Kerala High Court Weekly Round-Up: August 8 To August 14, 2022

Nominal Index [ Citation 2022 LiveLaw (Ker) 417- 431]

Nimal James & Ors v. State of Kerala & Ors. 2022 LiveLaw (Ker) 417

C.P Ajithkumar & Anr. v. State of Kerala & Ors. 2022 LiveLaw(Ker) 418

Kendriya Vidyalaya Sangathan v. Elna Chinchu 2022 LiveLaw (Ker) 419

Jincy K v. Vivek M.P 2022 LiveLaw (Ker) 420

Saritha S. Nair v. Union of India 2022 LiveLaw (Ker) 421

Mahanas Moidu v. State of Kerala 2022 LiveLaw (Ker) 422

 Hindustan Steel and Cement Versus Assistant State Tax Officer 2022 LiveLaw (Ker) 423

Biny Kuriakose v. Joseph Sebastian & connected matters. 2022 LiveLaw (Ker) 424

Godson v. State of Kerala & Ors. 2022 LiveLaw (Ker) 425

Divyamol R. S. v. The Director General and others 2022 LiveLaw (Ker) 426

Gopika Jain & Anr v. Faisal M.A 2022 LiveLaw (Ker) 427

Nirupama Padmakumar & Ors. v State of Kerala & Ors 2022 LiveLaw (Ker) 428

 M/s Vodafone Idea Ltd v. Kerala State Pollution Control Board & Ors. 2022 LiveLaw (Ker) 429

Ramesh v. Chief Investigation Officer & Anr. 2022 LiveLaw (Ker) 430

 Dr K P Hamsakoya vs Union Territory Of Lakshadweep [BAIL APPL. NO. 1464 OF 2022]  2022 LiveLaw (Ker) 431

Judgements/Orders This Week

Kerala High Court Temporarily Bars Self-Financing Colleges From Taking Action Against BPL Students For Non Payment Of Fee

Case Title: Nimal James & Ors v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 417

The Kerala High Court on Monday temporarily refrained self-financing colleges from taking any form of detrimental action against students belonging to the Below Poverty Line (BPL) category merely for not paying the college fee. The students in the BPL category were recently stripped of the scholarship scheme that was previously available to them.

Justice Devan Ramachandran further clarified that this direction was not confined o the petitioners alone but to every student falling under the BPL category.

'We Can Neither Wait For Another Victim Nor Can We Let Roads Be Killing Fields': Kerala HC Directs NHAI To Fix Roads Within A Week

Case Title: C.P Ajithkumar & Anr. v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 418

The Kerala High Court on Monday directed the National Highway Authority of India to take immediate steps to rectify every road under their control without any further delay within one week from today.

Justice Devan Ramachandran observed that steps should be taken to remove the potholes and craters on the road irrespective of whether that be on the National Highway, PWD Roads, or any other road under the control of the various Local Self Government Institutions.

Locus Standi To Be Satisfied To Make A Claim On Doctrine Of Legitimate Expectation: Kerala High Court

Case Title: Kendriya Vidyalaya Sangathan v. Elna Chinchu

Citation: 2022 LiveLaw (Ker) 419

The Kerala High Court recently observed that a person who bases his claim on the doctrine of legitimate expectation must first satisfy that there is a foundation for the same and thus has a locus standi to make such a claim.

A Division Bench of Justice P. B. Suresh Kumar and Justice C.S. Sudha observed that for a beneficiary to have a legitimate expectation on invoking the privilege granted, it must be proved that the beneficiary has the locus standi to make such a claim.

Convenience Of Wife Must Be Looked Into While Transferring Proceedings In Matrimonial Disputes: Kerala High Court

Case Title: Jincy K v. Vivek M.P

Citation: 2022 LiveLaw (Ker) 420

The Kerala High Court recently allowed a Transfer Petition observing that it is the convenience of the woman and children that has to be looked into while ordering the transfer of a case from one Court to another in matrimonial cases.

Justice C. S. Dias concluded so after referring to the Apex Court decisions regarding the transfer of matrimonial proceedings.

Kerala High Court Dismisses Saritha Nair's Plea Seeking Copies Of Swapna Suresh's 164 Statement

Case Title: Saritha S. Nair v. Union of India

Citation: 2022 LiveLaw (Ker) 421

The Kerala High Court on Thursday dismissed the plea moved by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, an accused in the diplomatic gold smuggling case.

Justice Kauser Edappagath dismissed the petition finding that the apprehensions projected by Nair were not substantiated sufficiently and therefore 'speculative'.

Vlogger's Suicide | 'Custodial Interrogation Necessary To Elicit Truth': Kerala High Court Denies Pre-Arrest Bail To Husband

Case Title: Mahanas Moidu v. State of Kerala

Citation: 2022 LiveLaw (Ker) 422

The Kerala High Court on Thursday denied anticipatory bail to the husband of a young vlogger Rifa Mehnaz, who was found dead in her house in Dubai earlier this year under mysterious circumstances.

Justice Bechu Kurian Thomas dismissed the application for pre-arrest bail finding that the custodial interrogation of the petitioner was essential to elicit the truth surrounding his wife's death.

Statement U/S 164 CrPC Is A Public Document, But Third Party Has To Establish Direct Interest To Get A Copy: Kerala High Court In Saritha's Plea

Case Title: Saritha S. Nair v. Union of India

Citation: 2022 LiveLaw (Ker) 421

In a significant decision, the Kerala High Court on Thursday held that a statement recorded under Section 164 of the Code of Criminal Procedure is a public document falling under Section 74(1)(iii) of the Indian Evidence Act since it is the record of an act of a public officer done in the discharge of his duty.

However, Justice Kauser Edappagath also clarified that no person is entitled to a copy of the 164 statement until the final report in the case has been filed and cognizance is taken in the matter. The Judge emphasised that in the case of a stranger seeking such copies, they are bound to furnish genuine and tangible interest in the document.

Assessee Has Statutory Right To File An Appeal Even After Voluntary Payment Of GST/Penalty: Kerala High Court

Case Title: Hindustan Steel and Cement Versus Assistant State Tax Officer

Citation: 2022 LiveLaw (Ker) 423

The Kerala High Court has held that assessees have a statutory right to file an appeal even after the voluntary payment of GST or penalty.

The single bench of Justice Gopinath has observed that the culmination of proceedings in respect of a person who seeks to make payment of tax and penalty under Section 129(1)(a) does not result in the generation of a summary of an order under Form DRC-07 and cannot result in the right of the person to file an appeal under Section 107 being deprived.

Child's Convenience To Be Given Preference While Transferring Petitions Filed For Custody: Kerala High Court

Case Title: Biny Kuriakose v. Joseph Sebastian & connected matters.

Citation: 2022 LiveLaw (Ker) 424

The Kerala High Court has ruled that while transferring petitions filed for custody of children, the convenience of the child should be given preference particularly when the wife is abroad and appearing through a power of attorney.

Observing so, Justice C.S Dias transferred all the pending cases between a couple to the court near the permanent residence of their child.

Violation Of Bail Conditions By Itself Not A Ground To Cancel Bail: Kerala High Court

Case Title: Godson v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 425

The Kerala High Court on Thursday held that non-compliance with bail conditions alone is not a ground to cancel the bail already granted to the accused since such cancellation affects the personal liberty of a person under Article 21 of the Constitution.

Justice Ziyad Rahman A. A clarified that while considering an application to cancel the bail on the ground of non-compliance with the conditions, the court has to consider the question of whether the alleged violation amounts to an attempt to interfere with the administration of justice or as to whether it affects the trial of the case in which the accused is implicated.

Offending Officer Can Be Transferred In Case Of Indiscipline In Forces: Kerala High Court

Case Title: Divyamol R. S. v. The Director General and others

Citation: 2022 LiveLaw (Ker) 426

The Kerala High Court on Wednesday ruled that it is permissible to deal with indiscipline in disciplined forces by transferring the deviant officers.

A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. added that such transfers would ensure that discipline is maintained within the force while simultaneously assuring that no aspersion is cast on the officer's character or conduct.

Sub Inspector Was Unaware Of 'Arnesh Kumar' Guidelines: Police Commissioner Submits Before Kerala High Court

Case Title: Gopika Jain & Anr v. Faisal M.A

Citation: 2022 LiveLaw (Ker) 427

An interesting development transpired in the Kerala High Court recently when a Commissioner of Police communicated in his statement to the Court that a Sub Inspector of Police was oblivious of the principles laid down by the Supreme Court in Arnesh Kumar v. State of Bihar.

A Division Bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen condemned the cavalier manner in which the Sub Inspector had responded to the contempt of court proceedings initiated against him for non-compliance with these guidelines.

Govt Which Claims To Be Progressive Can't Deny EWS Benefits To Non-Religious Persons: Kerala High Court

Case Title: Nirupama Padmakumar & Ors. v State of Kerala & Ors

Citation: 2022 LiveLaw (Ker) 428

The Kerala High Court on Friday directed the State to expeditiously frame a policy to issue community certificates to persons belonging to the non-religious category such that they can avail the benefits available to Economically Weaker Sections (EWS).

Justice V.G Arun also observed that a government which claims to be progressive cannot deny non-religious category persons the benefits merely because they choose not to belong to any community or caste.

Air Pollution A Silent Killer, Multi-Sectoral Challenge In India: Kerala High Court

Case Title: M/s Vodafone Idea Ltd v. Kerala State Pollution Control Board & Ors.

Citation: 2022 LiveLaw (Ker) 429

The Kerala High Court on Wednesday emphasised the gravity of air pollution in the country and how it poses a multi-jurisdictional and multi-sectoral challenge for the Centre and the State alike.

Justice N. Nagaresh observed that air pollution is a silent killer that impacts public health as well as the national economy detrimentally.

Kerala High Court Denies Bail To LTTE Sympathizer Who Overstayed 5 Years In India Without Visa

Case Title: Ramesh v. Chief Investigation Officer & Anr.

Citation: 2022 LiveLaw (Ker) 430

The Kerala High Court on Thursday denied bail to a suspected LTTE sympathizer for having overstayed in India without a Visa and actively plotting to procure prohibited arms and contraband articles while furthering the activities of LTTE in India and abroad.

A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran dismissed the appeal finding that the witness statements clearly established that he was an active member of the banned terrorist organization 'Liberation Tigers of Tamil Eelam' (LTTE).

Kerala HC Gants Pre-Arrest Bail To A Doctor Accused Of Posting Defamatory Articles Against Lakshadweep Administrative Officers

Case title: Dr K P Hamsakoya vs Union Territory Of Lakshadweep [BAIL APPL. NO. 1464 OF 2022]

Case Citation: 2022 LiveLaw (Ker) 431

The Kerala High Court on Wednesday granted anticipatory bail to a senior doctor who has been accused of posting defamatory articles against officers of the Administration of Lakshadweep on Facebook.

The bench of Justice Viju Abraham was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the seniormost doctors serving the Lakshadweep Administration and that he is presently under suspension.

Other Significant Developments 

Kerala High Court Directs Registry To Transfer All Cases Challenging Agnipath Scheme To Delhi High Court

Case Title: Nandu Krishnan R & Ors v. Union of India & Ors. and connected matters

The Kerala High Court on Monday directed the Registry to transfer three petitions relating to the Agnipath scheme to the Delhi High Court so that the matter can be renumbered and be heard along with the other pending similar matters.

Justice Anu Sivaraman transferred the cases relied on the Apex Court Order directing the transfer of all Agnipath-related matters to the Delhi High Court. This comes after the Kochi bench of the Armed Forces Tribunal refused to hear the challenge.

Kerala High Court Launches Suo Moto PIL To Monitor Flood Relief Activities, Directs State To Take Prompt Action To Prevent Disasters

Case Title: Foundation for Restoration of National Values v. State of Kerala

The Kerala High Court has initiated a Public Interest Litigation (PIL) directing the State Government to take proper and prompt action during monsoons considering that persistent rainfall has caused severe loss to the lives and properties of people in the State.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly launched the PIL to monitor the governmental action in providing appropriate mechanisms to manage emergency situations arising during the monsoon season and otherwise under the Disaster Management Act.

Kerala High Court Seeks NMC's Response On Plea For Practical Training, Internships For Indian Medical Students In Chinese Universities

Case Title: Parents Association of Foreign Medical Graduates v. Union of India & Ors.

The Kerala High Court has sought the response of the National Medical Commission in a plea filed on behalf of 92 medical students studying in different universities in China seeking practical training and internship facilities in India till the travel restrictions to China are lifted.

Justice V.G Arun directed the NMC to file an affidavit communicating the Commission's stand on the issue.

Former Kerala Finance Minister Thomas Issac Moves High Court Challenging ED Summons In Connection With KIIFB Transactions

Dr Thomas Issac, former Finance Minister of Kerala and a member of the Communist Party of India (Marxist), has approached the Kerala High Court challenging the summons issued by the Enforcement Directorate seeking his appearance in connection with the financial transactions of the Kerala Infrastructure Investment Fund Board (KIIFB).

In the writ petition, Issac stated that the ED, without disclosing the real nature of the investigation, has asked him to appear on August 11 to explain his role in the KIIFB. Though the summons mentions provisions of the Foreign Exchange Management Act and the Income Tax Act, it does not reveal what are the violations to which the petitioner is required to respond. It is argued that the attempt of the ED is to initiate a "fishing and roving enquiry" by keeping the petitioner in dark about the real nature of the allegations. Thomas had submitted in his writ petition that the central agency had asked him to produce the details of his properties, both moveable and immoveable, as well as those of his family members.

PIL Seeks Special Assistance For All Differently-Abled Students In Exams; Kerala High Court Issues Notice To Centre, State & Education Dept

Case Title: Blessen Baby v. Union of India & Ors

A Public Interest Litigation (PIL) has reached the Kerala High Court seeking assistance for all differently-abled students in examinations, regardless of the percentage of their disability.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly recently issued notice to the Centre, State and the relevant State Education Departments in the plea.

'He Has Right To Privacy': Kerala HC Asks ED Why Thomas Issac Should Produce Documents Of His Assets At First Instance

Case Title: Dr T.M. Thomas Isaac v. The Deputy Director

The Kerala High Court on Thursday asked the Enforcement Directorate to explain why former Finance Minister of Kerala Dr Thomas Issac was asked to produce private information regarding his assets at this preliminary stage of the case, particularly when he was not even an accused or suspect yet.

Justice V G Arun raised the question while hearing the plea filed by Issac against the proceedings initiated by the ED seeking his appearance in connection with the financial transactions of the Kerala Infrastructure Investment Fund Board (KIIFB). Thomas had submitted in his writ petition that the central agency had asked him to produce the details of his properties, both moveable and immoveable, as well as those of his family members.

Kerala High Court Questions Maintainability Of MLAs' PIL Against ED Probe Into KIIFB, Reserves Verdict

Case Title: KK Shailaja & Ors. v Union of India & Ors.

The Kerala High Court on Thursday reserved its verdict on a PIL moved by five MLAs against the ongoing Enforcement Directorate probe into the financial transactions of the Kerala Infrastructure Investment Fund Board (KIIFB).

A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly doubted the maintainability of the plea on the grounds that it may not qualify as a public interest litigation and that the investigation of the case was still at its preliminary stage.

Salary Paid Overlooking Other Essential Expenses, Forced To Cut Down Trips: KSRTC Seeks 10 More Days To Disburse Pending Salary Before Kerala High Court

Case Title: R. Baji & Ors. v. KSRTC & Ors.

The Kerala State Transport Employee Association (KSRTC) has sought ten more days from the Kerala High Court to disburse salary yet to be paid to its employees.

This comes after the Court directed KSRTC to disburse salary to its employees for the months of June and July before August 10 while adjudicating on a plea alleging that the employees were not being paid promptly.