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Kerala High Court Monthly Digest: January 2022
Hannah M Varghese
1 Feb 2022 9:41 AM GMT
Judgments This Month1. Kerala High Court Upholds 10% EWS Reservation For Veterinary & Dental Courses Under KEAMCase Title: Vinay Shankar v. Union of India & Ors. Citation: 2022 LiveLaw (Ker) 1The Court upheld the 10% reservation earmarked for Economically Weaker Section (EWS) for Veterinary and Dental Courses under Kerala Engineering Architecture ad Medical (KEAM).Justice...
Judgments This Month
1. Kerala High Court Upholds 10% EWS Reservation For Veterinary & Dental Courses Under KEAM
Case Title: Vinay Shankar v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 1
The Court upheld the 10% reservation earmarked for Economically Weaker Section (EWS) for Veterinary and Dental Courses under Kerala Engineering Architecture ad Medical (KEAM).
Justice P.V. Kunhikrishnan closed the writ petition upon noticing that a Government Order dated 20.03.2020 had established the said reservation, and after the Government Pleader endorsed that it was a policy decision of the State. The Director of Medical Education also submitted an affidavit stating that as per the said Government Order, 10% of seats are set apart for candidates belonging to EWS.
Case Title: Rajeswary vs State of Kerala
Citation: 2022 LiveLaw (Ker) 2
The Court observed that a convict in a cheque bounce case can pay the fine amount directly to the complainant. It is not necessary to deposit the fine amount in court. In this case, while disposing of the Criminal Revision Petition filed by the accused, the High Court had affirmed the conviction but modified the sentence of simple imprisonment as a sentence to pay fine of Rs.7,17,000/-. The accused was granted a period of six months to remit the amount of fine in the trial court.
3. District Court Can Only Appoint Guardian For Minor's 'Property', Not 'Person'
Case Title: K.S. Narayana Elayathu v. Sandhya
Citation: 2022 LiveLaw (Ker) 3
The Court ruled that while District Courts are empowered to appoint a guardian for a minor's property, only Family Court can appoint a guardian for the person of a minor.
While partly allowing an appeal, a Division Bench comprising Justice A. Mohamed Mustaque and Justice Sophy Thomas set aside the proceedings of the District Court to the extent of appointing a guardian for the person of the minor.
Case Title: Suo Motu v. Travancore Devaswom Board
Citation: 2022 LiveLaw (Ker) 4
The Court ordered the Devaswom Commissioner to institute disciplinary action against employees of the Travancore Devaswom Board who failed to report for special duty at Sabarimala, Pampa and Nilakkal. While issuing the directive, a Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar recorded that it is the surplus income from the Sabarimala Temple that aids the functioning of over a thousand other temples under the Board.
The Court also directed the Devaswom Commissioner to obtain the names and take action against the staff in the establishment wing and class-4 employees who failed to report for special duty, except on genuine medical grounds.
5. Law Student's Suicide: Kerala High Court Denies Bail To Husband, Releases His Parents
Case Title: Mohammed Suhail & Ors v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 5
The Court refused bail to the accused husband of a 2nd year LLB student, Mofiya Parveen, who died by suicide citing domestic abuse and dowry harassment. However, his parents, who are co-accused in the case, were granted bail. During the proceedings, the de facto complainant (Mofiya's father) also brought to the fore that the accused husband was diagnosed with sexual perversion and personality disorders during a counselling session he had attended with the deceased. In her complaint, she had also mentioned her ordeals of having been forced to perform unnatural sexual acts by the accused husband.
Case Title: Vijayakumar V. & Anr. v. Kannur University & Ors.
Citation: 2022 LiveLaw (Ker) 6
The Court observed that it is prima facie of the view that the notification issued by the Registrar in charge appointing a new board of studies at the Kannur University was not in consonance with the statutory provisions. A Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly also issued notice to the Registrar and Board Members on the appeal filed against a Single Bench's order. The Single Judge had dismissed their writ petition challenging the reconstitution of the board of studies.
Case Title: Biju Kumar v. State of Kerala
Citation: 2022 LiveLaw (Ker) 7
While acquitting a man accused of murder on the ground of negligent evidence collection, the Court ruled that the satisfaction of the Court cannot be substituted by expert opinion. In the criminal appeal, the preliminary question before the Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran was whether there was sufficient material before the trial court to find the accused guilty.
It was noted that the case against the accused was largely based on fingerprints and chemical evidence. However, the Court noted that there wasn't sufficient reliable evidence for the trial court to have found the accused guilty of the crime.
Case Title: V. G. Thankamani & Ors & National Highway Authority of India & Ors
Citation: 2022 LiveLaw (Ker) 8
The Court has ruled that non-compliance with principles of natural justice is a good ground to set aside an arbitral award. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha, while allowing an appeal, set aside the order of the Additional District Court and the impugned award. The Court also added that only an adjudicator not favouring one party more than another, unprejudiced, disinterested, equitable and just, can be said to be an impartial adjudicator.
Case Title: Dr. Sreeparvathy & Ors. v Commissioner of Entrance Examinations & Anr.
Citation: 2022 LiveLaw (Ker) 9
The Court dismissed a plea moved by MBBS graduates challenging a circular issued by the State government increasing reservation for the socially and economically backward classes (SEBC) from 9% to 27% in medical postgraduate courses. After having elaborately heard the matter over the course of the past couple of months, Justice N Nagaresh dismissed the plea.
Case Title: Madhu Alias Valiya Madhu v. Central Bureau of Investigation
Citation: 2022 LiveLaw (Ker) 10
The Court dismissed the bail applications moved by the prime accused in the infamous Walayar case that had built up public outrage in the State. Noting that the final report had already been filed before the trial court, Justice P. Gopinath asked the applicants to approach the trial court with their bail applications since that would be the appropriate forum to consider the same:
11. Kerala High Court Directs Treasury To Hand Over KR Gouri's Savings To Her Niece
Case Title: Dr PC Beenakumari v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 11
Coming to the rescue of K.R Gouri's niece, who was her caretaker till her death, the Court ordered the Department of Treasuries to release her entire treasury savings amounting to over Rs 30 lakh. KR Gauri was the first women minister of Kerala.
Justice N Nagaresh issued the order on a petition filed by Beenakumari, the daughter of Gouri's younger sister, challenging the treasury secretary's order rejecting the request to release the money deposited in the Pension Treasury savings account in two District Sub-treasury savings accounts.
Case Title: S.K. Pavithran & Ors. v. Laisy Santhosh & Ors.
Citation: 2022 LiveLaw (Ker) 12
The Court reversed a Single Bench judgment that held that establishing a toddy shop in a residential locality would be in derogation of right to privacy. A Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed that the view taken by the Single Judge is that "anything and everything that affects the peaceful residence of a person would affect its privacy rights". Disagreeing with this view, the Division Bench recorded in its judgment.
Case Title: Sanju Simon & Ors v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 13
While restraining private medical colleges in the State from collecting fees for any academic year other than the one currently being taught, the Court has held that collecting annual fees from students for the next year in advance when the previous year's studies have not been completed by an institution would amount to "profiteering".
A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. justified its stand observing that conceptually a fee was remuneration for a service already rendered.
14. Temporary Shift Of Residence By Itself Not A Valid Ground For Transfer Of Cases: Kerala High Court
Case Title: Meria Joseph v. Anoop S. Ponnattu
Citation: 2022 LiveLaw (Ker) 14
While considering a series of transfer petitions moved by a woman, the Court ruled that shifting from permanent residence to a temporary residence by itself is not a ground to transfer cases pending within the jurisdiction of the permanent residence of both parties. Justice A. Badharudheen dismissed the transfer petitions observing that allowing such pleas would result in cases being transferred frequently.
Case Title: Thomas P. & Anr v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 15
The Court recently laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. After perusing the provisions of the Juvenile Justice Act 2015, the 2014 Rules framed thereunder and the Adoption Regulations 2017, Justice M.R. Anitha observed:
"In the said circumstance, the finding of the learned District Judge that the court is not a proper forum and they have to approach the Child Welfare Committee is illegal and perverse."
Case Title: State of Kerala & Ors v. Kerala Packaged Drinking Water Manufacturers Association
Citation: 2022 LiveLaw (Ker) 16
The Court dismissed the appeal challenging a Single Judge decision that stayed the government order fixing the price of bottled water in the State at Rs. 13 citing the State's lack of jurisdiction. During the previous hearing of the case, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly had refused to stay the single bench decision while issuing notice to the respondents.
17. Writ Jurisdiction Cannot Be Invoked To Challenge Appointment Of Arbitrator: Kerala High Court
Case Title: Subramaniyan N.N. v. Anwar C.K. & Ors.
Citation: 2022 LiveLaw (Ker) 17
The Court has held that writ jurisdiction cannot be invoked to challenge the appointment of an arbitrator since such grievances could be redressed as per the provisions of the Arbitration and Conciliation Act, 1996.
Ruling that there should not be any judicial interference in the course of the arbitral proceedings for redressal of such grievances, Justice P.B. Suresh Kumar recalled that Section 5 of the Act which begins with a non-obstante clause provides that in matters governed by Part I of the Act, there shall not be any judicial interference except where so provided in the said Part.
Case Title: Sumith V. Kumar & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 18
The Court ruled that the State government was authorised to recognise classes of persons with distinct attributes and treat them differently under law while upholding that the different quantum of reservation for Scheduled Castes/Scheduled Tribes (SC/ST) and persons with disability in the NEET-2021 do not violate their right to equality.
While dismissing a petition, Justice N. Nagaresh observed that persons with disabilities constituted a separate homogenous class by themselves and that their disability was physical rather than pertaining to social backwardness.
19. Non-Commercial Associations Can Use 'Kerala', 'India' In Their Names : Kerala High Court
Case Title: Riyasudheen K. & Ors v. Inspector General of Registration & Anr.
Citation: 2022 LiveLaw (Ker) 19
The Court recently ruled that an association formed by private individuals cannot be prevented from naming after 'Kerala' or 'Bharat' or 'India' under the Emblems and Names (Prevention of Improper Use) Act, 1950 if their activities are not related to any trade or business.
Justice N. Nagaresh observed that the said Act only banned the naming of commercial entities after India or Kerala: "Since the petitioners' Association is not an Association related to any trade, business, calling or profession, it is declared that the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 cannot be applied to the petitioners."
20. Kerala High Court Strikes Down Rules 9(4A) and 9(4C) Of Municipality Rules On Property Tax Fixation
Case Title: K.P. Muhammed Ashraf v. Taliparamba Municipality & Ors.
Citation: 2022 LiveLaw (Ker) 20
The Court has set aside Rules 9(4A) and 9(4C) of the Kerala Municipality (Property Tax, Service Tax and Surcharge) Rules which prescribe fixation of property tax at a minimum of 25% over and above the tax levied for the previous year if the property tax arrived at on computation as per the Rules is less than the tax levied for the previous year.
Justice N. Nagaresh pointed out that Section 233 of the Kerala Municipality Act, 1994 does not permit the fixation of a property tax over and above the upper limit fixed by the Government.
Case Title: Union of India v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 21
Ruling that balance of convenience should be considered while deciding interim custody of seized articles under Section 451 of Code of Criminal Procedure (CrPC), the Cour released unaccounted cash amounting to Rs. 50 lakhs to the Income Tax Department. Allowing a petition filed by the Department, Justice Ziyad Rahman A. A observed that the balance of convenience was in favour of the IT department rather than Abdul Razak, the person found possessing the cash.
The Judge noted that since the Income Tax Department was a statutory authority armed with various powers under Sections 132-A, 132-B and 153A of the Income Tax Act, preference should be given to the Department in the facts and circumstances of the case.
22. Kerala High Court Grants Bail To 3 Accused In SDPI Leader Shan's Murder
Case Title: Akhil & Ors v. State of Kerala
Citation: 2022 LiveLaw (Ker) 22
The Court granted bail to three of the accused in the shocking political murder of Social Democratic Party of India (SDPI) State Secretary K.S Shan who was hacked to death in December 2021. Justice Gopinath P. released the accused on bail citing that the only offence made out against them was under section 212 (harbouring an offender) of the Indian Penal Code (IPC).
However, the Court recorded that since the release of the accused on bail may result in a retaliatory attack and that the law and order situation is still volatile in Alappuzha district, where the attack took place.
Case Title: Mohammed Rafi & Ors v. State of Kerala & Anr. and connected matters
Citation: 2022 LiveLaw (Ker) 23
In a significant judgment, the Court ruled that before recording witness depositions under Section 299 of the Code of Criminal Procedure, it should be established that the accused has absconded and that there is no immediate prospect of arresting him. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran was called upon to answer an intriguing question on the interpretation of Section 299 of the CrPC.
The Bench added that proof of the accused absconding is a condition precedent to record witness deposition for the purpose of Section 299; enabling its use in the subsequent trial against those absconded but later apprehended.
24. Malls Can't Collect Car Parking Fee : Kerala High Court Makes Prima Facie View In Lulu Mall Case
Case Title: Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd.
Citation: 2022 LiveLaw (Ker) 24
The Court opined that prima facie, the collection of parking fees by Lulu International shopping mall was not appropriate while adjudicating upon a couple of pleas alleging that the mall collecting parking fees from its customers was illegal. Justice P.V. Kunhikrishnan sought a clear response from the Kalamassery Municipality on this question and posted the matter to be taken up after two weeks.
Case Title: Aroon Purie v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 25
The Court ruled that Directors of a company cannot be implicated without specific averments indicating their role in the offence, particular because no provision in the Indian Penal Code provides for vicarious liability upon them. While adjudicating upon a batch of applications filed by Directors of the India Today TV news channel, Justice Ziyad Rahman A. A held that it is not possible to implicate the Directors, in the absence of specific averments indicating their role in the commission of the offence.
Case Title: State of Kerala v. Sunil N.S @ Pulsar Suni
Citation: 2022 LiveLaw (Ker) 26
The Court partly allowed the application filed by the State government challenging the trial court's order in the sensational actress sexual case that involves Malayalam actor Dileep, which had rejected the prayer to re-examine certain witnesses and summon additional witnesses. The prosecution had sought before the trial court to re-examine 6 witnesses, 1 witness cited but not examined and 9 additional witnesses who were not cited as witnesses in the final report.
Case Title: Big Movers v. Reeni George & Ors.
Citation: 2022 LiveLaw (Ker) 27
The Court ruled that a mere possibility of an individual occupying the premises through a licence is not adequate to make them a necessary party or a proper party in an appeal pending between the licensor and the licensee. Observing so, Justice A. Badharudeen rejected the application filed by the petitioner to get impleaded as an additional respondent in the appeal.
Case Title: Shyju P.K. v. Nadeera & Anr.
Citation: 2022 LiveLaw (Ker) 28
The Court while allowing an appeal ruled that a party's defence can be struck off for non-compliance of an order for payment of pendente lite maintenance only as a last resort and if it is found that the default is deliberate and willful. A Division Bench of Justice A. Mohamed Mustaque and Justice Kauser Edappagath remarked so while adjudicating upon an appeal filed by a man against the Family Court's order striking off his defence for failing to pay maintenance pendente lite.
Case Title: Mahesh Lal N.Y v. State of Kerala
Citation: 2022 LiveLaw (Ker) 29
The Court has ruled that the consent of an accused is not necessary to acquire their voice sample for the purpose of comparison since it has already been established that obtaining voice samples of the accused do not infringe Article 20 (3) of the Constitution of India. While dismissing a petition alleging that the accused was not given an opportunity of being heard before being directed to produce his voice sample, Justice R. Narayana Pisharadi held that the accused has no right of option in the matter.
30. Kerala High Court Extends Validity Of All Interim Orders Till February 21 Amid COVID-19 Surge
Citation: 2022 LiveLaw (Ker) 30
A Full Bench of Chief Justice S. Manikumar, Justice Muhamed Mustaque and Justice Shaji P. Chaly extended the life of all interim orders passed by the High Court and all courts and tribunals falling under the supervisory jurisdiction of the High Court for another month taking into consideration the surge in Covid-19 cases and the Test Positivity Rate in the State. As such, the Bench revived an earlier order it had passed on 19, May 2021 in which it had issued directions for the extension of interim orders.
Case Title: Thomas Mathew v. State Tax Officer & Ors
Citation: 2022 LiveLaw (Ker) 31
The Court has held that there is a clear distinction between refusing to consider an application and rejecting one with reasons while finding that an officer should specify reasons while denying copies of statements made to the parties in an investigation. Justice Bechu Kurian Thomas observed that since it is settled law that reasons should be reflected in the order, the Proper Officer should have given reasons for refusing to grant copies of the witness statements.
Case Title: Justine Pallivathukkal v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 32
The Court ruled that merely because the Kerala State Commission for Minorities (Amendment) Act, 2017 permits appointing Chairperson and members from the same community, it cannot be said to be conferment of unbridled power infringing rights guaranteed under Articles 14 and 16 of the Constitution of India. While dismissing a Public Interest Litigation (PIL), Chief Justice S. Manikumar and Justice Shaji P. Chaly while referring to Kerala State Commission for Minorities Act and National Commission for Minorities Act observed that such an amendment did not violate any rights under Part III of the Constitution.
Case Title: Mannam Sugar Mills Cooperative Ltd v. Deputy Superintendant of Police
Citation: 2022 LiveLaw (Ker) 33
The Court issued a set of further directions to ensure that no new unauthorised flag posts, banners or boards are installed in the State and to remove the already existing ones within a period of 30 days. Justice Devan Ramachandran found it imperative to notify such guidelines after observing that people had fallen back to their lackadaisical attitude regarding the erection of illegal boards, banners and flag posts in the State within a few months after the Court issued strict orders against the same.
34. Maoist Threat In Locality Valid Reason To Deny NOC For Explosive Licence : Kerala High Court
Case Title: Rajan K. v. Additional District Magistrate & Anr.
Citation: 2022 LiveLaw (Ker) 34
Justice N. Nagaresh while dismissing a petition challenging the decision of a Magistrate held that the presence of a Maoist threat in a locality is a sound reason to deny a No Objection Certificate (NOC) for an explosive license. It was also held that the fact that there is an Anganwadi or a PWD road nearby is also sufficient for such rejection. The Court further noted that the presence of Maoist terrorists and the perceived threat posed by them is a very relevant factor in the context of public interest.
Case Title: Nisha Suresh v. State of Kerala
Citation: 2022 LiveLaw (Ker) 35
The Court granted bail to a 33-year-old woman suffering from multiple disabilities who allegedly dropped her newborn into a bucket of water, resulting into the infant's death. The infant was her sixth child, and reportedly a consequence of unintended pregnancy. Justice Gopinath P. released the woman on bail noting that her custodial interrogation may not be necessary in the investigation of the case.
Case Title: Arun Raj P.N. v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 36
The Court barred all public gatherings exceeding 50 individuals in the Kasargod district for a week citing the increasing number of Covid-19 cases, posing a major setback to the ongoing District Meet of the ruling Communist Party of India (Marxist). The Court passed the order in a writ petition which alleged that the District Collector had revoked an earlier order that limited attendance in public meetings to facilitate the CPI(M)'s Kasargod District meet.
Case Title: Mathrubhoomi Illustrated Weekly & Ors. v. P. Gopalankutty & Anr
Citation: 2022 LiveLaw (Ker) 37
The Court has ruled that a complaint filed by the State Secretary of the Rashtriya Swayamsevak Sangh (RSS) against a defamatory article published in a newspaper about the RSS is maintainable under Section 499 of the Indian Penal Code (IPC). Justice Sophy Thomas noted that since the RSS is a definite and identifiable body, any individual member of RSS has the locus standi to maintain a complaint against an article defaming the organisation.
Case Title: V. Vijayakumar & Anr v. SNDP Yogam & Ors.
Citation: 2022 LiveLaw (Ker) 38
Justice T.R. Ravi annulled the order issued by the Central Government in 1962 which upheld representation voting at the Sree Narayana Dharma Paripalana (SNDP) Yogam elections. Unlike the past 46 years, now all members will have the right to vote in the elections. This decision comes in the backdrop of the next election scheduled to take place on February 5.
39. Kerala High Court Holds First Urgent Late Night Hearing To Arrest Vessel In Admiralty Suit
Case Title: Grace Young International Co.Ltd v. Owners & Parties Interested in Vessel MV Ocean Rose
Citation: 2022 LiveLaw (Ker) 39
In a first, the Court held a late-night hearing of an admiralty suit to arrest a vessel, MV Ocean Rose, from leaving the Cochin Port Trust. Justice Devan Ramachandran convened the hearing at 11.30 pm after the plaintiff in the suit approached the Court to prevent a ship from leaving the Cochin port, which was scheduled to leave at 5 am the next morning.
40. Kerala High Court Issues Directions To Regulate Crowd Funding For Treatment Of Rare Diseases
Case Title: Arif v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 40
The Court has issued a set of directions to the State and the Central governments in an attempt to make available adequate funds for treating patients suffering from rare diseases, particularly for those who cannot afford such expenses, to enforce the rights guaranteed to the citizens under Article 21 of the Constitution.
Justice P.B. Suresh Kumar directed the Centre and State to file affidavits within a month indicating inter alia the progress of the crowdfunding scheme sought to be established in the State.
Case Title: Dileepkumar v. Sriram Transport Finance Co. Ltd & Ors.
Citation: 2022 LiveLaw (Ker) 41
The Court has recently held that if a judgment debtor appears before the court when served with a notice and contends that he has no means to pay off the decreed debt, the Court is bound to enquire into this contention before issuing a warrant of arrest under Order XXI Rule 40 of the Civil Procedure Code. Justice A. Badharudeen was exploring the procedure to be followed before issuance of an arrest warrant in the execution of a decree for payment of money.
Case Title: Thadiyantevida Nazeer v. State of Kerala & connected matters
Citation: 2022 LiveLaw (Ker) 42
The Court while acquitting the prime accused Thadiyantevida Nazeer and Shafas in the infamous Kozhikode 2006 twin bomb blast case observed that the National Investigating Agency (NIA) had failed to produce credible evidence. A Division Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman also found that had it not been for the agency's hurry to wind up the investigation, there may have been more compelling evidence to find the accused guilty.
Case Title: P.O Meera & Anr. v Ananda P Naik & Ors.
Citation: 2022 LiveLaw (Ker) 43
The Court recently ruled that the multiplier to be used while computing compensation in motor accident claims has to be determined on the basis of the age attained by the deceased/injured and not based on the running age.
Therefore, Justice C.S Dias observed that when a person aged 50 years and 7 months dies in a motor accident, the multiplier applicable to the age bracket of 46-50 will apply and not the one applicable to the age bracket of 51-55.
Case Title: Mary Margret v. Jos P Thomas
Citation: 2022 LiveLaw (Ker) 44
While upholding a divorce decree, the Court recently observed that not taking treatment for mental issues in order to bring out a peaceful and harmonious family atmosphere, amounts to cruelty to the persons at the receiving end i.e., the Spouse.
A bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas dismissed the wife's appeal as it came to the conclusion that the appellant was treating her husband with cruelty both physical and mental, and in the year 2005, she had deserted him.
Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 45
The Court held that the prosecution has every right to seek that the accused should surrender mobile phones for forensic examination under Section 79A of the Information Technology Act.
Justice Gopinath P. rejected the argument that the surrender of mobile phones will infringe the fundamental right against self-incrimination under Article 20(3) of the Constitution of India after referring to a couple of landmark decisions in this area.
Case Title: Mohammed Suhail v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 46
The Court granted bail to Suhail, the husband of a 2nd year LLB student, Mofiya Parveen, who died by suicide citing domestic abuse and dowry harassment. Justice Gopinath P. was inclined to grant bail with conditions since according to him, continued detention may not be necessary considering that he had already spent more than 65 days in jail and because the final report had been filed in the matter.
Case Title: Aishwarya Mohan v. Union of India & Ors
Citation: 2022 LiveLaw (Ker) 47
The Court found merits in the contentions raised by the petitioner who had sought to quash the condition mandating applicants to clear CLAT to apply to the post of Assistant Law Officer in National Thermal Power Corporation Limited (NTPC). Finding the condition prima facie discriminatory, Justice V.G. Arun observed that there was no rationale for precluding candidates like the petitioner from the post.
Case Title: State of Kerala v. Sunil N.S & Ors
Citation: 2022 LiveLaw (Ker) 48
The Court granted the prosecution 10 more days from January 27 to complete the examination of witnesses before the trial court in the sensational 2017 actor sexual assault case. Earlier, the Court had partly allowed the application filed by the State, permitting it to summon 5 additional witnesses. In this order, the Court had directed a new Special Public Prosecutor be deputed to conduct the case and to complete the examination of the witnesses within ten days. Justice Kauser Edappagath was inclined to grant the extension upon being informed that out of the five witnesses, three had already been examined.
49. Kerala High Court Temporarily Defers Centre's Ban On News Channel MediaOne
Case Title: Madhyamam Broadcasting Limited v. Union of India
Citation: 2022 LiveLaw (Ker) 49
The Court deferred the order issued to popular Malayalam news channel MediaOne by the Ministry of Information and Broadcasting revoking its license to broadcast till the next hearing date. Justice N. Nagaresh posted the matter to be considered on Wednesday and issued notice to Planetcast Media Services Ltd, the third respondent.
Other Significant Developments:
'Not Sure If All Ambulances Carry Genuine Patients' : Court Calls For Monitoring System
The Court orally commented that perhaps it was time to bring about a monitoring system to regulate ambulances cutting through traffic in the State, particularly in the city of Kochi. While hearing a bail application of a man alleged to have committed an offence in an ambulance, Justice P Gopinath remarked that this was an issue of immense gravity citing the rising number of similar cases being brought to the fore in the State:
"It is a very serious issue. But at the same time, how can the police regulate this? They cannot stop and inspect all the ambulances plying in the city; this could cost a life, leading to disciplinary action against the responsible officer. Everyone including the police will make way for an ambulance upon hearing its siren. But only God knows what is being transported in it. I am not sure if all these ambulances are transporting genuine patients in the first place."
[Actor Sexual Assault Case] Sufficient Reasons Required To Recall Witnesses : Kerala High Court
Case Title: State of Kerala v. Sunil N.S @ Pulsar Suni
Further developments ensued in the sensational actress sexual case that involves Malayalam actor Dileep, as the Court observed that the prosecution should produce adequate justification for seeking to recall the witnesses in the case. Justice Kauser Edappagath reserved orders in the Criminal Miscellaneous case filed by the State against the trial court approving to collect a confidential statement from director Balachandra Kumar, who made some explosive disclosures, on January 12th.
Case Title: Peggy Fen v. Central Board of Film Certification & Ors.
The Court suo motu impleaded the State Police Chief to file a statement to report if there was any statutory violation in exhibiting the Malayalam movie 'Churuli'. The Court passed the direction in the writ petition filed against the movie citing excessive use of abusive and obscene language. Justice P.V. Kunhikrishnan while hearing the matter also noted that prima facie, he was of the opinion that no statutory provision was violated by the publication of the film
Missing CPM Worker: Kerala High Court Demands Status Report On Police Investigation
Case Title: Sajitha Sajeevan v. Station House Officer & Ors.
The Court sought a statement from the respondents on the stage of investigation in the habeas corpus plea moved by a CPM worker's wife alleging that her missing husband was abducted for reasons associated with the upcoming CPM branch election. A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran asked the respondents to file a copy of the investigation so far conducted in the matter by the next hearing date.
Case Title: M.T Thomas v. V.P Joy
In an affidavit filed before the Court, the Chief Secretary to the Government has submitted that its actions taken in pursuance of the Semi High-Speed Railway Line Project (Silver Line Project) were only preliminary in nature and that they were all in public interest. The statement was filed in a petition seeking to initiate contempt proceedings against K-Rail for allegedly breaching its assurance not to proceed with the Silver Line project before obtaining sanction from the Centre.
Advocates Welfare Fund Scam: Kerala Bar Council Assures Cooperation With CBI Probe
The Bar Council of Kerala issued a press release disclosing that it does not plan to appeal against the High Court's decision to initiate a CBI probe into the Advocates Welfare Fund scam. In fact, it was added that the Council endorses the verdict of the Court.
Bar Council Chairman Advocate Joseph John published the press release pursuant to a recent order where the High Court directed a CBI investigation into a scam involving misappropriation of over ₹7.5 crores from the Kerala Advocates Welfare Fund. The amount was allegedly swindled through fake documents from 2007 - 2015.
Case Title: State of Kerala & Ors v. Kerala Packaged Drinking Water Manufacturers Association
The Court issued notice on an appeal challenging a Single Judge order that stayed the government order fixing the price of bottled water in the State at Rs. 13 citing the State's lack of jurisdiction. However, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly refused to stay the single bench decision.
The Single Judge had examined the Kerala Essential Articles Control Act 1986 and found that as per Section 3, the power to control production, supply, distribution of essential commodities are vested with the Centre.
The Court reiterated its stand that survivors of sexual assault have to be thoroughly protected from further harassment or ridicule as it takes a lot of courage to come forward and say they have been attacked, and invited recommendations from all lawyers on how they can be protected from further trauma on account of the investigation process. Justice Devan Ramachandran orally remarked so while considering the plea of a survivor who alleged harassment from the accused as well as certain police officers.
Uthra Murder: Suraj Prefers Appeal Against His Conviction, Kerala High Court Issues Notice To State
Case Title: Suraj S. Kumar v. State of Kerala
In a further development in the Uthra murder case, the Court admitted an appeal preferred by Suraj, challenging his conviction by the Kollam Additional District and Sessions Court for throwing a starving cobra on his wife while she was asleep, to induce her death by snakebite. A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran also issued notice to the State in the matter.
Suraj was sentenced to double life imprisonment and a five lakh fine for murdering his wife by inducing a homicidal snakebite. He was also awarded 10 years and 7 years of imprisonment in two other cases for causing hurt by means of poison and destroying evidence. The sentencing was to run consecutively.
Case Title: T.M Azad v State of Kerala & Ors.
The Court came down on the State government for the deficient infrastructure reported in a hospital, despite its highly appreciated Kerala model. Criticizing the State, Justice N Nagaresh pointed out that while it claims of the Kerala model's achievements, it was 'shameful' to see that a Taluk Headquarters hospital did not have a functional maternity ward.
The Court was adjudicating upon a petition moved through Advocate R. Rajasekharan Pillai seeking directions to the relevant State authorities to launch a maternity ward in the Taluk Headquarter Hospital in Peerumedu, equipped with an operation theatre providing all facilities and instruments.
Case Title: Suo Motu v. Travancore Devaswom Board & Ors.
The Court asked the Chief Vigilance Officer of the Travancore Devaswom Board to maintain constant vigil of the entire activity in the Bhandaram at Sabarimala, after an incident of an employee stealing cash from the Bhandaram was brought to the attention of the Court.
A Division Bench comprising Justice Anil K. Narendran and Justice P.G Ajithkumar was adjudicating upon a report filed by the Special Commissioner of Sabarimala regarding the theft of currency notes from the Bhandaram by an employee engaged in Sabarimala duty.
Kerala High Court Asks Centre To Clarify Its Stand On K-Rail SilverLine Project
Case Title: Muralikrishnan v. State of Kerala
The Court asked the Central government to make its stand clear regarding the K-Rail Silverline project while staying the process of laying boundary stones in violation of the Survey and Boundaries Act on the land identified for the project ahead of a social impact assessment. Justice Devan Ramachandran noted that although it is argued by the respondents that the project has been approved in principle, there was no clarity regarding the same from the Centre.
The Silver Line Project is a semi high-speed rail corridor connecting one end of the State to the other and was announced for the first time over 12 years ago by the LDF government then in power.
Case Title: M.P. Abu Swalih Koya Thangal v. State of Kerala
The Court suggested that the State government should consider designing roads for the future- amidst all the ongoing discussion about the future with K-Rail project SilverLine. While adjudicating upon a plea alleging that a 14 km stretch of a road development project was being done with a reduced width citing financial constraints, Justice Devan Ramachandran orally remarked:
"When you speak about the K-Rail project, you talk about the future. I am happy that someone is taking account of the future. Let's talk about the future when it comes to the roads, too."
The Court impleaded and directed the Vigilance and Anti-Corruption Bureau (VACB) to conduct a preliminary enquiry into the case where an Assistant Sub Inspector of Police (ASI) is accused of demanding bribe for the release of two girls from a children's home to their parents. While ordering so, Justice Devan Ramachandran explained why a VACB probe was necessary in the matter and how it could serve as a lesson for other officers in the force.
Kerala High Court Grants Pre-Arrest Bail To Former Chief Airport Officer In Sexual Assault Case
Case Title: Giri Madhusudana Rao v. State of Kerala
The Court granted anticipatory bail to former Chief Airport Officer (CAO) of the Trivandrum International Airport, Giri Madhusudana Rao in the case where he was accused of raping a lady staff working under him. Justice P. Gopinath granted the pre-arrest bail considering the age of the petitioner and his ailments. The pe-arrest bail was granted with a condition that the petitioner, although currently placed under suspension, shall not enter the workplace until the filing of the final report.
Case Title: Adivasi Dalit Munneta Samiti & Ors. v. State of Kerala & Ors
The Court directed the State government to inform the time frame required to allot inhabitable land to the landless Scheduled Castes and Scheduled Tribes individuals at Chengara who have been fighting for their land for two decades, which soon shaped a campaign and came to be known as the 'Chengara land agitation'. While requiring the State to disclose the name of the officer who had been entrusted with identifying and allotting such land, Justice Devan Ramachandran also reflected on the disproportionate hold up in granting benefits to those who lost their land to State acquisition:
Case Title: Muralikrishnan v. State of Kerala
The Court directed the State government to explain its actions taken in furtherance of its K-Rail Silver Line project and to justify the manner in which the survey is conducted by its instrumentalities. Upon being informed that a survey was being conducted before a Detailed Project Report (DPR) was drafted, Justice Devan Ramachandran found it imperative for the State to explain its actions within the framework of statutory formalities.
The Court directed the State Police Chief to enquire into the allegations raised by actor Dileep that the media was flouting the trial court's order restricting the publication of matters related to the 2017 actor assault case till the conclusion of the trial. Justice Kauser Edappagath remarked that the allegations if found to be true, should be handled with prompt action as prescribed by law. The Judge also issued notice to ReporterTV and posted the matter to be heard after 3 weeks.
Case Title: Peter Myaliparampil v. Union of India & Anr.
The Court dismissed an appeal challenging the Single Judge order that rejected the plea challenging the photograph of Prime Minister being affixed on the Covid-19 vaccination certificates issued to citizens. The Single Judge had also imposed a whopping cost of 1 lakh on the appellant herein by the impugned order.
A Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, while dismissing the appeal, noted that a photo is not an advertisement and that the Prime Minister has a right to give a message.
Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.
The Court directed actor Dileep and the other accused to hand over six mobile phones to its Registrar General in a sealed box by 10.15 am on Monday in the alleged criminal conspiracy to kill police officers investigating the sensational 2017 sexual assault case.
Justice Gopinath P. relying on the Supreme Court decision in State of Bombay vs Kathi Kalu Oghad & Ors and a Karnataka High Court decision, observed that such surrender will not amount to an infringement of Article 20(3).
Case Title: Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd.
The Court reiterated its prima facie view that the collection of parking fees by Lulu International shopping mall is not appropriate. It was adjudicating upon a couple of pleas alleging that the mall collecting parking fees from its customers was illegal.
Justice P.V. Kunhikrishnan while adjourning the matter to next month repeated its prime facie stand and directed the respondents to file a counter affidavit in the matter and added that if this was allowed, they will soon start charging for their lift services.
Kerala High Court Grants State 3 More Weeks To Frame Comprehensive Policy On Illegal Flag Masts
Case Title: Vishnu T.K. v. State of Kerala & Ors
The Court granted three more weeks time to the State government to draw up a comprehensive policy to deal with the menace of illegal flag masts in the State. Justice Devan Ramachandran granted the extension upon noting that it is a matter of policy and since the Additional Advocate General was not keeping well at present:
The Court held yet another night hearing at 9 pm to attend a matter where a NEET candidate sought an extension of time to file his documents. This is the second night hearing this week.
Justice Raja Vijayaraghavan granted an interim order in favour of the petitioner noting that the student is a meritorious candidate and that he was at the risk of losing a seat merely because he had failed to produce the original of a document.
Case Title: Film Exhibitors United Organisation of Kerala v. State of Kerala & Ors.
A plea has been moved in the Court seeking approval to run cinema halls in the State with 20% intake and strict adherence to Covid-19 protocol citing that other sectors are still functioning without any interdictions. Justice N. Nagaresh directed the Government Pleader to get instructions and posted the matter for consideration on January 27.
The petition was filed by an organisation of film exhibitors in the State challenging the recent Government Orders dated 20th and 24th January 2022 which imposed restrictions on the functioning of movie theatres in the State in the wake of rising Covid-19 cases.
Case Title: Sajitha Sajeevan v. Station House Officer & Ors.
The Court disposed of the habeas corpus plea moved by a CPM worker's wife alleging that her missing husband was abducted for reasons associated with the upcoming CPM branch election, recording that the investigation was progressing in the matter.
A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran closed the writ petition after the respondents submitted a report indicating that they are carrying on with the investigation and that a man missing case was registered in the matter.
Case Title: Hindu Seva Kendram v. State of Kerala
The Court heard a plea alleging that the State auctioned a Mahindra Thar vehicle dedicated to the deity of Sree Krishna in Guruvayoor Temple in total violation of the provisions of the Gururvayoor Devaswom Act and the general principles of auction.
A Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar directed the Guruvayur Devaswom Board to produce the details of the Mahindra Thar including its price by the next hearing date.
Case Title: P Gopalakrishnan alias Dileep & Ors. v State of Kerala & Ors.
In the application seeking anticipatory bail from the Court, Malayalam cinema actor Dileep has made several allegations against director Balachandrakumar. In his reply to a recent statement filed by the Crime Branch before the Kerala High Court, Dileep alleges that the director assured that he was close to the Bishop of Neyyattinkara, who was quite influential and had strong associations with the Chief Minister and senior police officers.
Vlogger Sreekanth Vettiyar Approaches Kerala High Court Seeking Pre-Arrest Bail In Rape Case
Case Title: Sreekanth Vettiyar v. State of Kerala
Popular content creator and vlogger Sreekanth Vettiyar has moved the Court seeking anticipatory bail after a woman filed an official complaint accusing him of rape. Justice Gopinath P. directed the Public Prosecutor to get instructions and posted the matter to be taken up again on February 2.
Vettiyar, known in the State for his 'woke humour', was accused of having raped a woman on the pretext of marrying her. He was thereby booked under Section 376 (2)(n) of IPC.
