30 Dec 2021 7:45 AM GMT
"Way back in the year 1981, when I joined the Kerala High Court Service as an Assistant, little did I think, even in my dreams, that one day I would be called upon to occupy the seat of a Judge in this temple of justice. Perhaps, history is being created now by the elevation of a former staff as a Judge of this august institution. And I am really very proud of it."These are the words of a...
"Way back in the year 1981, when I joined the Kerala High Court Service as an Assistant, little did I think, even in my dreams, that one day I would be called upon to occupy the seat of a Judge in this temple of justice. Perhaps, history is being created now by the elevation of a former staff as a Judge of this august institution. And I am really very proud of it."
These are the words of a former Kerala High Court Assistant who made his way to a judgeship after a long spell of over 31 years in the judicial service, thereby rewriting history. Justice R. Narayana Pisharadi retired from judgeship on 26th December 2021, having served over four years at the Bench.
Justice Pisharadi was appointed as an assistant in the High Court of Kerala in 1981. He passed his LLB through an evening course at GLC Ernakulum. He was selected as a temporary Judicial Magistrate (Second Class) in February 1986. Thereafter, he got regular selection as JSCM during the period 1988-1988. Later on, he cleared the Kerala Judicial Service Examination. He was appointed as a Munsiff in the year 1991. He became a District and Sessions Judge in January 2005. Later, he was appointed as the Registrar (Vigilance) in July 2016. He held the post until his elevation as an Additional Judge at the High Court in 2017.
1. Attachment Before Judgment: Order On Claim Petition Is Appealable As Decree
The Court clarified that an order adjudicating a claim over property under attachment before judgment is appealable as if it was a decree. The clarification was made by a division bench comprising Justice V Chitambaresh and Justice Narayana Pisharadi, answering a reference to whether such an order could be challenged in an original petition under Article 227 of the Constitution.
2. Child In Conflict With Law Can Apply For Anticipatory Bail U/S 438 CrPC, Sec 12 (1) JJ Act Not A Bar
Justice R Narayana Pisharadi held that a child in conflict with law can very well apply for anticipatory bail as there is nothing in the Juvenile Justice (JJ) Act that bars him/her from doing so. He also held that an application for anticipatory bail under Section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is maintainable before the high court or the Court of Session.
3. No Bar In Withdrawing Resignation Before Its 'Effective' Acceptance By Appropriate Authority As Per Rules
[Shabeer Ahammed v Sivadasan VP]
The Court held that a government employee can withdraw the resignation tendered by him before its 'effective' acceptance by appropriate authorities as per concerned rules. Referring to Service Rules, a division bench of PR Ramachandra Menon and Justice R Narayana Pisharadi observed that mere fact that the manager is the appointing authority does not mean that once he accepts the letter of resignation, it would come into effect.
4. Fundamental Right To Freedom Of Speech Not An Absolute License To Hurt Fellow Citizens' Religious Sentiments
'Persons who take the risk of publication and dissemination of scurrilous and blasphemous messages are not entitled to get the discretion of the court exercised in their favour.' While rejecting anticipatory bail to a man who posted a comment on a Facebook post, insulting members of the Islamic community and the prophet, the Court observed that the fundamental right to freedom of speech and expression in a secular state is not an absolute licence to injure and hurt the religious feelings and faiths and beliefs of fellow citizens.
5. It Is Neither Illegal Nor A Crime: Lesbian Couple Allowed To Live-in Together
[Sreeja S. v. Commissioner of Police]
Weeks after the Supreme Court decriminalised homosexuality, the Court allowed a plea of the lesbian live-in couple to live together. 'This court cannot find that the 'live-in relationship' between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner.' A division bench of Justice CK Abdul Rehim and Justice R. Narayana Pisharadi observed that such a live-in relationship between a lesbian couple is neither a crime nor illegal.
6. Application To Set Aside Ex Parte Divorce Decree Won't Be Rendered Infructuous Merely Because The Spouse Remarried In The Meanwhile
A bench comprising of Justice CK Abdul Rehim and Justice R Narayana Pisharadi was considering an appeal filed by a man against the order of the family court setting aside the ex parte decree. Remarriage of the spouse is not a relevant factor to be taken into account in deciding the merits of an application filed for setting aside an ex parte decree of divorce. The Court held that remarriage of the spouse who obtained an ex parte decree of divorce, after the filing of the application for setting aside the ex parte decree by the opposite spouse, would not render such application infructuous.
7. Divorce By Mutual Consent Is A Secular Concept; Six-Month Cooling-Off Period Can Be Waived For Christians As Well
[Tomy Joseph v. Smitha Tomy]
Waiving 'cooling-off' time for divorce for a Christian couple, the Court observed that divorce by mutual consent is a secular concept and there can be no discrimination on the ground of religion against persons who want a divorce by mutual consent. The bench comprising Justice CK Abdul Rehim and Justice R Narayana Pisharadi observed that the only substantial difference between the law applicable to Hindus and Christians is that, instead of the period of one year mentioned in Section 13 B(1) of the Hindu Marriage Act and Section 28(1) of the Special Marriage Act, a period of two years of separate residence is provided under Section 10A(1) of the Divorce Act.
8. Application Seeking Interim Measure Of Protection Maintainable Even After Passing Of Arbitration Award But Before It Is Enforced
[M. Ashraf vs. Kasim VK]
The Court held that application under Section 9(1)(ii) of the Arbitration and Conciliation Act, 1996 seeking an interim measure of protection is maintainable even after passing of the award by the arbitral tribunal but before it is enforced. The bench comprising of Justice V. Chitambaresh and Justice R. Narayana Pisharadi was considering an appeal filed against District Court order which found that the applicant has got efficacious remedy under Section 17 and therefore, the application filed before it under Section 9(1)(ii) is not maintainable in view of the bar contained in Section 9(3).
9. Attempt To Take Possession Of Property Which Isn't Secured Asset Can Be Called In Question In Civil Court
The Court has held that the jurisdiction of the civil court is not barred if the plea is that the plaint schedule property is not the secured asset in respect of which a security interest is created. A division bench comprising of Justice V. Chitambaresh and Justice R. Narayana Pisharadi observed: Attempting to take possession of a property which is not a secured asset under the guise of the SARFAESI Act is certainly a fraudulent action which can be called in question in a civil court.
10. Laminating Identity Card Destroys Its Legality And Authenticity
[R.G. Harilal v. Joint Registrar of Cooperative Societies]
The court observed that laminating an identity card destroys its legality and authenticity. The division bench comprising of Justice V. Chitambaresh and Justice R. Narayana Pisharadi was responding suggestion made by Advocate George Poonthottam about modernizing the voter's identity cards of cooperative societies by lamination and bar code.
11. No Court Shall Be Prestige Conscious: Single Judge Order That Imposed Exemplary Costs For Defects In Writ Petition Set Aside
While setting aside a single bench order imposing exemplary costs for some defects in a writ petition, the Court observed that no court shall be prestige conscious as to disallow permission to withdraw a writ petition unless the hearing has advanced to a considerable stage consuming time. The bench comprising Justice V. Chitambaresh and Justice R. Narayana Pisharadi said: "No Court shall be prestige conscious as to disallow permission to withdraw a writ petition unless the hearing has advanced to a considerable stage consuming time.'
12. Educational Qualifications Prescribed For Public Posts Are Not Relaxable
The Court observed that educational qualifications prescribed for public posts are not relaxable unless it is clearly stated in the notification inviting applications. The bench comprising of Justice V. Chitambaresh and Justice R. Narayana Pisharadi, while setting aside an order of Central Administrative Tribunal, observed that such relaxations amount to fraud on the public in the matter of appointment. The bench said: "We can be second to none only if we do not compromise on educational qualifications of those involved in space research and mere experience sans qualification may prove to be deficient for the progress."
13. PSC Advisees Entitled To Be Appointed As 'Reserved Conductors' In KSRTC
The Court held that the PSC advisees are entitled to be appointed to the post of 'Reserved Conductors' in the Kerala State Road Transport Corporation. The bench comprising of Justice V. Chitambaresh and Justice R. Narayana Pisharadi allowed the writ appeal filed by PSC Advisees against the single bench order that had dismissed their plea. It was further observed that any substantive vacancies in the post of Conductor Grade II can only be filled up through the PSC or by persons sponsored by the Employment Exchange, strictly in accordance with the provisions of KS and SSR for the period permitted and that too temporarily till the exercise by the PSC is complete.
14. Educational Officers Have No Disciplinary Control Over Teachers In CBSE Schools
The Court held that the educational officers under the Kerala Education Act and Rules made thereunder have no disciplinary control over teachers in the schools affiliated with CBSE. The bench comprising Justice Chitambaresh and Justice Narayana Pisharadi observed that such educational officers have no jurisdiction to order reinstatement in service of teachers in the school affiliated to CBSE and the management is not obliged to honour the same.
15. Sex On Promise Of Marriage: Subsequent Marriage With Victim Shortly After The Occurrence Shows Accused's Promise Was Not Fraudulent
The Court held that If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. The allegation against the accused was that he made a promise to marry the prosecutrix, who consented for sexual intercourse based on that promise. Subsequently case was registered against the accused. In the meanwhile, the accused married the victim.
16. Candidate Who Got PG Medical Admission In Quota For Insurance Medical Service Cannot Switch To Govt Service After Course
[Director of Insurance Medical Services v. Dr.Praveen V.]
The Court held that a candidate who secured admission for a PG Medical course in the quota for Insurance Medical Service(IMS) cannot seek to switch over to Government service after the course. The Court held that he has to serve the IMS itself as per the bond executed. The Division Bench of Justices V Chitambaresh and Narayana Pisharadi was considering a challenge made by the Director of Insurance Service and the Government against an order passed by the Kerala Administrative Tribunal(KAT). The KAT had permitted the candidate to serve Health Service Department and directed the IMS to relieve him.
17. Sec 138 NI Act- If Signature Is Admitted By Drawer, It Is Immaterial If Entries Are Made By Another Person
[Sandhya Rani v. State of Kerala]
The Court held that if the drawer admits the signature in the cheque, it is immaterial whether some other person had made the entries in the cheque or filled it up. The single bench of Justice Narayana Pisharadi said that even if some other person had filled up the cheque, it does not in any way affect the validity of the cheque.
18. Charges For Both Murder And Abetment Of Suicide Cannot Coexist, Charge In The Alternative Can Be Framed Against An Accused
[Rajesh v. State of Kerala]
The Court emphasised that a person could not be charged for murder as well as abetment of suicide simultaneously. A Single Judge Bench of Justice R Narayana Pisharadi underscored that the offences of murder and suicide, punishable under Sections 302 and 306 respectively, were 'mutually exclusive' and could not coexist. The Court pronounced the order in response to a revision petition filed by a person whose wife had died by suicide in their home.
19. Permission Of Court For Further Investigation Not Mandatory, But Seeking It A Well-Accepted Legal Practice
[VACB v. K. Sasikala]
While deciding a criminal revision petition, the was tasked with whether court permissions were mandatory when seeking further investigation and whether material necessarily had to be collected before such investigation was instituted. Justice R Narayana Pisharadi ruled that while permission for further investigation was not mandated by the Criminal Procedure Code, It is a well-accepted legal practice based on principles of courtesy and propriety.
20. Mere Erroneous Exercise Of Judicial Power Sans Extraneous Considerations Not Criminal Misconduct
[G. Suresh Kumar v. State of Kerala]
The Court held that a quasi-judicial order passed by a public servant or a statutory authority which was incorrect or not in favour of the government cannot be sufficient reason to initiate a corruption case or criminal proceedings against them. Justice R Narayana Pisharadi ruled so while quashing the corruption proceedings initiated against a former Assistant Commissioner of Sales Tax on the ground that his orders directing refund to a company as excess tax paid by it caused a loss to the government.
21. ISRO Espionage: Plea Alleging Nambi Narayanan Influenced CBI Officers By Entering Into Land Deals Dismissed
[S. Vijayan v. Central Bureau of Investigation]
The Court dismissed a plea filed by former police officer S. Vijayan accusing Nambi Narayanan of influencing the CBI investigation against him by entering into land deals worth crores with the then investigating officials of the agency. Justice R Narayana Pisharadi dismissed the criminal revision petition leaving liberty to the petitioner to file a fresh complaint with the appropriate documents.
22. Dredger Scam: FIR Against Former DGP Jacob Thomas Quashed
[Dr Jacob Thomas IPS v. State of Kerala & Ors.]
The Court quashed the FIR registered against former Director General of Police Dr. Jacob Thomas in the dredger scam case where he was accused of engaging in tender rigging. Justice R. Narayana Pisharadi noted that although its power under Section 482 of the CrPC shall be exercised sparingly and with circumspection in rare cases to quash the F.I.R, it should not feel inhibited when the circumstances warrant the exercise of such power to do substantial justice to the parties.
23. Kottiyoor Rape Case: Sentence Imposed On Former Catholic Priest Reduced
[Robin Mathew v. State of Kerala & Ors]
The Court reduced the sentence imposed on former Catholic priest Robin Mathew Vadakkumchery from 20 years to 10 years of rigorous imprisonment coupled with a fine of Rupees one lakh. Justice R. Narayana Pisharadi confirmed the guilt of the accused while partly allowing the appeal. Conviction of the appellant/accused by the trial court for the offence under Section 376(2)(f) of the IPC was altered to conviction under Section 376(1).