Kerala High Court Weekly Round-Up: July 31 - August 06
Navya Benny
6 Aug 2023 10:37 AM GMT
Nominal Index [Citations: 2023 LiveLaw (Ker) 361-376]Punjab National Bank & Anr. v. Central Bureau of Investigation & Ors. 2023 LiveLaw (Ker) 361The Oriental Insurance Company Ltd v. Abdul Khader 2023 LiveLaw (Ker) 362S. Surendran v. State of Kerala and K. Sudhakaran v. State of Kerala 2023 LiveLaw (Ker) 363R.S. Sasikumar v. State of Kerala 2023 LiveLaw (Ker) 364Mohandas v. State...
Nominal Index [Citations: 2023 LiveLaw (Ker) 361-376]
Punjab National Bank & Anr. v. Central Bureau of Investigation & Ors. 2023 LiveLaw (Ker) 361
The Oriental Insurance Company Ltd v. Abdul Khader 2023 LiveLaw (Ker) 362
S. Surendran v. State of Kerala and K. Sudhakaran v. State of Kerala 2023 LiveLaw (Ker) 363
R.S. Sasikumar v. State of Kerala 2023 LiveLaw (Ker) 364
Mohandas v. State of Kerala 2023 LiveLaw (Ker) 365
Kerala State Legal Services Authority v. State of Kerala 2023 LiveLaw (Ker) 366
Dotty Shiby v. State of Kerala & Anr. 2023 LiveLaw (Ker) 367
Shaju A.N v Rahoof P.K and connected matters 2023 LiveLaw (Ker) 368
M/S. Elite Green Pvt Ltd Versus Under Secretary 2023 LiveLaw (Ker) 369
Suresh K M v. State of Kerala 2023 LiveLaw (Ker) 370
Suo Motu v. State of Kerala 2023 LiveLaw (Ker) 371
P.K.Abdul Salam v. Abdul Jabbar (Deceased) 2023 LiveLaw (Ker) 372
Amod Mathew v. A.P.M Mathew & Ors 2023 LiveLaw (Ker) 373
Nirmala & Ors v. Sundaresan & Ors 2023 LiveLaw (Ker) 374
Bhaskaran KP v Kerala State Electricity Board Ltd. 2023 LiveLaw (Ker) 375
State of Kerala & Ors. v. Moushmi Ann Jacob 2023 LiveLaw (Ker) 376
Judgments/Orders This Week
Case Title: Punjab National Bank & Anr. v. Central Bureau of Investigation & Ors.
Citation: 2023 LiveLaw (Ker) 361
The Kerala High Court has directed the Central Bureau of Investigation (CBI) to take over the investigation of a case involving Punjab National Bank's former senior Manager, accused of cheating and defrauding the Bank of an amount of more than twelve and a half crore rupees.
The present case was registered at the instance of the current Senior Manager of the Bank alleging the commission of offences under Sections 409 ('Criminal breach of trust by public servant, or by banker, merchant or agent') and 420 ('Cheating and dishonestly inducing delivery of property') of IPC against the former official.
Justice Bechu Kurian Thomas relied upon Clause 6.1 of the Reserve Bank of India (Frauds Classification and Reporting by Commercial Banks and Select FIs) Directions, 2016, while issuing the above direction.
Case Title: The Oriental Insurance Company Ltd v. Abdul Khader
Citation: 2023 LiveLaw (Ker) 362
The Kerala High Court recently held that while computing compensation in motor accident cases, the multiplier method proposed by the Supreme Court in Sarla Verma v. Delhi Transport Corporation remains applicable even if the accident resulted in serious injuries instead of death.
Justice C. Jayachandran clarified that the purpose of adopting the multiplier method was to achieve uniformity and consistency in compensation assessments, regardless of the nature of the injury.
"The very purpose of adopting the multiplier method in Sarla Verma (supra) is to do away with the considerable variation and inconsistency in assessing compensation and also to bring uniformity and consistency....the Honourable Supreme Court (has) opined that following the multiplier method will subserve the cause of justice, avoiding unnecessary contentions before the Tribunals and Courts. If this be the logic for adopting the multiplier method, can any change in the legal position be conceded for the reason that the result of the accident is an injury - especially in cases of serious injuries - instead of a death? The answer to the above question is surely negative, in the estimation of this Court, having regard to the logic and purpose behind adopting the multiplier method."
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: R.S. Sasikumar v. State of Kerala
Citation: 2023 LiveLaw (Ker) 364
The Kerala High Court dismissed the plea against order of the Lok Ayukta referring the case against Chief Minister Pinarayi Vijayan and the former Ministers for alleged misuse of Chief Minister Disaster Relief Fund (CMDRF), to a Full Bench comprising the Lok Ayukta and both the Upa-Lok Ayuktas.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun observed that considering that a difference of opinion had arisen between the Lok Ayuktha and Upa Lok Ayuktas, the only option would be to refer the matter in order to decide the same by three members, whereby the decision of the majority would prevail.
"In view of the above, we do not find any reason to interfere in this matter. The application is dismissed," the Court thus held.
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".
Case title: Kerala State Legal Services Authority v. state of Kerala
Citation: 2023 LiveLaw (Ker) 366
The Kerala High Court considered whether victims of sexual harassment can claim compensation under the Kerala Victim Compensation Scheme, 2017 (amended in 2021). The issue arose for the reason that ‘sexual harassment’ punishable under Section 11 of the POCSO Act is not included as an ‘injury’ under the schedule of Kerala Victim Compensation Scheme.
Justice Kauser Edappagath, while upholding the compensation given to the sexual harassment victims held that a beneficial legislation or scheme must not distinguish between victims. The Court opined that the existing schemes are inadequate for compensating victims of sexual abuse under the POCSO Act and held thus:
“….it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (As amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard forthwith.”
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: Shaju A.N v Rahoof P.K and connected matters
Citation: 2023 LiveLaw (Ker) 368
The Kerala High Court recently affirmed the State's authority to validly integrate different services under the Public Service Commission and held that such integration is usually legally sound as long as it is derived from its source of power.
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that the order of integration can only be challenged if there is a lack of fair play, but this applies only to those appointed to different streams before the integration took place.
"The authority of the state to integrate different services cannot be questioned, especially, when it is found out that the order of integration is valid, referable to its source of power. The order of integration can be questioned only when there is no fair play but that would be applicable only to those who have been appointed to different streams prior to the integration."
Case Title: M/S. Elite Green Pvt Ltd Versus Under Secretary
Citation: 2023 LiveLaw (Ker) 369
The Kerala High Court has held that a circular issued by the Directorate General Of Foreign Trade (DGFT) providing 4% of the Special Additional Duty (SAD) refund published on the official website amounts to public notice.
The bench of Justice Dinesh Kumar Singh noted that when the Circular itself provides that if any exporter claims a refund of 4% SAD, the amount should have been paid in cash. The petitioner did not pay the amount in cash but in scrips. Therefore, under the provisions of the Circular, he was not entitled to the refund of 4% SAD on the Bills of Entries for the year 2014–2015.
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: Suo Motu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 371
The Kerala High Court recently reiterated that the Devaswom Boards and temple managements have a statutory duty to provide adequate facilities and arrangements for devotees during 'Naalambala Darshanam', as per the relevant provisions of the Travancore-Cochin Hindu Religious Institutions Act. 'Naalambala Darshanam' involves visiting four temples and it is an important pilgrimage for many devotees.
A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar accordingly issued directions to ensure compliance with these statutory obligations and protect the rights of the devotees.
Case Title: P.K.Abdul Salam v. Abdul Jabbar (Deceased)
Citation: 2023 LiveLaw (Ker) 372
The Kerala High Court recently considered as to whether a vendor who enters into agreement for sale of property can take the defence of absence of conveyable title in a claim of specific performance.
Justice Sathish Ninan held,
“Having entered into an agreement to convey the same, it is not open for him to defend the claim for specific performance contending that he does not have a conveyable title. It is for the purchaser to opt whether he is willing to take whatever right the vendor has.”
Case Title: Amod Mathew v. A.P.M Mathew & Ors
Citation: 2023 LiveLaw (Ker) 373
The Kerala High Court held that the principle of merger is not universally applicable to contempt cases and that its application varies depending on the nature of the appellate or revisional order and the statutory provisions conferring jurisdiction.
A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that applying it absolutely could lead to anomalies.
"The principle of merger is not a principle of rigid and universal application and its application depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. If this principle is applied absolutely, it will lead to anomalous situations."
Case Title: Nirmala & Ors v. Sundaresan & Ors
Citation: 2023 LiveLaw (Ker) 374
The Kerala High Court clarified that a person, including a stranger to the suit apart from the judgment debtor or those claiming derivative title from the judgment debtor, is competent to challenge a sale of property under Order XXI Rule 90 of the CPC if their interests are affected by the sale.
A Division Bench of Justice Anil K Narendran and Justice A Badharudeen added that the categories covered by this rule include the decree-holder, the purchaser, anyone entitled to share in a rateable distribution of assets, and any person whose interests are affected by the sale.
"Going by the facts of the case with particular mention with regard to status of Sundareshan as a person, who obtained decree and applied for execution of the decree, he could very well challenge the sale by filing application under Order XXI Rule 90 of the CPC and his stature is that of “any other person entitled to share in a rateable distribution of assets”. This position has been clarified by this Court in Govindan Master v. Janaki V. & others [2011 (3) KHC 581]. Therefore, it has to be held that a person, who could claim rateable distribution of assets of the judgment debtor/s, has competence to challenge the sale by invoking Order XXI Rule 90 of the CPC, though he is not a party to the Suit."
Disciplinary Authority Cannot Take Upon The Role Of Enquiry Officer: Kerala High Court
Case Title: Bhaskaran KP v Kerala State Electricity Board Ltd.
Citation: 2023 LiveLaw (Ker) 375
The Kerala High Court recently quashed the orders in a disciplinary proceeding because the disciplinary officer took upon himself the role of the enquiry officer, found the petitioner guilty and quantified an amount as personal liability.
Justice Devan Ramachandran, held thus:
“This is because, once the ‘Investigating Team’ had found liability against the petitioner, the matter should have gone back to the Enquiry Officer for completing the disciplinary proceedings because, as I have said above and as is conceded in all pleadings and documents, said Authority had found the charge to be inconclusive for want of proper inputs. Instead of doing so, the Disciplinary Authority took upon himself the role of the Enquiry Officer also, thus to find the petitioner guilty and to finally conclude that the afore figure should be reckoned as his ‘personal liability’. “
Case Title: State of Kerala & Ors. v. Moushmi Ann Jacob
Citation: 2023 LiveLaw (Ker) 376
As per a recent Kerala High Court decisions, properties in excess of 25 cents can be converted from paddy land as per Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act by paying by the fee for the land in excess of 25 cents.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun passed the Order in an appeal filed by the Government challenging the Single Judge's order in this regard. The Court noted that the Single Judge had issued the said directive in terms of the statutory provision, Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act and the schedule of fees thereunder, and thus found no reason to interfere with the same.
Other Significant Developments This Week
Case Title: Shajan Scariya v. State of Kerala & Anr.
Case Number: Bail Appl. 5829 of 2023
The Kerala High Court directed the Police not to arrest Editor of Marunadan Malayali YouTube channel, Shajan Skaria, during the pendency of his anticipatory bail plea in the case alleging that he interacted with a priest through his YouTube channel with the intention to insult a religion.
"Petitioner shall not be arrested during the pendency of this bail application," the Single Judge Bench of Justice K. Babu observed.
Case Title: Aryadan Shouketh & Anr. v. Union of India & Ors.
Case Number: WP(C) NO. 24828 OF 2023
The Kerala High Court directed the State authorities to provide basic facilities such as food, drinking water and medical treatment to the tribal families in Pothugal, Vazhikadavu, and Karulai villages in Nilambur Taluk.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun passed the order in a plea filed by the former Chairperson of Nilambur Municipality, Aryadan Shouketh, and a social worker residing in Vaniyampuzha colony in Pothugal Grama Panchayat.
Case Title: Suo Motu v. State of Kerala
Case Number: Crl.MC 5136/ 2023
After a Sessions Court in Kerala sought details of a POCSO victim given in adoption so as to remit her compensation, the High Court is set to consider whether the right to compensation of the victim ought to be forfeited in order to protect her legal right to privacy.
The issue was brought to light by Advocate Parvathy Menon, Project Coordinator of Victim Rights Centre at KeLSA before Single bench of Justice K. Babu in a suo motu case pertaining to collection of DNA sample of children born to POCSO and rape victims for strengthening the case of rape.
Case Title: Satheesh V.T. v. State of Kerala & Ors.
Case Number: W.P.(C) 25306 of 2023
In wake of the brutal rape and murder of a girl child from a migrant labourer family hailing from Bihar, a plea has been moved in the Kerala High Court seeking a direction to the State authorities to take effective steps to enforce Labour Laws and welfare measures.
The child went missing on July 28, 2023. She was strangulated and dumped into a waste yard in Aluva market. The police arrested accused Asafaq Alam, also a migrant labourer, in a highly inebriated condition on the same day.
The plea moved by a lawyer seeks the State to ensure safe, hygienic and healthy working conditions for for the migrant workers, and also for ensuring that their employment is preceded by proper registration.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun on Wednesday issued notice and sought the response of the State authorities in the matter.
Case Title: Sandeep v. State of Kerala
Case Number: BAIL APPL. 6522/ 2023
Sandeep, the sole accused in the brutal murder of the 23 year old house surgeon Vandana Das, has approached the Kerala High Court seeking bail.
The matter is before the Single Judge Bench of Justice Ziyad Rahman A.A.
In May 2023, the house surgeon on duty at Kottarakkara Taluk Hospital, Dr. Vandana Das, was allegedly stabbed multiple times by Sandeep, who is a school teacher. The alleged attacker was brought to the hospital by the police for treatment of his injuries. The prosecution case is that while the petitioner was being treated, he turned violent and stabbed Dr. Das with dressing room scissors. It was alleged that despite the victim-doctor attempting to flee from the attack, the petitioner-accused followed her and proceeded to attack her.
Case Title: Anuraj v. State of Kerala
Case Number: BAIL APPL. NO. 5549 OF 2023
The Kerala High Court recently directed the State to provide necessary facilities for ensuring the timely examination of contraband articles in NDPS (Narcotic Drugs and Psychotropic Substances) cases.
Justice Ziyad Rahman A.A. issued the interim order taking note of the inordinate delay in most cases in getting the scientific examination report to identify the alleged contraband article.
"On account of such delay on the part of the authorities concerned to get the contraband article identified, through a proper scientific examination, the accused persons are being faced with prosecution, for more severe offences and consequential incarceration. This is causing difficulties to the court as well as the persons involved in the same," the Court observed.
Kerala State Mediation & Conciliation Centre Set To Launch 'NIRNAYA Scheme' On August 5
The 'NIRNAYA Scheme' for extending mediation services to all disputes within the State, with the exception of those pending before Courts, is set to be launched under the aegis of the Kerala State Mediation and Conciliation Centre (KSMCC).
It is on noting that formal adversarial litigation might not be suitable for complex multi-party civil litigations, and that mediation would be an effective platform to resolve disputes and differences involving large number of individuals and groups who have invested money in huge infrastructure projects, that NIRNAYA was introduced by the KSMCC.
Case Title: George Varghese v. Treesa Sebastian & Ors.
Case Number: OP (FC) NO. 539 OF 2022
The Kerala High Court is set to decide whether Family Court has jurisdiction to entertain a petition seeking reliefs under the Protection of Women from Domestic Violence Act, 2005.
A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas on Wednesday appointed Advocate M. Ashok Kini as the amicus and posted the matter for consideration on August 10.
Case Title: Suo moto v. State of Kerala
Case Number: W.P. (C) No. 7844/ 2023
The Kerala High Court today orally suggested the State government that an expert study can be conducted to see if legacy waste at Brahmapuram can be used for the construction of roads.
As per the Ernakulam District Collector, N S K Umesh, 7 lakh tons of legacy waste is lying at Brahmapuram. The site recently garnered a lot of media attention after a massive fire broke out at the waste management plant, shadowing nearby areas with smoke.
Case: Jayagopal K v. Pradeep Cholayil
Case No.: First Appeal No. A/597/2022
Recently, the State Consumer Disputes Redressal Commission in Thiruvananthapuram bench, comprising of Ajith Kumar (Judicial Member), Beena Kumary (Member), and Radhakrishnan K.R. (Member), refused to condone a delay of 2,279 days in filing of an appeal and held that condonation of delay could not be claimed as a matter of right. Further, the Commission held that once the District Commission delivered the notice and order on the assigned address of the party, it would be considered deemed service. If there is a change in the address or if the party has left the country, it is the party’s responsibility to give instructions to the postal authorities to deal with the communications received at his address.
