Kerala High Court Weekly Round-Up: March 6 To March 12, 2023

Nominal Index [Citation: 2023 LiveLaw (Ker) 119-130]

K.Sasi v. State of Kerala rep. by Chief Secretary to the Govt & Ors., 2023 LiveLaw (Ker) 119

 Sunil N.S. v. State of Kerala, 2023 LiveLaw (Ker) 120

Gopal C V Central Bureau of Investigation, 2023 LiveLaw (Ker) 121

Jollyamma Joseph @ Jolly V State of Kerala, 2023 LiveLaw (Ker) 122

Bijumon & Ors v. The New India Assurance Co.,2023 LiveLaw (Ker) 123

XXXXXX V State of Kerala, 2023 LiveLaw (Ker) 124

Asianet News v. The State Police Chief & Ors., 2023 LiveLaw (Ker) 125

M/S. Beta Exim Logistics (P) Ltd. V M/S. Central Railside Warehouse Co., Ltd, 2023 LiveLaw (Ker) 126

Vadekkevila Sasi V Cochin University Of Science & Technology and Others, 2023 LiveLaw (Ker) 127

XXX v. State of Kerala, 2023 LiveLaw (Ker) 128

Zehub Technopark Pvt. Ltd. v. Village Officer & Anr., 2023 LiveLaw (Ker) 129

Adv. Antony Raju v. State of Kerala and Others, 2023 LiveLaw (Ker) 130

Judgments/Order This Week

[Prevention Of Corruption Act] Mere Typing Error In Designation Of Person Accused While Issuing Sanction Does Not Invalidate It

Case Title: K.Sasi v. State of Kerala rep. by Chief Secretary to the Govt & Ors.

Citation: 2023 LiveLaw (Ker) 119

The Kerala High Court held that merely because there is a typographical error in showing the designation of the person accused in the sanction order to prosecute such person under Section 19(1)(b) of the Prevention of Corruption Act (P.C. Act), it cannot be said that the sanction order is bad.

Justice Kauser Edappagath passed the above order and observed,

"For the simple reason that there is a typographical error in showing the designation of the petitioner, it cannot be said that the sanction issued is bad. The question whether the sanctioning authority has applied his mind or not, is something which cannot be agitated in a writ petition".

Kerala High Court Refuses Bail To Pulsar Suni In 2017 Actor Assault Case

Case Title: Sunil N.S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 120

The Kerala High Court dismissed the bail application of Sunil N.S., also known as 'Pulsar Suni', the main accused in the 2017 Actor Assault Case.

Justice P.V. Kunhikrishnan while dismissing the bail application, observed,

"The prosecution case is very serious. The prosecution case is that, the victim was taken in a car and she was sexually harassed brutally by the petitioner/accused and others turning a deaf ear to her begging to release her. A conspiracy is also alleged. Whether the victim is a cine artist or not is not at all a factor. The prosecution case is that a lady was brutally attacked. The truth has to come out after the trial. Simply because the petitioner/accused is in jail for six years, it cannot be a ground to release him in such a serious case. The prosecution and the Court are taking every possible effort to conclude the trial as expeditiously as possible. The Apex Court is also supervising the trial and is granting time to the Trial Court to complete the trial. The Trial Court now says that the sessions case itself can be disposed of within six months. I believe that in such a situation this Court need not entertain this bail application. Whether the prosecution succeed in this case or the defence succeed in this case is not a criteria in these types of cases. When there is serious allegation against an accused affecting the conscience of the society, this Court cannot allow bail application solely on the ground of personal liberty".

Witness Examination Through Virtual Mode Does Not Affect The Rights Of Accused

Case Title: Gopal C V Central Bureau of Investigation

Citation: 2023 LiveLaw (Ker) 121

The Kerala High Court held that the examination of a witness during trial may be conducted through video linkage mode as per the provisions of the Electronic Video Linkage Rules for Courts (Kerala), 2021 and that the same would not affect the rights of the accused.

A single bench of Justice A Badharudeen noted that under Rule 8(25) Electronic Video Linkage Rules for Courts (Kerala), 2021 witness examination via video conferencing is to be treated as compliance of the provisions of the Code of Criminal Procedure 1973, Code of Civil Procedure, 1908, Criminal Rules of Practice, Kerala and Civil Rules of Practice, Kerala. It is also applicable to any other law requiring personal appearance of parties in Subordinate Courts or Tribunals in relation to any enquiry, trial or any other proceedings, the court noted.

[Koodathayi Murder] Kerala High Court Refuses To Interfere With Sessions Court Order Dismissing Discharge Petition Of Jolly Joseph

Case Title: Jollyamma Joseph @ Jolly V State of Kerala

Citation: 2023 LiveLaw (Ker) 122

The Kerala High Court on Monday refused to interfere with the trial court proceedings against Jolly Joseph in connection with the murder of her first husband, Roy Thomas. Jolly had filed a revision petition challenging the order of the sessions court which had dismissed her discharge petition.

Jolly Joseph is the prime accused in the infamous Koodathayi murders and has been accused of murdering six of her family members over a span of 17 years primarily using cyanide. She has been charged with killing members of her family including her first husband Roy Thomas with the motive to take control of the family property.

[Motor Accident] Kerala High Court Adopts Notional Income Of Deceased Child As ₹30,000; Enhances Compensation Under 'Loss Of Dependency'

Case Title: Bijumon & Ors v. The New India Assurance Co.

Citation: 2023 LiveLaw (Ker) 123

The Kerala High Court  enhanced the compensation awarded by a Motor Accident Tribunal under the head of 'Loss of Dependancy' to the parents and sibling of a deceased child, who had been a victim of a motor accident.

Justice Devan Ramachandran, relying on various precedents, adopted Rs.30,000/- as the notional income of the deceased child in the present case, and thereby partly allowed the appeal, and enhanced the compensation under the aforementioned head of 'Loss of Dependancy'.

'Someone’s Liberty Is At Stake': Kerala High Court Advises Caution While Considering Bail In POCSO Case Against Parent Litigating Child's Custody

Case Title: XXXXXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 124

The Kerala High Court held that while considering bail applications related to offences under the POCSO Act that involve allegations of child abuse by a parent, courts should approach the matter with great care, especially when there is litigation between parents over the custody of the child.

A single bench of Justice Ziyad Rahman while allowing a bail application filed by a father who was accused of sexually assaulting his 10 year old son cautioned that :

“In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone’s personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India”

Police Bound To Grant Protection To Asianet News Channel If Protests Against It Turn Violent : Kerala High Court

Case Title: Asianet News v. The State Police Chief & Ors.

Citation: 2023 LiveLaw (Ker) 125

The Kerala High Court directed that the units of Malayalam news channel Asianet News should be granted effective police protection if protests against the channel turn violent. The channel is facing protests over allegations that in November 2022 it aired a staged interview in which a minor girl was made to say that she was a victim of drug abuse and sexual exploitation.

The channel had approached the High Court alleging that a group of nearly 30 activists of the Students Federation of India (SFI), the students wing of the ruling party, violently and forcefully trespassed into its office at Kochi and intimidated the staff on March 3, 2023.

Jurisdiction To Execute An Arbitral Award Is With District Court, Not Commercial Court

Case Title: M/S. Beta Exim Logistics (P) Ltd. V M/S. Central Railside Warehouse Co., Ltd.

Citation: 2023 LiveLaw (Ker) 126

The Kerala High Court held that the District Court has the jurisdiction to execute an arbitral award and the commercial court has not been conferred such jurisdiction under the Commercial Courts Act, 2015.

A single bench of Justice C S Dias evaluated the scheme of the Commercial Courts Act, 2015 to answer whether a commercial court was given jurisdiction to entertain an execution petition filed in connection with an arbitration award:

“Going by the scheme of the C.C. Act, the express exclusion of suits and applications reserved for judgment from the purview of transfer and the conscious omission of the provisions relating to execution proceedings under the Code of Civil Procedure in the schedule to the C.C. Act, urges me to agree and endorse the ratio decidendi in Shaji Augustine (supra), that applications mentioned in Section 15 of the C.C. Act do not include execution applications.”

Nomination Of A Candidate For Elections Cannot Be Rejected Due To Immaterial Defects: Kerala High Court Reiterates

Case Tile: Vadekkevila Sasi V Cochin University Of Science & Technology and Others

Citation: 2023 LiveLaw (Ker) 127

The Kerala High Court on Tuesday reiterated that the nomination of a candidate for elections cannot be rejected on trivial grounds and that if there is substantial compliance, the nomination paper ought to be accepted.

A single bench of Justice Viju Abraham was considering the plea of an aspiring candidate who had filed for nomination for election to the Senate and Academic Council of the Cochin University. The petitioner wished to contest the election from the constituency of “Presidents of all the registered Trade Unions in the State”. Two members to the Cochin University Senate are usually selected by registered Trade Unions in the state, from among themselves.

Kerala High Court Grants Bail To POCSO Accused, Doubts Fabrication Of Prosecution Case

Case Title: XXX v. State of Kerala

Citation: 2023 LiveLaw (Ker) 128

The Kerala High Court granted bail to a person accused of offence under the Protection of Children from Sexual Offences Act (POCSO Act), on doubting the veracity of the prosecution version.

Justice Kauser Edappagath took note that the victim in the case had given a complaint to the police for the first time after more than five years after the alleged incident.

"There is absolutely no allegation of rape alleged to have been taken place in the year 2017. It appears that on the next day, a crime was registered against the victim on the complaint of the applicant for the offence punishable under Section 326 of Indian Penal Code as Crime No. 2148/2022".

[Kerala Land Reforms Act] Mutation In Favour Of Third Party Has No Bearing On Proceedings Against Predecessor-In-Interest Over Excess Land: High Court

Case Title: Zehub Technopark Pvt. Ltd. v. Village Officer & Anr.

Citation: 2023 LiveLaw (Ker) 129

The Kerala High Court recently directed the mutation of land covered by two sale deeds in favour of the person who purchased the land, notwithstanding the fact that the predecessor-in-interest was allegedly holding the land in excess of the ceiling limit under Kerala Land Reforms Act. The Court further permitted the payment of basic land tax by the petitioner company in its name.

The Single Judge Bench of Justice Gopinath P. observed,

"Even in respect of cases where proceedings have been initiated, in respect of excess land, part of which has been sold to third parties, this Court has directed that subject to the finalisation of the proceedings and without in any manner affecting such proceedings, mutation can be effected and the land tax can be accepted from such third parties".

Kerala High Court Quashes Criminal Proceedings Against Transport Minister Antony Raju In Evidence Tampering Case On Technical Grounds

Case Title: Adv. Antony Raju v. State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 130

Citing technical reasons, the Kerala High Court quashed the trial court proceedings against Transport Minister of Kerala, Antony Raju in connection with the evidence tampering case against the Minister pending before Judicial First Class Magistrate Court, Nedumangad, in Thiruvananthapuram.

However, the single bench of Justice Ziyad Rahman clarified that this would not preclude the competent authority or the court concerned from taking up the matter and pursuing the prosecution in compliance with the procedure contemplated under Section 195(1)(b) of the Code of Criminal Procedure.

Other Significant Developments

Revolutionizing Justice- Exploring Kerala High Court's Innovative, Paperless E-Court System For More Accessible Justice [PART-2]

Kerala High Court introduced a completely automated Case Management System (CMS), with a mission to become a paperless court.

The system was implemented by giving incentives at all stakeholders. For instance, for lawyers, this has helped them have ‘virtual offices’ of their own, and work from anywhere. Distance does not appear to be a barrier anymore, provided the lawyers have internet connectivity. And they can always approach the e-Sewa Kendras for assistance at any point.

For clerks who have been able to adapt to the technology, their physical tasks have reduced. On the other hand, the picture has not looked as rosy for the aged clerks who have not been able to adapt as easily to the new technology.

Thus, while the impact that e-filing has had on its stakeholders has been immense, and they certainly have been provided with certain incentives, it appears to be pertinent to ensure that technology does not end up excluding the human element, and none of the stakeholders feel left out in the face of such changes.

The High Court has been able to implement the latest technology to switch to a paperless system because of the constitution of a highly qualified in-house tech team. The judges of the High Court took special care to hire a special five member high level IT team to implement the mammoth task of making Kerala High Court paperless. The team was put together in 2019 and each member has several years of experience in the latest technology

Kerala High Court Initiates Suo Motu Proceedings On Brahmapuram Fire

Case Title: Suo Motu v. State of Kerala

The Kerala High Court initiated a suo motu writ petition in relation to the continuing fire at a dumping yard of Kochi Corporation in Brahmapuram. The smoke that billowed out of the plant spread over large areas of the city, and could not be fully doused despite strenuous efforts. 

Justice Devan Ramachandran had submitted a letter to the Chief Justice in this regard, seeking the Court to intervene in the matter.

Marking A Year Since The Inception, Two Novel Initiatives Of The Kerala High Court Legal Services Committee Prove Their Success

On March 15, 2023, the Family Counselling Centre, which is the first of its kind in the country, would mark one year since its functioning. The FCC, which is a facility under the aegis of Kerala High Court Legal Services Committee (KHCLSC), had been formally inaugurated by the Chief Justice, High Court of Kerala S. Manikumar, on October 26, 2022, although it had been functioning on an experimental basis since March, 2022.

The FCC is an initiative of Justice A. Muhamed Mustaque of the Kerala High Court, who is also the Chairman of Kerala High Court Legal Services Committee, and is intended to help litigants in matrimonial and allied matters to address their emotional needs and to help and guide them to reach a logical conclusion to their protracted litigations.

Brahmapuram Fire | Water Bodies Getting Converted Into Dump Sites, Proper Implementation Of Solid Waste Management Rules Necessary

Case Title: Suo Motu v. State of Kerala

The Kerala High Court asked the Secretary, Municipal Corporation of Kochi to inform the court regarding the steps to be taken by the civic body for implementing the Solid Waste Management and Handling Rules, 2016, in the wake of fire at Brahmapuram Solid Waste Management Plant.

The Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji, while addressing the Advocate General, stressed on the necessity to have a holistic implementation of the Rules in the state.

"State of Kerala claims to be number one in literacy. This Bench would like to know that State of Kerala would also be number one in protecting environment and implementing Solid Waste Management and Handling Rules. This cannot be accomplished by a parcel of accomplishment either in a Corporation or a Municipality, or a Grama Panchayat. There are enough number of water bodies in State and the pathetic woes of these water bodies no one is listening to. All water bodies are now converted as dump sites. This is possible to be prevented only when all the local authorities concerned with protecting the water bodies are issued proper directions," the court observed.

Brahmapuram Fire | 'Right to Clean Air Basic Human Right' : Kerala High Court Seeks Detailed Plan For Solid Waste Management

Case Title: Suo Motu v. State of Kerala

The Kerala High Court took note of the plan of action that had been formulated for immediate short term and long term measures for due implementation of the Solid Waste Management and Handing Rules, 2016, by the Additional Chief Secretary, Local Self Government Department; the Ernakulam District Collector; the Secretary of Cochin Municipal Corporation, and the Chairman of the State Pollution Control Board, in the wake of fire at Brahmapuram Solid Waste Management Plant.

On being informed by the Advocate General regarding the High Level Conference convened by the Chief Minister at 5P.M. today, the Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji, observed:

"Without having a categorical statement from these officer by looking at the formative proposals being taken forward, we do not want to incorporate the same in our order. As have been suggested by the AG, we give time till day after tomorrow to the Additional Chief Secretary to place on record on all the points which are finalized by the High Level conference with definite time lines for performance".

Bar Council of Kerala Appeals Against Interim Order That Restricted Enrollment Fee For Advocates To Rs 750

Case Title: The Bar Council Of Kerala Vs Akshai M. Sivan and Others

The Bar Council of Kerala (BCK) has appealed to a division bench of the Kerala High Court against the interim order of a single judge which directed the BCK to not collect more than Rs 750 as enrollment fees from prospective advocates who had petitioned the Court. The Bar Council has stated in its petition that the interim order restricting the enrolment fee to Rs. 750 has virtually stalled the enrolment process.

Brahmapuram Fire | District Collector Should Oversee Implementation Of Solid Waste Management Rules

Case Title: Suo Motu v. State of Kerala

The Kerala High Court on Wednesday observed that Environmental degradation is a "disaster" (within the meaning of the Disaster Management Act) and therefore, the implementation of the Solid Waste Management and Handling Rules, 2016 will be under the District Collector.

"Whatever is being done henceforth in implementing the Solid Waste Management and Handling Rules, 2016, shall be strictly under intimation of District Collector. And any insufficiency found in the same has to be brought to the notice of the court," the Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji said during the hearing on the suo motu proceedings initiated in light of the fire at Brahmapuram Solid Waste Management Plant.

The Court had asked the authorities for a detailed plan of action for solid waste management, as well.

Kerala High Court Directs Registry To Preserve Audio-Video Recording Of Proceedings Leading To Contempt Case Against Lawyer

Case Title: Yeshwanth Shenoy V The Bar Council Of Kerala

The Kerala High Court ordered the preservation of the audio-video recordings of the proceedings which took place in the court of Justice Mary Joseph on February 9, when a lawyer had indulged in alleged misbehaviour resulting in the initiation of suo motu contempt proceedings against him.

The order was passed on a writ petition filed by Advocate Yeshwanth Shenoy, who is facing the contempt proceedings for his alleged contumacious conduct before Justice Mary Joseph. Shenoy later filed a writ petition challenging the show-cause notice issued by the Bar Council of Kerala over the alleged incident before Justice Mary Joseph.

LIFE Mission Case| M Sivasankar Moves Kerala High Court For Bail, Calls ED Case "Political Hit Job"

Case Title: M. Sivasankar v. Union of India & Anr

M Sivasankar, former Principal Secretary to the Chief Minister of Kerala, approached the Kerala High Court in the money laundering case related to alleged corruption in the LIFE (Livelihood, Inclusion and Financial Empowerment) Mission project, a housing project of the Kerala Government for the homeless.

A Special PMLA Court at Kochi had rejected Sivasankar's bail application on March 2 and extended his custody till March 21. The money laundering case emanates out of alleged illegal gratification obtained for awarding the contract work for the LIFE Mission's project for building 140 housing units in Thrissur district utilising the funds donated by UAE Red Crescent. Sivasankar has been under custody since his arrest by the Enforcement Directorate on February 14.

Senior Advocate Dushyant Dave Speaks At Ernakulam GLC On 'Basic Structure Of Indian Constitution And The Present Day Challenges' 

The Ernakulam Law College Old Students And Teachers' Association (ELCOSTA) conducted its Annual Lecture March 11, 2023 at Aangan Auditorium, Bharat Hotel, Ernakulam, at 11.00 AM.

Senior Advocate and former President of the Supreme Court Bar Association Dushyant Dave delivered the lecture on the topic 'Basic Structure of Indian Constitution and the Present Day Challenges'.

Kerala High Court Judge, Justice Jayasankaran Nambiar, presided over the function. The meeting was inaugurated by the Law Minister of Kerala, P. Rajeev.

Justice B.V. Nagarathna Delivered 2023's Chief Justice KK Usha Memorial Lecture At Kerala High Court On March 11

The Kerala Federation of Women Lawyers (KFWL) organized the Chief Justice KK Usha Memorial Lecture on the topic 'Transformative Constitutionalism' tomorrow (March 11, 2023), as part of its Women's Day celebration.

The lecture was delivered by the Supreme Court Judge, Justice B.V. Nagarathna, at the Kerala High Court Auditorium.

Chief Justice KK Usha Memorial Lecture is dedicated to the memory of the late Chief Justice KK Usha, who was the first woman Chief Justice from Kerala, and also a founding member of the Indian Federation of Women Lawyers (Kerala Branch).

Brahmapuram Fire : Kerala High Court Forms High-Level Committee To Audit Facilities Provided By Cochin Corporation

Case Title: Suo Motu v. State of Kerala

In the wake of the fire at the Brahmapuram dumping yard at Cochin city, the Kerala High Court has constituted a high-level committee. The Committee has been asked to audit the environmental/ infrastructure facilities provided by the Cochin Municipal Corporation at the Brahmpauram site.

Secondly, the Committee is to assess if the site conforms to the Solid Waste Management Rules, 2018. Also, it has to take note of the the infrastructure details at the site and their efficiency.

Constitution Is Stronger Now Because Of Kesavananda Bharati Judgment : Justice BV Nagarathna

Supreme Court judge Justice BV Nagarathna said that the Constitution of India is stronger now because of the Kesavananda Bharati judgment, which laid down the basic structure doctrine.

She opined that the basic structure doctrine is a fine example of transformative Constitutionalism. These comments assume relevance in the wake of the renewed debate on the basic structure doctrine after Vice President Jagdeep Dhankhar recently criticised Kesavanda Bharti judgment as laying down a wrong precedent. It is also relevant to note that Chief Justice of India DY Chandrachud had also recently highlighted the importance of basic structure doctrine, and lauded the same, by terming it as the “north star” which guides the interpretation of the Constitution.

Justice B.V. Nagarathna, was delivering the Chief Justice KK Usha Memorial Lecture on the topic 'Transformative Constitutionalism' organised by the Kerala Federation of Women Lawyers at the High Court of Kerala. In her lecture, she termed the Constitution “a great social document almost revolutionary in its aim in transforming society”.

Multi-Party System Is A Basic Feature Of Constitution, It Can’t Be Destroyed Using CBI, ED : Senior Advocate Dushyant Dave

Senior Advocate Dushyant Dave speaking on the 'Basic Structure Of the Indian Constitution & its Present Day Challenges' in a lecture organised by the Ernakulam Govt Law College Old Students and Teachers Association at Kochi raised concerns about the how democracy was being eroded day by day in India, and constitutional institutions were under attack.

“The reason why the basic structure theory is so relevant today is that the body polity has gone down the gutters. All political parties across the board have no respect for the constitution and constitutional morality. They have collectively tried to weaken every constitutional institution.”, the former Supreme Court Bar Association President said.

Dave pointed out that the multiparty system is a basic structure feature of the constitution as held in Kuldeep Nayar case. In this context, he referred to a statement reportedly said on behalf of the ruling party that they want a “Congress mukt Bharat”. “What they want is an opposition mukt bharat”, Dave said. He pointed out that in the Constituent Assembly Debate, one member had commented that if the ruling party is not allowing the opposition to function, then it will amount to sedition.

Dave said that the opposition parties are sought to be destroyed using central agencies.

“Multiparty system is a basic feature of our Constitution. You cannot destroyed that by using agencies like CBI, ED, income tax and other agencies”.

Judges Should Be Prohibited From Accepting Executive Positions Post Retirement: Senior Advocate Dushyant Dave

Senior Advocate Dushyant Dave speaking on the 'Basic Structure Of the Indian Constitution & its Present Day Challenges' in a lecture organised by the Ernakulam Govt Law College Old Students and Teachers Association at Kochi remarked that the practice of appointment of judges to executive posts after retirement, must be prohibited.

In an interactive session during the lecture, a member of the audience asked Dave about his opinion on the recent appointment of retired judges to executive posts. In this regard Dave said:

“Judges should be prohibited from accepting any kind of positions". Referring to the nomination of former Chief Justice of India Ranjan Gogoi as a Rajya Sabha MP and the appointment of former Supreme Court judge Justice Abdul Nazeer as a Governor within a span of few months after their retirement, Dave said that such appointments raise doubts in the public mind about "quid pro quo".