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Kerala High Court Weekly Round-Up: May 22 To May 28
Sheryl Sebastian
29 May 2023 3:57 AM GMT
Nominal Index [Citation: 2023 LiveLaw (Ker) 225-237]Petro David v. State of Kerala, 2023 LiveLaw (Ker) 225Ratheesh Dasan V. State Of Kerala, 2023 LiveLaw (Ker) 226Shantanu Yadav Rao Hire v. State of Kerala & Anr., 2023 LiveLaw (Ker) 227Muhammed Abdulla Sha V State of Kerala, 2023 LiveLaw (Ker) 228PNB Housing Finance Ltd. V. State Of Kerala, 2023 LiveLaw (Ker) 229Unni Mukundan V State...
Nominal Index [Citation: 2023 LiveLaw (Ker) 225-237]
Petro David v. State of Kerala, 2023 LiveLaw (Ker) 225
Ratheesh Dasan V. State Of Kerala, 2023 LiveLaw (Ker) 226
Shantanu Yadav Rao Hire v. State of Kerala & Anr., 2023 LiveLaw (Ker) 227
Muhammed Abdulla Sha V State of Kerala, 2023 LiveLaw (Ker) 228
PNB Housing Finance Ltd. V. State Of Kerala, 2023 LiveLaw (Ker) 229
Unni Mukundan V State of Kerala, 2023 LiveLaw (Ker) 230
Vaduthala Juma-Ath Educational Trust & Ors. v. Kerala State Waqf Board & Anr., 2023 LiveLaw (Ker) 231
Niyasali v. State of Kerala & Anr.Citation: 2023 LiveLaw (Ker) 232
T.K.Natarajan V T.K.Raman Achari,2023 LiveLaw (Ker) 233
Vishnu v. State of Kerala & Anr. and other connected matters, 2023 LiveLaw (Ker) 234
Prema Joy V. John Britto, 2023 LiveLaw (Ker) 235
Nixy James V Kerala State Road Transport Corporation, 2023 LiveLaw (Ker) 236
Raveendran P.T. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 237
Judgments/Orders This Week
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: Ratheesh Dasan V. State Of Kerala
Citation: 2023 LiveLaw (Ker) 226
The Kerala High Court recently held that High Court has the power to prescribe conditions for inter district transfers of employees in the administrative side of the judiciary. The Court observed that this power is derived from Article 235 of the Constitution which grants the High Court the power to exercise complete administrative control over the subordinate courts.
A single bench of Justice N Nagaresh observed,
“The courts are institutions or an organism where all the limbs complete the whole system of courts. When the constitutional provision is of such wide amplitude to cover both the courts and persons belonging to the judicial office, there would be no reason to exclude the other limbs of the courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control. Such control is exclusive in nature, comprehensive in extent and effective in operation.”
Case Title: Shantanu Yadav Rao Hire v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 227
The Kerala High Court recently ruled that the presence of a live cartridge alone that had been seized from the bag of a passenger during the security check at the airport without seizure of any corresponding fire-arm would indicate that there was no 'conscious possession' by such passenger, and hence, would not amount to an offence under the Arms Act, 1959.
Elucidating Section 25 of the Act that pertains to 'possession of firearm', Justice Bechu Kurian Thomas, observed,
"Possession of a fire-arm under section 25 of the Act means conscious possession involving a mental element. Mere custody, without any element of consciousness or knowledge of that possession, cannot amount to an offence under the Act. It is settled law that the possession of a fire-arm under the Arms Act must have the element of consciousness or knowledge of that possession on the person charged with such offence. Further, even if he has no actual physical possession, if he nonetheless has power or control over the weapon, his possession will amount to a conscious possession, even if the actual possession is with a third party."
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: PNB Housing Finance Ltd. V. State Of Kerala
Citation: 2023 LiveLaw (Ker) 229
The Kerala High Court held that the acts of bank officials in connection with taking possession of a building or an apartment under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 are protected under Section 32 of the Act, if they are done in good faith.
The Court was considering a petition filed by officials of Punjab National Bank for quashing an FIR filed by an apartment owner under several sections of the Indian Penal Code including Section 442 (house trespass) and Section 448 (punishment for house trespass). The bank had proceeded against the de facto complainant under the SARFAESI Act for defaulting in loan repayment. The complainant alleged that the bank officials entered the building without his consent and ought to be prosecuted for trespass.
A single bench of Justice K Babu quashing the FIR observed,
“Though the action taken by the officials of the bank under the SARFAESI Act is neither unquestionable nor treated as sacrosanct under all circumstances but if there is discrepancy in the manner the officials have proceeded, it will always be open to assail it in the forum provided. However, as far as those acts are concerned, the officials are protected from criminal prosecution under Section 32 of the SARFAESI Act. Therefore, registration of FIR under Section 442 read with Section 448 of IPC against the petitioners is an abuse of the process of law which is liable to be quashed.”
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: Vaduthala Juma-Ath Educational Trust & Ors. v. Kerala State Waqf Board & Anr.
Citation: 2023 LiveLaw (Ker) 231
The Kerala High Court refused to interfere with an order of Waqf Board for framing scheme for administration of a school, while issue pertaining to whether or not such school is a waqf property is pending consideration before Waqf Tribunal.
Court added that while the process of framing a scheme for the administration of Vaduthala Jama-ath Higher Secondary School could continue, the same shall not be implemented until Waqf Tribunal arrived at its decision.
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: T.K.Natarajan V T.K.Raman Achari
Citation: 2023 LiveLaw (Ker) 233
The Kerala High Court recently held that unless there is a notification by the State Government as mandated under Section 264(2) of the Indian Succession Act, 1925 no court in the State will have the jurisdiction to issue probate or letters of administration.
A single bench of Justice P Somarajan observed that for the State of Kerala no such notification has been issued under the Act thus far.
“So far no notification has been issued by the State Government under Section 264(2) of the Act. In the Rules framed by the High Court (Indian Succession Rules (Kerala) 1968), though provisions were made regarding issuance of probate and letters of administration, nothing was incorporated to the effect of notification as mandated under Section 264(2) of the Act. In fact, a notification under Section 264(2) of the Act has to be issued by the Government and in the absence of such notification, no jurisdiction can be exercised by the Courts within the State of Kerala for issuance of either probate or letters of administration.”
Case Title: Vishnu v. State of Kerala & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 234
The Kerala High Court laid down certain broad principles to be borne in mind while considering pleas to quash criminal proceedings involving non-compoundable sexual offences against women and children, upon a compromise between the accused and the victim, invoking Section 482 of the Code of Criminal Procedure.
The Single Judge Bench of Justice Kauser Edappagath while hearing a batch of quashing petitions said no straitjacket formula can be formulated as each case is unique, and would have to be decided based on its peculiar facts.
The Court went on to add,
"...where the High Court has such facts on record which clearly exhibit that the criminal prosecution involving non-compoundable sexual offences against women and children will result in greater injustice to the victim, its closure would only promote her well-being, and the possibility of a conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and very well decide to quash such proceeding upon a compromise between the accused and the victim after taking into account all the relevant facts and circumstances of the particular case including the nature, magnitude, consequences of the crime and genuineness of the compromise. Needless to emphasize, the sexual offences which are grave, heinous, and gruesome in nature shall never be the subject matter of compromise".
Case Title: Prema Joy V. John Britto
Citation: 2023 LiveLaw (Ker) 235
The Kerala High Court held that litigants should be allowed to seek early disposal of their cases only in exceptional cases where justifiable and genuine reasons are made out before the appropriate court.
The Court also took note of the increasing tendency of litigants to approach the High Court for expeditious disposal of lower court cases. “Because a litigant has the resource to approach this Court with a prayer to expedite his case, he should not be allowed to break the queue and get an undue advantage unless the situation warrants.” the Court observed.
A division bench of Justice A K Jayasankaran Nambiar and Justice Mohammed Nias C P observed,
“Ordinarily, the disposal of a case in Courts must be as per the seniority, namely chronological basis, and deviation from that must be an exception on valid and genuine grounds. No litigant should normally be allowed to jump the queue or steal a march over the other litigants who filed cases earlier. Only if a litigant files an application stating the reason for an early hearing of the case and only if the court is satisfied with the reasons furnished can a case be posted out of turn."
Case Title: Nixy James V Kerala State Road Transport Corporation
Citation: 2023 LiveLaw (Ker) 236
The Kerala High Court recently held that an employee in service can be transferred on administrative grounds in order to maintain a harmonious atmosphere in office for its smooth functioning.
A single bench of Justice Sathish Ninan also observed that departmental action may not be required in light of such transfers as they are not to be considered as punishment, but only a means to maintain a good work environment:
“When an employee is transferred to maintain the smooth running of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or inappropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration, to enforce a decorum and ensure probity.”
Case Title: Raveendran P.T. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 237
The Kerala High Court recently observed that all unhealthy, unscientific and deleterious practices are to be prevented, even if the same has been done in the name of religion. The Court made the observation while ordering probe against the ritualistic sacrifice of birds and animals at a private residence.
Justice V.G. Arun further directed that if it is found that a place of worship for conducting rituals had been constructed, with members of the public participating in it, immediate action ought to be taken to stop the same.
The court added that if it is found that slaughter of animals and birds is taking place in the precincts of the building, appropriate action under the Kerala Animals and Birds Sacrifices Prohibition Act also ought to be taken.
Other Significant Developments This Week
Case Title: St. Stephen's Malankara Catholic Church v. State of Kerala
The Kerala High Court came down heavily on the State for its inaction in the matter pertaining to illegal installation of boards and banners at public places in the State.
“If Local Self Governments cannot comply with directions, please step down. Don’t provoke this court," Justice Devan Ramachandran remarked.
The Court stated that the Local Self Governments were complying with orders of the Court by issuing circulars but they did not have the ‘guts or political will’ to actually implement them. “This is the bane of our State now”, the Court remarked.
“The directions of the Court cannot be violated, particularly after they themselves have issued orders, circulars and proceedings in compliance. This Court has already nominated and established committees for removing unauthorised installations and if they are not working as ordered, then certainly action including for contempt or constitutional violations will have to be initiated. This court places all such authorities on notice that continuous disregard to directives will expose them to stringent action under every warrant of law,” the court said in its order.
Kerala High Court Directs State To Consider NGO’s Plea For Appointment Of Chairman Of NRI Commission
Case Title: Pravasi Legal Cell v State of Kerala
The Kerala High Court directed the State to consider the plea of an NGO by the name of Pravasi Legal Cell, for appointing a new Chairman to the Non-Resident Indians (Keralites) Commission, a commission constituted for protecting the interests of Malayalis residing outside of India.
A single bench of Justice P V Kunhikrishnan has directed the Principal Secretary of Non-Resident Keralites Affairs to take a decision on the representation of the NGO within 4 months.
Case Title: D Chandralal V Kerala State Sports Council
The Kerala High Court stayed the conduct of the ‘Kerala State Boxing Championship 2023-24’ organised by the Kerala State Amateur Boxing Association proposed to be held between 28th to 30th May.
A single bench of Justice P V Kunhikrishnan stayed the Championship in a plea filed by Indian Boxing Coach and Dronacharya Awardee D Chandralal. It was his case that the Kerala State Amateur Boxing Association was a suspended and disaffiliated sports organisation and that a state wide selection and championships was proposed to be conducted by the Review/Technical committee appointed by Kerala Sports Council and National Federation from 29th to 31st May.
Case Title: Adv. Manoj Rajagopal v. State of Kerala & Ors.
The Kerala High Court issued notice to the State authorities in the plea filed by a lawyer seeking Rs. 1 Crore compensation for the bereaved family members of the 23 years old house surgeon, Dr. Vandana Das, who was brutally killed by an injured man brought to the government hospital in a police jeep, in Kottarakkara, Kollam.
The Acting Chief Justice S.V. Bhatti and Justice Basant Balaji, while tagging the case with the connected matter, observed that the reason for not dismissing the plea despite the petitioner being a stranger was that the petitioner's mother was also a doctor.
"The circumstance that is dissuading us from dismissing your case is the petitioner's mother is also a doctor. This.. we appreciate. We will tag this with the connected matter," the Court orally observed.
Case Title: Suo Motu v. Union of India & Ors
The Kerala High Court sought information regarding the present stage of investigation from the Deputy Director, Periyar West Division, and the District Police Chief, in the matter relating to the alleged trespass by some persons into the sacred 'Kalthara' of Ponnambalamedu, a protected forest area near the Sabarimala Temple. The Senior Government Pleader was directed to get instructions in that regard from the said authorities.
The issue came to light after a video of certain persons performing a pooja at Ponnambalamedu surfaced online. The sacred area is also a part of the core zone of the Periyar Tiger Reserve.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar initiated the suo motu case in the matter, and took action on the report of Sabarimala special commissioner.
Kerala High Court Halts Renovation Of Sri Thirunelli Mahavishnu Temple For 10 Days
Case Title: Saleesh V. v. State of Kerala & Ors.
The Kerala High Court restrained the Executive Officer of the Sri Thirunelli Mahavishnu Temple, from proceeding with any renovation works in the Temple for a period of 10 days.
The incident came to light after certain news reports surfaced stating that the Archaeology Department was being kept in the dark as regards the renovation work being carried out in the temple, and highlighted the necessity to protect the historically significant structures at the temple.
Case Title: Kerala CBSE School Management Association & Ors. v. State of Kerala & Ors
The Kerala High Court was of the considered opinion that the interim order passed by another Single Bench staying the operation of a GO prohibiting conduct of vacation classes, could not be extended as the same would be violative of the Kerala Education Rules.
Rule 1 Chapter VII of the Kerala Education Rules (hereinafter, 'KER') mandates that all schools shall be closed for summer vacation every year on the last working day of March and reopened on the 1st working day of June unless otherwise notified by the Director.
The Single Judge Bench of Justice P.V. Kunhikrishnan observed that the Director of General Education (DGE) had issued the impugned order stating that no classes shall be held during summer vacations in any of the schools due to the prevailing atmospheric temperature, and that the same was in tune with Rule 1 of Chapter VII of KER, thus not warranting the interference of the Court in invoking Article 226.
Case Title: K.M. Shaji v. State of Kerala & Ors
The Kerala High Court stayed the vigilance case relating to amassment of disproportionate assets against the Indian Union Muslim League leader and former MLA K.M. Shaji, for a period of three months.
Justice Ziyad Rahman A.A. passed the interim order, observing that the Special Judge at Kozhikode had invoked his jurisdiction under Section 156(3) Cr.P.C. without obtaining sanction from the government.
Case Title: Kerala Private Hospitals Association v. State of Kerala & Ors. and Adv. Manoj Rajagopal v. State of Kerala
The Kerala High Court directed the Government to hear the representatives of the Kerala Judicial Officers Association, the Kerala University of Health Sciences (KUHS), the IMA - Kerala Chapter, Kerala Private Hospital Association, the Kerala Govt Medical Officers Association (KGMOA), and the Kerala Govt Medical College Teacher Association (KGMCT), while finalizing protocols for production of persons from the custody of the police.
The Court made the above direction while considering the case relating to the death of a 23 year old house surgeon, Dr. Vandana Das, who was brutally killed by an injured man brought to the government hospital in a police jeep, in Kottarakkara, Kollam, earlier this month. The Senior Government Pleader S. Kannan, today, informed the Court that a draft of the protocol had been prepared by the Police department and submitted to the Government, in accordance with the direction of the Court.
Case Title: Suo Motu v. Union of India & Ors.
The Kerala High Court directed the Deputy Director, Periyar West Division to prevent unauthorized entry of anyone near Ponnambalamedu, a protected forest area near the Sabarimala Temple. The Deputy Director was further directed to file an affidavit stating the measures that could be taken to prevent such unauthorized entry of persons within 10 days.
Certain persons had allegedly trespassed into the sacred 'Kalthara' of Ponnambalamedu, and performed pooja in the protected area. The issue came to light after a video of the same surfaced online. The Court had initiated a suo motu case in the matter, and took action on the report of Sabarimala special commissioner.
Case Title: Kulathoor Jaisingh v. XXX & Ors
A lawyer has approached the Kerala High Court for setting aside a Single Judge's decision allowing a 15 years old girl, impregnated by her brother, to terminate the pregnancy.
The Division Bench comprising the Acting Chief Justice S.V. Bhatti and Justice Basant Balaji granted liberty to the appellant, Kulathoor Jaisingh, to move before the Single Judge both for impleading himself as one of the respondents in the matter, as well as for the issuance of appropriate orders in the case.
As per the Single Judge, continuation of pregnancy would have social and medical complications, since the child was conceived from the mother's own sibling.
Case Title: Society for Elephant Welfare v. State of Kerala & Ors.
The Kerala High Court has directed the Government to place on record a mechanism supported by a statutory scheme for the practical and convenient deployment of elephants during festive season.
The Division Bench comprising Acting Chief Justice S.V. Bhatti and Justice Basant Balaji through the issuance of the aforementioned direction, has sought the calendar for each elephant to be used by the temple or organization to be provided therewith, so that the elephant gets the required rest and recuperation between one festivity and another.
The Bench issued the above direction in a plea filed by Society for Elephant Welfare, seeking the issuance of directions for mandatory provisions for the construction of temple tanks for being used by the captive elephants for bathing.
