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Kerala High Court Weekly Round-Up: July 10 To July 16
Navya Benny
16 July 2023 11:30 AM GMT
Nominal Index [Citations: 2023 LiveLaw (Ker) 316 - 330]XXX v. YYY & Anr. 2023 LiveLaw (Ker) 316State of Kerala v. Arumugham and connected matters 2023 LiveLaw (Ker) 317Abdul Jabbar v. Khadeeja Beevi & Ors. 2023 LiveLaw (Ker) 318Smrithy George v. State of Kerala & Ors. 2023 LiveLaw (Ker) 319K. Suresh Kumar v. State of Kerala & Ors. 2023 LiveLaw (Ker) 320Arun A. v. Marriage...
Nominal Index [Citations: 2023 LiveLaw (Ker) 316 - 330]
XXX v. YYY & Anr. 2023 LiveLaw (Ker) 316
State of Kerala v. Arumugham and connected matters 2023 LiveLaw (Ker) 317
Abdul Jabbar v. Khadeeja Beevi & Ors. 2023 LiveLaw (Ker) 318
Smrithy George v. State of Kerala & Ors. 2023 LiveLaw (Ker) 319
K. Suresh Kumar v. State of Kerala & Ors. 2023 LiveLaw (Ker) 320
Arun A. v. Marriage Officer 2023 LiveLaw (Ker) 321
M. Sivasankar v. Directorate of Enforcement & Anr. 2023 LiveLaw (Ker) 322
Mathrubhumi Printing & Publishing Co. & Ors. v. Station House Officer & Ors. 2023 LiveLaw (Ker) 323
Adv. Mohammed Salih P.M. v. Union of India & Ors. 2023 LiveLaw (Ker) 324
Suo Motu v. Nipun Cherian 2023 LiveLaw (Ker) 325
Jayaprakash v. State of Kerala & Anr 2023 LiveLaw (Ker) 326
Varghese Vijesh v. State of Kerala & connected matters 2023 LiveLaw (Ker) 327
Paulose v. Baiju & Anr. 2023 LiveLaw (Ker) 328
Amal E & Anr v. State of Kerala 2023 LiveLaw (Ker) 329
Rebeka Mathai v. State of Kerala & Ors. 2023 LiveLaw (Ker) 330
X v. State of Kerala 2023 LiveLaw (Ker) 331
Judgments/Orders This Week
Case Title: XXX v. YYY & Anr.
Citation: 2023 LiveLaw (Ker) 316
The Kerala High Court held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside.
"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as ‘bastard’ and ‘immoral’," the Single Judge Bench of Justice Mary Joseph observed.
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: Abdul Jabbar v. Khadeeja Beevi & Ors.
Citation: 2023 LiveLaw (Ker) 318
The Kerala High Court declared as invalid a gift deed under Mohammedan law where the donee was only allowed to enjoy half a cent from a total of 3 cents of the schedule property, and there was no positive assertion by the donor that possession of the rest of the property is handed over to the donee.
Justice P.G. Ajithkumar observed: "...on a conjoint reading of the whole of the recitals in Ext.A1 (gift deed) does not enable to find or infer that possession of 2½ cents of property was delivered over to the appellant. Such a recital is totally lacking in Ext.A1, whereas, there is a positive assertion that the donor would continue to enjoy the property. From the above the possible deduction is that, the donor did not intend to hand over the possession of 2½ cents of property to the donee immediately".
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: Arun A. v. Marriage Officer
Citation: 2023 LiveLaw (Ker) 321
The Kerala High Court reiterated that foreign judgments can be accepted as conclusive in India where the parties voluntarily and effectively submit to the jurisdiction of the foreign court and consent to the grant of the relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
Justice P.V Kunhikrishnan observed that in such circumstances, it was allowed to stray from the general rule that foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court and the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married.
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.
Case Title: Adv. Mohammed Salih P.M. v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 324
The Kerala High Court directed the High Court represented by its Registrar General to consider the representations filed by a practicing lawyer highlighting his grievances regarding giving additional charge of the District & Sessions Court, Kavaratti in Lakshadweep to the District & Sessions Court at Kozhikode instead of the one at Ernakulam.
The Single Judge Bench of Justice PV. Kunhikrishnan issued the direction in a plea filed by Advocate Mohammed Salih P.M.
"...I think this is a matter to be looked into by the 3rd respondent (High Court of Kerala). The petitioner already submitted Ext. P3 before the 3rd respondent. The 3rd respondent can look into this matter, in consultation with the Union of India and the Administrator, Union Territory of Lakshadweep, after giving an opportunity of hearing to the petitioner also," the Court ordered.
Case Title: Suo Motu v. Nipun Cherian
Citation: 2023 LiveLaw (Ker) 325
The Kerala High Court on Thursday sentenced 'V4 Kochi' President, Nipun Cherian, to four months imprisonment and a fine of Rs. 2,000 in the suo motu contempt case for his statements against a sitting judge of the High Court.
The contempt case pertains to a speech made by Cherian before farmers, fishermen, and representatives of the local people of Chellanam where he had levelled 'allegations of corruption' against a sitting judge of the High Court. The speech was live streamed and uploaded in the Facebook page of 'V4 Kochi' on October 25, 2022.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. refused to accept Cherian's request to stay the sentence so that he could approach the Supreme Court in appeal. The Court clarified that the appeal could be filed even while serving the sentence.
Kerala High Court Grants Bail To Litigant Who Vandalized Family Court Judge's Car
Case Title: Jayaprakash v. State of Kerala & Anr
Citation: 2023 LiveLaw (Ker) 326
The Kerala High Court granted bail to a litigant who had made headlines for vandalising the car used by a Thiruvalla Family Court Judge.
Justice Ziyad Rahman A. A granted bail to the petitioner considering that he had been in custody since mid-June without entering any findings on the merits of the case.
Case Title: Varghese Vijesh v. State of Kerala & connected matters
Citation: 2022 LiveLaw (Ker) 327
The Kerala High Court has held that new categories or posts for appointments cannot be included in State services in the absence of existing enabling recruitment rules prescribing such inclusion.
Justice N. Nagaresh reiterated that the rights and obligations of individuals employed by the Union and the States are derived from the governing rules that regulate their service.
"The law is therefore clear that the rights and obligations of the persons serving the Union and the States are to be sourced from the Rules governing their service. As the petitioners were not eligible for appointment as Assistant Engineers till 30.01.2023, the PSC cannot be directed to consider the candidature of the petitioners in any selection process conducted prior to 30.01.2023."
Complainant U/S 138 NI Act Does Not Come Within Ambit Of 'Victim' U/S 2(wa) CrPC: Kerala High Court
Case Title: Paulose v. Baiju & Anr.
Citation: 2023 LiveLaw (Ker) 328
The Kerala High Court held that the complainant in a prosecution under Section 138 of the Negotiable Instruments Act would not fall within the ambit of the word 'victim', as defined under Section 2(wa) Cr.P.C.
Section 2(wa) Cr.P.C. defines victim as "a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir".
Justice V.G. Arun arrived at the said finding by relying upon the decision in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors. (2019). The Apex Court had held therein that Section 378(4) is to be confined to an order of acquittal passed in a case instituted upon a complaint, and had further went on to clarify that the word 'complainant' as defined in Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate and has nothing to do with the lodging or registration of an FIR.
Case Title: Amal E & Anr v. State of Kerala
Citation: 2023 LiveLaw (Ker) 329
The Kerala High Court held that mere reliance on financial transactions and the confession of a co-accused should not be considered sufficient grounds for imposing an embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.
While refraining from making a conclusive finding at this stage, Justice Ziyad Rahman A.A held that the absence of substantial evidence raises reasonable doubt regarding the petitioners' involvement in the case.
"From the perusal of the case records, it can be seen that, apart from the aforesaid (financial) transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the accused, there is nothing."
Case Title: Rebeka Mathai v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 330
The Kerala High Court set aside the reports prepared by the Kerala Institute for Research Training and Development (KIRTAD) recommending against grant of community certificate to a 19 year old B.Com student born to an inter-religious couple.
Petitioner's mother belonged to 'Paniya' community, a recognized Scheduled Tribe community and father to Orthodox Syrian Christian. She claimed to be raised within the cultural bounds of the Paniya Tribe as her paternal family was estranged to them.
Single Judge Bench of Justice Viju Abraham, found that the reports by the authority was prepared without adverting to the relevant facts and circumstances of the particular case. It thus directed KIRTAD to reconsider her case after providing an opportunity of hearing.
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.
Other Significant Developments This Week
Case Title: Suo Motu v. Karthik I.P.C. and other connected matters
The Kerala High Court slammed the Kottayam Police authorities for their failure to properly implement a protection order passed in favour of a bus owner, amid protests by the Centre of Indian Trade Unions (CITU) for wage hike.
Workers of Raj Mohan's bus service claimed that the last wage hike was 5 years ago, and that the protests had erupted after Mohan failed to implement the hike despite allegedly agreeing to the same. CITU had erected protest flags in front of Mohan's buses, following which the latter obtained a protection order from the Court, allowing him to resume operations. However, it is alleged that in spite of the protection order, the CITU personnel attacked Mohan, and the police did not intervene in the same, following which the Court initiated suo motu contempt in the matter.
Taking exception to these events, the Single Judge Bench of Justice N. Nagaresh observed, "...look at the message going to public that despite High Court's protection order, there are powerful sources who can manhandle you and nothing will happen". The Court added that, "the slap was not on the cheek of the petitioner; that slap was on the High Court".
Tanur Boat Accident: Kerala Maritime Board Chief Surveyor Moves High Court For Bail
Case Title: Sebastian Joseph v. State of Kerala
A bail application has been moved in the Kerala High Court by Sebastian Joseph, the Chief Surveyor of the Kerala Maritime Board who had been arrested in connection with the tragic Tanur boat accident that claimed 22 lives, including 15 children in Malappuram district.
The High Court had initiated suo motu proceedings in the matter on May 9, 2023.
Single Judge Bench of Justice Ziyad Rahman A.A. has posted the matter for consideration on July 12.
Case Title: G. Vishakan v. State of Kerala & Ors.
The Kerala High Court came down heavily upon the State police for seizing the mobile phone of a journalist without following due procedure as contemplated in law.
Justice P.V. Kunhikrishnan observed if the seizure of mobile phone of a journalist is necessary in connection with a criminal case, there are procedures to be followed for the same.
The petitioner, G. Visakhan, a senior journalist at 'Mangalam Daily' averred that police officers conducted a search at his house and asked him about the editor and publisher of YouTube Channel Marunadan Malayali, Shajan Skaria. Thereafter his mobile phone was also seized. The petitioner states that mobile phone is his sole source of livelihood as a journalist.
"The Journalists are part of fourth state. The Journalist may be getting several information in their mobile phones. But which news is to be telecasted and published is to be decided by Journalist taking into consideration the information received. Telecasting every information even if it is hearsay is not journalism. Simply because, the Journalist has got some information about the crime, the mobile phone cannot be seized, without following the procedure contemplated in Cr.P.C. There is allegation in this case to the effect that the petitioner and even his family members are harassed. That can’t be allowed," Justice Kunhikrishnan observed.
Professor TJ Joseph Hand Chopping Case: NIA Court Finds 6 Guilty; Acquits 5 In Second Phase Of Trial
The National Investigation Agency Court, Kochi, found 6 of the 11 accused persons guilty in the sensational Professor T.J. Joseph hand-chopping case of 2010. Judge Anil Bhaskar pronounced the verdict in the second phase of the trial today.
The matter arose when a question in an exam set by Professor Joseph, the former Head of the Malayalam Department of Newman College, Thodupuzha, contained a passage that was alleged to have insulted Prophet Mohammed. Subsequently, on July 4, 2010, a group of men attacked Prof. Joseph and his family as they were going to church, and chopped off his right hand and stabbed him in the left leg.
Case Title: G. Vyasan v. State of Kerala & Ors.
The Secretary of the Travancore Devaswom Board and the Station House Officer of Chirayinkeezh Police Station have filed counter affidavits before the Kerala High Court supporting the averments of the devotees and nearby residents of Sree Sarkara Devi Temple in Thiruvananthapuram, in a plea against illegal encroachment of the temple premises by RSS members for conducting mass drills and weaponry training.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar had issued notice to the alleged RSS members, and sought response of the State government and the Travancore Devaswom Board in the matter, on June 20, 2023.
Supreme Court Collegium Recommends Transfer Of Justice DK Singh From Allahabad To Kerala High Court
The Supreme Court Collegium today proposed to transfer Justice Dinesh Kumar Singh, a Judge of the Allahabad High Court, to the Kerala High Court for better administration of justice.
The Collegium's resolution states that though his transfer was proposed on July 5, however Justice DK Singh, vide representation dated 11 July 2023 requested for transfer to nearby States such as Delhi, Punjab & Haryana, Madhya Pradesh or Rajasthan.
Kerala High Court Told AI Cameras Could Be Used To Monitor Road Conditions
The Kerala High Court on Wednesday took note of the suggestion made by the members of the Bar that Artificial Intelligence (AI) Cameras placed by the Traffic Department at various vantage points could be used to monitor the condition of roads in the State.
Justice Devan Ramachandran observed that roads ought to be repaired on a continuous basis.
"It should not be a process for this Court every year to monitor roads and to have it repaired; but the system must be alive to its responsibilities to do so on a continuous and perceptual basis. It is only if the bad condition of roads are noticed by the Authorities at the right time and reported effectively, can it be saved from further depredation. But, most of the time, this is never being done, in spite of specific orders from this Court," the Court noted.
Case Title: Ratheesh Kumar K.R. & Ors. v. State of Kerala & Ors.
The Kerala High Court stayed the proceedings against certain staff members of Rahul Gandhi, who are accused of having destroyed Mahatma Gandhi's portrait in the former Congress MP's office in Wayanad.
Justice Raja Vijayaraghavan V. admitted the plea which alleged that the case was politically motivated, and stayed further proceedings in the matter for a period of two months.
Justice Alexander Thomas Appointed As Acting Chief Justice Of Kerala High Court
Justice Alexander Thomas has been appointed as the Acting Chief Justice of the Kerala High Court, following the appointment of Chief Justice S.V. Bhatti as Judge of the Supreme Court of India.
The Supreme Court collegium had recommended the elevation of Chief Justice Bhatti last week. The Centre yesterday, notified his appointment as judge of the Apex Court.
Case Title: Shajan Scariya v. State of Kerala & Anr.
Shajan Skariah, Editor of Marunadan Malayali has moved an anticipatory bail plea before the Kerala High Court in case alleging that he interacted with a priest through his YouTube channel with dishonest intention to insult and humiliate the priest among other religions.
The matter pertains to a conversation between Skariah and a priest that was telecast through his YouTube Channel on January 4, 2023.
Supreme Court Collegium Recommends Making 4 Additional Judges Of Kerala High Court Permanent
The Supreme Court Collegium has recommended the names of four Additional Judges of the Kerala High Court to be made permanent judges.
The names of the Judges are as follows: Justice Basant Balaji; Justice Chandrasekharan Kartha Jayachandran; Justice Sophy Thomas; and Justice Puthen Veedu Gopala Pillai Ajithkumar.
The Kerala High Court Collegium had, on March 17, 2023, unanimously recommended the names of the aforementioned Judges for permanent appointment. The Chief Minister and the Governor of the State of Kerala had also concurred with the recommendation.
Centre Notifies Transfer Of Justice Dinesh Kumar Singh From Allahabad HC To Kerala High Court
The Central Government has notified the transfer of Justice Dinesh Kumar Singh from Allahabad High Court to Kerala High Court, following the Supreme Court Collegium's recommendation in this regard.
On July 12, 2023, the Supreme Court Collegium had recommended Justice D.K. Singh's transfer to Kerala High Court, and thereby rejected his request to be transferred to other States such as Delhi, Punjab & Haryana, Madhya Pradesh or Rajasthan.
