Kerala High Court Weekly Round-Up: January 22 - January 28, 2024

Nominal Index [Citations: 2023 LiveLaw (Ker) 58 – 71]

Case title: Rajeswari v Omana Amma

Citation: 2024 LiveLaw (Ker) 58

The Kerala High Court stated that when proof of will has to be given, the Court has to take a separate and lenient consideration in examining a witness immediately by invoking the jurisdiction under Order 18 Rule 16 of CPC, which provides the power to examine the witness immediately.

“….this Court is of the opinion that the petition under Order XVIII, Rule 16 C.P.C, in the context of proof of a 'Will', will have to receive a separate and lenient consideration, in as much as, it is imperative, going by Section 68 of the Evidence Act, as also, by Section 63 of the Indian Succession Act, to examine at least one of the attesting witnesses, in proof of the 'Will'”, Stated Justice C Jayachandran.

Case title: Laila Bhagaval Singh v. State of Kerala

Citation: 2024 LiveLaw (Ker) 59

The Kerala High Court has dismissed the bail application moved by Laila Bhagawal Singh, one of the accused in the Human Sacrifice Case. 

The case pertains to the abduction, murder, and burial of two women lottery vendors as part of a ritualistic sacrifice by the three accused persons, namely, Muhammed Shafi alias Rasheed, Bhagaval Singh and his wife Laila. 

Justice Sophy Thomas while dismissing the bail plea stated that the crime has shattered the conscience of the society. It also stated that if the allegations against the accused Laila prove to be true, it would be a blow to the rich cultural heritage and literacy rate of God's Own Country, Kerala.

Case Title: PP Farooque & anr. v. Deputy Superintendent of Police 

Citation: 2024 LiveLaw (Ker) 60

In an revisional appeal against a previous order, the court dismissed it by stating that “the revisional power of the court is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law...the courts may not interfere with the decision in exercise of their revisional jurisdiction”

Justice K Babu stated this in a revision plea by the petitioners/accused who faced charges under Section 13 (criminal misconduct by public servant) of the Prevention of Corruption Act and Section 120B (punishment of criminal conspiracy) of the Indian Penal Code.

Case title: SJ v State of Kerala

Citation: 2024 LiveLaw (Ker) 61

In a matter where a headmistress was arrested under SC/ST Act for cutting tribal student's hair, Justice K Babu stated that there was no mens rea established against the appellant-headmistress and that she was only trying to enforce disciplinary control over the victim and at most "exceeded in the corporal punishment". Further, it stated that the alleged acts would not attract offences under the SC/ST (PoA) Act.

He stated that “On an analysis of the facts placed before this Court, I am of the view that the mens rea of the appellant in the commission of the alleged acts is doubtful. At the most, it could be seen that the appellant being a school teacher having disciplinary control over the victim exceeded in the corporal punishment on the victim. Therefore, I am of the view that there is no prima facie material to attract the offences under the SC/ST (PoA) Act.”

Case title: E Pradeeep Kumar IFS v State of Kerala

Citation: 2024 LiveLaw (Ker) 62

Justice K Babu observed that in case of obtainment under Section 7 of the PC Act, a public servant makes a demand and the bribe giver on accepting the demand offers to pay illegal gratification. 

“ To attract the offence under Section 7(a) the prosecution has to establish that the public servant obtained or accepted or attempted to obtain from any person an undue advantage. In order to attract the offence under Section 7(a), the prosecution has to establish that the petitioner voluntarily accepted money, knowing it to be bribe. If there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is definitely a case of acceptance as per Section 7 of the Act, even in the absence of prior demand. On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification, which in turn is received by the public servant, it is a case of obtainment.”

The Court further stated that in case of acceptance, the prosecution need not prove demand but in the case of obtainment, the prosecution has to prove prior demand.

Case title: Poyil Salim V Thazhe Kandoth Mariyam

Citation: 2024 LiveLaw (Ker) 63

Justice A. Badharudeen observed that the term 'substantial' means having substance, essential, real, of sound worth, important or considerable. It stated that 'substantial question of law' for preferring a second appeal shall not necessarily be a substantial question of law of general importance. 

“It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal.”

Case title: Sreejith R v State of Kerala

Citation: 2024 LiveLaw (Ker) 64

The Kerala High Court released a 21-year old boy, who was implicated in seven crimes for allegedly causing obstruction to police officer in performing official duties and under the NDPS Act, from detention under the Kerala Anti-Social Activities (Prevention) Act, 2007.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen, considering the age of the detenu, also appointed an Advocate as his 'Mentor'.

Case Title: Davood v. State of Kerala & ors. 

Citation: 2024 LiveLaw (Ker) 65

A passport cannot be seized or retained by the investigating agencies in the absence of any crime committed or suspected to have been committed with the said document, the Kerala High Court has held.

A single bench of Justice Bechu Kurian Thomas thus allowed the petition moved by an accused booked under the NDPS Act, seeking release of his passport, his mobile phone and Bahraini identity card which was seized by the Intelligence Officer of NCB. It observed,

"The passport of an individual is an important document and is issued under the provisions of the Passports Act, 1967. In the absence of any crime committed or suspected to have been committed with the said document, a passport cannot be seized or retained by the investigating agencies. The seizure of a document, if it can be treated as a property, has to be under section 102 of the Cr.P.C and the conditions stipulated therein ought to be satisfied. A document is generally subjected to impounding under section 104 Cr.P.C and this can only be done by the Court."

The bench further clarified that a passport cannot be impounded even by the Court despite Section 104 of CrPC, as the said provision will enable the court to impound any document or thing, other than a passport. Power to impound the passport is only with the Passport Authority under section 10(3) of the Passports Act, 1967, it held.

Case title: Suresh Kumar @ Sarath Nair v State of Kerala

Citation: 2024 LiveLaw (Ker) 66

The Kerala High Court yesterday granted bail to the appellant who was in judicial custody for allegedly making abusive and casteist remarks against the Minister for Welfare of Scheduled Castes, Scheduled Tribes and Backward Classes and Devaswom, K. Radhakrishnan in Facebook in connection with his visit to Sabarimala Ayyapa Temple.

The crime was registered under Section 153A of IPC (promoting enmity between different groups), Section 120(o) (penalty for causing nuisance and violation of public order) of the Kerala Police Act and Section 3 (punishment for offences atrocities) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Case title: Dr M V Narayanan v Chancellor & Connected Cases

Citation: 2024 LiveLaw (Ker) 67

The Kerala High Court has directed the Chancellor to consider the legality and jurisdiction of the show cause notices issued to the Vice Chancellors of Sree Sankaracharya University of Sanskrit, Kalady, University of Calicut, Kerala University of Digital Sciences, Innovation and Technology and Sree Narayana Open University based on the UGC Regulations and the law laid down by the Apex Court in Professor (Dr) Sreejith P.S. v. Dr Rajasree M.S. and others (2022).

The show cause notice was issued by the Chancellor requiring the Vice Chancellors to show their legal right to hold the post of Vice Chancellor and why their appointment should not be declared illegal and void ab initio.

Case title: Jhonny Alexander Duran Sola v State of Kerala

The Kerala High Court has permitted an Advocate to collect the personal articles belonging to the Foreign National on his behalf since he was placed in a transit centre and could not move around anywhere in India and was awaiting deportation.

Case Title: XXX v. State of Kerala 

Citation: 2024 LiveLaw (Ker) 69

The Kerala High Court has dismissed an appeal filed by the father who was convicted by the Sessions Court for offences of sexually assaulting and raping his minor daughter.

The Division Bench comprising  Justice PB Suresh Kumar and Justice Johnson John upheld the conviction stating that “merely for the reason that the family of the victim consisting of several members was residing in a small hut, it cannot be said that the occurrence as alleged by the prosecution is not possible especially in the light of the explanation offered by the victim in her evidence that the sexual assaults were committed by the accused when her mother was away for work and her siblings had gone out for playing”.

Case title: Coach India v Superintendent of Central Tax And Central Excise

Citation: 2024 LiveLaw (Ker) 70

The Kerala High Court has made it clear that the writ jurisdiction of the Court cannot be invoked under Article 226 of the Constitution by the petitioner, citing his inability to comply with the provisions of 'SUBKA VISHWAS' [Legacy Dispute Resolution] Scheme Rules which is a complete code in itself.

Dismissing the plea, Justice Dinesh Kumar Singh stated that the scheme was a complete code in itself which has detailed provisions. The Court observed thus: 

“Once the petitioner failed to comply with the provisions of the scheme, which is a complete code in itself, his court would not like to extend the limitation for making the payment under the scheme in exercise of its jurisdiction under Article 226 of the Constitution of India.”

Kerala High Court Permits Murder Convict To Join LLB Course Despite Objection By College

Case title: Karuvangadan Mukthar @ Muthu v The Superintendent

Citation: 2024 LiveLaw (Ker) 71

The Kerala High Court has permitted a murder convict to pursue a three-year LLB Course in online mode, despite objections from the college where he has secured a seat. It stated that education would enable the convict to reform and rehabilitate back into society.

Justice Bechu Kurian Thomas observed that the stance taken by the college in opposing the admission of a convict to pursue his education would not be tolerated. 

Other Significant Developments This Week

[Masala Bonds Case] Respond To ED Summons: Kerala High Court Tells KIIFB

Case title: Kerala Infrastructure Investment Fund Board V Director

Case number: WPC 1377/2024

Justice Devan Ramachandran stated that the Court cannot micromanage the proceedings and directed the KIIFB to respond to the summons. 

“You respond to the summons, that is all that is required…Either say that I will not produce it or say I will produce it. It is for you to respond to the summons….I don't really understand why everybody should be scared of summons”, the Court stated orally. 

The Counsel appearing for KIIFB submitted that the documents have already been submitted and there was no requirement for submission of fresh documents. They stated that the summons had been issued at least six times and all the documents had been already submitted before the ED. They stated that the issuance of summons again and again would amount to harassment. It was further argued that there were no pending proceedings under the Foreign Exchange Management Act (FEMA) and thus investigation could not be conducted.

Case Title: Shone George v. Ministry of Corporate Affairs & Ors. 

Case Number: WP (C) No. 42092 of 2023

The Central government has informed the Kerala High Court that there is no restriction on investigation by the Serious Fraud Investigation Office into Exalogic Solutions, an IT company owned by CM Pinarayi Vijayan's daughter, which is allegedly involved in CMRL bribery case.

The company is alleged to have received kickbacks from Cochin Minerals and Rutile Ltd., without having rendered any service. A probe against it is already initiated under Section 210(1)(c) of the Companies Act, 2013.

Case Title: Anoop v. State of Kerala

Case Number: Bail Appl. 3273 of 2022

Justice Bechu Kurian Thomas directed thus: “Special Government Pleader for the State Education Department shall make available the textbooks that are already been printed by the next posting for the perusal of the Court. “

The Court stated that it wants to go through the textbooks to see if it is age-oriented and how the content has been laid out. It orally stated that a child in the first standard has to be probably taught about 'safe touch'. It remarked that it is very important how the prevention-oriented curriculum is being imparted to children. It stated that the curriculum is left for the experts to decide but it would like to know how the SCERT has framed the curriculum.

Case title: Ernakulam Sivakshethram v State of Kerala 

Case number: WP(C) NO. 2659 OF 2024

The Kerala High Court has directed the District Collector to issue directions for granting permission for conducting fireworks at the Ernakulam Shiva Temple in connection with Valiya Vilakku and Arattu on January 22 and 24, 2024 by relying upon an earlier order issued by the Division Bench.

The Division Bench, last year, had observed that firecrackers could be burst between 6AM to 10 PM and that the District Administration could take a call on the bursting of crackers during odd hours.

Case Name: Kumari and anr. v. Kattakada Grama Panchayath and ors. 

Case Number: WP(C) 2190 of 2024

The Kerala High Court has passed an interim order directing a stay of eviction proceedings for two months against a 63-year old widow.

The matter was heard by Justice Viju Abraham.

The petitioner is a senior citizen and a widow residing in Kulathummal Village along with her daughter (petitioner 2).