Kerala High Court Annual Digest 2023: Part III [Citations 512-766]
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31 Dec 2023 2:18 PM GMT
![Kerala High Court Annual Digest 2023: Part III [Citations 512-766]](https://www.livelaw.in/h-upload/2023/12/30/750x450_512953-kerala-high-court-annual-digest-2023-part-iii.webp "Kerala High Court Annual Digest 2023: Part III [Citations 512-766]")
Nominal Index [Citations: 2023 LiveLaw (Ker) 512-766]Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2023 LiveLaw (Ker) 512Mansoor & Ors. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 513V.P. Nandakumar v. Assistant Director 2023 LiveLaw (Ker) 514Cochin Devaswom Board V Union of India 2023 LiveLaw (Ker) 515Prana Educational and Charitable Trust & Anr. v. State...
Nominal Index [Citations: 2023 LiveLaw (Ker) 512-766]
Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2023 LiveLaw (Ker) 512
Mansoor & Ors. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 513
V.P. Nandakumar v. Assistant Director 2023 LiveLaw (Ker) 514
Cochin Devaswom Board V Union of India 2023 LiveLaw (Ker) 515
Prana Educational and Charitable Trust & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 516
Muneer A. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 517
K Sivanandhan V State of Kerala and other matters 2023 LiveLaw (Ker) 518
Finil Biju V State of Kerala 2023 LiveLaw (Ker) 519
Malathy Ravi v. State of Kerala & Ors. 2023 LiveLaw (Ker) 520
M.N. Saji v. K.R. Krishnakumar 2023 LiveLaw (Ker) 521
Justice Chettur Sankaran Nair v. Madhu Vadakkepatt 2023 LiveLaw (Ker) 522
Sayanth S v State of Kerala 2023 LiveLaw (Ker) 523
Anitha K. Varghese v. State of Kerala & Ors. 2023 LiveLaw (Ker) 524
Antony Joseph v. The Sub-Registrar 2023 LiveLaw (Ker) 525
Akhila Nandakumar v. State of Kerala & Ors. 2023 LiveLaw (Ker) 526
Sangeetha R. v. The Secretary & Ors. 2023 LiveLaw (Ker) 527
Rohit Krishna v. State of Kerala & Anr. 2023 LiveLaw (Ker) 528
Soubiya & Anr. v. District Level Authorization Committee for Transplantation of Human Organs & Ors. and connected matter 2023 LiveLaw (Ker) 529
Muhammad Salmanul Faris K Versus The Superintendent 2023 LiveLaw (Ker) 530
The Ramapuram Regional Service Co-Operative Bank v State of Kerala 2023 LiveLaw (Ker) 531
NBCC India Ltd. & Anr. v. Joshy Varghese and connected matter 2023 LiveLaw (Ker) 532
Mallika v. Sree Mutharamman Temple Trust & Anr. and connected matter 2023 LiveLaw (Ker) 533
Gugulloth Lakshman IPS v. State of Kerala & Anr. 2023 LiveLaw (Ker) 534
Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep 2023 LiveLaw (Ker) 535
Arjun Rajasekhar v. Director General of Police (Law & Order) & Ors. 2023 LiveLaw (Ker) 536
Suo Moto v State of Kerala 2023 LiveLaw (Ker) 537
Shaheena v. Tahsildar & Anr. 2023 LiveLaw (Ker) 538
Abhaya V. Venu v. State of Kerala & Ors. 2023 LiveLaw (Ker) 539
Rajan K v. Joint Registrar Of Co-Operative Societies 2023 LiveLaw (Ker) 540
Dawood v. State of Kerala 2023 LiveLaw (Ker) 541
Fousiya v Shamsudheen Pokkadan 2023 LiveLaw (Ker) 542
Sojan Scaria v. State of Kerala & Ors. 2023 LiveLaw (Ker) 543
Secretary v. Muhammed Rasheed 2023 LiveLaw (Ker) 544
A.C. Pavithran & Ors. v. State of Kerala and Connected cases 2023 LiveLaw (Ker) 545
State of Kerala v Durgadas 2023 LiveLaw (Ker) 546
Siraj v. The District Collector & Anr. 2023 LiveLaw (Ker) 547
Anaz Abdul Rahiman Kutty v State Tax Officer 2023 LiveLaw (Ker) 548
State of Kerala & Others v. Abhidev 2023 LiveLaw (Ker) 549
Noushad Flourish v. Akhila Noushad & Anr. 2023 LiveLaw (Ker) 550
XXX v State of Kerala 2023 LiveLaw (Ker) 551
K.C.C. Buildcon Pvt. Ltd. v. Govt. of Kerala & Ors. and connected matter 2023 LiveLaw (Ker) 552
K.M. Shaji v. State of Kerala 2023 LiveLaw (Ker) 553
Amith v. State of Kerala 2023 LiveLaw (Ker) 554
James A.C. v K.A. Sakthidharan 2023 LiveLaw (Ker) 555
XXX v. State of Kerala & Ors. 2023 LiveLaw (Ker) 556
Fathima Beevi v Abdul Rahman 2023 LiveLaw (Ker) 557
Nimmy Mathew v. State of Kerala & Anr. 2023 LiveLaw (Ker) 558
XXXX v State of Kerala 2023 LiveLaw (Ker) 559
Jyothi v State of Kerala 2023 LiveLaw (Ker) 560
Malanad Service Co-Operative Bank Ltd. v. Station House Officer & Ors. 2023 LiveLaw (Ker) 561
Ashiq Sulthan v. State of Kerala 2023 LiveLaw (Ker) 562
Raju J. Vylattu v. P.V. Alexander & Anr. and connected matter 2023 LiveLaw (Ker) 563
Ramla Kabeer v. State of Kerala 2023 LiveLaw (Ker) 564
Kakkovil Muliyarakkal Krishnan Children V Kakkovil Muliyarakkal Vilasini(Died) 2023 LiveLaw (Ker) 565
XX v. CBSE Regional Office & Anr. 2023 LiveLaw (Ker) 566
Sasikumar V Ushadevi 2023 LiveLaw (Ker) 567
Sanath Roy v State of Kerala 2023 LiveLaw (Ker) 568
Narayanan v State of Kerala 2023 LiveLaw (Ker) 569
Sathar K.A. v. The Revenue Divisional Officer (RDO) & Ors. Citation: 2023 LiveLaw (Ker) 570
Niyas v. State of Kerala 2023 LiveLaw (Ker) 571
AT v Union of India 2023 LiveLaw (Ker) 573
PKV v AKA 2023 LiveLaw (Ker) 574
Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case 2023 LiveLaw (Ker) 575
Sabu Johny v. State of Kerala & Ors. 2023 LiveLaw (Ker) 576
Thara Philip v. Federal Bank Ltd. & Anr. 2023 LiveLaw (Ker) 577
M/S Punarnava Ayurveda Hospital Pvt Ltd V The Arbitrator For Nh 66 & District Collector 2023 LiveLaw (Ker) 577
Dr. Sajeer v. Reserve Bank of India & Anr. and other connected matters 2023 LiveLaw (Ker) 578
K.T. Sukumaran v State of Kerala 2023 LiveLaw (Ker) 579
Muhammed Shafeek v. M/S Tasty Nut Industries & Ors. 2023 LiveLaw (Ker) 580
S v. D & connected matter 2023 LiveLaw (Ker) 581
Hema Anil v State of Kerala 2023 LiveLaw (Ker) 582
Ayub H.H. v State of Kerala 2023 LiveLaw (Ker) 583
K.R. Mahadevan v. Mattannur Municipality & Ors. 2023 LiveLaw (Ker) 584
Dr. Ciza Thomas v. State of Kerala 2023 LiveLaw (Ker) 585
Venugopalan v The Managing Partner 2023 LiveLaw (Ker) 586
New India Assurance Co. Ltd. v. Shymi & Ors. 2023 LiveLaw (Ker) 587
Jayaprakash A. v. Union Bank of India & Ors. 2023 LiveLaw (Ker) 588
Naseema Beevi v Ameer Shahul @ Ameer P.S. 2023 LiveLaw (Ker) 589
Kuthiralamuttam Saji v State of Kerala 2023 LiveLaw (Ker) 590
Kurien E. Kalathil v. Federal Bank Ltd. & Ors. 2023 LiveLaw (Ker) 591
Viju P Varghese v The Cochin Port Trust 2023 LiveLaw (Ker) 592
Shamsudheen v State of Kerala 2023 LiveLaw (Ker) 593
M/S Sama Rubbers & Ors. v. South Indian Bank Ltd. & Anr. 2023 LiveLaw (Ker) 594
Ex-Sub Inspector/Exe. Biju K.A. v Additional Director General CISF 2023 LiveLaw (Ker) 595
Philip Mathew v P Jayarajan & Connected Case 2023 LiveLaw (Ker) 596
Johnson Stephen v. Chinchumol & Anr. 2023 LiveLaw (Ker) 597
Mukesh v State of Kerala 2023 LiveLaw (Ker) 598
Justin O.S v The Kerala State Road Transport Corporation 2023 LiveLaw (Ker) 599
K. Babu v. State of Kerala 2023 LiveLaw (Ker) 600
D. Ieda Bhai & Ors. v. K. Ashokan & Ors. and connected matter 2023 LiveLaw (Ker) 601
M/S New India Assurance Company Ltd v Vijayan 2023 LiveLaw (Ker) 602
Ramachandran & Ors. v. Harrisons Malayalam Ltd. 2023 LiveLaw (Ker) 603
K.B. Ganesh Kumar v. State of Kerala 2023 LiveLaw (Ker) 604
K V Anilkumar v State of Kerala 2023 LiveLaw (Ker) 605
X & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 606
Vijay Kirgandur v State of Kerala & connected cases 2023 LiveLaw (Ker) 607
M/S. South Coast Spices Exports Pvt. Ltd Versus PCIT 2023 LiveLaw (Ker) 608
J.C. Daniel Foundation & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 609
Leela v M.K. Sukumaran 2023 LiveLaw (Ker) 610
Popular Motor Corporation v. State of Kerala & Anr. 2023 LiveLaw (Ker) 611
Rajan P v State of Kerala 2023 LiveLaw (Ker) 612
Mohamed v. Kunhalankutty & Ors. 2023 LiveLaw (Ker) 613
State of Kerala v P.K Radhakrishnan, 2023 LiveLaw (Ker) 614
Alfa One Global Builders Pvt. Ltd. V Nirmala Padmanabhan, 2023 LiveLaw (Ker) 615
Nijesh Chandran & Ors. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 616
Balamuraly G v Vinod T R, 2023 LiveLaw (Ker) 617
Thomas Abraham & Ors. v. The Mission Director & Anr., 2023 LiveLaw (Ker) 618
M/S. Global Plasto Wares Versus Assistant State Tax Officer, 2023 LiveLaw (Ker) 619
Gireeshkumar T.M. & Ors. v. State of Kerala & Ors. and connected matter, 2023 LiveLaw (Ker) 620
Joseph George v. Cochin Devaswom Board & Ors., 2023 LiveLaw (Ker) 621
Advocate Rajesh Kumar C v Prasad M Cherian, 2023 LiveLaw (Ker) 622
George Varghese v. Treesa Sebastian & Ors. and connected matter, 2023 LiveLaw (Ker) 623
Elon Christ Stephen v Steaphen Antony Venasious ,2023 LiveLaw (Ker) 624
E.K. Anil v. Tahasildar & Ors., 2023 LiveLaw (Ker) 625
Prajila M. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 626
Jose v State of Kerala, 2023 LiveLaw (Ker) 627
Binoy Paulose v Union of India, 2023 LiveLaw (Ker) 628
Roli Pathak v Union of India 2023 LiveLaw (Ker) 629
Shibu J v State of Kerala 2023 LiveLaw (Ker) 630
Mathrubhumi Printing & Publishing Co. Ltd v State of Kerala 2023 LiveLaw (Ker) 631
XXX & Anr. v. Union of India & Ors. 2023 LiveLaw (Ker) 632
Shoma G. Madan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 633
Deepak K. v The Kerala State Election Commission & connected case 2023 LiveLaw (Ker) 634
Pattakka Suresh Babu v. State of Kerala 2023 LiveLaw (Ker) 635
State of Kerala & Ors. v. Binoj K.B. & Ors. 2023 LiveLaw (Ker) 636
Sunil Kumar @ Rakkan v State of Kerala and connected matter 2023 LiveLaw (Ker) 637
Vishnu v State of Kerala 2023 LiveLaw (Ker) 638
Lilly Krishnan v State of Kerala 2023 LiveLaw (Ker) 639
Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 640
Shijo Das v. State of Kerala 2023 LiveLaw (Ker) 641
Sreeja @Sini v State of Kerala 2023 LiveLaw (Ker) 642
Raveendranath v State of Kerala 2023 LiveLaw (Ker) 643
Mahesh Mohan v. Indian Institute of Management, Kozhikode & Anr. 2023 LiveLaw (Ker) 644
Madhusoodanan Namboothiri V State Of Kerala 2023 LiveLaw (Ker) 645
Divya S.S Rose v. State of Kerala & Ors. 2023 LiveLaw (Ker) 646
Gopakumar P. v Travancore Devaswom Board 2023 LiveLaw (Ker) 647
Tomy K M v State of Kerala 2023 LiveLaw (Ker) 648
Mathews A v State of Kerala, 2023 LiveLaw (Ker) 649
Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram, 2023 LiveLaw (Ker) 650
Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters, 2023 LiveLaw (Ker) 651
Sathy M.P. & Anr. v. Sarasa & Ors. and connected matter, 2023 LiveLaw (Ker) 652
State of Kerala v N R Shaji, 2023 LiveLaw (Ker) 653
Alex Mampuzha @ Alexander K v State Police Chief, 2023 LiveLaw (Ker) 654
United India Insurance Co. Ltd. v. Abdul Razaque O.V. & Anr., 2023 LiveLaw (Ker) 655
Platino Classic Motors India Pvt. Ltd. v. Deputy Commissioner of Central Tax and Central Excise & Ors., 2023 LiveLaw (Ker) 656
Saji Charivukala Puthenveedu v State of Kerala, 2023 LiveLaw (Ker) 657
S Jayan v State of Kerala, 2023 LiveLaw (Ker) 658
Secretary, Poovachal Grama Panchayat v. Secretary, Ombudsman for Local Self Government & Anr., 2023 LiveLaw (Ker) 659
Bastin Babu v State of Kerala, 2023 LiveLaw (Ker) 660
Abootty K.A. v Kolangottil Pathumma, 2023 LiveLaw (Ker) 661
P.K. Uthuppu v. N.J. Varghese & Anr., 2023 LiveLaw (Ker) 662
Bobby P. Kuriakose v. State of Kerala & Ors., 2023 LiveLaw (Ker) 663
Sukumaran v. State of Kerala & Ors., 2023 LiveLaw (Ker) 664
Jeny Thankachan v. Union of India & Ors., 2023 LiveLaw (Ker) 665
Saheer v. State of Kerala & Connected matter 2023 LiveLaw (Ker) 666
P.S. Rajeev v. The Sree Narayana Trusts 2023 LiveLaw (Ker) 667
Ramachandran P v State of Kerala 2023 LiveLaw (Ker) 668
Malarkodi P v. Union of India 2023 LiveLaw (Ker) 669
Santhosh Kumar P M v John M T 2023 LiveLaw (Ker) 670
Joy v Mary 2023 LiveLaw (Ker) 671
Prathibha v State of Kerala 2023 LiveLaw (Ker) 672
Manoj Kumar & Ors. v. State of Kerala 2023 LiveLaw (Ker) 673
M/S Global Plasto Wares v. Assistant State Tax Officer & Ors. 2023 LiveLaw (Ker) 674
Rajappan Assari v. State of Kerala 2023 LiveLaw (Ker) 675
Sunil D. Emmatty & Anr v. Union of India & Ors. and other connected matters 2023 LiveLaw (Ker) 676
P.B. Prasobh & Ors. v. K.A. Muhammed Faisal & Anr. 2023 LiveLaw (Ker) 677
Latha v. T V Sahadevan 2023 LiveLaw (Ker) 678
Antony Joseph v. State of Kerala 2023 LiveLaw (Ker) 679
Rijas M T v. Hafseena M 2023 LiveLaw (Ker) 680
P.V. Nidhish v. Sivaprakash 2023 LiveLaw (Ker) 681
Shibli K v Union of India 2023 LiveLaw (Ker) 682
P.H. Babu Ansari & Anr. v. Municipal Council & Ors. 2023 LiveLaw (Ker) 683
M/S.Gaiagen Technologies Private Limited Versus State of Kerala 2023 LiveLaw (Ker) 684
Udayakumar v State of Kerala 2023 LiveLaw (Ker) 685
The Corporate Manager v. Beena Hilkushi and Ors., 2023 LiveLaw (Ker) 686
Babumon K.G. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 687
Sreekuttan S. v. Sree Keralavarma College & Ors. 2023 LiveLaw (Ker) 688
P.N.Saseendran V Kalamassery Municipality 2023 LiveLaw (Ker) 689
Jayakrishna Menon v State of Kerala 2023 LiveLaw (Ker) 690
Faizal Abdul Samad v. A.N. Sasidharan & Anr. 2023 LiveLaw (Ker) 691
Krishnapriya K P V State of Kerala 2023 LiveLaw (Ker) 692
Afsal Hussain v. K.S. Muhammed Ismail & Anr. 2023 LiveLaw (Ker) 693
S. Sadananda Naik v. The Ministry of Road Transport and Highways & Ors. 2023 LiveLaw (Ker) 694
Shihad M.P. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 695
M. Liju v. Kerala State Election Commission & Anr. 2023 LiveLaw (Ker) 696
XXX v. District Collector & Ors. 2023 LiveLaw (Ker) 697
Elambilan Nani Amma and Ors. v. Mulavana Antony and Ors., 2023 LiveLaw (Ker) 698
Lalu Mathew v. Bino Alexander, 2023 LiveLaw (Ker) 699
Ushakumari O. & Ors. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 700
Ali K @ Ragam Ali v Union of India and connected case, 2023 LiveLaw (Ker) 701
Gopakumar V.G. v. Deputy Superintendent of Police & Anr., 2023 LiveLaw (Ker) 702
Jeevan Ramesh v. Mahatma Gandhi University 2023 LiveLaw (Ker) 703
T.O.Souriyar v. Muttom Abdulla Kanjirathinkal House 2023 LiveLaw (Ker) 704
Athul Sundar v. Bar Council of India 2023 LiveLaw (Ker) 705
Satheesh Kumar S. v. Transport Commissioner 2023 LiveLaw (Ker) 706
Kiran Kurian Mathew v. Ashly Mathew & Anr. 2023 LiveLaw (Ker) 707
Vishnu Sajanan v. State of Kerala 2023 LiveLaw (Ker) 708
XXXXX v. Union Of India 2023 LiveLaw (Ker) 709
Pinchu Chandran v Arya J 2023 LiveLaw (Ker) 710
Suo Moto High Court of Kerala v. State of Kerala and Anr. 2023 LiveLaw (Ker) 711
Baiju v. State of Kerala 2023 LiveLaw (Ker) 712
XXX v. State of Kerala 2023 LiveLaw (Ker) 713
Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter 2023 LiveLaw (Ker) 714
Adarsh Thinkal T.S v. State of Kerala and Anr. 2023 LiveLaw (Ker) 715
Suo Moto v. State of Kerala and Ors. 2023 LiveLaw (Ker) 716
Jagadesh Ramachandran v. The Maintenance Tribunal, Thiruvananthapuram 2023 LiveLaw (Ker) 717
Artech Realtors Versus Intelligence Officer 2023 LiveLaw (Ker) 718
Maya Venu v. Power Grid Corporation of India & Ors. and other connected matters, 2023 LiveLaw (Ker) 719
P.H.Fathima V State Of Kerala, 2023 LiveLaw (Ker) 720
Satheesh Babu v. State of Kerala & Anr., 2023 LiveLaw (Ker) 721
K.N. Abdul Gafoor v. M/S Kasmisons Builders Pvt. Ltd. & Ors., 2023 LiveLaw (Ker) 722
Sajani V Sabu, 2023 LiveLaw (Ker) 723
Praveena Ravikumar v State Election Commission & Connected Case, 2023 LiveLaw (Ker) 724
Abdul Majeed v. State of Kerala & Anr., 2023 LiveLaw (Ker) 725
Animals and Nature Ethics Community (ANEC) v. Union of India & Ors., 2023 LiveLaw (Ker) 726
Dr. Athira P. v. State of Kerala & Ors. and connected matter, 2023 LiveLaw (Ker) 727
State of Kerala & Ors. v. P.V. Kuryan, 2023 LiveLaw (Ker) 728
B Suresh v Chief Engineer & Administrator, 2023 LiveLaw (Ker) 729
Akhil S Kumar v Bar Council of India, 2023 LiveLaw (Ker) 730
Vibin Meleppuram v. Denny Thomas & Anr., 2023 LiveLaw (Ker) 731
Baburaj & Ors. v. Janeesh P.S. & Ors. and connected matters, 2023 LiveLaw (Ker) 732
Rama v. State of Kerala & Anr., 2023 LiveLaw (Ker) 733
Asokan K M v State Of Kerala, 2023 LiveLaw (Ker) 734
Jayakumar J. & Anr. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 735
Badha Ram v Intelligence Officer, 2023 LiveLaw (Ker) 736
Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter, 2023 LiveLaw (Ker) 737
Badha Ram v. Intelligence Officer 2023 LiveLaw (Ker) 738
Ramachandran Potty & Anr. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 739
XXX v. Union of India & Ors. and connected matters 2023 LiveLaw (Ker) 740
X v. Union of India 2023 LiveLaw (Ker) 741
Kitex Garments Private Limited Company v. Umaimath 2023 LiveLaw (Ker) 742
Rahul Subhash v. Union of India 2023 LiveLaw (Ker) 743
Sindhu A.K. v. Nizar Kochery 2023 LiveLaw (Ker) 744
S. Sreesanth v. State of Kerala 2023 LiveLaw (Ker) 745
Indira v. State of Kerala 2023 LiveLaw (Ker) 746
Mathew P J v M/S. Cholamandalam Investment And Finance Co. Ltd. 2023 LiveLaw (Ker) 747
XXX v. State of Kerala 2023 LiveLaw (Ker) 748
Sundar v. Director General of Police 2023 LiveLaw (Ker) 749
XXX v. State of Kerala & Anr. 2023 LiveLaw (Ker) 750
V.Unnikrishnan v Kozhikode Municipal Corporation & Connected Case 2023 LiveLaw (Ker) 751
N. Basurangan v. State of Kerala & Connected Cases 2023 LiveLaw (Ker) 752
XXX v Union of India 2023 LiveLaw (Ker) 753
Zamra Endeavours Pvt. Ltd. v. Deputy Commissioner of Police & Ors. 2023 LiveLaw (Ker) 754
P.G. Manu v. State of Kerala 2023 LiveLaw (Ker) 755
Dr. Ruvais E.A. v. State of Kerala 2023 LiveLaw (Ker) 756
Deepu K. Unni v. Union of India & Ors. 2023 LiveLaw (Ker) 757
Archana Pius v. Shine 2023 LiveLaw (Ker) 758
Abedur Shekh v State Of Kerala 2023 LiveLaw (Ker) 759
Biju Sundar v State of Kerala, 2023 LiveLaw (Ker) 760
Deepa P.M. & Anr. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 761
K Tony Thomas v Vythiri Grama Panchayath, 2023 LiveLaw (Ker) 762
XXXX v. State of Kerala & Anr., 2023 LiveLaw (Ker) 763
Aswathy Surendran v Union of India, 2023 LiveLaw (Ker) 764
Josepheena T.T. v. Thrissur Municipal Corporation & Anr., 2023 LiveLaw (Ker) 765
XXX v State of Kerala, 2023 LiveLaw (Ker) 766
Judgments/Orders
Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors.
Citation: 2023 LiveLaw (Ker) 512
The Kerala High Court has laid down that the Subordinate Judge's Courts are vested with the jurisdiction to grant leave for institution of a suit relating to a public charitable trust, and thereafter try and dispose of the same under Section 92 of the Code of Civil Procedure (CPC).
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen passed the order on a reference made by a Single Bench of Justice C.S. Dias, which had expressed its doubt as to whether the decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others (2020), laying down that only the Principal District Judge has the jurisdiction to grant leave for institution of a suit under Section 92 CPC would hold ground.
Kerala High Court Grants Bail To Four Accused In Tanur Drugs Case
Case Title: Mansoor & Ors. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 513
The Kerala High Court granted bail to four persons arrested in connection with the alleged possession of narcotic drugs in Tanur, Malappuram.
Justice Mohammed Nias C.P. passed the order.
Case Title: V.P. Nandakumar v. Assistant Director
Citation: 2023 LiveLaw (Ker) 514
The Kerala High Court laid down that where the Enforcement Case Information Report (ECIR) has been quashed and no subsequent FIR has been registered against the accused, further proceedings under the Prevention of Money Laundering Act ('PML Act') shall be dropped and an order issued under Section 17(1A) would not stand.
Section 17(1A) empowers an authorized officer to freeze a property, where it would not practically be possible for such authority to search or seize the record or property.
Justice Devan Ramachandran observed.
"...when there is no FIR registered, hypostised on which an 'ECIR' is also not available, any further investigation against the petitioner under the 'PMLA' will have to cease....in view of quashing of the 'ECIR' and in the absence of any further FIR being registered against the petitioner, Ext.P12 cannot be allowed to hold the field, particularly when it causes sure prejudice to the person against which it is issued."
Case title: Cochin Devaswom Board V Union of India
Citation: 2023 LiveLaw (Ker) 515
The Kerala High Court has held that a deity cannot be divested of title to a land owned by it which is used for religious purposes, without a legal process such as acquisition or voluntary transfer.
A bench of Justice Anil K Narendran and Justice PG Ajithkumar found that the property in question was used as a Temple road for religious activities and that the title of Deity will not be divested because the road was maintained by the local authorities under social obligation.
“It is a Temple road and has been in the use of the public, including for the purposes of religious activities. The local authority would have maintained it out of its social obligation. Albeit such maintenance, the road never was brought to the asset register. It being a property of the Deity, by such an overt act of tarring alone, the title of the Deity will not be divested. There shall be a process known to law, such as acquisition, voluntary transfer, etc. for the Deity to lose its title to a property.”
Case Title: Prana Educational and Charitable Trust & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 516
The Kerala High Court laid down that a Trust, either public, private or charitable, is a juristic person and can be made liable for dishonour of cheques punishable under Section 138 of the Negotiable Instruments Act ('NI Act').
Justice A. Badharudeen, on taking note of a plethora of precedents, further observed in this regard that such Trust would also be a company in terms of Section 141 of the N.I. Act ('Offences by companies'), and every Trustee who was in charge of the day-to-day affairs of the Trust would also be liable for punishment.
Kerala High Court Quashes Proceedings Under POCSO Act Following Marriage Of Accused & Victim
Case Title: Muneer A. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 517
The Kerala High Court quashed the proceedings against a man who had been alleged of having committed offences under Sections 354 and 376 of the Indian Penal Code (IPC), and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act), on the ground that the parties were now married.
Justice Gopinath P. observed,"The petitioner and the victim are now living together as husband and wife. Therefore, no useful purpose will be served by continuing with the prosecution against the petitioner".
Case title: K Sivanandhan V State of Kerala and other matters
Citation: 2023 LiveLaw (Ker) 518
The Kerala High Court has held that Supplyco, implementation agency for Decentralized Paddy Procurement Scheme in the State, is liable to ensure that payments under the scheme are effected to the farmers, that they are not delayed and that farmers cannot be prejudiced any further stating that Supplyco could not obtain a bank loan within time.
Justice Devan Ramachandran directed Supplyco to obtain a bank loan for making payments to the farmers based on a tripartite agreement between the bank, Supplyco and the Government.
“The petitioners cannot be put to any further prejudice, solely because the 'Supplyco' has not been able to garner resources to comply with their contractual commitments; nor can anything be attributed to them if the financing Bank causes any delay in grant of loan to the 'Supplyco' under the tripartite agreement between two of them and the Government. The shifting of any such responsibility onto the shoulders of the farmers is uncharitable and, in any case, wholly impermissible.”
Case title: Finil Biju V State of Kerala
Citation: 2023 LiveLaw (Ker) 519
The Kerala High Court discharged a person charged under Section 304 IPC stating said that the offence of 'culpable homicide not amounting to murder' will not be attracted to motor accident death caused by him late at night, when roads are deserted.
Justice N. Nagaresh observed that knowledge and intention of causing an accident or death could not be presumed in this case and thus the accused would have to be tried for offence under Section 304 A of IPC.
“The petitioner was riding the motorcycle during night hours and at about 1.45 am when ordinarily roads will be deserted...There is no allegation that the petitioner had any intention to cause death of the deceased. The petitioner's offence would clearly fall within the ambit of Section 304A IPC. In the circumstances, I am of the view that the petitioner ought to have been charged under Section 304A IPC instead of Section 304 IPC. The rejection of the application for discharge as far as Section 304 IPC is concerned is therefore unsustainable.”
Case Title: Malathy Ravi v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 520
The Kerala High Court declared that the State Government ought to confirm the detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA, 2007') within 3 months from the date of its execution.
The Division Bench comprising Justice Anu Sivaraman and Justice C. Jayachandran observed that while Article 22 (4) of the Constitution does not create an embargo for detention beyond the period of three months, the Apex Court had held in Ujjal Mondal v. the State of W.B (1972) that unless the power of confirmation is exercised within 3 months from the date of detention, further detention upon expiry of the said period would be without the authority of the law.
CPC | Parties Can't Adduce Evidence Not Supported By Pleadings: Kerala High Court
Case Title: M.N. Saji v. K.R. Krishnakumar
Citation: 2023 LiveLaw (Ker) 521
The Kerala High Court laid down that no party could succeed a case by adducing evidence without support of pleadings, since the law is well-settled that one could be permitted to let in evidence only in tune with the pleadings.
Justice A. Badharudeen added that the basic rule governing pleadings is founded on the principle of secundum allegata et probate, that a party is not allowed to succeed where he has not set up the case which he wants to establish.
"...the object and purpose of pleading are to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. Pleadings help the court in determining the burden of proof. The burden of proof is fixed on the basis of the contentions of the aggrieved party. If some evidence has been produced which is not in conformation with the written statement or plaint, it may disturb the position of the whole case."
Case title: Justice Chettur Sankaran Nair v. Madhu Vadakkepatt
Citation: 2023 LiveLaw (Ker) 522
The Kerala High Court held that a trial judge cannot wait until conclusion of trial to decide if the plaint has to be rejected, and added that such decision should be made solely on an assessment of the plaint under Order VII Rule 11 CPC.
Justice Devan Ramachandran observed that Trial judge waiting for rejecting the plaint until trial was completed defeats the purpose of law laid down under Order VII Rule 11 CPC.
“Obviously, the holding of the learned Munsiff in Ext.P11, that the petitioner will have to wait until the trial is completed, for his application under Order VII, Rule 11 of the CPC to be considered, is not merely anachronistic, but militates against the very purpose for which said provision has been brought into force.”
Case Title: Sayanth S v State of Kerala
Citation: 2023 LiveLaw (Ker) 523
The Kerala High Court stated that decisions such as if a competition has to be conducted in a particular category or not is a prerogative of the Government and has to be decided by a competent authority of the State.
Justice Devan Ramachandran observed that the writ court under Article 226 cannot make such decisions as it requires evaluation of necessary factual and documentary inputs.
“The question whether a competition in a particular category should be conducted, and in what manner, are to be decided by competent Authority of Government of Kerala at the first instance and it cannot be done by this Court, while acting under Article 226 of the Constitution of India, particularly, because it requires evaluation of necessary factual and documentary inputs.”
Case Title: Anitha K. Varghese v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 524
The Kerala High Court quashed the appointment of two Anganwadi workers to the permanent post with the Kadapra Panchayat as illegal, since the appointments had been made by the Child Development Project Officer and not the Village Panchayat.
Single Judge Bench of Justice Raja Vijayaraghavan V. perused Section 166 (2) Kerala Panchayat Raj Act, 1994, which provides that the Village Panchayats shall have exclusive power to administer the matters enumerated in the Third Schedule and to prepare and implement the schemes relating thereto, and proceeded to observe as follows:
"...on a conjoint reading of Section 166(2) and the relevant clause in the Schedule, it would be evident that the Village Panchayat would have the exclusive power to administer matters relating to the running of Anganwadis and the only requirement is that it has to be subject to the other provisions of the Act and guidelines and financial, technical or other assistance of the Government. In other words, it is for the Village Panchayat to decide matters relating to the running of Anganwadis."
Case Title: Antony Joseph v. The Sub-Registrar
Citation: 2023 LiveLaw (Ker) 525
The Kerala High Court has held that the registering authority did not have to look into the nature of divorce obtained by the parties while considering their marriage applications under Section 8 of the Special Marriage Act.
The bench observed that the Registering Authority only has to be satisfied that neither party who intends to marry has a living spouse at the time of registration of marriage.
“Going by the mandate of Section 8 of the 'Act', it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered. Therefore, the only aspect to be decided by the respondent is this and nothing more.”
Case Title: Akhila Nandakumar v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 526
The Kerala High Court has closed the petition filed by the Chief Reporter of Asianet News Channel Akhila Nandakumar to quash the FIR registered against her for allegedly conspiring to defame CPI(M)'s student wing leader PM Arsho in connection with the Maharaja's College examination controversy.
Justice P.V. Kunhikrishnan passed the order, taking note of the submission made by the Public Prosecutor that Nandakumar had already been removed from the array of accused in the crime.
Case Title: Sangeetha R. v. The Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 527
In an interesting development, the Kerala High Court invoked its parens patriae jurisdiction to select the name of a child, caught in a dispute between her estranged parents with respect to what her name should be.
Justice Bechu Kurian Thomas reasoned that attempting to resolve the dispute between the parents will cause inevitable delay and in the meanwhile, the absence of a name would not be conducive to the welfare or the best interests of the child.
"In the exercise of such a jurisdiction, the paramount consideration being the welfare of the child and not the rights of the parents, the Court has to perform the task of selecting a name for the child. While choosing a name, factors like the welfare of the child, cultural considerations, interests of parents and societal norms can be reckoned by the court. The ultimate objective being the well-being of the child, the court has to adopt a name, taking into consideration the overall circumstances. Thus, this Court is compelled to exercise its parens patriae jurisdiction to select a name for the child of the petitioner," the Court observed.
Case Title: Rohit Krishna v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 528
The Kerala High Court has quashed the criminal proceedings initiated against a man for affixing poster of a lotus, which is a symbol of a political party, on an electric poll with gum. It was alleged that the accused caused a commotion near Annamkulangara Devi Temple and the Electricity Board had to spend Rs. 63 for removing the poster.
Justice PV Kunhikrishnan observed that affixing a poster containing the symbol of a recognized political party on an electric post cannot be treated as an act done malignantly or wantonly. It added,
"The only overt act attributed to the accused is that he affixed a poster of a lotus, which is a symbol of a political party, on an electric post and made commotion. I am of the considered opinion that even if that act is accepted in toto, the offence under Section 153 IPC is not made out. Of course, it may be an illegal act to affix a poster on an electric post. But affixing a poster containing the symbol of a recognized political party on an electric post cannot be treated as an act done malignantly or wantonly."
Case Title: Soubiya & Anr. v. District Level Authorization Committee for Transplantation of Human Organs & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 529
The Kerala High Court called upon the District Level Authorization Committee for Transplantation of Human Organs (DLAC) to decide if a 'Certificate of Altruism' was required to be obtained by petitioners, kidney patients who are presently on dialysis and other life support mechanisms.
Justice Devan Ramachandran highlighted the importance of adhering to the legal requirements outlined in the Rules for organ donation and acknowledged that these rules should not be relaxed or diluted on a case-by-case basis.
"...it is indubitable that there are certain specified prescriptions stipulated in the 'Rules', to apply in the process of organ donation. This Court cannot, certainly, dilute the same or relax it in individual cases...the petitioners will have to follow the mandate of law strictly and scrupulously, because it is only if the systems are robust, can the laudable intent behind organ donation be preserved. That said, since the learned Government Pleader says that all which the petitioners require is to obtain a 'Certificate of Altruism' from the Superintendent, or Deputy Superintendent of Police, of the area where both the recipient and donor are residing and not a 'PCC'; and that too, subject to it being insisted by the 1st respondent – DLAC, I am certain that this is a matter that should be left to such Authority to decide".
Case Title: Muhammad Salmanul Faris K Versus The Superintendent
Citation: 2023 LiveLaw (Ker) 530
The Kerala High Court has held that the Superintendent of Central Tax should take an independent decision without being influenced by the direction of the DGGI, Kochi Zonal Unit.
The bench of Justice Dinesh Kumar Singh has observed that the DGGI, Kochi Zonal Unit, has already taken the decision to cancel the GST registration of the petitioner. The competent authority was only required to form the formalities, and the authority concerned or the competent authority could not have taken an independent decision. Therefore, the impugned order is set aside. However, the order is not revived for a period of one month.
Case Title: The Ramapuram Regional Service Co-Operative Bank v State of Kerala
Citation: 2023 LiveLaw (Ker) 531
The Kerala High Court has held that newspaper publication of the proposed amendment to bye-laws of a cooperative society alone and not the existing provision of the bye-laws is mandatory for effecting registration of the amendment.
Justice Sathish Ninan observed that Rule 9(ii) of the Co-operative Societies Rules and circular No.25/2016 issued by the Registrar of Co-operative Societies mandate publication of the proposed amendment of the bye-laws and not the existing provisions. It noted that the Paper publication was intended for the purpose of intimating the members of the society when the members of the society exceeded five hundred in number,
“Therefore, on a proper understanding of Rule 9(ii) of the Rules and Circular No.25/2016, it could only be held that the intimation to the members with regard to the proposed amendment of the bye-laws of the Society, whether it be by personal service or by paper publication as the case may be, need only contain the proposed amendment in its entirety. Such intimation/ publication need not contain the existing provision of the bye-law sought to be amended.”
Case Title: NBCC India Ltd. & Anr. v. Joshy Varghese and connected matter
Citation: 2023 LiveLaw (Ker) 532
The Kerala High Court recently ruled that interest rates payable to allottees withdrawing from a project should be as per Rule 18 of the Kerala Real Estate (Regulation and Development) Rules, 2018 while clarifying that claiming a lesser interest rate does not preclude allottees from receiving the statutory rate.
Justice A. Badharudeen added that while Rule 18 specifies the standard interest rate formula for both promoters and allottees, there can be a deviation from this rate, only when both parties mutually agree to it.
"...the legal position is no more res-integra and payment of interest by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of India's Benchmark Prime Lending Rate plus two percent interest and shall be computed as simple interest as provided under Rule 18 of the Kerala Real Estate (Regulation and Development) Rules, 2018. However, payment of interest by the allottee to the promoter as provided under Section 19(7) of the Kerala Real Estate (Regulation and Development) Act, 2016, can be one in deviation from the Rule 18 and the interest can be reduced when mutually agreed to between the promoter and the allottee and not in any other manner".
Case Title: Mallika v. Sree Mutharamman Temple Trust & Anr. and connected matter
Citation: 2023 LiveLaw (Ker) 533
The Kerala High Court while dismissing a rent control revision petition stated that subsequent legal advice given to a party cannot be accepted as a ground for condonation of delay to prefer an appeal.
Justice P.B. Suresh Kumar and Justice P.G. Ajithkumar observed that if delay was condoned based on subsequent legal advice received by a party, then that would defeat the purpose of Limitation Act.
“Subsequent legal advice cannot be accepted as a cause, much less any sufficient cause, to condone the delay in instituting a proceedings in terms of Section 5 of the Limitation Act, for if the subsequent legal advice is accepted as the cause to condone the delay in instituting a proceedings, the same would defeat the very object of the Limitation Act, viz, that every remedy should remain alive only till the expiry of the period fixed by the legislature which is a principle founded on public policy.”
Case Title: Gugulloth Lakshman IPS v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 534
The Kerala High Court has permitted Gugulloth Lakshman, Inspector General of Kerala Police (now suspended), to withdraw his plea seeking to quash the case registered against him for his alleged involvement in Monson Mavunkal cheating case.
However, Justice P.V. Kunhikrishnan asked him to pay Rs. 10,000 as cost and disbelieved the suspended IG's claim that his counsel had moved the plea without instructions.
"There is a presumption that a lawyer prepared a brief and field before this Court. The averments in the brief is as instructed by his client. Absolutely no evidence is produced before this court to show that lawyer filed this Crl. M.C. without getting instructions from the petitioner. Now this petitioner is blaming the lawyer saying that it was filed without his instruction. The petitioner is an IG of police and he is not an ordinary person... But, he has not filed any complaint before the Bar Council against the counsel for making such a serious allegation in a Crl. M.C. Case. That itself shows that what the petitioner has stated in the affidavit itself is not correct," the bench said.
Case Title: Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep
Citation: 2023 LiveLaw (Ker) 535
Criminalisation of election process is of grave concern to democracy and if persons with criminal antecedents are permitted to continue as Members of Parliament / Legislatures even after conviction by a competent court, that would only send wrong signals to public at large, the Kerala High Court said.
The observations were made while refusing to suspend the conviction of Lakshadweep MP Mohammed Faizal in a case of attempt to murder. The plea was moved to prevent his disqualification as a sitting Member of Parliament.
Justice N. Nagaresh observed that there are materials prima facie evidencing the criminal acts on the part of Faizal. It remarked,"Criminalisation of election process is of grave concern in our democratic polity. The tentacles of political crimes and criminalisation of election process have started grappling free and fair elections. Incidents of criminal acts being committed even during meeting of legislative bodies are surfacing. Proliferation of crime in election process could garner momentum to cripple Indian democracy, if men with criminal background are allowed to continue to be part of the democratic system. If persons with criminal antecedents are permitted to continue as Members of Parliament / Legislatures even after conviction by a competent court, that would only send wrong signals to public at large."
Kerala High Court Comes To Aid Of Interfaith Couple, Both Employed With Govt
Case Title: Arjun Rajasekhar v. Director General of Police (Law & Order) & Ors.
Citation: 2023 LiveLaw (Ker) 536
The Kerala High Court came to the aid of a Lance Naik in the Indian Army and an employee of the Indian Railways, seeking to marry each other. Their interfaith relationship was being opposed by the woman's family.
The Division Bench comprising Justice Anu Sivaraman and Justice Viju Abraham ordered that the woman could not be detained against her will, and thereby directed her release. The man's family said it would take necessary steps for ensuring the safety of the detenue.
Case title: Suo Moto v State of Kerala
Citation: 2023 LiveLaw (Ker) 537
In a recent suo moto case on missing properties from court custody, the Kerala High Court noted that Rule 184 of Criminal Rules of Practice, 1982 dealing with maintenance of property registers was not in consonance with the technological advancements of present times.
Justice V.G Arun noted that amendments have to be made in Rule 184 for introducing recent technological advancements including digitizing records and registers.
“In my opinion, Rule 184 ought to be amended and provision should also made for digitizing the registers and records, in consonance with the recent developments. Digitization of the registers and introduction of electronic tracking system will help in preventing the stalemate of cases due to the missing, pilferage or damage of properties produced in court. I am expressing this opinion, being conscious of the fact that the case at hand is not an isolated instance of the missing of properties produced in court.”
Case Title: Shaheena v. Tahsildar & Anr.
Citation: 2023 LiveLaw (Ker) 538
The Kerala High Court recently reiterated that the purpose of attachment of a property would come to an end when the absconder to whom the property belongs, surrenders before the Court. It added that there would thus not be any attachment order in force hindering payment of tax in respect of the property when it is subsequently sold to another.
While passing the order, Justice Murali Purushothaman, relied upon the decisions in Vimalaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel & Ors. (2008), and Abdul Khadar v. State of Kerala (2015), which had laid down that once the person, against whom the proclamation was issued and whose property was attached, surrenders before the Court and the standing warrants are cancelled, he is no longer an absconder and the purpose of attachment of the property would thus come to an end.
Case Title: Abhaya V. Venu v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 539
The Kerala High Court has granted leave to a life convict undergoing incarceration at Central Prison & Correctional Home, Viyyur for undergoing IVF/ICSI treatment.
The convict's wife had approached the Court seeking parole for her husband who had been undergoing imprisonment for the past 7 years, so that he could complete the treatment procedure to have a child, via IVF/ICSI (In Vitro Fertilization / Intracytoplasmic Sperm Injection) Procedure.
Wondering how the Court could turn a blind eye to such genuine requests merely on technicalities, the Single Judge Bench of Justice P.V. Kunhikrishnan observed,
"...when a wife comes before this Court with a request that she wants a child in the relationship with her husband who is undergoing imprisonment in Central Jail, this Court cannot ignore the same on technicalities. Conviction and sentence in criminal cases is mainly to reform and rehabilitate the offenders. The state and society want to see the convict coming out of jail after rejuvenation as a reformed man/woman who will be part of our society. A person who has undergone a sentence in a criminal case need not be treated as a different person when he comes out. He has every right to lead a decent life just like any other citizen".
Case Title: Rajan K v. Joint Registrar Of Co-Operative Societies
Citation: 2023 LiveLaw (Ker) 540
The Kerala High Court has held that a person who was living beyond the territorial limit of the Society due to a transfer or change in residence becomes ineligible to continue as a member of the Society as per Rule 16 of the Co-operative Societies Rules and Clause 11 of the bye-laws.
Justice Sathish Ninan observed that while the bye-laws did not mention transfer as a ground for ceasing membership, one's transfer beyond the Society's operational area affected their eligibility for membership.
“The Society is formed to cater the needs of the employees within its area of operation - Trivandrum District. When a member is transferred beyond the territorial jurisdiction of the Society, he ceases to satisfy the eligibility criteria to be a member that is, he no more fulfills the requirement in the bye-law to be a member of the Society.”
Case Title: Dawood v. State of Kerala
Citation: 2023 LiveLaw (Ker) 541
The Kerala High Court has set aside the conviction of a person accused of displaying obscene books for sale in a shop room on the ground that the prosecution had failed to prove that the books were obscene or that the accused was in possession of the shop room from where the books were seized.
The Single Judge Bench of Justice C.S. Dias noted that the material prosecution witnesses, i.e. the police officers who conducted the search, had neither stated that the books were obscene nor had they proved ingredients for the offence under Section 292(2)(a) IPC ('Sale of obscene books, etc.') against the accused.
"The prosecution having failed to state anything on the contents in the books and no incriminating circumstances being put to the accused under Section 313 Cr.P.C., the action of the courts below in scrolling through the books and then concluding that they are obscene is erroneous and unjustifiable. The action of the courts below has caused prejudice to the accused, because he has been denied an opportunity to explain the exercise carried out by the courts below. Hence, this Court is of the view, there is a total failure of justice in the courts below holding that the books are obscene and, therefore, the accused is guilty of committing the offence," Justice Dias declared.
Case Title: Fousiya v Shamsudheen Pokkadan
Citation: 2023 LiveLaw (Ker) 542
The Kerala High Court has ordered the return of patrimony amount given by a woman's family to her husband at the time of their marriage, irrespective of the fact that there was no documentary evidence to prove the source of money or the handing over of money.
Justice Anil K Narendran and Justice Sophy Thomas observed that in matrimonial cases, documentary evidence cannot be insisted upon to prove every transaction taken place during a marriage. The Court relied upon the oral testimony given by the wife's father and brother regarding the patrimony amount. It held thus:“It is true that no documentary evidence is there to prove the source of money or to prove the handing over of money at the time of marriage. But the oral testimony of PWs 1 and 2 is clear and cogent enough to come to a conclusion that Rs.1,50,000/- was handed over to the respondent at the time of marriage as patrimony of the appellant.”
Case Title: Sojan Scaria v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 543
The Kerala High Court directed the Ernakulam Sessions Court to return the electronic equipment of Marunadan Malayali Channel, that was seized in connection with a case against its Editor.
The equipment were seized by the police in connection with a case pertaining to the broadcast of a news item against MLA Sreenijin, alleging mal-administration of Sports Hostel at the instance of the MLA in his capacity as the Chairman, District Sports Council.
"This case is to be proved mainly based on oral evidence. I do not know why the entire equipments of this channel are seized by the Police in connection with this case," Justice P.V. Kunhikrishnan remarked.
Case Title: Secretary v Muhammed Rasheed
Citation: 2023 LiveLaw (Ker) 544
The Kerala High Court has held that filing revision petitions without attaching the order passed in first instance is in total violation of the High Court's Practice Rules.
It has ordered all lawyers and litigants to ensure that when Revisions, Criminal Revision Petitions, Original Petitions are filed, it must also contain the certified copy of orders passed in the first instance.
A Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha said the Registry has not been raising objection on this issue and hence it is constrained to pass a judicial order directing "all lawyers/litigants to attach the copy of the orders passed in the first instance, in cases of Revisions, CRPs and OPs. Practice of not attaching the order, is totally in deviation to the High Court Rules.”
Case Title: A.C. Pavithran & Ors. v. State of Kerala and Connected cases
Citation: 2023 LiveLaw (Ker) 545
The Kerala High Court has acquitted four of nine BJP activists who were convicted for committing the murder of a CPI(M) worker due to political rivalry, while they were all lodged in Central Prison at Kannur, serving their sentences in a different case.
The bench of Justice P.B. Suresh Kumar and Justice P.G. Ajith Kumar observed that prisons are meant for reformation of detainees and not for indulging in factionalism or political activities. It quoted Mahatma Gandhi and stated, "Crime is the outcome of a diseased mind and jails must have an environment of hospital for treatment and care."
Court said prison is no place for factionalism and questioned the prison authorities over housing prisoners in different blocks based on their political allegiance.
“We fail to understand how the authorities of the Central Prison, Kannur could house prisoners in different blocks based on their political allegiance. That, in fact, leads to incidents like the instant one. Like prison officers, prisoners also shall not indulge into any political activity inside the four walls of prisons.”
Case Title: State of Kerala v Durgadas
Citation: 2023 LiveLaw (Ker) 546
The Kerala High Court observed that despite acquittals in criminal cases, when the government was unable to form an opinion regarding the character and antecedents of a person, then it can conduct an independent and separate enquiry to assess the character of the candidate.
Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the government cannot disqualify a candidate from acquiring an employment in public service merely because a criminal case was registered against him. It stated that the government can consider the allegations along with materials against the candidate in the criminal case independently to assess the character and integrity of the candidate to see whether he was suitable for entering the service or not.
“The Government cannot merely restate the allegations in the prosecution and hold that the character is bad to make him unsuitable for the post. Thus, we make it clear that in criminal cases where the prosecution cases end up in acquittal if the Government cannot form an opinion based on the prosecution allegations and other materials including the finding entered by the criminal court as to the character of the person, the Government is bound to conduct separate enquiry as to the character antecedents of the person. Thus, mere registration of the criminal case will not enable the Government to disqualify such a person from becoming a member of service.”
Case Title: Siraj v. The District Collector & Anr.
Citation: 2023 LiveLaw (Ker) 547
The Kerala High Court recently laid down that as per Section 19 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter, 'the Act, 2008'), a vehicle could be seized only when it is used or deemed to have been used for any activity in contravention of the provisions of the Act.
Justice Bechu Kurian Thomas, explained that this was because seizure is a drastic power which could be exercised only when conferred by the statute.
"Seizure of a vehicle interferes with the right of an owner to use his property in the manner he likes, subject, of course, to law. Since seizure interferes with proprietary rights, provisions conferring the power of seizure must be interpreted strictly. The safeguards and the stipulations provided by the statute for the exercise of such a power must also be strictly complied with," the Bench observed.
Case Title: Anaz Abdul Rahiman Kutty v State Tax Officer
Citation: 2023 LiveLaw (Ker) 548
The Kerala High Court recently addressed the difficulties faced by small scale dealers during the initial phases of GST implementation in understanding the provisions of GST Act.
Justice Dinesh Kumar Singh set aside the orders of the assessing authority disallowing the input tax credit claims of the petitioners and observed thus,
“The period involved is 2017-18 when the GST regime was rolled out. There may be some substance in the submission of the learned Counsel for the petitioner that the petitioner faced enormous difficulty in understanding the provisions of the GST Act.”
Case Title: State of Kerala & Others v. Abhidev
Citation: 2023 LiveLaw (Ker) 549
The Kerala High Court recently held that a Government Order issued to cure the defects of an earlier order will operate retrospectively from the date of the earlier order because the latter Government order can only be treated as curing the defects that existed in the earlier order.
A Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the government did not issue the order to introduce a new claim, but only to cure the defects in the earlier order.
“The present order can only be treated as curing the defects existed in the earlier order by including the category of personnel, who are having same status of a Defense Personnel. It is not a new claim being endorsed by the Government, rather, it recognizes the equal treatment with other Defense Personnel. In that view of the matter also, we can easily conclude that this Government Order is only curing a defect of an existing order issued as early as in 2002. “
Case Title: Noushad Flourish v. Akhila Noushad & Anr.
Citation: 2023 LiveLaw (Ker) 550
The Kerala High Court has held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC, after effecting Khula.
Divorce by 'Khula' is a divorce at the instance of, and with the consent of the wife, by which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Perusing Section 125 (4) of Cr.P.C., Justice A. Badharudeen noted that no wife shall be entitled to receive an allowance for the maintenance or interim maintenance, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
"When the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C. If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of Cr.P.C.," the Bench observed.
Case title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 551
The Kerala High Court dismissed the anticipatory bail application of the mother of a minor daughter for facilitating the stepfather to commit rape and sexual assault on the minor child.
Justice Gopinath P. observed that the allegations against the mother, if proved true, were an insult to the motherhood. The Court also noted that since biological mother was arrayed as an accused, she might be in a position to influence or intimidate the minor child to give evidence in favor of the accused persons.
“I am of the view that the petitioner is clearly not entitled to anticipatory bail. The allegation against the petitioner are very serious and if true they are an insult to motherhood. The apprehension expressed by the learned Public Prosecutor appears to be real. The petitioner being the biological mother of the minor victim may be in a position to influence or intimidate the victim if she is granted bail. The statement of the victim that she was subject to rape even in the presence of the petitioner / 2nd accused is another reason which compels me to hold that the petitioner is not entitled to bail.”
Kerala High Court Permits Temporary Conversion Of Paddy Land For Highway 6-Laning Project
Case Title: K.C.C. Buildcon Pvt. Ltd. v. Govt. of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 552
The Kerala High Court has permitted the temporary conversion of paddy land for the purpose of a Highway 6-Laning Project. Noting that the application for permission to temporarily convert the paddy land in question had been made for a public purpose, the Single Judge Bench of Justice N. Nagaresh observed that non-availability of alternate land is no more a condition or requirement for grant of permission to convert paddy land for public purpose. The Court added that the effect of conversion or reclamation on the 'ecological conditions in the area' is not a relevant factor under the amended provisions.
"The application for permission to temporarily convert paddy land for a public purpose, has been made by the petitioner as per the provisions of the Act, 2008 ('Kerala Conservation of Paddy Land and Wetland Act, 2008') and hence it cannot be said that the temporary arrangement for construction activity in question is not made as per extant laws. The conclusion in Ext.P8 that there is no legal provision for temporary conversion of paddy land also is unsustainable in view of Section 10 of the Act, 2008 which will take within its ambit temporary conversion also for public purpose. The further conclusion...that if such conversions are permitted, it would set a wrong precedent resulting in large scale conversion of paddy land and wetland is only an apprehension and is not a convincing reason, since such permissions can be granted only by the Government and that too on the basis of recommendation of an expert high level body like the State Level Committee," the Court said.
Kerala High Court Directs Vigilance To Return Rs 47 Lakh Seized From IUML Leader KM Shaji's House
Case Title: K.M. Shaji v. State of Kerala
Citation: 2023 LiveLaw (Ker) 553
The Kerala High Court ordered return of the amount seized by Vigilance from the house of Indian Union Muslim League (IUML) leader and former MLA K M Shaji.
Justice Ziyad Rahman A.A. directed that the amount of Rs. 47.35 Lakh shall be released on Bank guarantee.
"...when it comes to the question of the release of the articles in favour of the accused, the court should adopt a more cautious approach and should ensure that sufficient safeguards are put in place to recover the article or amount when the necessity arises. This is particularly because, until the trial is completed and the accused is found guilty, the allegations based on which the recovery of such articles was made are mere accusations yet to be proved. Therefore, depriving a person of his articles or amounts on mere accusations until the same are properly proved through the fact-finding mechanism of the trial is not justifiable," the Court observed.
Case Title: Amith v. State of Kerala
Citation: 2023 LiveLaw (Ker) 554
The Kerala High Court rejected the bail application of a person accused of impersonating a candidate in the VSSC Tenchnican-B(Fitter) examination.
While refusing bail, Justice Mohammed Nias C.P. observed,
"Impersonating in a competitive examination like one conducted by the VSSC has to be dealt with sternly. Fraudulent practices to gain public employment cannot be countenanced by a Court of law. All the stakeholders are hoodwinked by manipulating and corrupting the selection process of a premier organisation in the Country, which all are proud of".
Case Title: James A.C. v K.A. Sakthidharan
Citation: 2023 LiveLaw (Ker) 555
The Kerala High Court held that an accused can only be acquitted under Section 256 CrPC when there was a definite conclusion that the complainant does not wish to prosecute the complaint.
Justice C.S. Dias stated that the Court must not perfunctorily acquit an accused u/s 256 of CrPC. Such power must be exercised judicially and not whimsically or mechanically, the Court observed thus:
“It is far too well settled that the power of the Magistrate under Sec.256 Cr.P.C to acquit an accused should be exercised judicially, based on a definite conclusion that the complainant no longer desires to prosecute the complaint. The power is not to be indiscriminately exercised whimsically and mechanically for the statistical purposes of removing a docket from its rack as it undermines the cause of justice. Instead, the judicious course would be to direct the complaint to appear for the hearing, if it is imperative, and decide whether the drastic step of acquittal is to be passed in case he fails to appear.”
Case Title: XXX v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 556
The Kerala High Court recently set aside a Sessions Court order granting anticipatory bail to 57 years old man accused of sexually assaulting a minor aged 7 years, on the ground that the alleged delay in registering the crime was on account of a typographical error in the FIR qua the date of commission of the offence.
Justice Gopinath P. thereby directed the Sessions Court to reconsider the the bail application of the accused afresh, after affording an opportunity of hearing to both parties.
"The finding in Annexure-A2 order (impugned order of Sessions Court) that there was considerable delay in registering the complaint seems to be on the basis that, in column No-12 of the FIR, on account of some typographical error, it was noted that the offence alleged was in the month of May 2022, while it was actually in the month of May 2023. A reading of Annexure-A2 order shows that the only reason which compelled the Sessions Court to grant anticipatory bail to the accused/2nd respondent is that there was considerable delay in lodging the complaint. This is obviously a mistake of fact owing to the typographical error in the FIR," the Court observed.
Case Title: Fathima Beevi v Abdul Rahman
Citation: 2023 LiveLaw (Ker) 557
The Kerala High Court held that when a sale deed has to be annulled by an executant to a sale deed, he must seek cancellation of the deed. And when a non-executant to sale deed wants to get it annulled, he must seek a declaration that the deed was invalid, non-est in law, illegal or not binding on him.
Justice A. Badharudeen observed thus: “Thus, the legal position emerges is that, when there is a sale deed, if the executant wanted to annul the same, he had to seek cancellation of the said deed or the relief to set aside the deed. If a non-executant seeks annulment of a deed, he had to seek a declaration that the deed is invalid, or non- est or, illegal or that the deed is not binding upon him.”
Courts To Pass Speaking Orders While Rejecting Discharge Application U/S 239 CrPC: Kerala High Court
Case Title: Nimmy Mathew v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 558
The Kerala High Court laid down that a speaking order would have to be passed by the Court which considers and rejects an application for discharge under Section 239 of Cr.P.C.
Justice N. Nagaresh, relied upon the Apex Court decision in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey (2022), wherein the Court had observed that all that is required at the time of framing of charge is that the Court ought to be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. The Court added that while rejecting a discharge application, the reasons for the same also ought to be disclosed.
Case Title: XXXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 559
The Kerala High Court has rejected the plea moved by a man accused of committing rape on his disabled cousin sister, seeking anticipatory bail on the ground that he was only 18 years old when the alleged offence was committed.
Justice Gopinath P. observed thus: “Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner cannot be granted anticipatory bail. Though the petitioner is stated to have been only 18 years of age at the time when the offence was committed, that by itself cannot be a ground to grant anticipatory bail to the petitioner, especially considering the nature of the offence involved.”
Case Title: Jyothi v State of Kerala
Citation: 2023 LiveLaw (Ker) 560
The Kerala High Court has reiterated that the Limitation Act does not prescribe any statutory period for the victim to prefer an appeal against conviction under the proviso to Section 372 CrPC.
Justice C.S. Dias relied upon the Division Bench decision in Sobhanakumari K. vs. Santhosh @ Pallan Shaji (2018) and observed thus: “In Sobhanakumari K. vs. Santhosh @ Pallan Shaji [2018 (1) KHC 195], a Division Bench of this Court has held that there is no time period stipulated under the Limitation Act to file an appeal by a victim under the proviso to Section 372 of the Code. If at all an appeal is filed beyond the time period of 30/60 days, only an affidavit explaining the reason for the delay is to be filed by the victim with the appeal.”
Case Title: Malanad Service Co-Operative Bank Ltd. v. Station House Officer & Ors.
Citation: 2023 LiveLaw (Ker) 561
The Kerala High Court has held that Co-operative Arbitration Court constituted under Section 70A of the Kerala Co-operative Societies Act, 1969 has the exclusive jurisdiction to deal with the procedure for adjudication of any dispute regarding election to the Board of Management of Society and not a writ court under Article 226 of the Constitution.
Justice Anil K. Narendran and Justice Sophy Thomas observed that a writ court cannot exercise its writ jurisdiction to appoint an Advocate Commissioner to oversee the process of polling and counting in election to the Board of Management of Society. The Court observed thus:
“When the provisions under the Kerala Co-operative Societies Act deal with the procedure for adjudication of any dispute arising in connection with the election of the board of management or any officer of a Co-operative Society, exclusively by the Co- operative Arbitration Court constituted under Section 70A of the Act, and a person who indulges in or adopts any corrupt practices, before, during or after the election, including a person who commits any criminal offence against the Electoral Officer or the Returning Officer or other office bearers and employees of a Society, has to be proceeded against for an offence punishable under Section 94 of the Act with imprisonment which may extend up to six months or with fine which may extend up to one thousand rupees or with both, this Court, in the exercise of writ jurisdiction under Article 226 of the Constitution of India, cannot appoint an Advocate Commissioner to oversee the entire proceedings of the polling and counting in an election of the board of management or any officer of the Society.”
Case Title: Ashiq Sulthan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 562
The Kerala High Court granted permission to a person accused of committing the offence punishable under Section 498A (Cruelty to woman by husband or his relative) IPC, to pursue higher studies in Australia, despite the police not having submitted the final report in the case.
"...it is evident that, since the date of the surrender, he has been cooperating with the investigation and interrogation of the petitioner is already over. Apparently, no recovery is also to be affected. Therefore, I am of the view that, merely because the police have not submitted the final report, he need not be deprived of his right to go abroad to pursue his studies," the Single Judge Bench of Justice Ziyad Rahman A.A. observed.
Failure To Question Accused U/S 313 Cr.P.C. Vitiates Entire Proceedings: Kerala High Court
Case Title: Raju J. Vylattu v. P.V. Alexander & Anr. and connected matter
Citation: 2023 LiveLaw (Ker) 563
The Kerala High Court laid down that the failure to question an accused under Section 313 (1) (b) of Cr.P.C. would vitiate the entire proceedings.
Section 313 (1)(b) states that "in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case".
Justice C.S. Dias, explained that the intent of the provision is to align with the principles of natural justice, particularly that of 'audi alteram partem' which provides that both sides must be heard."...otherwise, the inculpatory materials and circumstances of the exhortation not put to the accused under Section 313 cannot be used against him. Even though it is by now settled, the failure to put the incriminating circumstances to the accused may not ipso - facto vitiate the entire trial, it can be established that the non-compliance of the mandate of the provision would vitiate the proceedings from the stage of Section 313 of the Code," the Court observed.
Abusing Police Officer Over Phone Not An Offence U/S 294(b) IPC: Kerala High Court
Case Title: Ramla Kabeer v. State of Kerala
Citation: 2023 LiveLaw (Ker) 564
The Kerala High Court has quashed the criminal proceedings initiated against a 51-yr-old woman accused of threatening and hurling abuses at a police officer over phone, upon finding that the same would not attract the offence under Section 294(b) ('Obscene acts and songs') of IPC, that she had been charged with.
Justice P.V. Kunhikrishnan discerned that in order to attract the offence under Section 294(b), two ingredients as highlighted in James Jose v. State of Kerala (2019) would be necessary: 1. that the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song or word in or near any public place; and 2. that the act has caused annoyance to others.
"Admittedly the allegation is that the petitioner contacted the defacto complainant over phone and used abusive language. Even if the petitioner used abusive words over phone, that would not attract an offence under section 294(b) IPC in the light of the dictum laid down by this court in James Jose case (supra). Moreover, the abusive words mentioned in Annexure A complaint would not attract the ingredients of offence under section 294(b) IPC," the Court observed.
Case Title:Ramla Kabeer v. State of Kerala
Citation: 2023 LiveLaw (Ker) 564
Suspecting foul play in the FIR lodged by a Police Inspector against a 51-yr-old woman for allegedly threatening and abusing him over the phone, the Kerala High Court has ordered the State Police Chief to inquire the facts that led to the FIR.
The petitioner-accused, who had pleaded her case in person 'teary eyed' before the Court, was booked under Section 294(b) ('Obscene acts and songs'), Section 506(i) of IPC ('Criminal Intimidation'), and Section 120(o) of the Kerala Police Act.
"In the normal course, such an incident is unbelievable in our society. Citizens always respect the police authorities. Therefore, the District Police Chief should conduct an enquiry about the registration of this case against the petitioner and if there is any default on the part of the defacto complainant, appropriate steps should be taken in accordance with law," Justice P.V. Kunhikrishnan observed, while quashing the proceedings against the petitioner.
Case Title: Ramla Kabeer v. State of Kerala
Citation: 2023 LiveLaw (Ker) 564
"Usually the court of law is known as 'temple of justice'. But there is no god sitting in the bench. The judges are doing their constitutional duties and obligations," the Kerala High Court remarked recently, in a case involving registration of FIR on a 51-year-old woman for allegedly abusing Police Inspector, as a suspected 'couterblast' to her complaint against him.
Taking note that the litigant had appeared before the Court with 'folded hands and tears in her eyes' to plead her case in person, Justice P.V. Kunhikrishnan, was of the view that her tears appeared genuine.
The Court also proceeded to state that, "...no litigant or lawyer need to argue their case with folded hands before a court of law because it is their constitutional right to argue a case before a court of law," while adding that they still ought to maintain the decorum of the court while arguing their case.
Case Title: Kakkovil Muliyarakkal Krishnan Children V Kakkovil Muliyarakkal Vilasini(Died)
Citation: 2023 LiveLaw (Ker) 565
The Kerala High Court has held that a mother can validly execute a document on behalf of her minor children as their natural guardian even during the lifetime of the father, if he is not involved in the lives of the minors and was deemed as absent.
Justice A. Badharudeen relied upon Section 6 (a) of the Hindu Minority and Guardianship Act (HMG) and the decision of the Apex Court in Gita Hariharan (Ms) and Another Vs. Reserve Bank of Indian and Another (1999) and observed that the mother can act as the natural guardian of the minor and all her actions would be valid even during the lifetime of the father, in the absence of father, as per Section 6(a) of the HMG Act and Section 19(b) of the Guardians and Wards Act, 1890.
“Thus, it appears that as per the ratio in Githa Hariharan's case (Supra), affirmed in Akella Lalitha's case (Supra), the legal position is that Section 6(a) does not give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. When the mother acts as the guardian of the minor during the lifetime of the father without the matter going to the court, and the validity of such an action is questioned on the ground that the mother is not the legal guardian of the minor, in view of Section 6(a) of the HMG Act, the mother could function as guardian only after the lifetime of the father and not during his lifetime. Such an interpretation would violate gender equality, one of the basic principles of our Constitution. “
Transfer Certificate Cannot Be Withheld Merely Citing Arrears Of School Fees: Kerala High Court
Case Title: XX v. CBSE Regional Office & Anr.
Citation: 2023 LiveLaw (Ker) 566
The Kerala High Court has declared that Transfer Certificate (TC) of a child cannot be withheld by a School merely because fees are due to the School.
"Imparting education is the primary duty of the State. The Transfer Certificate of a child cannot be withheld by a School because the fees are due to the School. Every child has a fundamental right to get an education," Justice Basant Balaji observed.
Case title: Sasikumar V Ushadevi
Citation: 2023 LiveLaw (Ker) 567
The Kerala High Court held that criminal courts while convicting an accused in a proceeding under Section 138 of Negotiable Instruments Act for dishonour of cheque should also consider the importance of compensating the complainant.
Justice C.S. Dias enhanced the fine imposed upon the accused, so as to provide compensation to the complainant under Section 357 of CrPC. The Court stated that the fine imposed under Section 138 of the Act should be proportional to the cheque amount, and it must not exceed twice the cheque amount.
Case title: Sanath Roy v State of Kerala
Citation: 2023 LiveLaw (Ker) 568
The Kerala High Court has acquitted a Hindi proficient accused, a native of West Bengal who was convicted for robbery and murder, because his disclosure statements were recorded in a language not spoken by him.
The Division Bench comprising Justices P.B.Suresh Kumar and P.G.Ajithkumar observed that disclosure statement has to be recorded in the same language spoken by the accused. It was found that the police made the recovery of material objects with the help of a translator who translated the disclosure statement into Malayalam and the translator was not examined as a witness.
Case title: Narayanan v State of Kerala
Citation: 2023 LiveLaw (Ker) 569
The Kerala High Court has acquitted a man and his family who were convicted under Section 498A IPC for cruelty against a deceased woman on the finding that the parties were living together as husband and wife, based on a marriage agreement and their marriage was not solemnized.
Justice Sophy Thomas observed thus: “In the case on hand, since the marriage between the 1st revision petitioner and deceased Chandrika was not solemnised, and they started living together on the basis of a marriage agreement, which has no legal sanctity in the eye of law, they have to be treated as persons in live-in-relation, and they were not husband and wife, in order to attract an offence punishable under Section 498A of IPC. So, the trial court as well as the appellate court went wrong in finding the revision petitioners guilty under Section 498A of IPC and sentencing them for that offence.”
Case Title: Sathar K.A. v. The Revenue Divisional Officer (RDO) & Ors.
Citation: 2023 LiveLaw (Ker) 570
The Kerala High Court has imposed of fine of Rs. 10,000/- on the Revenue Divisional Officer (RDO) for the authority's failure to issue appropriate orders even after the lapse of a year, on an application under the Kerala Land Utilisation Order, 1967, as had been directed by the Court earlier.
Justice Bechu Kurian Thomas emphasized that stern action is warranted in situations where instructions sought for from the office of the Advocate General are not responded to by the officer. It issued strict directions to the RDO to pass appropriate orders on the petitioner's application within 14 days from the date of receipt of copy of the judgment.
Dowry Demand Without Ingredient Of Cruelty Not An Offence U/S 498A IPC: Kerala High Court
Case Title: Niyas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 571
The Kerala High Court held a mere demand for dowry or any property or valuable security without the ingredient of 'cruelty' would not attract the offence under Section 498A IPC. It held that when both elements of demand and cruelty are combined, then liability would be fastened on an accused.
Justice P. Somarajan observed: "A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC. Likewise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC."
Case title: AT v Union of India
Citation: 2023 LiveLaw (Ker) 573
The Kerala High Court has permitted a married couple to medically terminate their 24 weeks' pregnancy on finding 'substantial foetal abnormality' and congenital heart disease. Justice Devan Ramachandran Court found that the Medical Board has found Hypoplastic Left Heart Syndrome for the foetus on the Anomaly scan, which was confirmed by Ultrasound Scan and other medical examinations. The Medical Report stated that even if the baby was born alive, it would require multiple palliative procedures and even then the chances of survival were very less.
Case name: PKV v AKA
Citation: 2023 LiveLaw (Ker) 574
The Kerala High Court has held that wife seeking the help of her husband's employer for patching up their broken marital relationship and to bring him back to normal life after finding out his issues, or her not knowing cooking cannot be grounds sufficient to constitute 'cruelty'.
Relying upon the decision in Uthara v. Sivapriyan (2022), the Court observed, "...legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions".
Case title: Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case
Citation: 2023 LiveLaw (Ker) 575
The Kerala High Court came to the rescue of an ailing nonagenarian senior citizen who was suffering from dementia and was kept away from his wife by their son.
Justice Devan Ramachandran observed that the wife of a senior citizen has absolute and inviolable right to have the custody and company of her husband during the winter years of their lives. It held that the son has no right to keep his parents away from each other. Court stated: “Even being dementia afflicted and his memories fading, the senior citizen clearly finds solace with his wife – as the Social Justice Officer puts it in his report, “they shared good moments”. He must never be denied this, whatever Sri.Siju K.Bhanu may say in justification. The right of Smt.Kameela – the wife of the senior citizen – for his custody and consortium is inviolable and absolute. Her son, Sri.Siju K.Bhanu can never deny this.”
Case Title: Sabu Johny v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 576
The Kerala High Court laid down that a vehicle which was taken on rental basis, and which was subsequently put to use for illegal purposes, cannot be confiscated when the registered owner of the vehicle had no knowledge of the offence, nor had any active involvement in such Act.
"For a vehicle to be confiscated, it ought to have been established that the owner of the vehicle has prior knowledge or in the alternative, he is a party to the offence, which connotes his active involvement. Once it is indicated from the materials furnished by the writ petitioner (registered owner of the vehicle) that the owner of the vehicle is devoid of any knowledge or that he has connived with the persons who actually were evidenced as illegally transporting any contraband for the sole reason that the vehicle is involved in the offence, he cannot be penalised by ordering to confiscate his vehicle," Justice Mary Joseph observed.
Case Title: Thara Philip v. Federal Bank Ltd. & Anr.
Citation: 2023 LiveLaw (Ker) 577
The Kerala High Court dismissed challenge to recovery proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) qua certain parcels of land which the petitioner claimed to be agricultural lands and thus protected under Section 31 (i) of the statute. It states that the provisions of the SARFAESI Act shall not apply to any security interest created in agricultural land.
Dismissing the writ petition filed under Article 226 of the Constitution in limine, the Single Judge Bench of Justice K. Babu was of the considered opinion that the SARFAESI Act is a complete code providing effective and efficacious remedy to any person aggrieved by the proceedings initiated under Section 13, and the present plea was thus not maintainable.
Arbitration Act | Arbitrator Can't Appoint Advocate Commissioner U/S 26, 27: Kerala High Court
Case title: M/S Punarnava Ayurveda Hospital Pvt Ltd V The Arbitrator For Nh 66 & District Collector
Citation: 2023 LiveLaw (Ker) 577
The Kerala High Court held that an arbitrator is not authorised to appoint an Advocate Commissioner under Section 26 or 27 of the Arbitration Act to conduct inspections in land acquisition disputes.
Justice Murali Purushothaman added that the extent of judicial intervention in arbitration proceedings was limited, with parties generally having to wait for the arbitration award or follow the appeal process specified in the law.
Case Title: Dr. Sajeer v. Reserve Bank of India & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 578
The Kerala High Court directed Banks to limit the freezing orders issued in respect of persons into whose accounts amounts had been transferred via UPI platform as part of a cyber financial crime, to the amount involved in the crime as mentioned in the order/requisition issued by the Police Authorities.
Justice Devan Ramachandran could not fathom why the entire bank accounts of the petitioners had to be frozen when the requisitions mention the exact amount suspected to have been credited to their accounts.
Case title: K.T. Sukumaran v State of Kerala
Citation: 2023 LiveLaw (Ker) 579
The Kerala High Court stated that a Magistrate has statutory duty to pass a speaking order under Section 311A of CrPC for collection of specimen signatures or handwriting of a person in connection with a criminal case.
Bench of Justice P.V. Kunhikrishnan on examining the provision added that the Magistrate should be at least prima facie convinced that, such an action would not prejudice the interest of the accused in the facts and circumstances of that case. The court held that a speaking order is essential to ensure that no prejudice is caused to the accused. It also stated that the Magistrate has a statutory duty to pass a speaking order for ensuring that Article 20 (3) of the Constitution is not violated which states that no person can be compelled to be a witness against himself.
Case Title: Muhammed Shafeek v. M/S Tasty Nut Industries & Ors.
Citation: 2023 LiveLaw (Ker) 580
The Kerala High Court condoned a delay of 25 days in filing an appeal under the Commercial Courts Act, 2015, on the ground that such delay had not resulted in any loss on the part of the opposite party.
Justice Anil K. Narendran and Justice Sophy Thomas though took note of the intent of the statute to have speedy disposal of commercial disputes, cited Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited (2021) where the Supreme Court held that delay in appeals filed under Arbitration Act and Commercial Courts Act can be condoned "by way of exception".
Case Title: S v. D & connected matter
Citation: 2023 LiveLaw (Ker) 581
The Kerala High Court held that if the grounds for divorce under Section 13 of the Hindu Marriage Act are not proven, the same grounds cannot be used for granting judicial separation as an alternate relief under Section 13-A.
Relying on the decision in Snigdha Chaya Devi v. Akhil Chandra Sarma (1992), the Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed: "When the grounds for judicial separation under Section 13-A of the Hindu Marriage Act are the same as that for divorce, under Section 13 (founded on grounds other than excluded) and when the grounds for divorce under Section 13 of the Hindu Marriage Act are not made out, there cannot be a decree for judicial separation as an alternate relief. If the grounds, on which the petition for divorce was founded, were not made out, then the alternate relief of judicial separation also cannot be granted."
Paddy Land Act | Can't Dig Wells On Paddy Land For Commercial Purposes: Kerala High Court
Case title: Hema Anil v State of Kerala
Citation: 2023 LiveLaw (Ker) 582
The Kerala High Court held that digging a well on a paddy land for commercial purposes, such as extracting groundwater for manufacturing packaged drinking water, is not related to paddy cultivation and would thus be violative of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
Justice Bechu Kurian Thomas added that if water was drawn out from paddy lands for commercial purposes, then the original water level could not be maintained, thereby causing reclamation under Section 2(xv) of the Act (irreversible conversion of the paddy land).
Case title: Ayub H.H. v State of Kerala
Citation: 2023 LiveLaw (Ker) 583
The Kerala High Court reiterated that Section 499 of IPC makes defamation against individuals as a punishable offence under Section 500 of IPC and not against criticism of any product or service. The Court noted that the provision deals with harm to reputation caused to any person and not product.
Justice N. Nagaresh observed that criticism of a product or service cannot be considered to be imputation of reputation to be punishable as defamatory under Section 499 and 500 of IPC. Court stated: “ The statements of the witnesses would show that the content of the Facebook post is regarding the product of the Firm of the petitioner. The 2nd respondent has criticized the product. Criticism of any product/service made by a citizen cannot be treated as defamatory though such criticism may not be of the liking of the manufacturers/producers.”
Case Name: K.R. Mahadevan v. Mattannur Municipality & Ors.
Citation: 2023 LiveLaw (Ker) 584
The Kerala High Court stated that parents would have the right to choose the first words to be written or recited by their children during Vidyarambham ceremony.
Justice Devan Ramachandran observed that the programmed is for initiation of knowledge and children cannot be forced to write or recite any prayer contrary to their parent's choice.
Kerala High Court Quashes Show Cause Notice Issued To KTU's Former VC Ciza Thomas
Case Title: Dr. Ciza Thomas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 585
The Kerala High Court quashed the show cause notice issued to Dr. Ciza Thomas, who was temporarily appointed as the Vice Chancellor of the APJ Abdul Kalam Techological University.
A show cause notice had been issued to Thomas as a prelude to the initiation of disciplinary proceedings against her by the State Government, on the ground that she had violated Rule 48 of Government Servants Conduct Rules, 1960 (restriction on Government servants from being engaged directly or indirectly in any trade, business, or employment).
Perusing Rule 48 of the Rules, 1960, the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the provision only prevents a Government employee directly or indirectly engaging in any trade or business or from undertaking any new employment, while he is continuing to be a Government servant. The show-cause notice issued to Thomas was thus quashed.
Case title: Venugopalan v The Managing Partner
Citation: 2023 LiveLaw (Ker) 586
The Kerala High Court stated that an employee is entitled to claim interest on medical reimbursement under Section 4A of the Employees Compensation Act, 1923 from the date of making claim before the Compensation Commissioner and not from the date of the accident.
Justice Basant Balaji observed thus: “Therefore, I am of the considered opinion that the Commissioner has failed to award interest as stipulated in Section 4A of the Act. Since the accident happened on 18.09.2011, and the claim was made only in 2016, the appellant is entitled to claim interest from the respondents only from the date he made the claim before the Employees Compensation Commissioner. The delay in not filing the claim from 2011 to 2016 is on the applicant himself. Therefore, the payment of interest for the said period cannot be mulcted on the respondent.”
Case Name: New India Assurance Co. Ltd. v. Shymi & Ors.
Citation: 2023 LiveLaw (Ker) 587
The Kerala High Court laid down that a father could also be treated as 'dependent' on his son to determine the personal expenses of the deceased son, while computing the compensation to be awarded under the Motor Vehicles Act.
Justice Ziyad Rahman A.A. noted that while the dependancy of the father upon his son after the latter's wedding would be limited, that by itself would not disentitle the father from being treated as one of the dependants of the deceased in order to determine the deductions to be made towards personal expenses. Court observed: "This is because, when the years pass, and advanced age weakens the earning capacity of the father, or various ailments, age-related or other, start affecting the mental and physical ability of the father, the son is supposed to or expected to come forward and support him. Such support from the son is something which a father can reasonably look forward to,"
MSMED Act Does Not Prevail Over SARFAESI Act In Recovery Of Secured Assets: Kerala High Court
Case Title: Jayaprakash A. v. Union Bank of India & Ors.
Citation: 2023 LiveLaw (Ker) 588
The Kerala High Court held that provisions of the Micro, Small and Medium Enterprises Development Act, 2006 ('MSMED Act') would not prevail over those of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act') with respect to recovery of secured assets.
It thus went on to state when any person is aggrieved by the course for recovery adopted by the secured creditor under Section 13 of the SARFAESI Act, which provides for 'Enforcement of Security Interest', they could approach the Tribunal constituted under the enactment, against the same, regardless of the aggrieved person being a proprietor of an enterprise registered under the MSMED Act.
Noting that Section 17 of SARFAESI Act ('Application against measures to recover secured debts') is a 'complete code' providing remedies to any person aggrieved by the measures taken by the secured creditor, Justice K. Babu observed: "By virtue of Section 17 of the SARFAESI Act, the Tribunal is clothed with a wide range of powers to interfere with any illegality. The Tribunal has the power to consider whether the measures referred to in Section 13 resorted to by the secured creditors for the enforcement of the security interests are in accordance with the provisions of the Act and the Rules made thereunder. It has the power to restore management or reservation of the possession of the secured assets of the borrower or any person aggrieved. The Tribunal has the jurisdiction to examine the claims of the tenancy or leasehold rights upon the leasehold assets".
Case title: Naseema Beevi v Ameer Shahul @ Ameer P.S.
Citation: 2023 LiveLaw (Ker) 589
The Kerala High Court recently held that a Sub Court in Kerala has the territorial jurisdiction to try a suit for compensating for a wrong committed in Delhi, since as per the broader interpretation of "wrong done" under Section 19 of CPC, the effects of the wrong justified establishing jurisdiction in Kerala, where the plaintiff resided.
Justice Basant Balaji observed that though the death of the woman took place within the jurisdiction of Courts in Delhi, the effect of that death was felt by the appellant-mother in Kerala who lost her daughter and only earning member of their family.
“In a suit for compensation for wrong done, mere injury or wrong done without anything more would not suffice to sustain claim of compensation. The wrong done cannot be interpreted in a narrow sense but has to be understood in the broader amplitude. It takes in both the act and effect to put it differently, the death of the plaintiff's daughter might have happened in Delhi, but its effect is felt by the plaintiff within the local jurisdiction of the Sub-Court, Nedumangad.”
Case title: Kuthiralamuttam Saji v State of Kerala
Citation: 2023 LiveLaw (Ker) 590
The Kerala High Court has held that power under Section 323 CrPC to commit a case to the Sessions Court after commencement of inquiry/ trial may be invoked by the Magistrate only after recording its reasons by way of a speaking order.
Justice P.V. Kunhikrishnan observed, “Since the words “it appears to him at any stage ..............” is used in Section 323 CrPC, it is clear that when a Magistrate invokes the powers under Section 323 CrPC, the reason for the same should be recorded. In other words, the Magistrate is required to give reason for thinking that the case ought to be tried by the Sessions Court, while invoking Section 323 CrPC. Therefore, according to me, a speaking order is necessary before invoking the powers under Section 323 CrPC.
Case Title: Kurien E. Kalathil v. Federal Bank Ltd. & Ors.
Citation: 2023 LiveLaw (Ker) 591
The Kerala High Court recently held that the determination of whether the bank had knowledge of the amount remaining in the borrower's account at the time of granting the One Time Settlement, and whether the bank could therefore exercise the 'Right of Recompense,' is a matter to be decided by the bank itself.
'Right of Recompense' is a tool used by banks and financial institutions to recover the sacrifice they make on the debts for stressed assets.
Justice Devan Ramachandran observed that any decision to be arrived at by the respondent Federal Bank would have to be edificed on proven factual circumstances, including, whether the Reserve Bank of India (RBI), was aware of the amount in question remaining in credit in the account of the petitioner at the time when One Time Settlement, and if not, whether it was kept away from their information by the latter through covert means.
"This is crucial because, the Right of Recompense can be exercised only in certain specific circumstances, as is well established in law; and until the 3rd respondent assesses these, a decision, akin to the one recorded in Ext.P14, could not have been taken, especially because it concludes that no 'regulatory intervention' by the Reserve Bank is warranted," the Court observed.
Case title: Viju P Varghese v The Cochin Port Trust
Citation: 2023 LiveLaw (Ker) 592
The Kerala High Court recently observed that the unauthorized absence of an employee will be counted as non-duty for all purposes, except for the purposes of pension. Justice Anu Sivaraman added that the treatment of unauthorised absence as "non-duty for all purposes except pension" has a clear implication: it cannot be counted for seniority.
“Ext.P3 order was passed on 08.02.2016 and it was found that the 5th respondent was unauthorisedly absent from 01.05.2015 to 18.05.2015 and penalty of censure was also imposed on the 5th respondent. Further, his absence for that period was found to be unauthorised and treated as “non-duty for all purposes other than pension”.
Case title: Shamsudheen v State of Kerala
Citation: 2023 LiveLaw (Ker) 593
The Kerala High Court has recently held that the Executive Magistrate, Sub-Divisional Magistrate or District Magistrate cannot acquit an accused under Section 256 CrPC while invoking powers under Section 133 to 138 of CrPC by issuing conditional orders for the prevention of nuisance.
Justice P.V. Kunhikrishnan also clarified that the Section 133 proceeding empowered the District, Sub-divisional or Executive Magistrate to issue a conditional order for the removal of nuisance based on a police report or other information, but not based on a complaint.
“In such circumstances, I am of the considered opinion that Section 256 of the Code cannot be invoked by an Executive Magistrate or Sub Divisional Magistrate or District Magistrate, while invoking the powers under Sections 133 to 138 of the Code. The upshot of the above discussion is that Annexure-A7 order passed by the Executive Magistrate closing the case invoking the powers under Section 256 of the Code is unsustainable.”
Case Title: M/S Sama Rubbers & Ors. v. South Indian Bank Ltd. & Anr.
Citation: 2023 LiveLaw (Ker) 594
The Kerala High Court recently held that an order passed in an interim application is appealable before the Appellate Tribunal, under Section 18 of the SARFAESI Act ('Appeal to Appellate Tribunal'). It thus proceeded to declare that Article 227 of the Constitution cannot be invoked by the High Court, when the Tribunal had considered the matter before it in the proper perspective.
Justice K. Babu, reminded that the power under Article 227 of the Constitution could be exercised only when there is grave injustice or failure of justice and when (i) the Court or the Tribunal has assumed a jurisdiction which it does not have (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
"It is trite that whenever the Tribunal has considered the matter in its proper perspective and where the impugned order shows the application of mind by the Tribunal, this Court will not entertain a petition under Article 227 merely because another view could have been taken," the Court observed.
Case title: Ex-Sub Inspector/Exe. Biju K.A. v Additional Director General CISF
Citation: 2023 LiveLaw (Ker) 595
The Kerala High Court recently permitted a CISF personnel who could not report for duty to rejoin duty at ASG Ranchi within ten days since he was in home quarantine after his parents tested positive for COVID-19.
Justice Raja Vijayaraghavan V observed that the respondents had not applied their minds while rejecting the application of the petitioner and that he was in an unusual situation because of which he could not report for duty. It reminded that the power under Article 227 of the Constitution could be exercised only when there is grave injustice or failure of justice and when (i) the Court or the Tribunal has assumed a jurisdiction which it does not have (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
"It is trite that whenever the Tribunal has considered the matter in its proper perspective and where the impugned order shows the application of mind by the Tribunal, this Court will not entertain a petition under Article 227 merely because another view could have been taken," the Court observed.
Case Title: Philip Mathew v P Jayarajan & Connected Case
Citation: 2023 LiveLaw (Ker) 596
The Kerala High Court while quashing the criminal complaint filed against Ex-MLA from Azhikode Constituency KM Shaji for alleged defamatory statements in connection with the Ariyil Shukoor murder case observed that a people's representative merely expressing concern over the conduct of probe cannot be said to be defamation.
The complaint filed two-time member of the Kerala Legislative Assembly and the Kannur District Committee Secretary of CPI(M) P. Jayarajan also named Malayala Manorama Daily's Managing Editor and Publisher for carrying Shaji's statements.
Justice C.S. Dias observed KM Shaji has not made defamatory statements against P. Jayarajan but, being a representative of the people, has only appealed to the Government for a comprehensive investigation into death of Sarish, who was the accused in Ariyil Shukoor murder case. The bench observed, “...Annexures 2 and 3 news items prima facie substantiate that the first accused [Shaji] had only demanded the Government to conduct a comprehensive investigation into the purported suicide of one Sarish, an accused in a murder case, and seriously look into the increasing numbers of murders occurring in Kannur, and he expressed his concern in the accused in such cases, including the complainant, being charged with minor offences. It is to be remembered that the first accused was an elected representative (MLA) of the people of Azhikode constituency , one of the assembly constituencies in Kannur District. Being a representative of the people of his constituency, he appealed to the Government, for and on behalf of the masses, to take strict action against the perpetrators, to deter such persons from indulging in gruesome murders.”
Case Title: Johnson Stephen v. Chinchumol & Anr.
Citation: 2023 LiveLaw (Ker) 597
The Kerala High Court laid down that mere filing of an application by the complainant for compounding of offences alleged does not automatically result in acquittal of accused. Bench of Justice K. Babu noted that Section 320 CrPC categorizes offences into two parts- Under Sub-section (1), certain offences have been listed which can be compounded without the permission of the Court. Under Sub-section (2), certain offences are listed, which can be compounded only with the permission of the Court.
The judge explained that composition of a compoundable offence under Section 320(1) Cr.P.C. would be complete as soon as the Court accepts it upon being satisfied that the composition is voluntary, genuine and true. The same would have the effect of acquittal of the accused even if the person by whom offence may be compounded later resiled from the composition. However, as regards the offences which are compoundable only with the permission of the Court, as under Section 320(2), the composition would not have any effect unless and until the Court grants such composition.
Case title: Mukesh v State of Kerala
Citation: 2023 LiveLaw (Ker) 598
Citing prolonged incarceration of over a year, the Kerala High Court has granted bail to a man who allegedly attacked a woman for rejecting his marriage proposal by using a chopper and explosives, leading to loss of her four fingers.
Justice Bechu Kurian Thomas granted bail to the accused who has been in jail since June 28, 2022 and observed that further detention would amount to conviction without trial. “Petitioner was arrested on 28.06.2022 and has been in jail since then. Though the allegations are serious in nature and the petitioner has a history of having absconded earlier, I am of the view that, considering the long period of detention already undergone, further detention would amount to conviction without trial. Since, it is submitted that, the case is already pending before the Sessions Court and is posted for hearing of the charge on 15.11.2023, I am of the view that, further detention ought not to be permitted.”
Case title: Justin O.S v The Kerala State Road Transport Corporation
Citation: 2023 LiveLaw (Ker) 599
The Kerala High Court has dismissed the plea moved by a private contract carriage operator against the Tour package services offered by the Kerala State Road Transport Corporation using its stage carriages.
Justice Dinesh Kumar Singh said these buses have special area permits to run and operate tour packages under the superclass scheme which was formulated by the state government by notification dated July 16, 2013 for promoting tourism in the State. The bench observed, “It is not in dispute that the KSRTC buses which are employed for conducting the tour packages had special area permits under the scheme. The petitioner cannot be granted a permit under the scheme for the services for which the scheme has been promulgated, and the exclusive right is of the KSRTC to offer special services under the scheme. Under the area permit, the KSRTC employs its buses for conducting the tour packages. The area permits are special permits as provided under subsection (8) of Section 88 of the MV Act.”
Case Title: K. Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 600
The Kerala High Court categorically held that admission of confessional statements made by accused to the Police, which are hit by bar under Sections 25 (Confession to police officer not to be proved) and 26 (Confession by accused while in custody of police not to be proved against him) of the Evidence Act, can vitiate a trial and lead to the acquittal of the accused.
The Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath criticized the practice of trial courts in continuing to accept entire confession statements of the accused, despite several Supreme Court precedents discouraging this practice.
"The breach of a statutory provision that is designed to protect a citizen from self incrimination and arbitrary deprivation of life and personal liberty must necessarily have serious consequences for the prosecution. Constitutional safeguards cannot be rendered a teasing illusion by the very State that is obliged to uphold them," the Bench observed.
Case Title: D. Ieda Bhai & Ors. v. K. Ashokan & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 601
The Kerala High Court has laid down that employees cannot claim promotion in his former service for the purpose of reckoning seniority long after the integration of service.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen were of the considered view that any claim regarding promotion in the former service ought to be raised at the time of integration of service, and cannot be done after the same.
"If the process of integration did not provide any room for raising such a claim, the employee cannot sleep over the right to claim and thereafter wake up from the sleep to raise such claim indirectly through another door of his former service. Whatever the claim the employee had at the time of integration ought to have been raised when he entered into the new integrated service. Baggage left in the former service cannot be retrieved through a backdoor entry to open a new door in integrated service. If the claim is not made at the time of integration in relation to any right available in the former service, that right is forgone and foreclosed," the Bench observed.
Case title: M/S New India Assurance Company Ltd v Vijayan
Citation: 2023 LiveLaw (Ker) 602
The Kerala High Court recently upheld a Motor Accident Claims Tribunal award, granting compensation of Rs.3,18,700 and interest to the children of the deceased mother who died by suicide following a motor accident.
Justice Mary Joseph observed that the deceased suffered head injuries from the accident and was undergoing disappointment and mental dejection since she felt she would not recover from her physical condition. “Based on the medical evidence discussed above and the records with reference to the criminal case registered, it can safely be concluded that the victim committed suicide due to her mental dejection and disappointment resulted from the serious injuries sustained in the motor accident. Or in otherwords, the ultimate cause of death of Mrs.Santha can be taken as the motor accident met with by her.”
Case Title: Ramachandran & Ors. v. Harrisons Malayalam Ltd.
Citation: 2023 LiveLaw (Ker) 603
The Kerala High Court recently refused to condone a delay of 3,366 days in filing an appeal against the judgment and decree passed by a Munsiff Court in a civil suit.
Justice A. Badharudeen, refused the condonation of delay on taking note that no sufficient reasons had been adduced warranting the same.
"It is true that 'sufficient cause' is the decisive factor while condoning the delay. Though it has been settled that liberal view should be taken while condoning delay, it is equally settled that when the delay sought to be condoned on account of any dilatory tactics without bonafides, with deliberate inaction or negligence, such a concession also is not possible," the Court observed.
Case Title: K.B. Ganesh Kumar v. State of Kerala
Citation: 2023 LiveLaw (Ker) 604
The Kerala High Court dismissed the plea filed by MLA K.B. Ganesh Kumar seeking to quash the case against him in connection with alleged conspiracy involved in naming late Congress leader and former Chief Minister of the State, Oommen Chandy, in the solar sexual assault case.
The case is pending before court of Judicial First Class Magistrate (JFCM) at Kottarakkara.
"Serious allegations are raised against the petitioner who is a Member of the Legislative Assembly by the 2nd respondent in which conspiracy is also alleged stating that the petitioner hatched a conspiracy with the 1st accused to implicate the former Chief Minister of Kerala Sri.Oommen Chandi. The former Chief Minister has passed away. Such an allegation should not be in the air because his soul will not forgive the same. The continuation of this case is necessary not only for the soul of the former Chief Minister and his bereaved family, but also to prove the integrity of the petitioner too, Justice P.V. Kunhikrishnan observed.
Case title: K V Anilkumar v State of Kerala
Citation: 2023 LiveLaw (Ker) 605
The Kerala High Court quashed the criminal proceedings against a petitioner for allegedly employing a 14-year-old child for construction work of a railway platform at Ettumanoor Railway Station.
Justice K. Babu observed that an offence under Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 can be made out only when the prosecution has proved that the juvenile was procured for hazardous employment and that he was kept in bondage without paying him adequate wages or salary.
“In the present case, the prosecution has failed to bring forth those ingredients. The resultant conclusion is that the prosecution failed to make out the offence under Sec.26 of the Act. Therefore, the entire proceedings pursuant to the registration of FIR No. 48/2013 of Railway Police Station, Kottayam, which is now pending before the Judicial Magistrate of First class-I, Ettumanoor as C.C No. 2597/2017, are liable to be quashed. I order so.”
Kerala High Court Grants Anticipatory Bail To Lawyers Accused Of Sexually Abusing Client
Case Title: X & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 606
The Kerala High Court recently granted anticipatory bail to two lawyers accused of raping and sexually abusing their client on multiple occasions. Justice Gopinath P. passed the order, on taking note of the fact that while the victim/de facto complainant averred that she had been sexually abused from the moment she had first approached the 1st petitioner to entrust her case, the complaint in this regard had been filed only in June, 2023.
"A cumulative reading of all the complaints preferred by the de facto complainant / victim would indicate that she was abused right from the time she had first approached the 1st petitioner seeking his professional help. However, the first complaint seems to have been filed only on 30-06-2023. While this itself may not be fatal to the prosecution case, it lends credence to the argument of the learned counsel for the petitioners that the de facto complainant / victim had actually filed a complaint being aggrieved by the fact that she had not received sufficient compensation in the proceedings before the Family Court," the Court observed.
Case title: Vijay Kirgandur v State of Kerala & connected cases
Citation: 2023 LiveLaw (Ker) 607
The Kerala High Court has quashed the criminal case registered against the producer, direcotr, distributor and music director of the Kannada superhit film "Kantara" under the Copyright Act over the alleged plagiarism of 'Navarasam' song of Thykkudam Bridge band as "Varaharoopam" song in the movie. The High Court quashed FIR registered under Section 63 of the Copyright Act, 1957 in view of the settlement between the petitioners (Kantara makers) and Mathrubhumi Printing and Publishing Ltd., the complainant in the case who holds the copyright over the "Navarasam" song.
Justice P.V.Kunhikrishnan quashed all the criminal proceedings against the producer of the film, Vijay Kirgandur; director of the film, Rishabh Shetty; distributor of the film in Kerala, Prithviraj Sukumaran and composer of the song, Ajaneesh Loknath as all the disputes were settled between the parties based on a settlement agreement.
Case Title: M/S. South Coast Spices Exports Pvt. Ltd Versus PCIT
Citation: 2023 LiveLaw (Ker) 608
The Kerala High Court has upheld the proceedings under Section 153C of the Income Tax Act and noted that there is no requirement to have a DIN number in the satisfaction note recorded by the Assessing Authority. The bench of Justice Dinesh Kumar Singh has dismissed the writ petition and stated, “It cannot be said that the impugned notices and assessment orders are without jurisdiction as submitted by the learned counsel for the petitioner.”
Case Title: J.C. Daniel Foundation & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 609
The Kerala High Court has suggested the establishment of a database of societies registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act ('TC Act'), so that the District Registrars can avoid any dispute regarding names and other particulars between registered societies, and those seeking registration under the Act.
The Court made the above recommendation in a plea filed by the J.C. Daniel Foundation, Kowdiar, Trivandrum, which is a registered society under the TC Act, alleging that J.C. Daniel Foudation, Perumbayikode, Kottayam, and J.C. Daniel Foundation, Palayam, Thiruvananthapuram were also registered under the Act with the same name.
Case title: Leela v M.K. Sukumaran
Citation: 2023 LiveLaw (Ker) 610
The Kerala High Court by relying upon the Apex Court decision in Param Pal Singh v. National Insurance Co. Ltd and another (2013) held that the death of a driver due to heart attack would amount to an accident arising out of and in the course of his employment as drivers were subjected to long years of stress and strain. Justice PG Ajithkumar by relying upon the Apex Court decision observed that an employer was liable to compensate the kin of deceased employee even if the deceased was not actually driving the vehicle while he was having heart attack.
Case Title: Popular Motor Corporation v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 611
The Kerala High Court has reiterated that in a complaint filed under Section 138 of the Negotiable Instruments Act (NI Act), by a company/firm, a power of attorney holder or authorized representative can depose on behalf of the complainant, and that it would be sufficient to demonstrate before the Magistrate that the complaint has been filed in the name of the 'payee'/'complainant', and the authorization as well as the contents of the complaint, are within the knowledge of such power of attorney holder/authorized representative.
Justice C.S. Dias arrived at the above finding when faced with the question as to whether the directions issued in Narayanan. A.C v. State of Maharashtra (2013) would be strictly applicable in a complaint filed under Section 138 of the NI Act by a power of attorney of a company/firm in view of the subsequent decision in M/S TRL Krosaki Refractories Ltd. v. SMS Asia Pvt. Ltd. & Ors. (2022).
Case title: Rajan P v State of Kerala
Citation: 2023 LiveLaw (Ker) 612
The Kerala High Court has held that a person belonging to the Hindu Maravar Community, whose domicile was in Tamil Nadu cannot claim the benefit of OBC reservation after migration to Kerala because Hindu Maravar Community is not recognized as an OBC category in Kerala.
The Court was considering a writ petition filed by the petitioner who challenged the appointment of the 4th respondent to the post of Junior Scientist at Kerala Forest Research Institute based on OBC reservation. Justice Raja Vijayaraghavan V observed that the 4th respondent was not entitled to claim the benefit of OBC reservation as Hindu Maravar Community does not belong to the OBC category in Kerala.
“In view of the principles laid down above, the 4th respondent, who would not satisfy the criteria of being an OBC in the State of Kerala, would not qualify for the 10th turn, which has been set apart for an OBC. The Hindu Maravar Community does not hold recognition or inclusion as an OBC category in the State of Kerala. In that view of the matter, the selection of the 4th respondent on the ground that he is a member of the OBC community is clearly illegal.”
Case Title: Mohamed v. Kunhalankutty & Ors.
Citation: 2023 LiveLaw (Ker) 613
The Kerala High Court recently pondered upon the question as to how far a Muslim could dispose of their properties by Will. Interpreting Paragraphs 117 and 118 of the Mulla's Principles of Mahomedan Law, which provides for 'Bequests to Heirs' and 'Limit of Testamentary Power' respectively, the Single Judge Bench of Justice A. Badharudeen explained that,
"...the power of a Mahomedan to dispose of his property by Will is limited in two ways. Firstly, as regards the persons to whom the property may be bequeathed, and, secondly, as regards the extent to which the property may be bequeathed. The only case in which a testamentary disposition is binding upon the heirs is where the bequest does not exceed the legal third and it is made to a person who is not an heir. But a bequest in excess of the legal third may be validated by the consent of the heirs; similarly, a bequest to an heir may be rendered valid by the consent of the other heirs. The reason is that the limits of testamentary power exist solely for the benefit of the heirs, and the heirs may, if they like to forgo the benefit by giving their consent. For the same reason, if the testator has no heirs, he may bequeath the whole of his property to a stranger: (see Baillie, 625)"
Case title: State of Kerala v P.K Radhakrishnan
Citation: 2023 LiveLaw (Ker) 614
The Kerala High Court held that after a government servant has retired from service and the proceedings primarily become about loss recovery, disciplinary proceedings under Rules 15 and 16 of KCS (CC&A) Rules are no longer applicable. Instead, Rule 3, Part III of the Kerala Service Rules applies, although it governs the recovery of losses from a pensioner found guilty of misconduct during their service.
Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen added that the new proceedings must conform to Rule 3 with a requisite adherence to the principles of natural justice: “However, in the light of the fact that the proceedings have been confined to the recovery of loss as the respondent had retired from the service, the proceedings already initiated under Rules 15 and 16 of KCS (CC&A) Rules would vanish and the proceedings will have to be in accordance with the Rule 3 part III of the Kerala Service Rules (for short, 'KSR').”
Case title: Alfa One Global Builders Pvt. Ltd. V Nirmala Padmanabhan
Citation: 2023 LiveLaw (Ker) 615
The Kerala High Court has made it clear that an appeal before division bench under Section 5 of the Kerala High Court Act, 1958 is not maintainable against a single judge's order in a writ petition where the relief sought was merely to exercise inherent powers under Section 482 CrPC.
The provision states that an appeal shall lie to a bench of two judges from the order of a single judge who was exercising original jurisdiction under Article 226 of the Constitution. Court said where the writ jurisdiction was invoked merely to seek relief under Section 482 CrPC, an appeal under Section 5 will not lie.
In the instant case, the appeal was filed under Section 5 (i) of the Kerala High Court Act, against the order of a single judge in a criminal writ petition under Article 226 read with Section 482 of CrPC. A Division bench comprising Chief Justice A.J. Desai and Justice V.G. Arun, dismissed the writ appeal and observed thus: “Considering the above-referred decisions of the Hon'ble Division Bench of this Court as well as the Hon'ble Apex Court, we are of the view that appeal would not lie against the impugned judgment where the learned single Judge has refused to exercise the inherent powers under Section 482 of the CrPC for quashing of a criminal case filed against the appellants. Hence, the appeal is dismissed only on the ground of maintainability.”
Case Title: Nijesh Chandran & Ors. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 616
The Kerala High Court refused to grant anticipatory bail to three persons who had allegedly cheated a woman by putting up a fake profile on a matrimonial website.
The prosecution allegation was that the 1st petitioner who is a 38 year old man who is already married, had put up a matrimonial profile claiming himself to be a doctor, and had gone to the house of the de facto complainant with his wife and mother (2nd and 3rd petitioners herein), under the pretext of fixing marriage with the de facto complainant.It is alleged that the 1st petitioner had thereafter obtained 150 sovereigns of gold from the de facto complainant, by convincing the latter that he required money urgently for the medical treatment of his father, whereafter he pledged the same, and obtained loan. Justice Gopinath P. was of the considered view that the plea for anticipatory bail could not be granted in light of the clear allegations against the respondents.
Case title: Balamuraly G v Vinod T R
Citation: 2023 LiveLaw (Ker) 617
The Kerala High Court has clarified that when concurrent revisional jurisdiction is available under Section 397 CrPC to approach the High Court as well as the Sessions Court, it is just and appropriate to first approach the Court of the lowest forum, that is, the Sessions Court. The Court was quick to add this does not mean that there is any bar in approaching the High Court first, without exhausting the remedy before the Sessions Court.
Justice P.G. Ajithkumar has relied upon the Full Court decision in Sivan Pillai v. Rajamohan and others (1978) to state it is prudent to invoke the jurisdiction of the lowest forum first before approaching the High Court when concurrent remedy was available under Section 397 CrPC. The Court noted parties might be located in the Sessions Division concerned and thus it would be easier to issue notice to the accused who might be residing within the jurisdiction of the Sessions Court.
Case Title: Thomas Abraham & Ors. v. The Mission Director & Anr.
Citation: 2023 LiveLaw (Ker) 618
The Kerala High Court quashed the order issued by the District Programme Co-ordinator of the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) terminating the services of six Quality Monitors for unsatisfactory work.
Justice Raja Vijayaraghavan V noted that the impugned order had been passed merely on finding that the performance was unsatisfactory, without any data being placed before the authority substantiating the same. "No order of an administrative authority communicating its decision is rendered illegal on the grounds of absence of reasons ex-facie, and it is not open to the court to interfere with such orders merely on the grounds of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same," the Court observed.
Case Title: M/S. Global Plasto Wares Versus Assistant State Tax Officer
Citation: 2023 LiveLaw (Ker) 619
The Kerala High Court has held that the penalty is payable on failure to deposit the tax collected by him within a period of thirty days from the due date of the payment of the tax.
The bench of Justice Dinesh Kumar Singh observed that in Sub-sections 6, 8, and 9 of Section 73 of the GST Act, 2017, it is provided that if a person chargeable to tax fails to deposit the tax collected by him within a period of thirty days from the due date of the payment of such tax, Sub-section 8 will not have any effect, and such a person is liable to pay a penalty.
Case Title: Gireeshkumar T.M. & Ors. v. State of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 620
The Kerala High Court laid down that the Kerala Public Services Commission cannot alter its previous stance and subsequently admit candidates with higher qualifications for the post of Lower Division Clerk (LDC) in the Kerala Water Authority.
The petitioners in the present writ petitions were aggrieved by the inclusion of candidates who do not have the prescribed qualifications, but higher qualifications, as per the notification to the post of LDC, in the rank list published by the Public Service Commission (PSC). Justice Raja Vijayaraghavan V. observed, “it is imperative to recognize that the Public Service Commission, having steadfastly maintained a particular stance in the earlier proceedings and vigorously objected to the acceptance of candidates with advanced qualifications, cannot justifiably alter its stance by subsequently admitting individuals with higher qualifications. Such a reversal of position, if sanctioned, holds the potential to reopen previously concluded judgments of the Court. This not only raises concerns regarding the abuse of the judicial process but also carries significant ramifications for the overall administration of justice."
Case Title: Joseph George v. Cochin Devaswom Board & Ors.
Citation: 2023 LiveLaw (Ker) 621
The Kerala High Court upheld the order issued by the Special Devaswom Commissioner of the Cochin Devaswom Board denying permission to the proprietor of 'Appu Pathu Pappu Production House' from shooting a few scenes of the film 'PANI' on the ground of Sree Vadakkunnathan Temple in Thrissur.
The Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed, “Any permission granted for film shooting in the parking area of the Kshethra Maidan or near the roads leading to Sree Vadakkunnathan Temple from 'Manikandanaal' area, parking area, etc., will result in the movement of the devotees through those roads leading to the temple being restricted or regulated by the members of the production unit or even by 'bouncers' engaged by the production units in film shooting sites. Therefore, the Cochin Devaswom Board cannot grant permission for any such activities in Sree Vadakkunnathan Kshethra Maidan.”
Case title: Advocate Rajesh Kumar C v Prasad M Cherian
Citation: 2023 LiveLaw (Ker) 622
The Kerala High Court has held that writ jurisdiction cannot be invoked under Article 226 of the Constitution to challenge disputed questions of fact concerning election to the Managing Committee of a Society.
Justice N. Nagaresh relied upon various judicial precedents and observed that factual disputes regarding election to the Managing Committee of a Society have to be settled by a Co-operative Arbitration Court under Section 69 of the Kerala Co-operative Societies Act, 1969.
Case Title: George Varghese v. Treesa Sebastian & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 623
The Kerala High Court has laid down that the Family Court has the jurisdiction to entertain a petition seeking reliefs under the Protection of Women from Domestic Violence Act, 2005.
"What is discerned from the provisions of Section 12 is that an aggrieved person is free to elect any of the reliefs. The legislature in the wisdom has framed the Act by taking into consideration the doctrine of election. The parties are free to elect either a remedy under Section 12 or reserve the right to claim other reliefs as provided under Sections 18, 19, 20 and 21 in the manner and mode as has been done. The plain and simple reading of the provisions of Section 26 left the question clear and unambiguous that a party seeking a claim under any provisions of the civil or criminal court much less a family court can always claim relief in addition as provided under Sections 18, 19, 20, 21 and 22 of the Act," the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha explained
Maintenance Application Under Chapter IX CrPC Cannot Be Dismissed For Default: Kerala High Court
Case title: Elon Christ Stephen v Steaphen Antony Venasious
Citation: 2023 LiveLaw (Ker) 624
The Kerala High Court considered whether an application filed for maintenance allowance under Chapter IX of CrPC can be dismissed for default (non-appearance of party seeking maintenance). Chapter IX, Section 125-128 of CrPC contemplates Order for Maintenance of Wives, Children and Parents.
Justice C.S. Dias observed that Magistrate has no implicit power to dismiss an application filed under Chapter IX CrPC for default summarily. In the facts of the case, the application was dismissed for non-representation of the petitioner-minor son who was appearing through his mother for claiming maintenance from the respondent-father.
Case Title: E.K. Anil v. Tahasildar & Ors.
Citation: 2023 LiveLaw (Ker) 625
The Kerala High Court has held that where separate buildings are constructed, albeit for for a common purpose, the buildings would have to be assessed separately for the purposes of building tax, if the same are structurally different.
Perusing Section 5 of the Kerala Building Tax Act, 1975, (hereinafter, the 'Act, 1975'), which provides that the plinth area has to be assessed on every building, the construction of which is completed, Justice Shoba Annamma Eapen observed: "For assessment of building tax, if structures are different, the buildings have to be assessed separately and the only exception is that it should not be an appurtenant building for more enjoyment of the main building".
Case Title: Prajila M. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 626
The Kerala High Court called upon the State Government and the Kerala Sports Council (KSC) to provide assistance to a young professional handball player, who had been injured during the Junior Girls National Handball Championship. The young handball player, who belonged to a middle class family, and suffere from a ligament tear, had approached the player, who belonged to a middle class family, and suffere from a ligament tear, had approached the KSC for financial aid, stating her grievance that her future as a handball player would be jeopardized without the same.
Justice Devan Ramachandran was of the considered opinion that the State authorities ought to provide necessary assistance to the sports professional, since a vibrant society requires not just persons in academic and service pursuits, but also athletes and sportspersons inclucated with a robust sporting culture.
Case title: Jose v State of Kerala
Citation: 2023 LiveLaw (Ker) 627
"Jail is not a place to show the physical strength of jail officials," the Kerala High Court observed while hearing a plea filed by the convicted prisoners of Viyyur Central Prison at Thrissur alleging that the Deputy Superintendent of Jail along with other officers brutally manhandled and caused serious injuries to them.
Justice P.V. Kunhikrishnan directed that an independent inquiry has to be conducted by the State Crime Branch and disciplinary proceedings can also be initiated against the officials responsible for this.
Case title: Binoy Paulose v Union of India
Citation: 2023 LiveLaw (Ker) 628
The Kerala High Court has made it clear that the jurisdiction of writ court cannot be invoked against decisions of lending institutions like banks unless there were compelling reasons such as violations of rules, regulations or statutory provisions. The petitioner had approached the writ court against the decision of the bank rejecting his request for restructuring of the loan.
Justice K.Babu observed that the bank has rejected the request of the petitioner for restructuring of the loan after considering the viability of his proposal. “It is trite that lending has always been the discretion of lending institutions on broad parameters. This Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, cannot replace the wisdom of the lender/banker in the process of lending unless there are compelling reasons, in a sense that there are all-around violations of the rules and regulations or any of the statutory provisions in this regard.”, Court observed.
Case Title: Roli Pathak v Union of India
Citation: 2023 LiveLaw (Ker) 629
The Kerala High Court has expressed empathy towards the volleyball players who could not participate in the National Games, 2023 due to internal rifts in the administration of the Volleyball Federation of India (VFI). The Adhoc Committee of VFI decided to cancel the Volleyball championship in the 37th National Games of India, 2023 due to the internecine disputes within the Federation.
Prior to the formation of the VFI, the game was controlled by the Indian Olympic Association (IOA). IOA is the governing body, responsible for regulating the National Games.
Justice Devan Ramachandran observed that the IOA should have resolved the disputes within the Federation rather than cancelling the Volleyball Championship in the National Games.
“In the afore scenario, this Court can do nothing more than to hold empathy for the situation of the petitioners; but before parting, it is necessary to say that, in the interest of the game, the Indian Olympic Association ought to have resolved the disputes within the 'Federation', keeping in mind the schedule of National Games and without disturbing it; but alas, this has not been done, but they appear to have chosen the easier path of cancelling the competition in Volleyball itself.”
Case Title: Shibu J v State of Kerala
Citation: 2023 LiveLaw (Ker) 630
The Kerala High Court held that seizure mahazar, once prepared and sent to the Court by police or other officers becomes a public document. It noted that a certified copy of seizure mahazar cannot be denied to the accused as he might need it to mould and understand his case at the stage of bail application itself.
Justice P.V.Kunhikrishnan observed thus: “I am of the considered opinion that, once the seizure mahazar is prepared and sent to the court, it is a public document. There is no bar in issuing a certified copy of the seizure mahazar to an accused especially because the same is necessary for him to mould his case at the stage of filing the bail application also.”
Case Title: Mathrubhumi Printing & Publishing Co. Ltd v State of Kerala
Citation: 2023 LiveLaw (Ker) 631
The Kerala High Court recently considered whether some 'area' used in relation to a factory can be given exemption from payment of the building tax under Section 3(1)(b) of the Kerala Building Tax Act 1975. Section 3 (1)(b) provides that buildings principally used for religious, charitable or educational purposes or as factory or workshop can be exempted from building tax.
Justice Dinesh Kumar Singh observed that the term 'principally' under Section 3(1)(b) means 'predominantly' and held if the building was predominantly used as a factory, then remaining area used for ancillary purposes of the factory would also be exempted from payment of building tax.
“The authority has to assign the correct meaning to the word 'principally'. In my view, 'principally' means predominantly. If the predominant purpose is running the factory, the area in which ancillary purposes related to the factory are being carried out is also liable for exemption under Section 3(1)(b) of the Act.”
Case Title: XXX & Anr. v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 632
The Kerala High Court allowed the medical termination of a 32-week pregnancy of a woman.
The parents-to-be had approached the Court seeking termination of pregnancy on the ground that the unborn child was suffering from severe neurological and respiratory abnormalities, as revealed from medical reports, and that even if the pregnancy was allowed to be continued, the child would have serious complications which would not allow it to lead a normal life.
Justice Devan Ramachandran also took note that the expectant mother, who is the 1st petitioner herein, had a history of depression."I am of the firm view that taking note of the mental health of the mother, which is vital to a child if it is to be born alive, and respecting her autonomy with respect to her physiological and psychological requirements, I deem it appropriate to allow this writ petition," the Court observed.
Case Title: Shoma G. Madan & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 633
The Kerala High Court has laid down that in order to satisfy the definition of 'fraudulently' it would be sufficient to if there was a non-economic advantage to the deceiver or a non-economic loss to the deceived, and that both elements need not co-exist.
The Single Judge Bench of Justice K. Babu clarified that the expression 'defraud' involves two elements, namely, deceit and injury.
Relying upon the decision in Dr. Vimla v. The Delhi Administration (1963), the Court observed:
"Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rarecases where there is a benefit or advantage to the deceiver but no corresponding loss to the deceived, the second condition is satisfied".
Case Title: Deepak K. v The Kerala State Election Commission & connected case
Citation: 2023 LiveLaw (Ker) 634
The Kerala High Court held that defection is a menace to the Indian representative democracy and that the existing laws were ineffective in curbing defection effectively.
Justice Bechu Kurian Thomas noted that despite anti-defection laws, many persons commit acts of defection. Taking into account the nature of orders that can be issued against defectors under the existing laws, Justice Thomas held that stringent financial penalties have to be imposed. It observed that only financial penalties will affect the defectors and deter them from committing acts of defection.
“Once an elected representative is found disqualified due to defection, the burden on the exchequer is immense due to the inevitable bye-elections. However, the person responsible for such nefarious activity is not affected seriously due to the nature of the orders that can be issued under the existing law. Considering the entire scenario, this Court has a wishful thinking that the time has come to contemplate on including stringent financial penalties for acts of defection. Unless a monetary pinch is felt by the defector, the evil acts that are sought to be remedied by the anti-defection law will continue. However, as it is a matter that requires a legislative exercise, this Court fervently hopes that the legislature will bestow its consideration earnestly.”
Case Title: Pattakka Suresh Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 635
The Kerala High Court has called for the integration of technology in the criminal justice dispensation system in order to permit two life convicts to attend LL.B. classes in the online mode for the academic year 2023-24.
The Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath, emphasized upon the importance of education in reforming and rehabilitating prisoners.
"...a convict is entitled to basic human rights and has the right to live with dignity in jail. The prisoners' right to education is a human right grounded in the right to dignity. A prisoner has as much a right to pursue study as a person free from the confines of jail. The aims of imprisonment include reformation and rehabilitation apart from deterrence. Education can contribute to a sense among prisoners that they remain a part of the wider community. Prison education can provide a source of hope and aspiration whilst making purposeful use of time in detention. It also helps them lead better lives once they are free. Thus, ensuring that prisoners have access to education is essential to achieving the reformative and rehabilitative objectives of imprisonment as well," the Bench observed.
Case Title: State of Kerala & Ors. v. Binoj K.B. & Ors.
Citation: 2023 LiveLaw (Ker) 636
The Kerala High Court partially quashed the Order of the Single Judge calling for the conduct of raids in all religious places by District Collectors, and taking into possession firecrackers alleged to be illegally stored therein, with the assistance of the Commissioners of Police.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun, however added that the ban imposed by the Single Judge against the bursting of crackers at 'odd times' would be retained.
The Court clarified that firecrackers could be burst between 6AM to 10 PM in accordance with the directions issued by the Apex Court in other cases in this regard, and that the District Administration could take a call on the bursting of crackers during odd hours on a case-to-case basis.
Case Title: Sunil Kumar @ Rakkan v State of Kerala and connected matter
Citation: 2023 LiveLaw (Ker) 637
The Kerala High Court has made it clear that to establish an offence of criminal trespass under IPC, the prosecution must prove beyond doubt that the accused persons entered into the property to commit criminal trespass with an intention to commit any offence or to cause intimidation, insult or annoyance.
Justice C.S. Dias thus acquitted two persons who were convicted for the commission of the offence of criminal trespass, citing lack of above ingredients.
“...the accused had no intention to commit any offence or intimidate, insult or annoy PW1 when they entered his house. The prosecution has miserably failed to establish beyond doubt that the accused had entered the property with an intention to commit the offence. Therefore, the revision petitioners/accused are entitled to the benefit of doubt.”
Case Title: Vishnu v State of Kerala
Citation: 2023 LiveLaw (Ker) 638
“There cannot be a unilateral decision from the Court alone while scheduling trial”, the Kerala High Court said adding that the convenience of the lawyer should also be taken into consideration by the Court while fixing a date for the trial.
Justice P.V. Kunhikrishnan observed that when lawyers make genuine submissions for rescheduling the trial to another date, the Court should show magnanimity to accept it and schedule the trial as requested by them, after considering the convenience of the court also.
“There cannot be a unilateral decision from the Court alone while scheduling trial. Accused has got a right to choose his lawyer for conducting the trial and hence the convenience of the lawyer also should be taken care of by the Court. But, the submission of the lawyer should be genuine. Whether the submission of a lawyer for getting a date for trial is genuine or not is to be decided by the Court at the stage of scheduling the trial. If the submission of the lawyer of the accused or prosecution is genuine, the Court should be magnanimous to accept it and schedule the trial as requested by them after considering the convenience of the Court also.”
Case title: Lilly Krishnan v State of Kerala
Citation: 2023 LiveLaw (Ker) 639
Relying on the Supreme Court's landmark decision in Dheeraj Mor v. High Court of Delhi (2020), the Kerala High Court has held that a Munsiff Magistrate Trainee cannot be appointed as a District Judge by direct recruitment in the quota set apart for lawyers.
It has clarified that only a practising advocate who was continuing practise even as on the date of appointment is eligible to be appointed to the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar.
A division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar thus denied relief to a Munsiff Magistrate Trainee, whose candidature for the post of District Judge was rejected on the ground that she was not a 'practising advocate' on the date of application.
Case Title: Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 640
The Kerala High Court recently held that the remedy in case of a tree standing dangerously on any property would be before the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973.
Justice Bechu Kurian Thomas explained that the writ jurisdiction under Article 226 of the Constitution could not be invoked for the said purpose.“The jurisdiction under Article 226 of the Constitution of India cannot be invoked for the purpose of directing cutting and removal of trees, especially since there is no basic order that has been produced to exercise such a jurisdiction or to allege inaction,” the Court explained.
Case Title: Shijo Das v. State of Kerala
Citation: 2023 LiveLaw (Ker) 641
The Kerala High Court laid down that the absence of specimen seal in the mahazar and forwarding note, non-mentioning of the name of the Excise Guard in the forwarding note, non-examination of the clerk who despatched the sample or the Excise Guard who took the sample to the lab, and so on are serious laches which would be fatal to the prosecution in a case under the Abkari Act.
"Absence of proper impression of specimen seal in the mahazar and absence of sample seal in the forwarding note etc. are circumstances to doubt the identity of the sample seized and the sample sent for chemical analysis. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused, was the sample which reached the hands of the chemical examiner", Justice Sophy Thomas explained.
Case Title: Sreeja @Sini v State of Kerala
Citation: 2023 LiveLaw (Ker) 642
The Kerala High Court has ordered release of a woman detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA Act), considering that her daughter is at an advanced stage of her pregnancy.
The Division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen said normally courts do not interfere in detention orders, but it is not devoid of such power when fundamental rights are involved.
“In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior right available to such person on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified.”
Case Title: Raveendranath V State of Kerala
Citation: 2023 LiveLaw (Ker) 643
The Kerala High Court recently acquitted an accused under the NDPS Act citing prosecution's failure to produce alleged written communication made to him regarding his right to be searched before Magistrate under Section 50 of the Act and his alleged written consent waiving such right.
Justice N. Nagaresh held that failure on the part of the prosecution to produce communication or consent letter obtained in compliance with Section 50 caused prejudice to the accused. The Court added that the evidence of illicit narcotic drugs / psychotropic substances recovered by the police in violation of the safeguards provided under Section 50 of the NDPS Act cannot be relied upon to convict the accused.
“…The prosecution further stated that the appellant had given his consent to dispense with the presence of gazetted Officer / Magistrate during search, that also in writing. If such communications in writing existed, the prosecution ought to have produced the same before the court. The non- production of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified. In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble. In the afore facts of the case, I find that failure of the prosecution to produce Section 50 communication / information before the court has seriously prejudiced the appellant and conviction of the appellant cannot be justified under the circumstances.”
Case Title: Mahesh Mohan v. Indian Institute of Management, Kozhikode & Anr.
Citation: 2023 LiveLaw (Ker) 644
The Kerala High Court recently held that Indian Institute of Management (IIM), Kozhikode would have to follow the reservation policy stipulated under the Central Educational Institutions (Reservation and Admission) Act, 2006 ('Act, 2006'), for admission to Ph.D. Practice Track Course.
The Court noted that the proviso to Section 8 of the Indian Institute of Management Act, 2017, says that every Institute shall be a Central Education Institution for the purposes of the Central Educational Institutions (Reservation and Admission) Act, 2006.
"There can hence be no dispute that the 2006 Act will apply insofar as the admissions to the Indian Institute of Management are concerned," the Court observed.
Rejecting IIM's argument that the provisions of the Act, 2006 as regards reservation would apply only to cases where there is an annual permitted strength, which is identified earlier and not in case of Ph.D.(PT) for which there is no annual permitted strength prescribed, Justice T.R. Ravi, observed:
"The requirement of reservation under the enactment cannot be defeated by not prescribing the number of seats that are permitted to be filled up for a particular course in a particular year. If there is no annual permitted strength as contended, the only manner in which the provision can be understood is the total number of seats that are sought to be filled up in a particular year is the annual permitted strength".
Sabarimala Temple : Kerala High Court Dismisses Plea Challenging Melsanthi (Chief Priest) Selection
Case Title: Madhusoodanan Namboothiri V State Of Kerala
Citation: 2023 LiveLaw (Ker) 645
The Kerala High Court dismissed a writ petition filed challenging the selection of the Melsanthi (Chief Priest) of Sabarimala Temple for the year 2023-24 alleging foul play.
The Division bench comprising Justice Anil K. Narendran and Justice G. Girish viewed video clippings of the selection process shown by Asianet News as well as CCTV footage from the camera installed in the Temple during the hearing. Taking note of the fact that large number of persons were inside the 'Sopanam enclosure' infront of the Sabarimala Temple while drawing lots for the selection of Melsanthi, the Court directed that entry of persons will be limited.
“However, the entry of persons to the 'Sopanam enclosure' of Sabarimala Sree Dharma Sastha Temple, at the time of draw of the lots shall be confined to the Special Commissioner, Sabarimala, the President of Travancore Devaswom Board (in his absence, a Member of the Travancore Devaswom Board), the Devaswom Commissioner and the Observer appointed by this Court.”
Case Title: Divya S.S Rose v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 646
The Kerala High Court has quashed the proceedings under Prevention of Corruption Act initiated against a Range Officer at Social Forestry Range accused of taking bribe, citing prosecution's failure to establish his voice sample to prove the telephonic conversation she allegedly had with the complainant.
Justice K. Babu noted that the analysis by the Forensic Science Laboratory (FSL) had found that the identity of the speaker could not be positively ascertained from the voice sample that had been alleged to be that of the accused petitioner's, due to the speech amount being too little and low signal-to-noise ratio.
It further found that the allegation levelled against the petitioner by the 3rd respondent that the former insisted on bribe from him was also doubtful considering that the petitioner had taken a tough stand against the latter, and insisted on him completing the work in terms of the contract, which, in the opinion of the Court, could only be the inference of a prudent man.
Case Title: Gopakumar P. v Travancore Devaswom Board
Citation: 2023 LiveLaw (Ker) 647
The Kerala High Court dismissed a writ petition on the finding that specific averments should be made against the parties while filing the writ petition itself and they need not be arrayed as parties later by filing an impleading application.
The Division Bench comprising Justice Anil K. Narendran and Justice G. Girish added that the writ petition lacked specific averments in tune with the reliefs sought for and necessary parties were not arrayed in the party array.
“A mere application for impleadment, after the filing of this writ petition, will not serve the purpose, since the writ petition for seeking such a relief should contain specific allegations against the Temple Advisory Committee and its members. In the absence of necessary averments in the writ petition in support of the reliefs sought for and necessary parties in the party array, we find no reason to entertain this writ petition.”
Case Title: Tomy K M v State of Kerala
Citation: 2023 LiveLaw (Ker) 648
The Kerala High Court has permitted a POCSO Court to try the offences under SC/ST Act relating to abuse and assault of the minor victim's father stating that the two offences were closely connected as the incident occurred within half hour of the offence under POCSO Act.
Justice Gopinath P. relied on MS.P xxx Vs. State of Uttarakhand & Anr. (2022 LiveLaw (SC) 554) which explained when two or more acts constitute the same transaction for the purpose of being tried together.
Section 28(2) of the POCSO Act also stipulates that while trying an offence under the POCSO Act, the Special Court may also try other offences under which the accused was charged at the same trial.
“Having regard to the law laid down in MS.P xxx's case (supra) and also having regard to the provisions of Section 28(2) of the POCSO Act, I am of the view that S.C.No.555 of 2022 on the file of the District and Sessions Court, Kottayam should be transferred and tried before the Fast Track Special Court (POCSO), Erattupetta,” the bench thus ordered.
Case title: Mathews A v State of Kerala
Citation: 2023 LiveLaw (Ker) 649
The Kerala High Court has held that an externment order passed with much delay, after a period of four months in this case for instance, affects the proprietary of such order.The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen thus confined the operation of externment order and observed,
“Having adverted to the factual situation as above, as we find there is much delay affecting the proprietary of the impugned order, no interference is called for to set aside the order. However, also taking note of the fact that the order is already in operation for more than three months, we confine the operation of the externment order till today (10.11.2023).”
Case title: Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram
Citation: 2023 LiveLaw (Ker) 650
The Kerala High Court issued a direction for removal of encroachments from a property of the National Highway Authority (NHAI) in front of Ananthapuri Hospitals & Research Institute, Thiruvananthapuram. Allowing the petition, Justice Bechu Kurian Thomas directed the respondents to ensure that appropriate measures were taken to prevent the encroachers from returning.
“The illegal occupation of road margins is even more evil when the occupation is in front of a hospital. The vice of such occupation has its tentacles rooted in several anti-social activities as well. Therefore, it is essential that the Corporation, the Police as well as the District Administration and even the National Highway Authorities act in unison to remove such encroachers and prevent a repetition of such offending acts.”
Case Title: Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 651
The Kerala High Court laid down that a losing minority or dissenter of a resolution taken by the Municipal cannot take recourse to the jurisdiction under Article 226 of the Constitution of India to challenge the resolution of the Municipal Council.
Justice Bech Kurian Thomas was of the considered opinion that the Municipal council cannot challenge its own decision, and if such a procedure is given the stamp of legality, the same would result in an anomalous situation, since even a sole dissenting member would become entitled to challenge the decisions of the Municipality before higher forums, which is not permitted under law.
Case Title: Sathy M.P. & Anr. v. Sarasa & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 652
The Kerala High Court refused to condone a delay of 288 days in filing a review petition on the ground that the power of attorney holder could not file the same within the stipulated time, being a chronic asthma patient undergoing treatment for the illness.
Perusing Section 5 of the Limitation Act which provides for the extension of the prescribed period in certain circumstances, the Single Judge Bench of Justice K. Babu observed: "The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different...The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds"
Committing Magistrate Lacks Jurisdiction To Consider Application For Withdrawal From Prosecution U/S 321 CrPC: Kerala High Court
Case title: State of Kerala v N R Shaji
Citation: 2023 LiveLaw (Ker) 653
The Kerala High Court held that the Committing Magistrate has no implicit power to consider an application filed by the Public Prosecutor or Assistant Public Prosecutor under Section 321 for withdrawal from prosecution.
Justice C.S. Dias observed that the Magistrate ought to have directed such application to the Sessions Court. “once it appears to the Magistrate that the offence is exclusively triable by the Court of Session, then other than for considering matters relating to bail and remand as provided under clauses (a) to (d) of the said provision, the Magistrate has no implicit power to entertain any other matter, including an application under Section 321.”
Authorities Will Do Needful To Prevent Illegal Abandonment Of Newborn Babies : Kerala High Court
Case title: Alex Mampuzha @ Alexander K v State Police Chief
Citation: 2023 LiveLaw (Ker) 654
The Kerala High Court stated that the State Police Chief, District Police Chief (Rural) Kollam, Station House Officer (Kottarakara Police Station), and Secretary of Ummanoor Grama Panchayath (Valakom, Kollam) will do the needful to prevent the illegal abandonment of newborn babies in streets, especially at Bathani Chapel in Valakom, Kollam district.
“As far as the prayers are concerned, we are of the considered opinion that the respondent authority will do the needful.”, Chief Justice A.J.Desai and Justice V.G. Arun stated.
Case Title: United India Insurance Co. Ltd. v. Abdul Razaque O.V. & Anr.
Citation: 2023 LiveLaw (Ker) 655
The Kerala High Court laid down that a loading and unloading worker of the owner of a Tipper Lorry would also be covered under the ambit of classes of employees mentioned under clause (c) of the first proviso to Section 147(1) of the Motor Vehicles Act, 1988 ('MV Act, 1988').
"...loading and unloading of the goods transported in a goods carriage is to be treated as part and parcel of the purpose for which the goods carriage is intended to. Viewed from the above angle, it is to be held that loading and unloading of the goods in a goods carriage is inseparably connected with the usage of a goods carriage. In the above circumstances, unless and until the persons loading and unloading the goods in a goods carriage are also covered under clause (c) of the first proviso to Section 147(1) of the MV Act, the purpose of the aforesaid provision will not be served, in its true spirit," Justice C. Pratheep Kumar observed.
Case Title: Platino Classic Motors India Pvt. Ltd. v. Deputy Commissioner of Central Tax and Central Excise & Ors.
Citation: 2023 LiveLaw (Ker) 656
The Kerala High Court laid down that assessment orders could not be set aside on the ground of the Official Liquidator not having been heard while finalizing the assessment, since Section 14 of IBC does not bar finalisation of the assessment and adjudication proceedings in respect of the taxes.
"On the resolution once the reference has been admitted, there is moratorium for recovery of the tax dues but, there is no bar for finalisation of the assessment and adjudication," Justice Dinesh Kumar Singh observed.
Kerala High Court Asks 65-Year-Old Convicted For Causing Death By Negligent Driving To Do Community Service, Applies Probation Of Offenders Act
Case title: Saji Charivukala Puthenveedu v State of Kerala
Citation: 2023 LiveLaw (Ker) 657
The Kerala High Court released a 65-year old man who was convicted for rash and negligent driving which led to the death of a person as per Section 4 of the Probation of Offenders Act (Act) on grounds of good conduct. He was convicted under Sections 279 and 304A of IPC.
Justice G. Girish held that there was no legal embargo for the Court to invoke its power under the Act to release a person who was convicted under Section 304A IPC for causing death by negligence in appropriate cases to meet the ends of the justice.
Case title: S Jayan v State of Kerala
Citation: 2023 LiveLaw (Ker) 658
The Kerala High Court directed the Central Government to order the CBI to investigate the corruption allegations involving high officials of Titanium Company for entrusting its pollution abatement cum capacity expansion project involving above 256 crore rupees to M/s.Metallurgical & Engineering Consultants (India) Limited (MECON).
“Resultantly, respondent No.4 is directed to issue orders entrusting the investigation in VC 01-2015/SIU-1 of VACB (Special Investigation Unit-I), Thiruvanathapuram with the CBI. Respondent Nos.5 and 6 are directed to take over the investigation in VC 01-2015/SIU-1 of VACB (Special Investigation Unit-I), Thiruvanathapuram. The CBI shall complete the investigation within six months from this date. The investigating agency is at liberty to approach this Court seeking extension of time, if found necessary.”, Justice K. Babu stated.
Case Title: Secretary, Poovachal Grama Panchayat v. Secretary, Ombudsman for Local Self Government & Anr.
Citation: 2023 LiveLaw (Ker) 659
The Kerala High Court laid down that a complaint seeking refund of an amount deposited by way of earnest money deposit for participating in a public auction cannot be filed before the Ombudsman for Local Self Government.
Relying on the decisions in John.A., Ansons Group Architects v. Chanagacherry Municipality & Anr. (2011), and Kulukkalloor Grama Panchayath v. Ombudsman for Local Self-Govt. Institution & Ors. (2013), the Single Judge Bench of Justice Shoba Annamma Eapen, held:"...it is clear that a complaint seeking refund of the amount deposited by way of earnest money deposit for participating in the public auction will not come under the definition of 'allegation' or 'complaint' as enumerated in Section 271F of the Kerala Panchayat Raj Act,1994".
Case title: Bastin Babu v State of Kerala
Citation: 2023 LiveLaw (Ker) 660
'Voter's intention deducted from ballot paper, not by any antecedent or subsequent expressions', observed the Kerala High Court while rejecting the vote cast by a voter who was a candidate himself. The Voter alleged that he voted for himself and his vote should be treated as valid.
Justice Bechu Kurian Thomas observed that the intention of the voter was not reflected on the ballot paper. As per Rule 11 of the Kerala Municipality Standing Committee Rules, 2000, a voter has to mark 'X' on the ballot paper against the name of the candidate for whom he intends to vote. The Court perused the ballot paper and observed that 'X' was not marked properly against his name and rejected his vote.
Case title: Abootty K.A. v Kolangottil Pathumma
Citation: 2023 LiveLaw (Ker) 661
The Kerala High Court has held that both the District Court as well as the designated authority notified by the State Government have concurrent jurisdiction to consider the petition for the appointment of limited guardian under Section 14(1) of the Rights Of Persons With Disabilities Act, 2016 (hereafter, the Act).
Justice Basant Balaji relied upon Section 14(1) of the Act and the rules framed thereunder to state that both the District Court and the Designated Authority have concurrent jurisdiction for granting limited guardianship.
“A combined reading of Section 14 (1) coupled with Rules 4, 7 and 8 of the Kerala Rules, it is amply clear that the District Court or the designated authority notified by the State Government has concurrent jurisdiction to entertain a petition or appointment of a limited guardian of person who is coming under the definition of 'person with disability' under Section 2(s) of the Act.”
Case Title: P.K. Uthuppu v. N.J. Varghese & Anr.
Citation: 2023 LiveLaw (Ker) 662
The Kerala High Court laid down that the presumption under Section 139 of the Negotiable Instruments Act (NI Act) that cheque has been issued in discharge of a debt or liability, would be attracted, even if a blank cheque is voluntarily signed and handed over as payment.
Relying upon the decision in Bir Sing v. Mukesh Kumar (2019), Justice Sophy Thomas observed: "The onus to rebut the presumption under Section 139 of the N.I Act that the cheque has been issued in discharge of a debt or liability, is on the revision petitioner. Even if a blank cheque leaf is voluntarily signed and handed over by the accused, towards some payment, it would attract the presumption under Section 139 of the N.I Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
Kerala High Court Directs KELSA To Appoint Persons To 5 Vacant Posts In Permanent Lok Adalat Sanctioned By State Government
Case Title: Bobby P. Kuriakose v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 663
The Kerala High Court has directed the Kerala State Legal Services Authority (KELSA) to appoint persons to 5 posts, namely, Head Clerk, Bench Assistant, Clerical Assistant (Daily Wages), Confidential Assistant, and Office Assistant at the Permanent Lok Adalat, which had been sanctioned by the State Government vide its Order.
Justice Devan Ramachandran passed the Order on being informed by the State that vide its Order dated October 2010, the aforementioned 5 posts had been sanctioned.
Case Title: Sukumaran v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 664
The Kerala High Court reminded that the power to detain individuals ought not to be used as a punitive measure, but to secure public order, in the larger interest of the society.
"Dention order is a serious matter depriving liberty of the citizens. That means, except on valid grounds a person cannot be deprived of his liberty. The detention order, therefore,must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007(for short 'KAAPA Act'). That means, the offence in which he is involved in the past will have to be analysed to arrive at a conclusion that he will be a threat to the society when he is enlarged without detention," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed.
IBC| Mere Uploading Of Application U/S 96 Cannot Be Regarded As 'Filing' For Interim Moratorium To Operate: Kerala High Court
Case Title: Jeny Thankachan v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 665
The Kerala High Court laid down that mere uploading of an application under Section 96 of the Insolvency and Bankruptcy Code (IBC), 2016, cannot be regarded as filing of an application for the interim moratorium to operate.
Justice N. Nagaresh explained that the operation of interim and final moratorium under Sections 96 and 101 of the IBC 2016 have serious repercussions, as the legal proceedings against would be deemed to have been stayed and creditors of the debtor would not be able to initiate any legal action proceeding in respect of any debt of the debtor, once an application is filed. The Bench thus said that such provision would have to be strictly construed.
Case Title: Saheer v. State of Kerala & Connected matter
Citation: 2023 LiveLaw (Ker) 666
Interpreting the law on triple talaq, the Kerala High Court recently quashed criminal proceedings against a Muslim husband on finding that he pronounced talaq-e-hasan which was legal and valid under Muslim Personal Law.
“The copies of the talaq kuries would show that several mediations took place. It is further revealed that respondent No.3 did not co-operate for a Court Centred Mediation also...The materials placed before the Court would reveal that a series of mediations to reconcile the disputes between the parties failed. There are no indications that the talaq pronounced by the petitioner was instantaneous or irrevocable. The resultant conclusion is that the talaq pronounced by the petitioner is not talaq-e-biddat prohibited under Section 4 of the Act.”
Relying upon the landmark decision of the Apex Court in Shayara Bano v. Union of India (2017), Justice K. Babu observed that talaq-e-biddat or other similar forms of instant talaq were void and unconstitutional and not talaq-e-hasan or talaq-e-ahsan.
Case Title: P.S. Rajeev v. The Sree Narayana Trusts, Special Jurisdiction Case No.6 of 2023
Citation: 2023 LiveLaw (Ker) 667
The Kerala High Court recently reiterated that finality of a decree does not preclude a court settling scheme under Section 92 CPC from modifying it and that the court's power to amend the scheme or to issue directions for effective functioning of a Trust is derived from the scheme itself.
The Division Bench comprising Justices P.B. Suresh Kumar and Johnson John was considering the scope of its jurisdiction to adjudicate disputes relating to the affairs of the Trust. In course, it analyzed a scheme framed w.r.t. the Trust under Section 92 CPC, which was amended by the court from time to time.
Case title: Ramachandran P v State of Kerala
Citation: 2023 LiveLaw (Ker) 668
The Kerala High Court recently held that the District Level Authorization Committee (DLAC) cannot deny authorization for organ donation based on an assumption that the donor was exploited as she was from a disadvantaged community.
Justice Devan Ramachandran observed that DLAC cannot assume or presume based on the social status of the donor that the organ was not offered out of affection and altruism.
“I am guided to the impression that 'DLAC' appears to have taken the afore view being swayed by the social status of the donor, who appear to be from a disadvantaged one; and thus somehow has presumed that she appears to be subjected to exploitation by the 1st petitioner. However, the impugned Ext.P12 report cannot add any force to this presumption or assumption - as the case may be; and am, therefore, of the firm view that 'DLAC' must reconsider the matter, based on the statements that have already been recorded, but adverting specifically to the “Certificate of Altruism”, which the petitioners are stated to have produced before them, from the competent Police Authority.”
Case Title: Malarkodi P v. Union of India
Citation: 2023 LiveLaw (Ker) 669
The Kerala High Court has held a passenger's accidental fall from moving train, while trying to alight on realizing that it was the wrong train, to be an 'untoward incident' and not 'self-inflicted injury'.
Taking a view that the dependents of the deceased passenger were entitled to compensation, Justice C. Pratheep Kumar observed thus:
“In this case, the respondent has no case that the deceased had any intention to inflict any such injury to himself. On the other hand, he was trying to alight from the train as it was the wrong train. In the above circumstances, it is to be held that there was no intention on the part of the deceased to inflict any injury to himself and as such it is a clear case of accidental falling coming within the purview of 'untoward incident', as defined under Section 123(c) of the Railways Act.”
Case Title: Santhosh Kumar P M v John M T
Citation: 2023 LiveLaw (Ker) 670
The Kerala High Court recently set aside an order of the Magistrate Court allowing respondent's application in the suit to amend their pleadings stating that amendments, that are not required for adjudicating the real dispute between the parties and are outside the scope of the reliefs sought in the suit, ought not to be allowed.
Justice C. Jayachandran noted that the amendment sought was belated also.
“The title of the plaintiff over the plaint schedule property has not so far been challenged by the respondents, or for that matter by anybody else, before any forum. Nor has the respondents preferred any counter claim in that regard. Therefore, an amendment, seeking to incorporate facts pertaining to the title of the plaintiff, is not going to serve any useful purpose. It cannot be said that such averments are required for the adjudication of the real issue in controversy by and between the parties, having regard to the scope of the reliefs sought for in the suit. In such circumstances, the amendment sought for ought not to have been allowed. Moreover, the amendment sought for is belated as well.”
Case Title: Joy v Mary
Citation: 2023 LiveLaw (Ker) 671
The Kerala High Court recently distinguished between necessary parties and proper parties to a suit. It held that necessary party was a party who was entitled to a right to relief in the suit and whose presence would enable the Court to effectually adjudicate the suit. It held that a person who was only remotely or indirectly interested in a suit was not a necessary party.
Justice K. Babu held that “absence of a necessary party is a fatal defect, but the absence of a proper party is not” and observed thus:
“The Code of Civil Procedure does not contain any express provision as to who should be considered necessary parties, but it is clear from an examination of the rules of Or.1 of the Code that two conditions must be satisfied so that a party may be considered a necessary party namely; first, there must be a right to some relief against him in respect of the matter involved in the suit and, secondly, his presence is necessary to enable the court, effectually and completely, to adjudicate upon and settle all the questions involved in the suit. A person who is only indirectly or remotely interested is not a necessary party. A person who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in deciding on the point in issue is a proper party in that suit".
Case Title: Prathibha v State of Kerala
Citation: 2023 LiveLaw (Ker) 672
The Kerala High Court deliberated upon the legal issue as to whether a conviction for culpable homicide under section 299 IPC was sustainable if the body of the infant was disposed of in the sea believing it to be lifeless.
The Court was hearing an appeal against the conviction of parents for allegedly causing the death of their infant child and disposing of the body in the sea. The Sessions Court had convicted the parents under Section 302 (punishment of murder), 201 (causing disappearance of evidence) read with Section 34(common intention).
On analyzing Section 299 IPC, the Division Bench comprising Justice P.B.Suresh Kumar and Justice Johnson John acquitted the parents and observed that the offence of culpable homicide was not attracted as the acts were performed on the body of the infant believing it to be lifeless. It noted that there was no intention or knowledge on the part of the parents to put an end to the life of the infant.
“As evident from the extracted definition itself, the provision is attracted only when a person does an act which causes death of another, either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. These three are the species of mens rea contemplated in the provision, and unless it is established that the act of the accused would fall under any of these, it would not amount to an offence of culpable homicide. Therefore, in order to attract the Section, the act must be one performed with the intention of putting an end to a human life or with the knowledge that the same may put an end to a human life Needless to say, if the act is performed on a body which the person concerned believed to be lifeless, the offence is not attracted, for when the act was performed, the person concerned could have neither had the intention of putting an end to the human life nor had the knowledge that the act performed by him may or is likely put an end to human life.”
Case Title: Manoj Kumar & Ors. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 673
The Kerala High Court recently laid down that a delay of nearly five years in re-submitting a request for obtaining sanction for taking cognizance of an offence Section 153(A) of the IPC ('Promoting enmity between different groups on grounds of religion, race, place of birth, residence') cannot be accepted.
It also held that prosecution cannot contend that that period is liable to be excluded under Section 470(3) Cr.P.C.
Section 470(3) Cr.P.C. stipulates that, "Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded".
"When the Explanation says that the date on which the application was made and the date of receipt of the order of the Government are allowed to be excluded from the period taken for obtaining sanction, the intention of the Legislature is clear. The provisions under Section 470 of the Code that allows exclusion of the period taken for obtaining sanction requires a strict interpretation. When there occurred a delay of nearly five years to re-submit the request for obtaining sanction, the prosecution cannot be heard to contend that that period is liable to be excluded under Section 470(3) of the Code," Justice P.G. Ajithkumar observed.
Case Title: M/S Global Plasto Wares v. Assistant State Tax Officer & Ors.
Citation: 2023 LiveLaw (Ker) 674
The Kerala High Court has made it clear that merely because the show cause notice issued to a defaulter under the GST Act did not refer to a particular statutory provision that may be attracted against such defaulter, the same cannot be said to have caused prejudiced when the facts leading to the invocation of the statutory provision concerned were admitted.
The Court was dealing with a case where penalty was imposed under Section 73(11) of the Central Goods and Services Tax Act [CGST Act]/State Goods and Services Tax Act [SGST Act] ('CGST/SGST Act') for non-payment of tax due to the State.
Section 73(11) of the GST Act states, "notwithstanding anything contained in sub-section (6) or sub-section (8), penalty under sub-section (9) shall be payable where any amount of self-assessed tax or any amount collected as tax has not been paid within a period of thirty days from the due date of payment of such tax".
"While it may be a fact that Ext.P1 notice issued to the appellant did not specifically refer to Section 73(11) of the CGST/SGST Act, when we find that, on the admitted facts, the appellant had not paid tax due to the State despite collecting the same from its customers, then, as per the statutory provisions, it is the provision of Section 73(11) and not the provision of Section 73(8) that will apply to determine the penal liability of the appellant," the Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Kauser Edappagath observed.
Case Title: Rajappan Assari v. State of Kerala
Citation: 2023 LiveLaw (Ker) 675
The Kerala High Court has reiterated that there ought to be an express or implied trust of property or entrustment for any specific purpose in order to attract the liability for criminal breach of trust as provided under Section 406 IPC.
Justice P. Somarajan explained that the mere existence of a commercial transaction and deposit of amount with any person or institution would not attract criminal breach of trust as defined under Section 405 IPC.
"A deposit of amount with a person, if it is intended for keeping the same without the liability of interest or any premium payable on that account would attract the criminal liability under Section 406 IPC, if it was dishonestly misappropriated, converted or dispossessed in violation of any direction prescribing the mode of its user or any legal contract. On the contrary, when the deposit is for the purpose of incurring interest, failure to return the amount as agreed would not canvass the criminal liability under Section 406 IPC, unless it constitutes entrustment of the said amount or any dominion over the property for any specific purpose either express or implied or to utilise the periodical interest for any such specific purpose, either express or implied. In short, a mere deposit of amount with any banker, financial institution or any person, if it is for getting interest, unless satisfies the abovesaid cardinal ingredients, cannot be brought under the purview of criminal breach of trust as defined under Section 405 IPC and no criminal liability can be fastened for the offence punishable under Section 406 IPC," the Bench observed.
Case Title: Sunil D. Emmatty & Anr v. Union of India & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 676
The Kerala High Court recently berated the Sports Council for its failure to take any action when it received a report from the Observer as regards certain concerns in the elections to Kerala Hockey, that apparently led various issues including dispute as to the selection list of players to represent the State in the National Games in November, 2023.
"The irony is that if the “Sports Council” had completed their actions earlier, without having waited for nearly one and half years after the elections, the latter limb of the controversy would have never arisen. It is their inaction in the matter, which has led to the disputes regarding the Teams; but here again... they have acted only at the eleventh hour," Justice Devan Ramachandran observed.
Case Title: P.B. Prasobh & Ors. v. K.A. Muhammed Faisal & Anr.
Citation: 2023 LiveLaw (Ker) 677
The Kerala High Court held that the protection of sanction as provided under Section 197 Cr.P.C. would apply when the alleged act done by a public servant is reasonably connected with the discharge of his official duty.
Section 197 Cr.P.C. provides that when a public servant who is not removable from his office save by or with the sanction of the government, is accused in any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State or the State Government.
"...the protection given under Section 197 would be available when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. If there is a reasonable connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of the protection," Justice N. Nagaresh explained.
Case Title: Latha v T V Sahadevan
Citation: 2023 LiveLaw (Ker) 678
The Kerala High Court recently upheld an order passed by the Employees Compensation Commissioner (Industrial Tribunal), Idukki which rejected the compensation claim of the dependents of the deceased on the finding that he was an independent contractor and not an employee within the purview of the Act.
The deceased was an electrician and used to supply light and mike sets for conducting small programs and he died due to electrocution while connecting mike set for the function organized by the respondents.
Justice C. Pratheep Kumar observed that the deceased was an independent contractor and his work was not controlled by the respondents and was not an employee under the Act.
“The mike set used in this case belonged to the deceased. Since it was only a hiring of mike set for the purpose of a programme, there was no necessity for the deceased to do his work personally. Instead, he could have done the same by engaging his own employees. His work of connecting the mike set is not controlled by the respondents. In the above circumstances, it is to be held that deceased Babu was not an employee but an independent contractor. Therefore, the impugned order passed by the Commissioner is perfectly justified.”
Case Title: Antony Joseph v. State of Kerala
Citation: 2023 LiveLaw (Ker) 679
The Kerala High Court refused to allow a plea seeking a direction to the Government to settle a dispute pertaining to unified Mass at St. Mary's Cathedral Basilica, Ernakulam.
The petitioners averred that the Church remained closed due to disputed between rival factions, and sought mediation involving eminent personalities such as the Arcbishop of Ernakulam, the Synod of Major Archiepiscopal Church of Ernakulam, the Athiroopa Samrakshana Samithi, the Commissioner of Police and the Station House Officer of Central Police Station and such others, to resolve the issue.
Justice Devan Ramachandran was of the considered view that the State or its functionaries could not intervene in the matter, since the same was of religious, and not temporal nature.
"...what the petitioner projects is exclusively a religious activity, into which normally, the State or its functionaries cannot intervene. This is well settled through a catena of judgments of this Court and the Supreme Court, and therefore, this Court cannot cause any deviation, merely because the petitioners seek a settlement between the warring factions," the Court observed.
Case Title: Rijas M T v, Hafseena M
Citation: 2023 LiveLaw (Ker) 680
The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation.
"Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time is ripe for the Parliament to ponder in bringing corresponding changes in Chapter IX of the Code [Order for Maintenance of Wives, Children and Parents] to make it consonance with the law declared in Rajnesh or even think of a comprehensive maintenance law," Justice CS Dias observed.
Case Title: P.V. Nidhish v. Sivaprakash
Citation: 2023 LiveLaw (Ker) 681
The Kerala High Court recently laid down that that the Kerala Real Estate Appellate Tribunal, which has special power to regulate its own procedure, can appoint a Commission as well, if the Tribunal is of the opinion that appointment of such a Commission is necessary for getting certain material aspects, which are required for the purpose of deciding the matter in controversy in between the promoter and allottee.
The Court added that the said power is not drawn from Order XLI Rule 27 of the Code of Civil Procedure (CPC). Order XLI Rule 27 of CPC specifies the conditions under which the court may permit parties to the appeal to present evidence at the appellate stage.
Perusing various provisions of the Real Estate (Regulation and Development) Act, 2016 ('Act, 2016'), Justice A. Badharudeen observed:
"....the Appellate Tribunal has the power to regulate its own procedure and the said power is given to deal with a matter, where the Appellate Tribunal requires anything to be done within the mandate of law for addressing the real dispute in between the litigants. It is apropose to note that Section 35 of the Act, 2016, in fact, gives wide power to the Authority to enquire and appoint one or more persons to make an inquiry in relation to the affairs of any promoter or allottee or the real estate agent, as the case may be. In the said circumstances, it is difficult to lay down law, holding that the powers of the Appellate Tribunal is much less than that of the Authority when the statute specifically provides power to the Appellate Tribunal to regulate its own procedure. To be more vivid, it could not be held that the power to appoint a Commission to have enquiry available to the Authority, is not available to the Appellate Tribunal".
Case Title: Shibli K v Union of India
Citation: 2023 LiveLaw (Ker) 682
The Kerala High Court has upheld the decision of Kerala Public Service Commission (KPSC) declining a PwD candidate's request to bring his own scribe to examination.
Stating that the decision was meant to rule out any possible misuse of the scribe during exam, the Court clarified that the Commission may itself allot a scribe to the candidate from the panel prepared by it.
Analyzing the objectives of the Rights of Persons With Disabilities Act (RPwD) and the circulars issued by the KPSC, the Division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar observed thus:
“The circular issued by KPSC contains provision for providing the service of a suitable scribe from a panel prepared by them to PwD candidates on request. Since the scribes are provided from the panel prepared by KPSC, it is also capable of ensuring the purity of competitive examinations and to rule out any manipulations. Therefore, it is to be held that the above circular issued by KPSC is capable of protecting the rights of persons with disabilities and to rule out the possibility of misuse of own scribe. In the above circumstance, the conduct of the fifth respondent in declining the prayer of the appellant to chose his own scribe and providing a scribe from the panel prepared by them cannot be said to be arbitrary or unreasonable.”
Enacting Laws In English Will Not Deter Growth Of Regional Language: High Court To Kerala Govt
Case Title: P.H. Babu Ansari & Anr. v. Municipal Council & Ors.
Citation: 2023 LiveLaw (Ker) 683
The Kerala High Court emphasized the need for publishing statutes and rules in English language, as envisaged in Article 348(3) of the Constitution.
Article 348(3) permits usage of any local language other than English for use in the Legislature of the State but requires that a translation of the same in the English language be published under the authority of the Governor of the State in the Official Gazette of that State which shall be deemed to be the authoritative text thereof.
Relying upon decisions such as Thanga Dorai v. Chancellor, Kerala University (1995), and Murali Purushothaman v. State of Kerala (2002), which emphasized upon the requirement of of an English text for a Bill, Act, or Ordinance, Justice Bechu Kurian Thomas explained,
"When a State like Kerala opens its invitation for people from all over the world to invest, it would be incongruous if the laws are incomprehensible to them. The importance of English as an international language of communication and comprehension within and outside the Country cannot be ignored. Parochial considerations have to be kept aside while contemplating growth and development of the State. Enacting laws in English as mandated by the Constitution in a diverse country like India, will not have any bearing on the growth of the regional language. On the other hand, it can enhance the growth potential of the State as an investment destination with better awareness about its laws. Therefore, this Court reminds the State Government to abide by the Constitutional obligation to prepare the texts of all Statutes, Rules and other enactments in English, lest this Court be compelled to issue appropriate directions in that regard".
Case Title: M/S.Gaiagen Technologies Private Limited Versus State of Kerala
Citation: 2023 LiveLaw (Ker) 684
The Kerala High Court has rejected the assessee's claim for a service tax refund to meet the VAT demand on the pest control contract.
The bench of Justice Anu Sivaraman has observed that the claim of the petitioner that the service tax authorities must be directed to meet the demand for VAT, if any, found payable by the petitioner cannot be accepted.
Case title: Udayakumar v State of Kerala
Citation: 2023 LiveLaw (Ker) 685
The Kerala High Court has said that when a FIR is registered at the directions of a Magistrate under Section 156(3) CrPC, the High Court may not exercise jurisdiction under Section 482 CrPC and quash such FIR unless there are compelling and justifiable reasons.
Justice Sophy Thomas said that in such cases, the accused may raise a challenge if final report is filed charging him/her for a cognizable offence or if he/she is aggrieved by the order of the Magistrate taking cognizance of the offence.
It observed,
"Before conducting investigation as to whether the petitioner had committed a cognizable offence or not, and before a final report is filed charging him for the offences alleged, in normal course, he cannot challenge the investigation undertaken by Police, which was so directed by the Magistrate under Section 156(3) of Cr.P.C. When investigation undertaken by Police as ordered by the Magistrate under Section 156(3) of Cr.P.C. is in progress, this Court cannot interfere with the investigation, which is a statutory function exercised by Police. Unless there are compelling and justifiable reasons, there cannot be any interference with the investigation proceedings."
Principles Of Natural Justice Crucial To Transfer Orders, Prevent Stigma & Bias: Kerala High Court
Case Title: The Corporate Manager v. Beena Hilkushi and Ors.
Citation: 2023 LiveLaw (Ker) 686
A Division Bench of the Kerala High Court recently upheld order of a Single Judge, whereby the transfer order of a teacher working under Corporate Managers was quashed.
The Bench, comprising Justices A. Muhamed Mustaque and Shoba Annamma Eapen, observed that as the transfer order was issued in accordance with Rule 10(4) of the Kerala Education Rules ("KER"), the authorities should have ensured that principles of natural justice were followed by initiating enquiry and giving an opportunity of hearing to the teacher to prevent bias.
Case Title: Babumon K.G. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 687
The Kerala High Court has recently held that in order to vitiate an award passed by a Legal Services Authority, it would have to be established that the Authority had no jurisdiction to pass such an award, and mere procedural violations would not suffice.
A division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen dismissed an intra-court appeal against a single judge's order affirming an order passed at a Lok Adalat organised by the Taluk Legal Service Authority, Kochi, and held:
"Constitution itself defines the scope of judicial review. Any regulation made invoking the statutory provision cannot enlarge or expand the scope and width of Article 226 of the Constitution of India. Nevertheless, taking note of the regulation as above, we are of the view that the intention of regulation allowing a challenge on a threshold by judicial review is on a well defined parameter under Article 226 of the Constitution of India and nothing else. Thus, procedural violation, affecting jurisdiction, the court may be able to interfere with such Award passed and mere violation itself will not be sufficient to hold that it would vitiate the award. To vitiate the award, it must be found that the authority have no competency under any other provisions to hold such Adalath to pass an Award".
Case Title: Sreekuttan S. v. Sree Keralavarma College & Ors.
Citation: 2023 LiveLaw (Ker) 688
The Kerala High Court set aside the declaration of Students Federation of India (SFI) candidate, Anirudhan K.S., as the Chairman of the College Union of Sree Keralavarma College, Thrissur, in the plea moved by Kerala Students Union (KSU) candidate alleging arbitrariness in the recounting of votes pertaining to the election to the said post and seeking the conduct of a re-election for the same.
The Single Judge Bench of Justice T.R. Ravi, observed that the counting and re-counting of votes that were done were not in accordance with the prescribed procedure.
Case Title: P.N.Saseendran v. Kalamassery Municipality
Citation: 2023 LiveLaw (Ker) 689
The Kerala High Court has made it clear that advance notice has to be served to the Secretary under Section 239(3) of the Municipality Act in the half-year claiming remission for the succeeding half-year, otherwise, no remission of property tax could be granted.
Justice Dinesh Kumar Singh observed that advance notice was mandatory for claiming remission of property tax.
“In the present case, it is evident that after 2020-21, no valid notice has been delivered as is required under sub- section (3) of Section 239 of the Kerala Municipality Act. In the absence of the notice, there arises no occasion for the Municipality to grant remission of the property tax as claimed by the petitioner. Delivery of notice by the owner in advance to claim remission in the succeeding half-year of the financial year is sine qua non to claim remission.”
Case Title: Jayakrishna Menon v State of Kerala
Citation: 2023 LiveLaw (Ker) 690
The Kerala High Court has recently held that when a property is produced before the Trial Court during an inquiry or trial under Section 451 CrPC, the Court can hand over the interim custody of the property to the person possessing a better title.
Section 451 CrPC pertains to the power of the criminal court to order for custody and disposal of property pending trials and the provision states that the 'Court can order as it think fits for the proper custody of the property'.
In setting aside an order of the Judicial First-Class Magistrate Court, Karunagappally which dismissed the petitioner's plea for interim custody of the elephant, a single bench of Justice P.V.Kunhikrishnan observed:
“It is clear that the point to be decided at the stage of Section 451 Cr.P.C. is who is the best-suited person for possession of the property pending trial. If there are rival claimants, who has got the better title can be decided by the Court at the stage of Section 451 Cr.P.C. subject to the final decision to be taken under Section 452 Cr.P.C. upon the conclusion of the trial."
Case Title: Faizal Abdul Samad v. A.N. Sasidharan & Anr.
Citation: 2023 LiveLaw (Ker) 691
The Kerala High Court has reiterated that Courts are required to pass a speaking order while fixing the quantum of interim compensation under the Negotiable Instruments Act ('NI Act').
Perusing Section 143A(2) which states that interim compensation, varying from 1% of the cheque amount, up to 20% of the cheque amount could be ordered by the Court while trying a case for dishonour of cheque, Justice P.V. Kunhikrishnan, noted that the Court would be duty-bound to state the reasons while fixing the quantum.
"If a court of law decided to order the maximum limit prescribed in Section 143A(2) of NI Act, as far as the interim compensation is concerned, it is the duty of the court to give reasons for the same. Similarly if the learned magistrate is giving interim compensation of 1% of the cheque amount or 2% or 3% of the cheque amount as the case may be, the reason should be mentioned. A discretion is given to the learned magistrate to determine the amount that is to be ordered as interim compensation. When discretion is given to a court of law, it should be judiciously decided. In such circumstances, a speaking order is necessary especially in a case where the maximum 20% of the interim compensation is ordered by the learned magistrate as prescribed under Section 143A of the NI Act. Similarly, if the interim compensation ordered is below 20% of the cheque amount, then also a reason should be mentioned. Therefore, without giving reason for fixing 20% of the cheque amount as interim compensation, which is the maximum limit prescribed under Section 143A(2) of NI Act, that order cannot be treated as an order made after applying the mind and exercising the discretionary jurisdiction," the Court observed.
Case Title: Krishnapriya K P v. State of Kerala
Citation: 2023 LiveLaw (Ker) 692
The Kerala High Court held that when a detenu under the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short “KAAPA Act”) absconds, the Magistrate Court shall treat the detention order issued against him as a warrant and initiate steps for compelling his immediate presence before the Court.
In allowing the release of the detenu in the present case, a division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen observed that in such cases, the Magistrate shall immediately initiate proceedings of proclamation and attachment of the detenu's property as per the provisions of CrPC and KAAPA Act to secure his presence before Court. It opined:
“We order hereafter that the Magistrate Court, in the State of Kerala shall take note of this order when a detenu is ordered to be detained under the KAAPA Act is absconded and when a report is filed under Section 6(a) of the KAAPA Act, the Magistrate Court shall immediately proceed to secure the presence of detenu as though a warrant has been issued under the Code of Criminal Procedure and by proceeding in accordance with the proceedings of the Code of Criminal Procedure. All the steps taken by the Magistrate shall be intimated to the detention authority from time to time. Other wise, the non explanation delay would frustrate the very purpose of passing detention order under the KAAPA Act.”,
Case Title: Afsal Hussain v. K.S. Muhammed Ismail & Anr.
Citation: 2023 LiveLaw (Ker) 693
The Kerala High Court recently held that the directors of a company are not liable to be convicted for an offence under Section 138 ('Dishonour of Cheque') of the Negotiable Instruments Act ('NI Act') when the company itself is not found to have committed the offence.
In setting aside an order of the trial court and acquitting the petitioner, a single bench of Justice Sophy Thomas observed:
"The liability of persons referred to in Section 141 of the N.I. Act ('Offences by Companies') is co-extensive with that of the company, firm or association of individuals, in a prosecution under Section 138 of the N.I Act. When it is found that the company has not committed the offence, and it is acquitted, its directors are not liable to be convicted, for the offence for which the company has been acquitted."
Kerala High Court Says Pollution Certificates For BS-IV, BS-VI Vehicles Valid For 1 Year
Case Title: S. Sadananda Naik v. The Ministry of Road Transport and Highways & Ors.
Citation: 2023 LiveLaw (Ker) 694
The Kerala High Court has set aside a government order ("GO") issued by Kerala State Government, prescribing uniform period of validity of Pollution Under Control (PUC) Certificate for all categories of vehicles, irrespective of whether they had been manufactured under BS-IV (Bharat Stage Emission Standards-IV) or BS-VI (Bharat Stage Emission Standards-VI) norms.
Justice Dinesh Kumar Singh observed that the impugned order/notification prescribed 6 months' validity for PUC Certificate in all categories of vehicles, which was violative of Rule 115(7) of the Central Motor Vehicle Rules, 1989 ("1989 Rules").
"It is well stated that executive order cannot overwrite the statutory prescription under the Act or Rules made thereunder. I find that the impugned Government notification so far as lying down for all categories of vehicles irrespective of whether manufactured under BS-IV or BS-VI norms six months validity for PUC is in violation of the statutory prescription under Sub Rule 7 of Rule 115," Justice Singh said.
Case Title: Shihad M.P. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 695
The Kerala High Court refused to grant anticipatory bail to the restaurateur of 'Le Hayath Restaurant', who was alleged to have caused the death of a customer through adulterated and non-consumable 'shawarma'.
Taking note of the serious nature of the prosecution allegations, as well as the violation of the mandatory guidelines issued to the hotels, Justice Mohammed Nias C.P. was of the considered view that proper investigation ought to be conducted in the matter.
"The menace of supplying adulterated food from restaurants can lead to various health issues, including food-borne illnesses, allergies and long term health issues, besides resulting in food poisoning, digestive problems and in severe cases, pose a threat to life itself. Under such circumstances, I am not inclined to grant anticipatory bail to the petitioner," the Court observed.
Case Title: M. Liju v. Kerala State Election Commission & Anr.
Citation: 2023 LiveLaw (Ker) 696
The Kerala High Court laid down that a member elected under the name of one party who subsequently supports the opposite party would be disqualified for voluntarily giving up membership under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (' 1999 Act').
In upholding the disqualification of the 2nd respondent under the 1999 Act, for "voluntary giving up membership" of the party under which he was elected, by 'supporting the opposite party' in a no-confidence motion raised against his own party member, a single bench of Justice Bechu Kurian Thomas observed
"If the conduct of a particular member indicates that he had, after being elected under the banner of one party, supported the opposite party, the same is sufficient to attract the disqualification of voluntarily giving up membership."
Case Title: XXX v. District Collector & Ors.
Citation: 2023 LiveLaw (Ker) 697
The Kerala High Court refused compensation claim of a 39-year-old woman, who alleged that she conceived and gave birth to a fifth child despite having undergone Post Partum Sterilization (PPS) surgery due to the negligence of the doctor who performed the same.
After referring to several precedents and medical opinions which affirmed the possibility of a pregnancy even after PPS surgery in certain exceptional cases, Justice CS Sudha noted that the appellant/plaintiff had conceived and delivered her fifth child nearly 5 years after the PPS surgery.
"Had the surgery actually been a failure as alleged by the plaintiff (appellant mother), the chances or possibility of the plaintiff conceiving would have been much earlier...The time gap between the surgery and the plaintiff conceiving also probabilises the contention of the defendants that it was due to the natural cause referred to hereinabove that the plaintiff happened to conceive and deliver her 5th child and not due to any negligence or carelessness of the 2nd defendant (2nd respondent doctor) in carrying out the surgery," the court observed
Case Title: Elambilan Nani Amma and Ors. v. Mulavana Antony and Ors., RSA NO. 420/2007
Citation: 2023 LiveLaw (Ker) 698
The Kerala High Court dismissed a regular second appeal finding that decisions of survey authorities under the Kerala Survey and Boundaries Act, Kerala Survey and Boundaries Rules will not affect the right and title of the property which was acquired by a party under a valid title deed.
Justice K. Babu held that title over property can be claimed primarily based on a valid title deed and not with reference to survey demarcation carried by survey authorities. The court further held that the survey result was conclusive proof for the determination of boundaries in a boundary dispute and not for the determination of title or possession of land.
Case Title: Lalu Mathew v. Bino Alexander
Citation: 2023 LiveLaw (Ker) 699
The Kerala High Court laid down that the first proviso to Section 11(3) Kerala Buildings (Lease and Rent Control) Act, 1965 ('Act, 1965') does not apply to situations where the landlord obtains vacant possession of a building after the institution of the eviction petition.
The first proviso to Section 11(3) restricts the power of the Rent Control Court in issuing an order directing the tenant to put the landlord in possession of the building, if the landlord has another building of his own in possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so, and not in a manner conferring benefit on the tenant.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John reasoned that, "...a landlord who establishes the bona fides of the need for occupation of a tenanted premises and who does not have another building in his possession as on the date of institution of the eviction petition and obtains an order of eviction on that basis, the fate of the order of eviction would depend on the question whether he obtains possession of any other building till the order has become final. In other words, if the tenant in the proceedings is able to prolong the proceedings by hook or crook, the landlord would be deprived of the benefit of the order of eviction".
Case Title: Ushakumari O. & Ors. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 700
The Kerala High Court directed the State Chief Secretary to take necessary steps to ensure time-bound and immediate investigation in medical negligence cases, in consultation with the State Police Chief and the Director of Health Service.
"In medical negligence case, both sides want immediate action. Sometime, unnecessary complaints will be there against the doctors alleging medical negligence, and if the investigation is delayed, the doctors may have to face unnecessary humiliation. Similarly, the victims also want early decisions in medical negligence case. Therefore, a time bound investigation is necessary in these types of cases," the Single Judge Bench of Justice P.V. Kunhikrishnan observed.
Case title: Ali K @ Ragam Ali v Union of India and connected case
Citation: 2023 LiveLaw (Ker) 701
The Kerala High Court has held that under Section 6 (5) of the National Investigation Agency (NIA) Act, the central government has the power to direct the National Investigation Agency to investigate not just pending cases, but also offences where no case was registered.
In dismissing the pleas of the accused, a division bench of Justice P.B.Suresh Kumar and Justice Johnson John also observed that a High Court had the administrative power to transfer cases from one Court to another, akin to how the matter had travelled from the Additional Sessions Court, Palakkad to the Special Court Ernakulam, in this case.
Case Title: Gopakumar V.G. v. Deputy Superintendent of Police & Anr.
Citation: 2023 LiveLaw (Ker) 702
The Kerala High Court laid down that Section 91 CrPC, which provides for the issuance of summons to produce document or other thing for the purposes of any investigation, inquiry, trial or other proceeding, is enabling in nature and the power under it would have to be judged commensurate with the stage or point of time it is exercised.
"The powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer-in-charge of a police station concerned to enforce and ensure the production of any document or other things necessary or desirable for the purpose of any investigation, enquiry, trial or other proceedings under the Code by issuing summons or a written order to those in possession of such materials," Justice K Babu observed.
Case Title: Jeevan Ramesh v. Mahatma Gandhi University
Citation: 2023 LiveLaw (Ker) 703
The Kerala High Court recently set aside a show cause notice issued to a final year LLB student of MG University for being named as an accused in an NDPS Case.
The student who was suspended when an FIR had been lodged against him in the aforesaid case, was asked to show cause as to why a compulsory transfer certificate should not be issued to him.
In allowing the student's plea for setting aside the impugned show cause notice, Justice T.R. Ravi observed that the impugned notice would show that the college had already concluded that the student was guilty of possession and sale of narcotic drugs when the trial was not even completed.
Case Title: T.O.Souriyar v Muttom Abdulla Kanjirathinkal House
Citation: 2023 LiveLaw (Ker) 704
The Kerala High Court has held that a person commits the offence of cheating under Sections 415, 417 and 420 IPC when he issues a cheque to another person for discharging his pecuniary liabilities after the closure of his bank account.
The Court noted that issuance of the cheque with the knowledge that it would be dishonoured would show the presence of mens rea, that is, fraudulent or dishonest intention of the drawer to deceive the payee.
In allowing the present revision petition Justice G. Girish quashed the order of the appellate court exonerating the accused, and observed:
“It seems from the judgment of the appellate court that the learned Additional Sessions Judge was carried away by the impression that if a person issues a cheque after the closure of his account, in respect of an antecedent liability, and the said cheque happens to be dishonoured due to that reason, the above act of that person will not come within the purview of cheating as defined under Section 415 I.P.C. The above conclusion of the learned Additional Sessions Judge, in my view, is patently wrong.”
Case Title: Athul Sundar v Bar Council of India
Citation: 2023 LiveLaw (Ker) 705
The Kerala High Court refused to issue a direction to postpone the 18th All India Bar Examination, 2024 (AIBE) or All India Law Entrance Test, 2024 (AILET).
Justice T.R. Ravi observed that it cannot direct the authorities to postpone the examination at the instance of one candidate who wishes to attend both examinations.
“The Court cannot direct the examinations to be postponed at the instance of one of the candidates who wishes to take the examinations. The learned counsel for the 1st respondent submitted that the candidate can take another chance for the All India Bar examination and the fee paid will be adjusted towards that chance.”
Case Title: Satheesh Kumar S. v Transport Commissioner
Citation: 2023 LiveLaw (Ker) 706
The Kerala High Court has made it clear that vehicles registered as good carriage vehicles, but fitted with construction equipment and used for construction purposes can be levied with the motor vehicle tax applicable to construction equipment vehicles.
“It is further the definition as provided under clause 10(iii) of the schedule enumerated any other equipment vehicle which is exclusively used for construction purposes is to be considered as construction equipment liable for the purposes of levy of the tax for such vehicles. Considering the use of the petitioner's vehicles only for the construction purposes, I am of the view that petitioner's vehicles are liable to be taxed at the rate prescribed for construction equipment vehicles and not for the goods carriage vehicles.”, Justice Dinesh Kumar Singh observed.
Case Title: Kiran Kurian Mathew v. Ashly Mathew & Anr.
Citation: 2023 LiveLaw (Ker) 707
The Kerala High Court recently laid down that when a dispute arises on the correctness of valuation and Court fees to be paid, it ought to be determined after permitting evidence on the same, before the commencement of trial on merits, due to it being a mixed question of fact and law.
In the present case, a challenge had been raised regarding the correctness of the valuation and Court fees paid. The Sub-Court concluded that since the issue involved a mixed question of law and fact, it could only be determined after trial, and issued an order in that regard, which had been challenged before the High Court.
"If the Sub Court is of the opinion that the question of valuation and court fee is a mixed question of fact and law, possibly evidence may be permitted on that question and a decision taken accordingly, before commencement of the trial on the merits of the matter, as clarified by the explanation to Section 12," the Single Bench of Justice C. Jayachandran observed while setting aside the order.
Case Title: Vishnu Sajanan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 708
The Kerala High Court held that arbitrary or stringent conditions imposed on an accused when he was released on default bail under Section 167 of the Code of Criminal Procedure (CrPC) was violative of his fundamental rights under Article 21 of the Constitution of India.
The bail application of the accused was allowed by the Sessions Court as the investigation was not completed even after sixty days of judicial custody. The Sessions Court whilst allowing the bail application under Section 167 (2) CrPC imposed stringent conditions which were challenged before the High Court.
Justice PV Kunhikrishnan, while lifting the stringent bail conditions imposed upon the accused observed that default bail was a statutory right that cannot be curtailed by imposition of onerous conditions.
“While imposing conditions in default bail, the Court can only impose such conditions to ensure that the accused will appear before the court concerned for trial and will also co-operate with the investigation. An accused in detention shall be released on bail after the period of detention mentioned in Section 167(2), if he is prepared to and furnish bail. This statutory right cannot be circumvented by imposing onerous conditions. Such arbitrary condition imposed while granting statutory bail amount to infringement of the fundamental right of the detenue under section 21 of the constitution of India.”
Case Title: XXXXX v Union Of India
Citation: 2023 LiveLaw (Ker) 709
The Kerala High Court denied permission for medical termination of pregnancy to a 14-year-old minor girl who was almost nine months pregnant, in a plea filed by her mother.
The Court reached the aforesaid conclusion based on the findings in the medical report that the pregnancy was at an advanced stage and that the foetus was thirty weeks old with a good foetal heartbeat.
The Court further noted that the accused who was in custody under the POCSO Act, and the minor victim had developed a consensual relationship and that she was not forced into sexual intercourse. However, considering that the age of the victim was only 13 to 14 years, the Court stated that this was certainly statutory rape.
Justice Devan Ramachandran expressed empathy with the minor victim and her family but denied the request for medical termination of pregnancy considering that the pregnancy was at an advanced stage.
“This Court is saying as afore only for one reason, namely that the pregnancy is now very advanced, with the Medical Board speaking with unanimity that the “uterus corresponded to 30 weeks of gestation with good foetal heart”. The foetus has, in fact, life with heart rate; and hence, termination of the pregnancy at this stage is impossible, as also untenable. The Medical Board is also unambiguously of the view, as available from the record, that termination is not possible, but that the baby can only be taken out through a Caesarean section - which is to say, that it will be born alive, with a prognosis of a good life in future.”
Case Title: Pinchu Chandran v Arya J
Citation: 2023 LiveLaw (Ker) 710
The Kerala High Court recently held that the Family Court can strike off the defence of the opposite party, only as a last resort on failure to pay interim maintenance under Section 125 CrPC during the pendency of maintenance proceedings.
In terms of the proviso to Section 125 CrPC, the Court can issue an order for payment of interim maintenance during the pendency of maintenance proceedings and such orders shall be disposed of within sixty days from the date of service of notice on the opposite side. Section 128 CrPC pertains to the procedure for enforcement of maintenance orders including orders for interim maintenance.
In allowing the plea, by granting the husband a last opportunity to pay maintenance, Justice C.S. Dias relied upon the Apex Court decisions in Kaushalya v. Mukesh Jain (2020), Rajnesh v. Neha (2020) and held thus:
“Perhaps, it is keeping in mind the bottlenecks in the procedure and to uphold the majesty of the Court, the Honourable Supreme Court in the afore-cited precedents has held the defence of the erring husband/father/son can be struck off in a proceeding under Section 125, as a last resort, on his failure to pay interim maintenance.”
Case Title: Suo Moto High Court of Kerala v. State of Kerala and Anr.
Citation: 2023 LiveLaw (Ker) 711
The Kerala High Court recently took suo motu cognizance of pendency of petty cases before Magistrates in the State and noted that as on date, 1.59 lakh petty cases were pending. It was held that in summons cases, Magistrates have power to stop proceedings under Section 258 CrPC, instituted otherwise than upon complaint, when the presence of the accused cannot be secured despite best efforts of the prosecution.
The Division Bench comprising Dr. Justice AK Jayasankaran Nambiar and Dr. Justice Kauser Edappagath made it clear that Section 258 CrPC empowered a Magistrate to order stoppage of proceedings at any stage of the trial, after issuance of summons and before completion of trial. It observed that proceedings can be stopped when the Magistrate is satisfied that the presence of the accused cannot be secured before the court owing to the incorrect/fake address of the accused or for any other valid reasons, despite the prosecution having made sincere and earnest efforts.
“In our view, not only is the power vested in the Magistrate sufficiently wide in its nature and scope but also in cases where the presence of the accused cannot be secured notwithstanding the earnest and sincere efforts of the Prosecutor, the Magistrate is duty bound to exercise his/her power to stop the proceedings. The Magistrate must record reasons before stopping the proceedings and releasing the accused. “
Case Title: Baiju v. State of Kerala
Citation: 2023 LiveLaw (Ker) 712
The Kerala High Court observed that the appellate court has to pass a speaking order by applying its mind for ordering deposit of minimum 20% compensation/fine amount under Section 148 of Negotiable Instruments Act as a condition to suspend sentence.
On appeal against conviction for dishonor of cheque under Section 138 NI Act, the appellate court as per Section 148 NI Act has the power to grant suspension of sentence pending appeal with imposition of a condition for payment of minimum 20% of compensation/fine amount as ordered by the trial court.
Justice P.V.Kunhikrishnan, on relying upon the Apex Court decision in in Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. (2023) observed that deposit of minimum 20% compensation/fine amount was not an absolute blanket rule while considering suspension of sentence. It held that the appellate court has the duty to decide whether it has to impose such a condition for payment of compensation/fine amount and pass a speaking order by recording its reasons.
“Therefore, the duty of the appellate court is firstly to decide whether such a deposit is to be Bhandari's case (supra), when an accused applies under S.389 of the CrPC for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls within the exception or not. The appellate court while suspending a sentence cannot pass a blanket order in all cases to deposit 20% of the fine or compensation without assigning any reason.”
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 713
The Kerala High Court directed the Ernakulam District and Sessions Judge to conduct a fact finding enquiry on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from the Memory Card relating to the incident.
Justice K. Babu, passed the Order on a plea filed by the survivor seeking a court-monitored investigation into the alleged leakage of visuals from the Memory Card, and the change in hash value of the memory card thereof, that was kept in court custody.
"The District and Sessions Judge is at liberty to seek the assistance of any agency including the police for conducting the enquiry. The petitioner is at liberty to present written submissions before the District and Sessions Judge. In the inquiry, if the commission of any offence is disclosed, the District and Sessions Judge shall proceed as provided in the Code of Criminal Procedure, 1973," it observed.
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 713
The Kerala High Court laid down comprehensive guidelines to be followed by law enforcement agencies and Courts while handling sexually explicit materials.
The Single Judge Bench of Justice K. Babu issued the guidelines while ordering a 'fact-finding enquiry' on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from a Memory Card relating to the incident.
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter
Citation: 2023 LiveLaw (Ker) 714
The Kerala High Court set aside the Single Judge's order granting permission to the Enforcement Directorate (ED) to issue fresh summons to former Finance Minister Dr. T.M. Thomas Issac and the officials of the Kerala Infrastructure Investment Fund Board (KIIFB), in connection with the Masala Bonds case.
ED had issued summons to KIIFB, and the then Finance Minister, Dr. Issac, alleging violations of provisions under the Foreign Exchange Management Act (FEMA) for raising funds by issuing rupee-denominated bonds (masala bonds) abroad.
Taking note that the Order issued by the Single Judge Bench of Justice Arun had been a detailed one, the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that,
"..propriety demands that without hearing the matter, a Single Judge cannot pass an Order virtually modifying the earlier Order passed by another Single Judge".
Kerala High Court Quashes Rape Case Considering Parties Solemnized Marriage
Case Title: Adarsh Thinkal T.S v. State of Kerala and Anr.
Citation: 2023 LiveLaw (Ker) 715
The Kerala High Court has quashed a rape case based on false promise of marriage, finding that the parties (accused and de facto complainant) had gotten married under the Special Marriage Act.
Taking into account the Marriage Certificate produced and the submissions, Justice Gopinath P observed thus:
“I am of the view that the petitioner is entitled to succeed. The offences alleged against the petitioner cannot sustain in the light of the fact that the petitioner has now married to the de facto complainant/victim.”
Case Title: Suo Moto v. State of Kerala and Ors.
Citation: 2023 LiveLaw (Ker) 716
The Travancore Devaswom Board informed the Kerala High Court that 3 newly constructed Nadapandals in Pamba Manappuram will open for pilgrims in evening, with each having capacity to accommodate approximately 640 pilgrims.
Based on the submission that construction of the 3 Nadapandals was complete, the Division Bench comprising Justice Anil K Narendran and Justice G Girish stated thus:
“In such circumstances, this SSCR is disposed of by directing the Travancore Devaswom Board to ensure that the newly constructed Nadapandals at Pamba Manappuram are opened to the pilgrims today itself.”
Case Title: Jagadesh Ramachandran v The Maintenance Tribunal, Thiruvananthapuram
Citation: 2023 LiveLaw (Ker) 717
The Kerala High Court recently observed that senior citizens cannot be denied the company and presence of siblings and close relatives, as long as they desire it.
The petitioner's son was aggrieved by the order of the Maintenance Tribunal that directed the senior citizen mother to be relocated to his aunt's (mother's sister) house.
Justice Devan Ramachandran noted that both the son as well as the sister of the senior citizen were expressing their concern and wanted to ensure her well-being. It thus noted that more inquiries were required to be conducted by the Maintenance Tribunal since the son submitted before the Court that he was providing all facilities to his mother.
Provisions For Self-Assessment Are More Onerous Than Regular Assessment Regime: Kerala High Court
Case Title: Artech Realtors Versus Intelligence Officer
Citation: 2023 LiveLaw (Ker) 718
The Kerala High Court has held that filing an untrue or incorrect return assumes more rigour in the teeth of the onerous obligation, resulting in the imposition of a penalty.
The bench of Justice Dinesh Kumar Singh has observed that provisions for self-assessment create an obligation on the assessee to file a correct return, which is more onerous than in a regime that mandates regular assessment. Filing of an untrue or incorrect return in view of sub-clause (d) of Section 67(1) assumes more rigour in the teeth of the onerous obligation, resulting in the imposition of a penalty without reference to whether there has been disclosure made in the books of account or not.
Case Title: Maya Venu v. Power Grid Corporation of India & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 719
The Kerala High Court clarified that under Section 10(d) of the Telegraph Act, 1885, the compensation for damages sustained by landowners is not confined to the initial cutting of trees, but also if any further work in the property results in damages to the landowner.
"By using the terminology 'any damage' the legislature has consciously widened the landowners' right to claim compensation. The compensation for damage sustained is therefore not confined to the initial cutting of trees and drawing of lines. If the telegraph authority does any further work in the property after drawing the lines and such action results in the landowner sustaining damage, he can claim compensation, even if he was paid compensation for the damage sustained earlier. The above reasoning is supported by the concept of continuing cause of action, whereby a cause action once arisen will continue and go on, if the act complained of is continuously repeated. Yet another reason being that, every work done in a person's property by another without permission, infringes upon the owner's right to enjoy his property without let or hindrance," Justice V.G. Arun observed.
Case title: P.H.Fathima V State Of Kerala
Citation: 2023 LiveLaw (Ker) 720
The Kerala High Court observed that as per Section 13 of the Kerala Building Tax Act 1975, the District Collector may exercise revisional power against an assessment order. The Court made it clear that the revisional power of the District Collector was not just limited to an order passed in appeal by the Revenue Divisional Officer.
Aggrieved by the rejection of the assessment order by the District Collector in revision, the petitioner has approached the High Court. Justice Dinesh Kumar Singh while quashing the order of the District Collector stated thus: “From the bare perusal of Section 13, it can be gathered that the District Collector may exercise the revisional power against the assessment order, and it is not limited only to the order passed in appeal under Section 11 by the Revenue Divisional Officer. Of course, the power of revision against the assessment order or the appellate order is to be exercised within the parameters provided under Section 13.”
Pala Nun Murder | Kerala High Court Confirms Accused's Murder Conviction; Sets Aside Rape Charge
Case Title: Satheesh Babu v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 721
The Kerala High Court confirmed the conviction of the 38 year old accused of murdering a sexagenarian nun in the year 2015 under Section 302 of IPC.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John discerned that the circumstantial evidence adduced by the prosecution established beyond doubt that the accused had caused the death of the nun, although there was no evidence as regards the weapon used by him to cause her death.
It however set aside the conviction under Section 376 IPC for rape, since there was no evidence as to the time of the death of the victim for determining whether she had been alive at the time of commission of rape.
Case Title: K.N. Abdul Gafoor v. M/S Kasmisons Builders Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Ker) 722
The Kerala High Court laid down that the National Company Law Tribunal (NCLT) can only direct the Company to file its objections along with the statement of affairs when a petition for winding up of the Company before the Tribunal had been filed by any person other than the Company itself.
Justice C. Jayachandran, passed the order on perusing Section 274(1) of the Companies Act, which stipulates the 'directions for filing statement of affairs'.
Parties Cannot Be Penalised For Belated Issuing Of Certified Copy By Family Court: Kerala High Court
Case title: Sajani V Sabu
Citation: 2023 LiveLaw (Ker) 723
The Kerala High Court observed that belatedly issuing a certified copy of an order cannot be a reason to penalize the parties, who have done no wrong.
Justice C S Dias relied upon Jang Singh vs Brijlal and others (1966) to refer to the legal maxim actus curiae neminem gravabit to state that a mistake committed by the Court should not prejudice a litigant.
“It needs no second thought to understand that there was laches on the part of the Family Court in belatedly issuing the certified copy. But, that cannot be a reason to penalise the revision petitioners, who have done no wrong. The revision petitioners are entitled to the entire arrears of maintenance claimed in Annexure A2 application.”, the Court stated.
Case title: Praveena Ravikumar v State Election Commission & Connected Case
Citation: 2023 LiveLaw (Ker) 724
The Kerala High Court upheld an order of the State Election Commission which observed that the parties defected and were disqualified for their failure to follow the written instructions issued to them by the party whip. It was alleged that the whip was served without authority at the old address and was incomplete and improper.
Upholding the validity of the notice served, the Court observed that the failure to serve notice was attributable to the addressee and not the sender when it was sent to the correct address and was returned as unclaimed or the addressee left. It further held that it was the responsibility of the addressee to leave a new address with the postal authorities when there was a change in the address.
Justice Bechu Kurian Thomas relied upon the Apex Court decision in M/s Madan and Co. v. Wazir Jaivir Chand (1989) and held thus:
“Apart from the above, if the notice sent to the correct address is returned either as unclaimed or as addressee left, the failure to serve the notice can only be attributed to the addressee and not to the sender. In such circumstances, the addressee should leave necessary instructions with the postal authorities either to redirect the letter to his new address or authorize a person to receive such postal articles. Failure to provide the new address to the postal authorities cannot prejudice the sender in such circumstances.”
Case Title: Abdul Majeed v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 725
The Kerala High Court laid down that the Juvenile Justice (Care and Protection of Children) Act, 2000 ('JJ Act, 2000') would be applicable in revision, upon the conviction and sentence of a 49 year old person in respect of an offence committed by him in the year 1991, at the age of 17 years, when the Juvenile Justice Act, 1986 was in force.
Taking note of an Explanation added to Section 20 of the JJ Act, 2000, by virtue of an amendment which came into force in 2006, Justice G. Girish observed that the determination of juvenility of a juvenile in a pending case at the time of commencement of 2000 Act shall be in terms of Section 2(l) of the JJ Act, 2000, even if the juvenile ceases to be so on or before the date of commencement of the Act.
Case Title: Animals and Nature Ethics Community (ANEC) v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 726
The Kerala High Court dismissed a Public Interest Litigation (PIL) that had been filed challenging the Order that had been issued by the Principal Chief Conservator of Forests and the Chief Wildlife Warden directing appropriate steps to be taken to shoot the tiger that had attacked and partially eaten a farmer in Wayanad.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun imposed a cost of Rs. 25,000/- while dismissing the plea.
Case Title: Dr. Athira P. v. State of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 727
In a significant ruling, the Kerala High Court addressed the disadvantages that women may face due to their biological differences from men, in the context of getting opportunities in public employment. The Court said that the rules relating to public employment must accommodate the concerns of pregnant women and young mothers, so that they don't face discrimination.
The Division Bench comprising Justice A. Muhamed Mustaque and Shoba Annamma Eapen was of the view that, despite standing on equal footing along with men with respect to consideration in the affairs or chances in the public employment, biological differences of women, such as motherhood, may often result in indirect discrimination.
Case Title: State of Kerala & Ors. v. P.V. Kuryan
Citation: 2023 LiveLaw (Ker) 728
The Kerala High Court held that as an employer, the Government ought not to enquire into the private affairs of a Government servant unless any manifest misconduct is expressed in their activities that warrants action to be taken.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen noted that in such cases, it would be for the affected persons to initiate such action as against any moral conduct of the Government servant, and not for the Government to conduct an enquiry into the private affairs of the employee.
Case title: B Suresh v Chief Engineer & Administrator
Citation: 2023 LiveLaw (Ker) 729
The Kerala High Court held that a long period of absence from service without prior intimation or permission would amount to abandonment of service. It observed that abandonment of service means an act of intentionally or voluntarily abandoning service.
In this case, the Court found that the petitioner remained absent for almost 17 years without any prior intimation or permission and it would amount to abandonment of service.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen did not interfere with the order of the Tribunal that terminated his service due to long absence.
Kerala HC Allows A Law Grad To Enroll With State Bar Post-Deadline By Submitting Application With Provisional Degree Physically
Case title: Akhil S Kumar v Bar Council of India
Citation: 2023 LiveLaw (Ker) 730
The Kerala High Court allowed a law graduate to enrol in the upcoming enrollment ceremony scheduled to be held on 17th December 2023 by submitting a physical application before the Bar Council of Kerala along with his Provisional Degree Certificate.
In this case, the petitioner was unable to apply for enrollment within the deadline, as he did not possess a Provisional Degree Certificate then.
The Court allowed the petitioner to enroll in the upcoming enrollment ceremony on finding that he had obtained his Provisional Degree Certificate. However, the Court clarified that this shall not be a precedent and directed the Bar Council to obtain verification from the police and allow the petitioner to enrol on 17th December 2023.
“In the case at hand, since the petitioner has already obtained the Provisional Degree Certificate and since the learned Standing Counsel for the University affirms that it is a genuine one, I deem it appropriate to allow the prayers of the petitioner…..The petitioner will be allowed to make a physical application for enrollment, along with all applicable fees and charges. This shall be accepted by the Bar Council of Kerala before the working hours of today (14.12.2023). On such application being received, liberty is reserved to the Bar Council of Keralato obtain verification from the Police, as may be necessary; and they will then allow the petitioner to be enrolled on 17.12.2023”, Justice Devan Ramachandran stated.
Case Title: Vibin Meleppuram v. Denny Thomas & Anr.
Citation: 2023 LiveLaw (Ker) 731
The Kerala High Court reiterated that even a blank cheque leaf which has been voluntarily signed by the drawer, towards payment, would attract presumption under Section 139 of the Negotiable Instruments Act ('NI Act'), in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability.
Relying upon the decisions rendered by the Apex Court in Bir Singh v. Mukesh Kumar (2019), and Oriental Bank of Commerce v. Prabodh Kumar Tewari (2022), the Single Judge Bench of Justice P.G. Ajithkumar reiterated that in such an instance, it would be immaterial whether the cheque had been filled in by any person other than the drawer. It added that the evidence of a hand-writing expert on whether the drawer had filled in the details in the cheque would also be immaterial to determining the purpose for which the cheque was handed over.
Case Title: Baburaj & Ors. v. Janeesh P.S. & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 732
The Kerala High Court has permitted aggrieved Municipal Councillors to challenge the decision of the Council regarding the identification of a prospective licensee for running 'Bini Tourist Home', a building owned by the Thrissur Municipal Corporation, before the State Authority.
The matter pertains to the eruption of an alleged raucous at the meeting of the Corporation Council, following disputes regarding the Council's identification of a licensee for running the tourist home.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun permitted the aggrieved Councillors to challenge the decision taken by the Council before the State authority within one week.
Case Title: Rama v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 733
In a significant decision, the Kerala High Court underscored the duty of jail authorities to consider applications moved by convicts and relatives of convicts for emergency leave, ordinary leave, and so on, within a fixed time frame.
Justice P.V. Kunhikrishnan took note that there were several petitions before the Court moved by convicts and their close relatives for getting emergency leave, ordinary parole, and so on. The Court therefore proceeded to issue a slew of directions on processing such applications, and issuing appropriate orders in that regard within three weeks from the date of receipt of the same. It further directed such orders to be communicated to the convicts and their relatives within a week of passing the Order.
Case Name: Asokan K M v State Of Kerala
Citation: 2023 LiveLaw (Ker) 734
The Kerala High Court closed the Habeas Corpus petition filed by the father of Dr Akhila @ Hadiya alleging that his daughter had been missing since the last month and they were unable to contact her.
A division bench comprising Justice Anu Sivaraman and Justice C. Pratheep Kumar observed that Hadiya is not under any illegal detention and thus the Habeas Corpus Petition was not maintainable. The Court further noted that Hadiya is living her life freely and is not under any illegal custody.
Case Title: Jayakumar J. & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 735
The Kerala High Court has quashed an order issued by the Travancore Devaswom Board which permitted the conduct of 'Nava Kerala Sadas' on Chakkuvally Prabrahma Temple premises.
The Division Bench comprising Justice Anil K. Narendran and Justice G. Girish passed the order on a plea filed by two devotees of the temple alleging blatant violation of provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950, and judgments of the Apex Court and High Court by which the temple property was being misused to conduct Nava Kerala Sadas.
Case title: Badha Ram v Intelligence Officer
Citation: 2023 LiveLaw (Ker) 736
The Kerala High Court made it clear the officials can invoke the power to arrest under Section 69 of the Kerala State Goods and Services Act, 2017 if there was a reasonable belief that an offence under Section 132 was made out and that custodial interrogation was necessary.
Justice Mohammed Nias C.P. stated that the accused can be certainly arrested to prevent any possibility of tampering with the evidence or intimidating or influencing witnesses and to ensure a proper investigation.
“The power to arrest under Section 69 can be invoked if the Commissioner has a reason to believe that the person has committed offences that are prescribed and which are punishable under Section 132 of the CGST Act, 2017. Thus, the reference to Section 132 in Section 69 is only to indicate the nature of the offences based on which reasonable belief is found and recorded by the Commissioner to pass an order for arrest…… But, once the ingredients of the offence are made out, the Commissioner or the competent authority can determine if the offender is to be arrested or not.”
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter
Citation: 2023 LiveLaw (Ker) 737
The Kerala High Cout recorded the submissions of the Enforcement Directorate (ED) that the summons issued by it to the Kerala Infrastructure Investment Fund Board (KIIFB) and former Minister, Dr. T.M. Thomas Issac, in relation to the masala bonds case would be withdrawn.
Allowing the plea of Isaac and partly allowing that of KIIFB, the Single Judge Bench of Justice Devan Ramachandran clarified that it had not entered into the merits of the investigation carried out by the ED, including as to whether it is maintainable, or liable to be continued or deserving to be continued and, added that all such issues were left open.
GST Evasion Prosecution Does Not Depend Upon Completion Of Assessment: Kerala High Court
Case Title: Badha Ram v. Intelligence Officer
Citation: 2023 LiveLaw (Ker) 738
The Kerala High Court has held that prosecution for offences under Section 132 of the CGST Act does not depend upon the completion of the assessment.
The bench of Justice Mohammed Nias C.P. refused to grant bail on the grounds that there is an alleged evasion of more than Rs. 6.5 crore against the petitioner. A serious allegation is made, which warrants a thorough investigation. When the investigation is going on, no bail can be granted to the petitioner.
Case Title: Ramachandran Potty & Anr. v. Travancore Devaswom Board & Ors.
Citation: 2023 LiveLaw (Ker) 739
The Kerala High Court recently elaborated the ambit and scope of 'partial restraint' against the institution of suits within the period of advance notice in writing, envisaged under Section 55 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 ('Act, 1950').
Section 55 (1) of the Act, 1950 stipulates that "no suit shall be instituted against the board or the executive officer of the Sri Padmanabhaswarny Temple until the expiration of two months after a notice in writting has been delivered or left at the office of the Board, or of the Executive Officer, as the case may be, stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left".
Clause (2) of Section 55 states that, "notwithstanding anything contained in any other law for the time being in force, suits or other proceedings by or against the Executive Office of the Sri Padmanabhaswamy Temple or the Travancore Devaswom Board shall be instituted in the District Court having local jurisdiction."
Justice P. Somarajan observed that the normal principle is that there cannot be any restraint against the institution of litigation before a civil court.
Case Title: XXX v. Union of India & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 740
The Kerala High Court recently laid down that Indian Courts are vested with the jurisdiction to protect the best interest or welfare of a child or an incapable adult, if so warranted, in circumstances where the Court forms an opinion that the party who approached it has no legal remedy before the Court beyond Indian territory.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court, on invoking its writ jurisdiction, would have the power to adjudicate and that the parens patriae and nationality rules would also apply to protect the best interest of the child, or the welfare of the incapable adult.
It however cautioned that the Court ought to be circumspect to exercise its jurisdiction when it finds that the law of the foreign country can be invoked to protect the welfare or best interest of the child or incapable adult.
"There may be different circumstances related to the cases. If parties are ordinarily residing in a foreign country and can avail legal remedy in that foreign country, the courts in India shall not invoke such jurisdiction to regulate the affairs of its citizens living beyond territorial jurisdiction of the country. The Court steps into the shoes of a parent invoking parens patriae jurisdiction, only in those circumstances where the Court forms an opinion that jurisdiction of the foreign country cannot be availed by the party concerned, due to lack of laws or incapability of having legal remedy, or if one party is deprived of availing legal remedy due to issues of domicile or residentiary rights. When an efficacious alternate remedy is available, the Court shall refrain from invoking its jurisdiction over the affairs of its citizens who are living outside its territorial jurisdiction," the Bench observed.
Case Title: X v. Union of India
Citation: 2023 LiveLaw (Ker) 741
The Kerala High Court recently quashed an order transferring a senior scientist at the Centre for Development of Advanced Computing (C-DAC) whose son faces 65% permanent locomotor disability. The Court held that the transfer order violated the legal right of the disabled son to be taken care of by his father.
Relying upon the UN Conventions and Rights of Persons with Disabilities (PWD) Act 2016, the Court observed that a child with a disability has a right to live in a family environment of their choice and cannot be deprived of the presence of his father in a way it affects his life.
“Thus, the question arises whether absence of the petitioner would deprive the child, the environment he enjoyed in equal measures with others. Considering the age and other factors, it cannot be said that his wife would be able to adequately maintain the child. If any of the rights of the disabled child is denied by his absence, going by Section 5 of Chapter II of PWD Act, the transfer order passed, without adverting to such right of the child, becomes illegal. In the normal routine of matter, an organisation is not expected to have a consideration of the personal matters of an employee. However, when such personal matters are intertwined with the rights conferred under law, the organisation is bound to address such matters and make sure that the transfer would not affect the child's best interest.”
Quashing the transfer order as illegal, Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen held thus:
“If a person with disability is affected by such transfer, and in no way the best interest of the child can be protected consequent upon implementing such transfer order, that transfer order will be considered illegal.”
Case Title: Kitex Garments Private Limited Company v Umaimath
Citation: 2023 LiveLaw (Ker) 742
The Kerala High Court has made it clear that as per Section 14 of the National Green Tribunal (NGT) Act, Tribunals and not Civil Courts have jurisdiction to deal with civil cases on 'substantial questions relating to environment'.
It held that as per Section 29 of the NGT Act, Civil Courts are barred from granting injunctions for actions taken or to be taken by the Tribunal in civil cases on 'substantial questions relating to environment'.
In this case, the maintainability of the suit was challenged stating that the National Green Tribunal has the jurisdiction to govern 'substantial questions relating to environment' and not a Civil Court.
Justice V.G. Arun observed thus:
“…the relief of injunction is sought based on the allegation that the revision petitioners are flowing out chemical waste and contaminating the environment (padasekharam) in violation of the licence conditions and the statutory provisions. Undoubtedly, the jurisdiction over such a case is vested with the Tribunal under Section 14 of the NGT Act. As per Section 29, no civil court can grant injunction in respect of any action taken or to be taken by the Tribunal in respect of the settlement of dispute relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated by the Tribunal.”
Case Title: Rahul Subhash v Union of India
Citation: 2023 LiveLaw (Ker) 743
The Kerala High Court dismissed a petition filed by 28 aspirants for enlistment in the Indian army challenging the Central Government's Agnipath scheme.
Justice N Nagaresh dismissed the writ petition and held that the petitioners have not advanced any tangible reason warranting interference by this Court in the Agnipath Scheme.
The Court observed that the method of recruitment to the Indian army was a matter concerning policy decisions which should be left to the government to decide, as the same affects national security. It further held that Courts cannot interfere in policy decisions of the government as long as there was no infringement of fundamental rights.
“The issue raised by the petitioners is one concerning the method of recruitment to the Indian Armed Forces. It is a sensitive issue. In matters concerning national security, policy decision should be left to the Government. So long as the decision of the Government does not infringe fundamental rights of citizens, the Courts have no reason to interfere. In assessing the propriety of a decision of the Government, the Court cannot interfere even if a second view is possible.”
Case Title: Sindhu A.K. v. Nizar Kochery
Citation: 2023 LiveLaw (Ker) 744
The Kerala High Court has laid down that Section 89 of the Code of Civil Procedure (CPC) shall apply to proceedings before the Rent Control Court.
Section 89 of CPC provides for 'settlement of disputes outside courts' including arbitration, conciliation, and judicial settlement including settlement through Lok Adalat, or mediation.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John took the view that Section 89 CPC does not run counter to any of the provisions of the Kerala Buildings (Lease and Rent Control) Act (hereinafter, 'the Act'), including Section 23 of the Act which states that the Rent Control Court and the appellate authority shall have the powers vested in a civil court as per CPC.
Case Title: S. Sreesanth v. State of Kerala
Citation: 2023 LiveLaw (Ker) 745
The Kerala High Court allowed the anticipatory bail application moved by cricketer S. Sreesanth in a cheating case.
Justice Mohammed Nias C.P. recorded the submission that the matter had been settled between the parties.
Case Title: Indira v. State of Kerala
Citation: 2023 LiveLaw (Ker) 746
The Kerala High Court granted two days' escort parole to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the function organized to release a book written by him. Advocate Keerthi Jayanandan had appeared as the counsel for Jayanandhan in the plea filed by his wife.
Justice P.V. Kunhikrishnan, while granting the escort parole to the convict, observed,
"Here is a case where the petitioner's husband who is a convict undergoing imprisonment for about 17 years. He wrote a book...He studied only up to 9th standard. The book release is scheduled on 23.12.2023. A convict in detention for 17 years wrote a book and he wants to participate in his book release function is the situation. In such a situation, I am of the considered opinion that the constitutional court should step in, even if the Rules do not permit such release. The petitioner's husband should be given an opportunity to participate in the book release function and also on the previous day for making arrangements for the function. Therefore, the petitioner's husband should be allowed two days escort parole on 22.12.2023 and 23.12.2023".
Case Title: Mathew P J v M/S. Cholamandalam Investment And Finance Co Ltd
Citation: 2023 LiveLaw (Ker) 747
The Kerala High Court has made it clear that Section 5 Limitation Act has no application in condoning the delay in filing an application challenging for setting aside an arbitral award under Section 34 of the Arbitration and Conciliation Act as this provision separately provides for a limitation period of maximum 4 months.
Justice A. Badharudeen observed thus:
“In so far as a challenge against arbitration award is concerned, the same is in accordance with Section 34 of the Arbitration and Conciliation Act, since a specific period of limitation is provided therein. Therefore, Section 5 of the Limitation Act has no application to condone delay in filing a petition under Section 34 of the Arbitration and Conciliation Act.”
Case Title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 748
In a significant ruling, the Kerala High Court held that a Magistrate cannot be prosecuted under 228-A IPC on an inadvertent omission to anonymize the name and details of the victims based on an analysis of Section 228-A and the Judges (Protection) Act, 1985.
For context, Section 228-A IPC relates to disclosing the identity of the victim of certain offences under Section 376 IPC etc. It is an offence triable by a Magistrate and punishable by up to two years imprisonment and a fine.
Justice Devan Ramachandran observed that the protection offered to judicial officers under the Judges (Protection) Act, 1985 was plenary and protects them from any action initiated qua an act, thing or word committed, done or spoken by him/her during the discharge of their official or judicial duties.
“In the case at hand, it is indubitable that the learned Magistrate was acting in performance of judicial duties and the error committed by her, or her office, is that the order was not anonymised qua the petitioner. This Court cannot, therefore, find the request of the petitioner, for initiation of action against the learned Magistrate under Section 228 A of the IPC, to be worthy of grant, specifically within the ambit of the said Section, read with the provisions of the Judges (Protection) Act, 1985. “, the Court stated.
Case Title: Sundar v Director General of Police
Citation: 2023 LiveLaw (Ker) 749
The Kerala High Court granted police protection to the relatives of Arjun, who was acquitted in the rape and murder of a five-and-a-half-year-old minor girl at Vandiperiyar town in the Idukki district in 2021.
Justice Basant Balaji directed the District Police Chief, Idukki and the Station House Officer of Vandiperiyar Police Station to ensure that there was no threat to life of the relatives of Arjun.
“Taking into consideration the seriousness of the issue that an child aged 5 1⁄2 half years was brutally murdered and the accused was exonerated of all the charges, the local people along with the respondents 4 to 6 very much agitated by the same and therefore the situation is very much tense. Therefore there will be direction to the 2nd and 3rd respondent to see that there is no threat to the life of the petitioners 1 to 7 at the hand of respondents 4 to 6 or their associates.”
Case Title: XXX v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 750
The Kerala High Court granted bail to a father who had been accused of sexually abusing his minor daughter, on doubting the veracity of the allegations raised against him.
Justice Gopinath P. stated that although the allegations that were raised against the petitioner appeared to be serious, some of the factual circumstances indicated the possibility of the same being false.
"While it may not be proper for this Court to make any conclusion regarding the matter. While considering the bail application of the petitioner, the same can be taken note of for considering whether the petitioner can be granted bail. Since investigation has been completed and final report has been filed, continued detention of the petitioner is not necessary for the purpose of investigation," the Court observed.
Case Title: V.Unnikrishnan v Kozhikode Municipal Corporation & Connected Case
Citation: 2023 LiveLaw (Ker) 751
The Kerala High Court recently upheld orders issued by the Kozhikode Municipal Corporation rejecting commercial building permits for areas earmarked as residential zones as per the Detailed Town Planning (DTP) Scheme, 1987.
Justice Bechu Kurian Thomas observed that rampant constructions without heeding to zoning regulations will affect the planned development of a town. The Court stated that the planned development of a town based on the DTP Scheme and Master Plans was essential for the future development and growth of an area.
“The micro-level plans for development are made in the DTP Schemes, while the Master Plans provide for schemes to a larger extent. If the private interest of an individual is given predominance over the public interest, the same would cause prejudice to the development of the State itself. It is taking into reckoning these aspects that the detailed town planning schemes and the Master Plans are prepared”, the Court stated.
Case Title: N. Basurangan v. State of Kerala & Connected Cases
Citation: 2023 LiveLaw (Ker) 752
The Kerala High Court dismissed the anticipatory bail application moved by the President and Secretary of the Kandala Co-operative Bank noting that granting anticipatory bail in economic offences would hamper effective investigation in the casw.
The allegation against the accused persons was that they cheated and deceived depositors and misappropriated crores of rupees. A crime was registered against them under Sections 420 (cheating and dishonestly inducing delivery of property), 409 (criminal breach of trust) and Section 34 (criminal act in furtherance of common intention) of the IPC.
Justice Mohammed Nias C P stated that economic offences have to be treated separately as they involve deep-rooted conspiracies including huge loss of money. It also held that there was an apprehension that the accused persons would try to intimidate or influence the depositors.
“The grant of anticipatory bail will frustrate the investigating agency in interrogating the accused and collecting useful information and materials that might have been concealed. Success in such interrogation would delude the accused knows that an order of court protects him. Grant of anticipatory bail, therefore, in such economic offences would certainly hamper an effective investigation. The charges being multiple, I do not think that this is a case where section 438 Cr.p.c can be invoked.”,
Case Title: XXX v Union of India
Citation: 2023 LiveLaw (Ker) 753
Reiterating the importance of masking the identity of parties in sexual offences, the Kerala High Court has held that no person shall print or publish details revealing the identity of 'parties' including their name and address without the permission of the court.
The High Court, on analysing previous judgments of the Court and the mandate of Sections 327 CrPC, 228-A IPC, made it clear that the protection of confidentiality is extended to all parties of litigation, including the accused.
Justice Kauser Edappagath observed thus:
“Hence, the law as it stands now clearly provides that it shall not be lawful for a person to print and publish any matter in relation to the inquiry or trial of rape or an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of IPC except with the previous permission of the Court, that too subject to maintaining confidentiality of name and address of the parties, both the victim and the accused.”
Case Title: Zamra Endeavours Pvt. Ltd. v. Deputy Commissioner of Police & Ors.
Citation: 2023 LiveLaw (Ker) 754
The Kerala High Court directed the handover of Zamra Convention Centre, where bomb blasts had occurred, to its Managing Director.
On October 29, 2023, bomb blasts had occurred at the Convention Centre during a Jehovah's Witness meeting. The explosion killed 8 persons and injured several others.
The Single Judge Bench of Justice Devan Ramachandran observed that the Convention Centre could not be put to prejudice 'ad infinitum', particularly considering that it had been over 60 days since the incident occurred.
Kerala High Court Dismisses Anticipatory Bail Plea Of Former Senior Government Pleader In Rape Case
Case Title: P.G. Manu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 755
The Kerala High Court dismissed the anticipatory bail plea moved by former Senior Government Pleader P.G. Manu in the case pertaining to alleged sexual assault of a female client in the guise of providing legal assistance for her.
Justice Gopinath P. however added that if the petitioner were to surrender within 10 days from today, he shall be produced before the Magistrate and that his bail application ought to be considered without undue delay.
Case Title: Dr. Ruvais E.A. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 756
The Kerala High Court allowed the bail plea moved by Dr. Ruvais, who had been accused of abetting the suicide of his girlfriend, Dr. Shahana.
Dr. Shahana, who was a Postgraduate surgery student at Government Medical College, Thiruvananthapuram, died by suicide due to financial constraints faced by her family, and their failure to meet the alleged demands for exorbitant dowry sought by Ruwais.
It is alleged that Ruwais' family had demanded 150 sovereigns of gold, 15 acres of land, and a BMW car from Shahana's family, which the latter could not meet. When the incident came to light, the Indian Medical Association (IMA) had suspended Ruwais' medical license for abetting Dr. Shahana's suicide.
Ruwais was thereafter charged with the offences under Section 306 IPC ('Abetment of Suicide') and Section 4 of the Dowry Prohibition Act ('Penalty for demanding dowry').
Taking note that Ruvais has been in custody since December 7, 2023, Justice Gopinath P. was of the considered opinion that the continued detention of the petitioner was not necessary for the purposes of investigation, and that he could be granted bail.
"The allegations against the petitioner are no doubt serious. I had also observed while granting bail to the 2nd accused in the case (Ruvais' father), that there are clear allegations against the petitioner in the suicide note recovered from the apartment where the deceased was staying. However, as rightly pointed out by the Senior Counsel appearing for the petitioner, a condition under Section 306 IPC can be sustained only if there are clear indications that the petitioner had the mens rea to drive the deceased to suicide, and the actions of the petitioner had left the deceased with no option but to commit suicide," the Court observed.
Case Title: Deepu K. Unni v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 757
The Kerala High Court closed the plea moved by story and screenplay writer Deepu K. Unni, against the release of the Mohanlal-starrer Mollywood film, 'Neru'.
Justice Devan Ramachandran today allowed the request made by the petitioner and granted him liberty to approach the competent civil court with appropriate suit or other remedy.
"In the afore circumstances, the writ petition is closed with the afore requested liberty being reserved to the petitioners," the Court said, adding that it had not entered into the merits of any of the rival contentions.
Case Title: Archana Pius v. Shine
Citation: 2023 LiveLaw (Ker) 758
The Kerala High Court recently held that an anti-suit injunction by a wife against her husband who had instituted a suit in a Canadian court, would only be maintainable with respect to properties held in India.
A Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha observed:
"Canadian court would not have jurisdiction with regard to the property/properties located in Kerala. Either of the parties have to seek relief by filing a suit in court having proper jurisdiction...we modify the order of the trial court and injunct respondent No.1 not to stake the claim in respect of properties in joint ownership or in individual names situated in India...with regard to the property in Canada, there shall be no such injunction."
Case Title: Abedur Shekh v State Of Kerala
Citation: 2023 LiveLaw (Ker) 759
“ There is no Keralite alone or Bengali alone or Kannadiga alone or Tamilian alone. All are brothers and sisters”, observed the Kerala High Court while holding that Courts cannot insist that surety should be from a particular state. It stated that such bail conditions would be unmindful of the fact that we are all Indians.
Aggrieved by the bail condition that one surety should be from the Idukki district itself, the petitioner who was a native of West Bengal has approached the Court.
Justice P.V. Kunhikrishnan observed that all persons are citizens of this country and Courts cannot insist that surety should belong to a particular area.
“If a Keralite unfortunately became an accused in West Bengal, he would find it extremely difficult to get a surety at West Bengal as he is not a resident of that State. He can produce a surety from his native place where his kith and kin are residing. Similar is the case if a native of West Bengal becomes accused of an offence in Kerala. All are citizens of this country. The sureties are executing the bond to produce the accused as and when required. It cannot be insisted that the sureties residing within the jurisdiction of the Court should execute a bond in all situations.”
Case Title: Biju Sundar v State of Kerala
Citation: 2023 LiveLaw (Ker) 760
The Kerala High Court has made it clear that a fine balance has to be found between the requirements of administration and the imperative to provide greater opportunities to PwD Candidates.
The petitioner, in this case, challenged the 2023 notification for appointment as District & Sessions Judge in Kerala State Higher Judicial Service (KSHJS) by direct recruitment from bar (hereafter, notification) for being violative of the rights of disabled persons.
Disposing of the writ petition, Justice Raja Vijayaraghavan V issued directions for the identification of posts, working out backlog vacancies, providing age relaxation, granting grace marks and filling up backlog vacancies through a special recruitment drive for ensuring full and equal rights to disabled persons to fulfil the constitutional mandate as per the Right of Persons with Disabilities Act, 2016.
Case Title: Deepa P.M. & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 761
The Kerala High Court recently berated the Deputy Superintendent of Police (Dy.SP), Thrissur Rural, for refusing to issue a Letter of Altruism to a maid to enable her to donate her organ to her previous employer who is suffering from renal failure.
Justice Devan Ramachandran observed that the said authority had refused to grant the Letter, on acting upon certain surmises and conjectures entered into by the Station House Officer of the Valapad Police Station (SHO) who doubted the intention behind the transplant on account of the poor financial background of the petitioner.
Case title: K Tony Thomas v Vythiri Grama Panchayath
Citation: 2023 LiveLaw (Ker) 762
The Kerala High Court has made it clear that the District Disaster Management Authority (DDMA) cannot expand the term 'landslide prone area' without approval from the State Disaster Management Authority (SDMA).
Relying upon Section 31 (2) of the Disaster Management Act, 2005, the Court held that the District Plan prepared by DDMA has to be approved by the State Authority.
Case Title: XXXX v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 763
The Kerala High Court recently quashed proceedings under the Protection of Children from Sexual Offences Act (POCSO Act) and the Indian Penal Code (IPC) against a man alleged to have sexually abused the victim.
Justice Gopinath P. noted that the allegations against the petitioner accused had been launched following his withdrawal from marriage with the victim, after the engagement ceremony had been performed. The Court also took note that the proceedings were being sought to be quashed herein following the reconciliation and marriage of the parties.
Case title: Aswathy Surendran v Union of India
Citation: 2023 LiveLaw (Ker) 764
The Kerala High Court has made it clear that medical termination of pregnancy can only be sought when the competent medical board has diagnosed substantial foetal abnormalities.
“Statutorily, under the mandate of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 ('Act' for short), it is only in cases where the foetus has substantial abnormalities diagnosed by the competent Medical Board, can the termination of pregnancy be sought for”.
Justice Devan Ramachandran, on considering a plea moved by the petitioners-husband and wife did not approve the medical termination of the pregnancy of a 30-week-old foetus since the Medical Reports did not suggest lethal foetal abnormalities endangering the life of a newborn baby.
Case Title: Josepheena T.T. v. Thrissur Municipal Corporation & Anr.
Citation: 2023 LiveLaw (Ker) 765
The Kerala High Court has laid down that the failure to inform the transfer of property under Rules 19(1) or 19(2) of the Kerala Municipality Building Rules, 2019 ('KMBR Rules, 2019') cannot render a building permit that has already been issued invalid, when the building has not been constructed or completed.
Justice Bechu Kurian Thomas was of the considered view that the failure to inform the Secretary is only an irregularity and a curable defect, and that the prior owner and purchaser would be at liberty to apply to the Secretary, intimating him about the transfer and even request for a change of name for the building permit already issued, and that the Secretary would then have to take a decision on the same.
Case Title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 766
The Kerala High Court has held that a consumer in a brothel house comes within the purview of Section 5 of the Immoral Traffic (Prevention) Act, 1956 (ITP Act). Section 5 makes persons liable who procure, induce or take persons for prostitution.
Justice P.G. Ajithkumar observed that since the word 'procure' had not been defined in the ITP Act, it has to be understood to achieve the object behind the statute. The Court stated that the statute was enacted to prevent commercialisation of the vices and trafficking among women and girls, a consumer in a brothel house can also be made liable for procuring a person for prostitution under Section 5 of the Act.
