Kerala High Court Weekly Round-Up: April 17 To April 23, 2023

Nominal Index [Citation: 2023 LiveLaw (Ker) 195-200]

XXX & Anr. v. YYY 2023 LiveLaw (Ker) 195

The Trivandrum Chamber of Commerce and Industry & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 196

Bosco Louis V State of Kerala, Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd 2023 LiveLaw (Ker) 197

 Anu Mathew V State of Kerala 2023 LiveLaw (Ker) 198

Xavier T.J v State Of Kerala 2023 LiveLaw (Ker) 199

XXX & Ors. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 200

Judgments/Order This Week

Every Unmarried Daughter Has Right To Get Reasonable Marriage Expenses From Her Father Irrespective Of Religion: Kerala High Court

Case Title: XXX & Anr. v. YYY

Citation: 2023 LiveLaw (Ker) 195

The Kerala High Court recently considered the question as to whether there is a provision entitling a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom, and answered the same in the affirmative.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar perused the provisions of the Hindu Adoptions and Maintenance Act, 1956, as well as the Muslim position on the aspect as revealed in Ismayil v. Fathima & Anr. (2011), and observed that,

"The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one’s religion".

Kerala High Court Directs State To Comply With Previous Directions To Prevent Unlawful Protests In Public Spaces

Case Title: The Trivandrum Chamber of Commerce and Industry & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 196

The Kerala High Court recently directed the State machinery to comply with the directions issued by the Apex court as well as the High Court time and again regarding the controlling of unlawful protests, campaigns, and other such assembly of people being staged at public spaces meant for public use.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman was considering a public interest litigation seeking the issuance of further directions to the competent State and Police authorities to remove unlawful assemblies of people around the Raj Bhavan and State Secretariat areas, Thiruvananthapuram, and thus formulate guidelines with respect to the earmarking of certain public areas in the State for the purpose of holding mass assemblies.

Building Owner Can Decide If Parking Fees Is To Be Levied From Customers Utilizing Its Shopping Facility: Kerala High Court In Plea Against Lulu Mal

Case Title: Bosco Louis V State of Kerala, Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd

Citation: 2023 LiveLaw (Ker) 197

The Kerala High Court recently held that it is up to the building owner to determine whether or not to charge customers for parking their vehicles while using the shopping facility and services offered in the building.

However, the court also held that for operating multilevel parking facilities around the commercial establishment that operate as stand-alone buildings used for parking, a licence under Section 475 of Kerala Municipality Act is required.

A single bench of Justice V G Arun was hearing two writ petitions challenging the collection of parking fees from vehicles parked in the parking area of Lulu Shopping Mall at Edappally in Kochi. The petitions sought for a refund of the money collected and also for a direction to refrain the mall from collecting any parking fee. The court held that:

“collection of fees from the vehicles parking in the 1083 parking slots in the basement of Lulu Mall is legal, but collection of fees from vehicles parking in the multilevel parking facility, without obtaining a licence under Section 475 of the Kerala Municipality Act, is illegal. If the company intends to utilise the multilevel parking facility near the shopping mall and collect parking fees from persons using the facility, that can be done only under a licence issued in terms of Section 475 of the Act.”

Granting Anticipatory Bail To Persons Who Flee Country Being Aware Of FIR Registered Against Them Is Not Proper: Kerala High Court

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.

Courts Can Entertain Plea For Anticipatory Bail Even If Accused Is Abroad At The Time Of Filing The Application: Kerala High Court

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.

Appointment Of Headmaster Invoking Minority Status Of Institute Can Only Be Accepted If Specified Through Form 27 Of Kerala Education Rules: High Court

Case Title: Xavier T.J v State Of Kerala

Citation: 2023 LiveLaw (Ker) 199

The Kerala High Court recently held that the when a Headmaster is appointed bypassing seniority, such appointment can only be accepted if it is indicated in the appointment order that the appointment is being made by invoking the minority status of the institute.

A single bench of Justice P V Kunhikrishnan observed that when a Manager of an educational institute appoints a headmaster by overlooking seniority in exercise of its minority rights, this should be made clear in the appointment order under Form 27 of KER (Kerala Education Rules) by striking out paragraph 3 of the form that states there is no other candidate qualified and eligible for promotion to the said post.

Correctness Of Allegations In FIR To Be Tested During Trial; Not By High Court While Exercising Jurisdiction U/S 482 CrPC: Kerala High Court

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.

Other Significant Developments This Week

Kantara Plagiarism Row: Kerala High Court Stays District Court's Order Restraining Hombale Films From Using 'Varaharoopam' Song

Case Title: Hombale Films v. Mathrubhumi Printing and Publishing Co. Ltd.

The Kerala High Court on Tuesday stayed the order passed by a local Court restraining the makers of the Kannada movie 'Kantara' from exhibiting the song 'Varaha Roopam' in theatres and streaming platforms.

The Additional District Court at Kozhikode had directed that the respondent, Hombale Films, and their representatives and others would be "restrained from distributing, exhibiting in theatres, releasing on Over The Top platforms, streaming, downloading, and/or in any manner communicate to the public in and/or through their services; the cinematograph film 'Kantara', with the synchronized song 'Varaha Roopam' without inserting due acknowledgment of the authorship of the composer - 'Thaikkudam Bridge' and the ownership of the plaintiff/petitioner," vide its order. It passed the order in a suit filed by Mathrubhumi Printing and Publishing Co. Ltd which is the copyright holder of the "Navarasam" song of Thaikkudam Bridge.

Challenging the order, Hombale Films appealed to the High Court. Justice Kauser Edappagath while issuing notice on the appeal directed that the impugned order would be stayed until the next date of hearing. The Court has posted the case for objection and hearing on April 28, 2023.

Kerala High Court Directs Alternative Sites Identified By State For Translocation Of 'Arikomban' Be Submitted To Expert Committee In Sealed Cover

Case Title: In Re Bruno v. Union of India & Ors.

The Kerala High Court on Wednesday directed that any alternative site that may be suggested by the State Government for translocation of the rogue elephant 'Arikomban' ought to be submitted in a sealed cover to the Expert Committee constituted by the Court vide its Order dated March 29, 2023.

The elephant had allegedly been foraging into the Chinnakanal area, and causing damage to the property in the human settlement areas. Vide its Order dated April 13, 2023, the Court had decided not to interfere with the translocation of ‘Arikkomban’ to Parambikulam, but had however maintained that if the State was able to find a suitable alternative to translocate the pachyderm within a week, it could shift the animal to the new location under the directions of its earlier order.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. directed the members of the Expert Committee to examine the feasibility and ensure that the details of the alternate site are kept confidential, until further orders of the Court.

"If the Committee approves the alternate site suggested, then the capture and shifting of the animal in terms of the earlier orders issued by us, to the said alternate site, need not await further orders from this Court," the Court added.

Supreme Court Collegium Recommends Justice S.V. Bhatti As Next Chief Justice Of Kerala High Court

The Supreme Court Collegium has recommended Justice S.V. Bhatti as the next Chief Justice of the Kerala High Court.

The present Chief Justice S. Manikumar is set to retire on April 24, 2023. In view of the same, the collegium recommended Justice Bhatti as the next Chief Justice of the High Court.

Justice Bhatti is senior-most Judge from the Andhra Pradesh High Court, who is presently functioning, on transfer as the senior-most judge of the Kerala High Court.

Kerala High Court Appreciates Car Financier Who Transferred Insurance Money Received Towards Loss Of Vehicle To Accident Victims

Case Title: XXX v. State of Kerala & Ors.

The Kerala High Court recently recorded its appreciation for a financier, M/S Sundaram Finance, for transferring the entire amount received by it in insurance against a financed vehicle that was destroyed in a gruesome incident, to the hapless victims- one of them also being a rape survivor.

The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen commended the financier for rising above their business and commercial interests and for showing how humanity prevailed above all.

"In a commercialised world, where business interests are often projected, there are silver lines of hope like one now exhibited," the Court observed.

Plea In Kerala High Court Challenges "Unilateral" Freezing Of Bank Accounts Over Complaint On National Cyber Crime Reporting Portal

Case Title: Moideen P. & Ors. v. Union of India & Ors.

A plea has been moved in the Kerala High Court challenging the "unilateral" freezing of bank accounts on the ground of complaints being registered on National Cyber Crime Reporting Portal (NCCRP), a portal maintained by the Central Government to register cyber crimes.

The Single Judge Bench of Justice Viju Abraham directed the State Police Chief to submit a report in this regard, and issued notice to the respondents.

Centre Notifies Appointment Of Justice S.V. Bhatti As Acting Chief Justice Of Kerala High Court

The Central Government has notified the appointment of Justice S.V. Bhatti as the Acting Chief Justice of Kerala High Court with effect from April 24, 2023, informed Union Law Minister Kiren Rijiju through Twitter.

The present Chief Justice of Kerala High Court S. Manikumar, is set to retire on the aforementioned date.