner being the biological mother of the minor victim may be in a position to influence or intimidate the victim if she is granted bail. The statement of the victim that she was subject to rape even in the presence of the petitioner / 2nd accused is another reason which compels me to hold that the petitioner is not entitled to bail.”
Case Title: James A.C. v K.A. Sakthidharan
Citation: 2023 LiveLaw (Ker) 555
The Kerala High Court held that an accused can only be acquitted under Section 256 CrPC when there was a definite conclusion that the complainant does not wish to prosecute the complaint.
Justice C.S. Dias stated that the Court must not perfunctorily acquit an accused u/s 256 of CrPC. Such power must be exercised judicially and not whimsically or mechanically, the Court observed thus:
“It is far too well settled that the power of the Magistrate under Sec.256 Cr.P.C to acquit an accused should be exercised judicially, based on a definite conclusion that the complainant no longer desires to prosecute the complaint. The power is not to be indiscriminately exercised whimsically and mechanically for the statistical purposes of removing a docket from its rack as it undermines the cause of justice. Instead, the judicious course would be to direct the complaint to appear for the hearing, if it is imperative, and decide whether the drastic step of acquittal is to be passed in case he fails to appear.”
Case Title: XXX v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 556
The Kerala High Court recently set aside a Sessions Court order granting anticipatory bail to 57 years old man accused of sexually assaulting a minor aged 7 years, on the ground that the alleged delay in registering the crime was on account of a typographical error in the FIR qua the date of commission of the offence.
Justice Gopinath P. thereby directed the Sessions Court to reconsider the the bail application of the accused afresh, after affording an opportunity of hearing to both parties.
"The finding in Annexure-A2 order (impugned order of Sessions Court) that there was considerable delay in registering the complaint seems to be on the basis that, in column No-12 of the FIR, on account of some typographical error, it was noted that the offence alleged was in the month of May 2022, while it was actually in the month of May 2023. A reading of Annexure-A2 order shows that the only reason which compelled the Sessions Court to grant anticipatory bail to the accused/2nd respondent is that there was considerable delay in lodging the complaint. This is obviously a mistake of fact owing to the typographical error in the FIR," the Court observed.
Courts To Pass Speaking Orders While Rejecting Discharge Application U/S 239 CrPC: Kerala High Court
Case Title: Nimmy Mathew v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 558
The Kerala High Court laid down that a speaking order would have to be passed by the Court which considers and rejects an application for discharge under Section 239 of Cr.P.C.
Justice N. Nagaresh, relied upon the Apex Court decision in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey (2022), wherein the Court had observed that all that is required at the time of framing of charge is that the Court ought to be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. The Court added that while rejecting a discharge application, the reasons for the same also ought to be disclosed.
Case Title: XXXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 559
The Kerala High Court has rejected the plea moved by a man accused of committing rape on his disabled cousin sister, seeking anticipatory bail on the ground that he was only 18 years old when the alleged offence was committed.
Justice Gopinath P. observed thus: “Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner cannot be granted anticipatory bail. Though the petitioner is stated to have been only 18 years of age at the time when the offence was committed, that by itself cannot be a ground to grant anticipatory bail to the petitioner, especially considering the nature of the offence involved.”
Case Title: Jyothi v State of Kerala
Citation: 2023 LiveLaw (Ker) 560
The Kerala High Court has reiterated that the Limitation Act does not prescribe any statutory period for the victim to prefer an appeal against conviction under the proviso to Section 372 CrPC.
Justice C.S. Dias relied upon the Division Bench decision in Sobhanakumari K. vs. Santhosh @ Pallan Shaji (2018) and observed thus: “In Sobhanakumari K. vs. Santhosh @ Pallan Shaji [2018 (1) KHC 195], a Division Bench of this Court has held that there is no time period stipulated under the Limitation Act to file an appeal by a victim under the proviso to Section 372 of the Code. If at all an appeal is filed beyond the time period of 30/60 days, only an affidavit explaining the reason for the delay is to be filed by the victim with the appeal.”
Case Title: Ashiq Sulthan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 562
The Kerala High Court granted permission to a person accused of committing the offence punishable under Section 498A (Cruelty to woman by husband or his relative) IPC, to pursue higher studies in Australia, despite the police not having submitted the final report in the case.
"...it is evident that, since the date of the surrender, he has been cooperating with the investigation and interrogation of the petitioner is already over. Apparently, no recovery is also to be affected. Therefore, I am of the view that, merely because the police have not submitted the final report, he need not be deprived of his right to go abroad to pursue his studies," the Single Judge Bench of Justice Ziyad Rahman A.A. observed.
Failure To Question Accused U/S 313 Cr.P.C. Vitiates Entire Proceedings: Kerala High Court
Case Title: Raju J. Vylattu v. P.V. Alexander & Anr. and connected matter
Citation: 2023 LiveLaw (Ker) 563
The Kerala High Court laid down that the failure to question an accused under Section 313 (1) (b) of Cr.P.C. would vitiate the entire proceedings.
Section 313 (1)(b) states that "in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case".
Justice C.S. Dias, explained that the intent of the provision is to align with the principles of natural justice, particularly that of 'audi alteram partem' which provides that both sides must be heard."...otherwise, the inculpatory materials and circumstances of the exhortation not put to the accused under Section 313 cannot be used against him. Even though it is by now settled, the failure to put the incriminating circumstances to the accused may not ipso - facto vitiate the entire trial, it can be established that the non-compliance of the mandate of the provision would vitiate the proceedings from the stage of Section 313 of the Code," the Court observed.
Abusing Police Officer Over Phone Not An Offence U/S 294(b) IPC: Kerala High Court
Case Title: Ramla Kabeer v. State of Kerala
Citation: 2023 LiveLaw (Ker) 564
The Kerala High Court has quashed the criminal proceedings initiated against a 51-yr-old woman accused of threatening and hurling abuses at a police officer over phone, upon finding that the same would not attract the offence under Section 294(b) ('Obscene acts and songs') of IPC, that she had been charged with.
Justice P.V. Kunhikrishnan discerned that in order to attract the offence under Section 294(b), two ingredients as highlighted in James Jose v. State of Kerala (2019) would be necessary: 1. that the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song or word in or near any public place; and 2. that the act has caused annoyance to others.
"Admittedly the allegation is that the petitioner contacted the defacto complainant over phone and used abusive language. Even if the petitioner used abusive words over phone, that would not attract an offence under section 294(b) IPC in the light of the dictum laid down by this court in James Jose case (supra). Moreover, the abusive words mentioned in Annexure A complaint would not attract the ingredients of offence under section 294(b) IPC," the Court observed.
Case Title:Ramla Kabeer v. State of Kerala
Citation: 2023 LiveLaw (Ker) 564
Suspecting foul play in the FIR lodged by a Police Inspector against a 51-yr-old woman for allegedly threatening and abusing him over the phone, the Kerala High Court has ordered the State Police Chief to inquire the facts that led to the FIR.
The petitioner-accused, who had pleaded her case in person 'teary eyed' before the Court, was booked under Section 294(b) ('Obscene acts and songs'), Section 506(i) of IPC ('Criminal Intimidation'), and Section 120(o) of the Kerala Police Act.
"In the normal course, such an incident is unbelievable in our society. Citizens always respect the police authorities. Therefore, the District Police Chief should conduct an enquiry about the registration of this case against the petitioner and if there is any default on the part of the defacto complainant, appropriate steps should be taken in accordance with law," Justice P.V. Kunhikrishnan observed, while quashing the proceedings against the petitioner.
Case title: Sanath Roy v State of Kerala
Citation: 2023 LiveLaw (Ker) 568
The Kerala High Court has acquitted a Hindi proficient accused, a native of West Bengal who was convicted for robbery and murder, because his disclosure statements were recorded in a language not spoken by him.
The Division Bench comprising Justices P.B.Suresh Kumar and P.G.Ajithkumar observed that disclosure statement has to be recorded in the same language spoken by the accused. It was found that the police made the recovery of material objects with the help of a translator who translated the disclosure statement into Malayalam and the translator was not examined as a witness.
Case title: Narayanan v State of Kerala
Citation: 2023 LiveLaw (Ker) 569
The Kerala High Court has acquitted a man and his family who were convicted under Section 498A IPC for cruelty against a deceased woman on the finding that the parties were living together as husband and wife, based on a marriage agreement and their marriage was not solemnized.
Justice Sophy Thomas observed thus: “In the case on hand, since the marriage between the 1st revision petitioner and deceased Chandrika was not solemnised, and they started living together on the basis of a marriage agreement, which has no legal sanctity in the eye of law, they have to be treated as persons in live-in-relation, and they were not husband and wife, in order to attract an offence punishable under Section 498A of IPC. So, the trial court as well as the appellate court went wrong in finding the revision petitioners guilty under Section 498A of IPC and sentencing them for that offence.”
Dowry Demand Without Ingredient Of Cruelty Not An Offence U/S 498A IPC: Kerala High Court
Case Title: Niyas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 571
The Kerala High Court held a mere demand for dowry or any property or valuable security without the ingredient of 'cruelty' would not attract the offence under Section 498A IPC. It held that when both elements of demand and cruelty are combined, then liability would be fastened on an accused.
Justice P. Somarajan observed: "A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC. Likewise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC."
Case title: K.T. Sukumaran v State of Kerala
Citation: 2023 LiveLaw (Ker) 579
The Kerala High Court stated that a Magistrate has statutory duty to pass a speaking order under Section 311A of CrPC for collection of specimen signatures or handwriting of a person in connection with a criminal case.
Bench of Justice P.V. Kunhikrishnan on examining the provision added that the Magistrate should be at least prima facie convinced that, such an action would not prejudice the interest of the accused in the facts and circumstances of that case. The court held that a speaking order is essential to ensure that no prejudice is caused to the accused. It also stated that the Magistrate has a statutory duty to pass a speaking order for ensuring that Article 20 (3) of the Constitution is not violated which states that no person can be compelled to be a witness against himself.
Case title: Ayub H.H. v State of Kerala
Citation: 2023 LiveLaw (Ker) 583
The Kerala High Court reiterated that Section 499 of IPC makes defamation against individuals as a punishable offence under Section 500 of IPC and not against criticism of any product or service. The Court noted that the provision deals with harm to reputation caused to any person and not product.
Justice N. Nagaresh observed that criticism of a product or service cannot be considered to be imputation of reputation to be punishable as defamatory under Section 499 and 500 of IPC. Court stated: “ The statements of the witnesses would show that the content of the Facebook post is regarding the product of the Firm of the petitioner. The 2nd respondent has criticized the product. Criticism of any product/service made by a citizen cannot be treated as defamatory though such criticism may not be of the liking of the manufacturers/producers.”
Case title: Kuthiralamuttam Saji v State of Kerala
Citation: 2023 LiveLaw (Ker) 590
The Kerala High Court has held that power under Section 323 CrPC to commit a case to the Sessions Court after commencement of inquiry/ trial may be invoked by the Magistrate only after recording its reasons by way of a speaking order.
Justice P.V. Kunhikrishnan observed, “Since the words “it appears to him at any stage ..............” is used in Section 323 CrPC, it is clear that when a Magistrate invokes the powers under Section 323 CrPC, the reason for the same should be recorded. In other words, the Magistrate is required to give reason for thinking that the case ought to be tried by the Sessions Court, while invoking Section 323 CrPC. Therefore, according to me, a speaking order is necessary before invoking the powers under Section 323 CrPC.
Case title: Shamsudheen v State of Kerala
Citation: 2023 LiveLaw (Ker) 593
The Kerala High Court has recently held that the Executive Magistrate, Sub-Divisional Magistrate or District Magistrate cannot acquit an accused under Section 256 CrPC while invoking powers under Section 133 to 138 of CrPC by issuing conditional orders for the prevention of nuisance.
Justice P.V. Kunhikrishnan also clarified that the Section 133 proceeding empowered the District, Sub-divisional or Executive Magistrate to issue a conditional order for the removal of nuisance based on a police report or other information, but not based on a complaint.
“In such circumstances, I am of the considered opinion that Section 256 of the Code cannot be invoked by an Executive Magistrate or Sub Divisional Magistrate or District Magistrate, while invoking the powers under Sections 133 to 138 of the Code. The upshot of the above discussion is that Annexure-A7 order passed by the Executive Magistrate closing the case invoking the powers under Section 256 of the Code is unsustainable.”
Case Title: Johnson Stephen v. Chinchumol & Anr.
Citation: 2023 LiveLaw (Ker) 597
The Kerala High Court laid down that mere filing of an application by the complainant for compounding of offences alleged does not automatically result in acquittal of accused. Bench of Justice K. Babu noted that Section 320 CrPC categorizes offences into two parts- Under Sub-section (1), certain offences have been listed which can be compounded without the permission of the Court. Under Sub-section (2), certain offences are listed, which can be compounded only with the permission of the Court.
The judge explained that composition of a compoundable offence under Section 320(1) Cr.P.C. would be complete as soon as the Court accepts it upon being satisfied that the composition is voluntary, genuine and true. The same would have the effect of acquittal of the accused even if the person by whom offence may be compounded later resiled from the composition. However, as regards the offences which are compoundable only with the permission of the Court, as under Section 320(2), the composition would not have any effect unless and until the Court grants such composition.
Case title: Mukesh v State of Kerala
Citation: 2023 LiveLaw (Ker) 598
Citing prolonged incarceration of over a year, the Kerala High Court has granted bail to a man who allegedly attacked a woman for rejecting his marriage proposal by using a chopper and explosives, leading to loss of her four fingers.
Justice Bechu Kurian Thomas granted bail to the accused who has been in jail since June 28, 2022 and observed that further detention would amount to conviction without trial. “Petitioner was arrested on 28.06.2022 and has been in jail since then. Though the allegations are serious in nature and the petitioner has a history of having absconded earlier, I am of the view that, considering the long period of detention already undergone, further detention would amount to conviction without trial. Since, it is submitted that, the case is already pending before the Sessions Court and is posted for hearing of the charge on 15.11.2023, I am of the view that, further detention ought not to be permitted.”
Case Title: K. Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 600
The Kerala High Court categorically held that admission of confessional statements made by accused to the Police, which are hit by bar under Sections 25 (Confession to police officer not to be proved) and 26 (Confession by accused while in custody of police not to be proved against him) of the Evidence Act, can vitiate a trial and lead to the acquittal of the accused.
The Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath criticized the practice of trial courts in continuing to accept entire confession statements of the accused, despite several Supreme Court precedents discouraging this practice.
"The breach of a statutory provision that is designed to protect a citizen from self incrimination and arbitrary deprivation of life and personal liberty must necessarily have serious consequences for the prosecution. Constitutional safeguards cannot be rendered a teasing illusion by the very State that is obliged to uphold them," the Bench observed.
Kerala High Court Grants Anticipatory Bail To Lawyers Accused Of Sexually Abusing Client
Case Title: X & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 606
The Kerala High Court recently granted anticipatory bail to two lawyers accused of raping and sexually abusing their client on multiple occasions. Justice Gopinath P. passed the order, on taking note of the fact that while the victim/de facto complainant averred that she had been sexually abused from the moment she had first approached the 1st petitioner to entrust her case, the complaint in this regard had been filed only in June, 2023.
"A cumulative reading of all the complaints preferred by the de facto complainant / victim would indicate that she was abused right from the time she had first approached the 1st petitioner seeking his professional help. However, the first complaint seems to have been filed only on 30-06-2023. While this itself may not be fatal to the prosecution case, it lends credence to the argument of the learned counsel for the petitioners that the de facto complainant / victim had actually filed a complaint being aggrieved by the fact that she had not received sufficient compensation in the proceedings before the Family Court," the Court observed.
Case Title: Nijesh Chandran & Ors. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 616
The Kerala High Court refused to grant anticipatory bail to three persons who had allegedly cheated a woman by putting up a fake profile on a matrimonial website.
The prosecution allegation was that the 1st petitioner who is a 38 year old man who is already married, had put up a matrimonial profile claiming himself to be a doctor, and had gone to the house of the de facto complainant with his wife and mother (2nd and 3rd petitioners herein), under the pretext of fixing marriage with the de facto complainant.It is alleged that the 1st petitioner had thereafter obtained 150 sovereigns of gold from the de facto complainant, by convincing the latter that he required money urgently for the medical treatment of his father, whereafter he pledged the same, and obtained loan. Justice Gopinath P. was of the considered view that the plea for anticipatory bail could not be granted in light of the clear allegations against the respondents.
Case title: Balamuraly G v Vinod T R
Citation: 2023 LiveLaw (Ker) 617
The Kerala High Court has clarified that when concurrent revisional jurisdiction is available under Section 397 CrPC to approach the High Court as well as the Sessions Court, it is just and appropriate to first approach the Court of the lowest forum, that is, the Sessions Court. The Court was quick to add this does not mean that there is any bar in approaching the High Court first, without exhausting the remedy before the Sessions Court.
Justice P.G. Ajithkumar has relied upon the Full Court decision in Sivan Pillai v. Rajamohan and others (1978) to state it is prudent to invoke the jurisdiction of the lowest forum first before approaching the High Court when concurrent remedy was available under Section 397 CrPC. The Court noted parties might be located in the Sessions Division concerned and thus it would be easier to issue notice to the accused who might be residing within the jurisdiction of the Sessions Court.
Maintenance Application Under Chapter IX CrPC Cannot Be Dismissed For Default: Kerala High Court
Case title: Elon Christ Stephen v Steaphen Antony Venasious
Citation: 2023 LiveLaw (Ker) 624
The Kerala High Court considered whether an application filed for maintenance allowance under Chapter IX of CrPC can be dismissed for default (non-appearance of party seeking maintenance). Chapter IX, Section 125-128 of CrPC contemplates Order for Maintenance of Wives, Children and Parents.
Justice C.S. Dias observed that Magistrate has no implicit power to dismiss an application filed under Chapter IX CrPC for default summarily. In the facts of the case, the application was dismissed for non-representation of the petitioner-minor son who was appearing through his mother for claiming maintenance from the respondent-father.
Case Title: Pattakka Suresh Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 635
The Kerala High Court has called for the integration of technology in the criminal justice dispensation system in order to permit two life convicts to attend LL.B. classes in the online mode for the academic year 2023-24.
The Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath, emphasized upon the importance of education in reforming and rehabilitating prisoners.
"...a convict is entitled to basic human rights and has the right to live with dignity in jail. The prisoners' right to education is a human right grounded in the right to dignity. A prisoner has as much a right to pursue study as a person free from the confines of jail. The aims of imprisonment include reformation and rehabilitation apart from deterrence. Education can contribute to a sense among prisoners that they remain a part of the wider community. Prison education can provide a source of hope and aspiration whilst making purposeful use of time in detention. It also helps them lead better lives once they are free. Thus, ensuring that prisoners have access to education is essential to achieving the reformative and rehabilitative objectives of imprisonment as well," the Bench observed.
Case Title: Sunil Kumar @ Rakkan v State of Kerala and connected matter
Citation: 2023 LiveLaw (Ker) 637
The Kerala High Court has made it clear that to establish an offence of criminal trespass under IPC, the prosecution must prove beyond doubt that the accused persons entered into the property to commit criminal trespass with an intention to commit any offence or to cause intimidation, insult or annoyance.
Justice C.S. Dias thus acquitted two persons who were convicted for the commission of the offence of criminal trespass, citing lack of above ingredients.
“...the accused had no intention to commit any offence or intimidate, insult or annoy PW1 when they entered his house. The prosecution has miserably failed to establish beyond doubt that the accused had entered the property with an intention to commit the offence. Therefore, the revision petitioners/accused are entitled to the benefit of doubt.”
Case Title: Sreeja @Sini v State of Kerala
Citation: 2023 LiveLaw (Ker) 642
The Kerala High Court has ordered release of a woman detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA Act), considering that her daughter is at an advanced stage of her pregnancy.
The Division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen said normally courts do not interfere in detention orders, but it is not devoid of such power when fundamental rights are involved.
“In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior right available to such person on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified.”
Case Title: Divya S.S Rose v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 646
The Kerala High Court has quashed the proceedings under Prevention of Corruption Act initiated against a Range Officer at Social Forestry Range accused of taking bribe, citing prosecution's failure to establish his voice sample to prove the telephonic conversation she allegedly had with the complainant.
Justice K. Babu noted that the analysis by the Forensic Science Laboratory (FSL) had found that the identity of the speaker could not be positively ascertained from the voice sample that had been alleged to be that of the accused petitioner's, due to the speech amount being too little and low signal-to-noise ratio.
It further found that the allegation levelled against the petitioner by the 3rd respondent that the former insisted on bribe from him was also doubtful considering that the petitioner had taken a tough stand against the latter, and insisted on him completing the work in terms of the contract, which, in the opinion of the Court, could only be the inference of a prudent man.
Case title: Mathews A v State of Kerala
Citation: 2023 LiveLaw (Ker) 649
The Kerala High Court has held that an externment order passed with much delay, after a period of four months in this case for instance, affects the proprietary of such order.The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen thus confined the operation of externment order and observed,
“Having adverted to the factual situation as above, as we find there is much delay affecting the proprietary of the impugned order, no interference is called for to set aside the order. However, also taking note of the fact that the order is already in operation for more than three months, we confine the operation of the externment order till today (10.11.2023).”
Case Title: Sukumaran v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 664
The Kerala High Court reminded that the power to detain individuals ought not to be used as a punitive measure, but to secure public order, in the larger interest of the society.
"Dention order is a serious matter depriving liberty of the citizens. That means, except on valid grounds a person cannot be deprived of his liberty. The detention order, therefore,must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007(for short 'KAAPA Act'). That means, the offence in which he is involved in the past will have to be analysed to arrive at a conclusion that he will be a threat to the society when he is enlarged without detention," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed.
Case Title: Prathibha v State of Kerala
Citation: 2023 LiveLaw (Ker) 672
The Kerala High Court deliberated upon the legal issue as to whether a conviction for culpable homicide under section 299 IPC was sustainable if the body of the infant was disposed of in the sea believing it to be lifeless.
The Court was hearing an appeal against the conviction of parents for allegedly causing the death of their infant child and disposing of the body in the sea. The Sessions Court had convicted the parents under Section 302 (punishment of murder), 201 (causing disappearance of evidence) read with Section 34(common intention).
On analyzing Section 299 IPC, the Division Bench comprising Justice P.B.Suresh Kumar and Justice Johnson John acquitted the parents and observed that the offence of culpable homicide was not attracted as the acts were performed on the body of the infant believing it to be lifeless. It noted that there was no intention or knowledge on the part of the parents to put an end to the life of the infant.
“As evident from the extracted definition itself, the provision is attracted only when a person does an act which causes death of another, either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. These three are the species of mens rea contemplated in the provision, and unless it is established that the act of the accused would fall under any of these, it would not amount to an offence of culpable homicide. Therefore, in order to attract the Section, the act must be one performed with the intention of putting an end to a human life or with the knowledge that the same may put an end to a human life Needless to say, if the act is performed on a body which the person concerned believed to be lifeless, the offence is not attracted, for when the act was performed, the person concerned could have neither had the intention of putting an end to the human life nor had the knowledge that the act performed by him may or is likely put an end to human life.”
Case Title: Manoj Kumar & Ors. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 673
The Kerala High Court recently laid down that a delay of nearly five years in re-submitting a request for obtaining sanction for taking cognizance of an offence Section 153(A) of the IPC ('Promoting enmity between different groups on grounds of religion, race, place of birth, residence') cannot be accepted.
It also held that prosecution cannot contend that that period is liable to be excluded under Section 470(3) Cr.P.C.
Section 470(3) Cr.P.C. stipulates that, "Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded".
"When the Explanation says that the date on which the application was made and the date of receipt of the order of the Government are allowed to be excluded from the period taken for obtaining sanction, the intention of the Legislature is clear. The provisions under Section 470 of the Code that allows exclusion of the period taken for obtaining sanction requires a strict interpretation. When there occurred a delay of nearly five years to re-submit the request for obtaining sanction, the prosecution cannot be heard to contend that that period is liable to be excluded under Section 470(3) of the Code," Justice P.G. Ajithkumar observed.
Case Title: P.B. Prasobh & Ors. v. K.A. Muhammed Faisal & Anr.
Citation: 2023 LiveLaw (Ker) 677
The Kerala High Court held that the protection of sanction as provided under Section 197 Cr.P.C. would apply when the alleged act done by a public servant is reasonably connected with the discharge of his official duty.
Section 197 Cr.P.C. provides that when a public servant who is not removable from his office save by or with the sanction of the government, is accused in any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State or the State Government.
"...the protection given under Section 197 would be available when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. If there is a reasonable connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of the protection," Justice N. Nagaresh explained.
Case title: Udayakumar v State of Kerala
Citation: 2023 LiveLaw (Ker) 685
The Kerala High Court has said that when a FIR is registered at the directions of a Magistrate under Section 156(3) CrPC, the High Court may not exercise jurisdiction under Section 482 CrPC and quash such FIR unless there are compelling and justifiable reasons.
Justice Sophy Thomas said that in such cases, the accused may raise a challenge if final report is filed charging him/her for a cognizable offence or if he/she is aggrieved by the order of the Magistrate taking cognizance of the offence.
It observed,
"Before conducting investigation as to whether the petitioner had committed a cognizable offence or not, and before a final report is filed charging him for the offences alleged, in normal course, he cannot challenge the investigation undertaken by Police, which was so directed by the Magistrate under Section 156(3) of Cr.P.C. When investigation undertaken by Police as ordered by the Magistrate under Section 156(3) of Cr.P.C. is in progress, this Court cannot interfere with the investigation, which is a statutory function exercised by Police. Unless there are compelling and justifiable reasons, there cannot be any interference with the investigation proceedings."
Case Title: Shihad M.P. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 695
The Kerala High Court refused to grant anticipatory bail to the restaurateur of 'Le Hayath Restaurant', who was alleged to have caused the death of a customer through adulterated and non-consumable 'shawarma'.
Taking note of the serious nature of the prosecution allegations, as well as the violation of the mandatory guidelines issued to the hotels, Justice Mohammed Nias C.P. was of the considered view that proper investigation ought to be conducted in the matter.
"The menace of supplying adulterated food from restaurants can lead to various health issues, including food-borne illnesses, allergies and long term health issues, besides resulting in food poisoning, digestive problems and in severe cases, pose a threat to life itself. Under such circumstances, I am not inclined to grant anticipatory bail to the petitioner," the Court observed.
Case Title: Gopakumar V.G. v. Deputy Superintendent of Police & Anr.
Citation: 2023 LiveLaw (Ker) 702
The Kerala High Court laid down that Section 91 CrPC, which provides for the issuance of summons to produce document or other thing for the purposes of any investigation, inquiry, trial or other proceeding, is enabling in nature and the power under it would have to be judged commensurate with the stage or point of time it is exercised.
"The powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer-in-charge of a police station concerned to enforce and ensure the production of any document or other things necessary or desirable for the purpose of any investigation, enquiry, trial or other proceedings under the Code by issuing summons or a written order to those in possession of such materials," Justice K Babu observed.
Case Title: Vishnu Sajanan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 708
The Kerala High Court held that arbitrary or stringent conditions imposed on an accused when he was released on default bail under Section 167 of the Code of Criminal Procedure (CrPC) was violative of his fundamental rights under Article 21 of the Constitution of India.
The bail application of the accused was allowed by the Sessions Court as the investigation was not completed even after sixty days of judicial custody. The Sessions Court whilst allowing the bail application under Section 167 (2) CrPC imposed stringent conditions which were challenged before the High Court.
Justice PV Kunhikrishnan, while lifting the stringent bail conditions imposed upon the accused observed that default bail was a statutory right that cannot be curtailed by imposition of onerous conditions.
“While imposing conditions in default bail, the Court can only impose such conditions to ensure that the accused will appear before the court concerned for trial and will also co-operate with the investigation. An accused in detention shall be released on bail after the period of detention mentioned in Section 167(2), if he is prepared to and furnish bail. This statutory right cannot be circumvented by imposing onerous conditions. Such arbitrary condition imposed while granting statutory bail amount to infringement of the fundamental right of the detenue under section 21 of the constitution of India.”
Case Title: Suo Moto High Court of Kerala v. State of Kerala and Anr.
Citation: 2023 LiveLaw (Ker) 711
The Kerala High Court recently took suo motu cognizance of pendency of petty cases before Magistrates in the State and noted that as on date, 1.59 lakh petty cases were pending. It was held that in summons cases, Magistrates have power to stop proceedings under Section 258 CrPC, instituted otherwise than upon complaint, when the presence of the accused cannot be secured despite best efforts of the prosecution.
The Division Bench comprising Dr. Justice AK Jayasankaran Nambiar and Dr. Justice Kauser Edappagath made it clear that Section 258 CrPC empowered a Magistrate to order stoppage of proceedings at any stage of the trial, after issuance of summons and before completion of trial. It observed that proceedings can be stopped when the Magistrate is satisfied that the presence of the accused cannot be secured before the court owing to the incorrect/fake address of the accused or for any other valid reasons, despite the prosecution having made sincere and earnest efforts.
“In our view, not only is the power vested in the Magistrate sufficiently wide in its nature and scope but also in cases where the presence of the accused cannot be secured notwithstanding the earnest and sincere efforts of the Prosecutor, the Magistrate is duty bound to exercise his/her power to stop the proceedings. The Magistrate must record reasons before stopping the proceedings and releasing the accused. “
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 713
The Kerala High Court directed the Ernakulam District and Sessions Judge to conduct a fact finding enquiry on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from the Memory Card relating to the incident.
Justice K. Babu, passed the Order on a plea filed by the survivor seeking a court-monitored investigation into the alleged leakage of visuals from the Memory Card, and the change in hash value of the memory card thereof, that was kept in court custody.
"The District and Sessions Judge is at liberty to seek the assistance of any agency including the police for conducting the enquiry. The petitioner is at liberty to present written submissions before the District and Sessions Judge. In the inquiry, if the commission of any offence is disclosed, the District and Sessions Judge shall proceed as provided in the Code of Criminal Procedure, 1973," it observed.
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 713
The Kerala High Court laid down comprehensive guidelines to be followed by law enforcement agencies and Courts while handling sexually explicit materials.
The Single Judge Bench of Justice K. Babu issued the guidelines while ordering a 'fact-finding enquiry' on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from a Memory Card relating to the incident.
Kerala High Court Quashes Rape Case Considering Parties Solemnized Marriage
Case Title: Adarsh Thinkal T.S v. State of Kerala and Anr.
Citation: 2023 LiveLaw (Ker) 715
The Kerala High Court has quashed a rape case based on false promise of marriage, finding that the parties (accused and de facto complainant) had gotten married under the Special Marriage Act.
Taking into account the Marriage Certificate produced and the submissions, Justice Gopinath P observed thus:
“I am of the view that the petitioner is entitled to succeed. The offences alleged against the petitioner cannot sustain in the light of the fact that the petitioner has now married to the de facto complainant/victim.”
Pala Nun Murder | Kerala High Court Confirms Accused's Murder Conviction; Sets Aside Rape Charge
Case Title: Satheesh Babu v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 721
The Kerala High Court confirmed the conviction of the 38 year old accused of murdering a sexagenarian nun in the year 2015 under Section 302 of IPC.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John discerned that the circumstantial evidence adduced by the prosecution established beyond doubt that the accused had caused the death of the nun, although there was no evidence as regards the weapon used by him to cause her death.
It however set aside the conviction under Section 376 IPC for rape, since there was no evidence as to the time of the death of the victim for determining whether she had been alive at the time of commission of rape.
Case Title: Abdul Majeed v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 725
The Kerala High Court laid down that the Juvenile Justice (Care and Protection of Children) Act, 2000 ('JJ Act, 2000') would be applicable in revision, upon the conviction and sentence of a 49 year old person in respect of an offence committed by him in the year 1991, at the age of 17 years, when the Juvenile Justice Act, 1986 was in force.
Taking note of an Explanation added to Section 20 of the JJ Act, 2000, by virtue of an amendment which came into force in 2006, Justice G. Girish observed that the determination of juvenility of a juvenile in a pending case at the time of commencement of 2000 Act shall be in terms of Section 2(l) of the JJ Act, 2000, even if the juvenile ceases to be so on or before the date of commencement of the Act.
Case Title: Rama v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 733
In a significant decision, the Kerala High Court underscored the duty of jail authorities to consider applications moved by convicts and relatives of convicts for emergency leave, ordinary leave, and so on, within a fixed time frame.
Justice P.V. Kunhikrishnan took note that there were several petitions before the Court moved by convicts and their close relatives for getting emergency leave, ordinary parole, and so on. The Court therefore proceeded to issue a slew of directions on processing such applications, and issuing appropriate orders in that regard within three weeks from the date of receipt of the same. It further directed such orders to be communicated to the convicts and their relatives within a week of passing the Order.
Case Title: S. Sreesanth v. State of Kerala
Citation: 2023 LiveLaw (Ker) 745
The Kerala High Court allowed the anticipatory bail application moved by cricketer S. Sreesanth in a cheating case.
Justice Mohammed Nias C.P. recorded the submission that the matter had been settled between the parties.
Case Title: Indira v. State of Kerala
Citation: 2023 LiveLaw (Ker) 746
The Kerala High Court granted two days' escort parole to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the function organized to release a book written by him. Advocate Keerthi Jayanandan had appeared as the counsel for Jayanandhan in the plea filed by his wife.
Justice P.V. Kunhikrishnan, while granting the escort parole to the convict, observed,
"Here is a case where the petitioner's husband who is a convict undergoing imprisonment for about 17 years. He wrote a book...He studied only up to 9th standard. The book release is scheduled on 23.12.2023. A convict in detention for 17 years wrote a book and he wants to participate in his book release function is the situation. In such a situation, I am of the considered opinion that the constitutional court should step in, even if the Rules do not permit such release. The petitioner's husband should be given an opportunity to participate in the book release function and also on the previous day for making arrangements for the function. Therefore, the petitioner's husband should be allowed two days escort parole on 22.12.2023 and 23.12.2023".
Case Title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 748
In a significant ruling, the Kerala High Court held that a Magistrate cannot be prosecuted under 228-A IPC on an inadvertent omission to anonymize the name and details of the victims based on an analysis of Section 228-A and the Judges (Protection) Act, 1985.
For context, Section 228-A IPC relates to disclosing the identity of the victim of certain offences under Section 376 IPC etc. It is an offence triable by a Magistrate and punishable by up to two years imprisonment and a fine.
Justice Devan Ramachandran observed that the protection offered to judicial officers under the Judges (Protection) Act, 1985 was plenary and protects them from any action initiated qua an act, thing or word committed, done or spoken by him/her during the discharge of their official or judicial duties.
“In the case at hand, it is indubitable that the learned Magistrate was acting in performance of judicial duties and the error committed by her, or her office, is that the order was not anonymised qua the petitioner. This Court cannot, therefore, find the request of the petitioner, for initiation of action against the learned Magistrate under Section 228 A of the IPC, to be worthy of grant, specifically within the ambit of the said Section, read with the provisions of the Judges (Protection) Act, 1985. “, the Court stated.
Case Title: Sundar v Director General of Police
Citation: 2023 LiveLaw (Ker) 749
The Kerala High Court granted police protection to the relatives of Arjun, who was acquitted in the rape and murder of a five-and-a-half-year-old minor girl at Vandiperiyar town in the Idukki district in 2021.
Justice Basant Balaji directed the District Police Chief, Idukki and the Station House Officer of Vandiperiyar Police Station to ensure that there was no threat to life of the relatives of Arjun.
“Taking into consideration the seriousness of the issue that an child aged 5 1⁄2 half years was brutally murdered and the accused was exonerated of all the charges, the local people along with the respondents 4 to 6 very much agitated by the same and therefore the situation is very much tense. Therefore there will be direction to the 2nd and 3rd respondent to see that there is no threat to the life of the petitioners 1 to 7 at the hand of respondents 4 to 6 or their associates.”
Case Title: XXX v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 750
The Kerala High Court granted bail to a father who had been accused of sexually abusing his minor daughter, on doubting the veracity of the allegations raised against him.
Justice Gopinath P. stated that although the allegations that were raised against the petitioner appeared to be serious, some of the factual circumstances indicated the possibility of the same being false.
"While it may not be proper for this Court to make any conclusion regarding the matter. While considering the bail application of the petitioner, the same can be taken note of for considering whether the petitioner can be granted bail. Since investigation has been completed and final report has been filed, continued detention of the petitioner is not necessary for the purpose of investigation," the Court observed.
Case Title: XXX v Union of India
Citation: 2023 LiveLaw (Ker) 753
Reiterating the importance of masking the identity of parties in sexual offences, the Kerala High Court has held that no person shall print or publish details revealing the identity of 'parties' including their name and address without the permission of the court.
The High Court, on analysing previous judgments of the Court and the mandate of Sections 327 CrPC, 228-A IPC, made it clear that the protection of confidentiality is extended to all parties of litigation, including the accused.
Justice Kauser Edappagath observed thus:
“Hence, the law as it stands now clearly provides that it shall not be lawful for a person to print and publish any matter in relation to the inquiry or trial of rape or an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of IPC except with the previous permission of the Court, that too subject to maintaining confidentiality of name and address of the parties, both the victim and the accused.”
Case Title: Zamra Endeavours Pvt. Ltd. v. Deputy Commissioner of Police & Ors.
Citation: 2023 LiveLaw (Ker) 754
The Kerala High Court directed the handover of Zamra Convention Centre, where bomb blasts had occurred, to its Managing Director.
On October 29, 2023, bomb blasts had occurred at the Convention Centre during a Jehovah's Witness meeting. The explosion killed 8 persons and injured several others.
The Single Judge Bench of Justice Devan Ramachandran observed that the Convention Centre could not be put to prejudice 'ad infinitum', particularly considering that it had been over 60 days since the incident occurred.
Kerala High Court Dismisses Anticipatory Bail Plea Of Former Senior Government Pleader In Rape Case
Case Title: P.G. Manu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 755
The Kerala High Court dismissed the anticipatory bail plea moved by former Senior Government Pleader P.G. Manu in the case pertaining to alleged sexual assault of a female client in the guise of providing legal assistance for her.
Justice Gopinath P. however added that if the petitioner were to surrender within 10 days from today, he shall be produced before the Magistrate and that his bail application ought to be considered without undue delay.
Case Title: Dr. Ruvais E.A. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 756
The Kerala High Court allowed the bail plea moved by Dr. Ruvais, who had been accused of abetting the suicide of his girlfriend, Dr. Shahana.
Dr. Shahana, who was a Postgraduate surgery student at Government Medical College, Thiruvananthapuram, died by suicide due to financial constraints faced by her family, and their failure to meet the alleged demands for exorbitant dowry sought by Ruwais.
It is alleged that Ruwais' family had demanded 150 sovereigns of gold, 15 acres of land, and a BMW car from Shahana's family, which the latter could not meet. When the incident came to light, the Indian Medical Association (IMA) had suspended Ruwais' medical license for abetting Dr. Shahana's suicide.
Ruwais was thereafter charged with the offences under Section 306 IPC ('Abetment of Suicide') and Section 4 of the Dowry Prohibition Act ('Penalty for demanding dowry').
Taking note that Ruvais has been in custody since December 7, 2023, Justice Gopinath P. was of the considered opinion that the continued detention of the petitioner was not necessary for the purposes of investigation, and that he could be granted bail.
"The allegations against the petitioner are no doubt serious. I had also observed while granting bail to the 2nd accused in the case (Ruvais' father), that there are clear allegations against the petitioner in the suicide note recovered from the apartment where the deceased was staying. However, as rightly pointed out by the Senior Counsel appearing for the petitioner, a condition under Section 306 IPC can be sustained only if there are clear indications that the petitioner had the mens rea to drive the deceased to suicide, and the actions of the petitioner had left the deceased with no option but to commit suicide," the Court observed.
