Kerala High Court Annual Digest 2023: Part I [Citations 1-255]

Meharban M.H. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 35

Kerala Judicial Officers' Association & Anr. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 36

Aaron S John v. TKM College of Engineering, Kollam and Ors. 2023 LiveLaw (Ker) 37

P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters 2023 LiveLaw(Ker) 38

Fasaludheen A. & Anr. v. State of Kerala & Anr. and other connected matters 2023 LiveLaw (Ker) 39

Firozalavi T.V. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 40

Kerala State United Nurses Association v. State of Kerala 2023 LiveLaw (Ker) 41

Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep 2023 LiveLaw(Ker) 42

Jeby James v. State of Kerala 2023 LiveLaw (Ker) 43

Akshay Raj v. Ministry of Law and Justice & Ors. and other connected matters 2023 LiveLaw(Ker) 50

The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors. 2023 LiveLaw(Ker) 51

Muhammed Rashid @ Rashid v. Girivasan E.K. & Ors. 2023 LiveLaw(Ker) 52

P.K. Sajeev & Ors. v. Eldho P. Mathew & Ors. 2023 LiveLaw (Ker) 53

Prakashan and Ors. v. State of Kerala 2023 LiveLaw (Ker) 54

The President, Vennoor Services Cooperative Bank v. State of Kerala & Ors. 2023 LiveLaw (Ker) 55

Suresh Kumar V State of Kerala 2023 LiveLaw (Ker) 56

S. Sivadas v. State of Kerala and other connected matters 2023 LiveLaw (Ker) 57

Sithara Indane Gas V Union of India 2023 LiveLaw (Ker) 58

K. Abdul Hameed v. Kerala State Human Rights Commission & Ors. 2023 LiveLaw (Ker) 59

xxx v. yyy 2023 LiveLaw (Ker) 60

Dr. Balachandran v. State of Kerala and other connected matters 2023 LiveLaw (Ker) 61

Dr. Anupama K.P. v. University of Calicut & Ors. 2023 LiveLaw (Ker) 62

Sudheesh Babu v. State of Kerala 2023 LiveLaw (Ker) 63

Kerala Public Service Commission v. The State Commissionerate for Persons with Disabilities & Anr. 2023 LiveLaw (Ker) 64

Kerala State Insurance Department v. Joy Wilson M.V. & Ors. 2023 LiveLaw (Ker) 65

Shabna Abdulla v. Union of India & Others 2023 LiveLaw (Ker) 66

George M. Mathews @ George V. Muhammed Haneefa Rawther 2023 LiveLaw (Ker) 67

Mrs. Sasikala Menon V. State of Kerala and Another 2023 LiveLaw (Ker) 68

M/S Peniel Cashew Company V M/S.Ahcom Sarl 2023 LiveLaw (Ker) 69

B v. H 2023 LiveLaw (Ker) 70

Tomy Joseph v. The Joint Registrar of Cooperative Societies (General), Idukki & Anr. 2023 LiveLaw (Ker) 71

M.M. Abdul Azeez & Ors. v. State of Kerala 2023 LiveLaw (Ker) 72

Vijay Kirgandur & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 73

The Town Planner, District Town Planning Officer V Joseph Jacob & Others. 2023 LiveLaw (Ker) 74

Hameedali K.P. v. Chief Executive Officer & Ors. 2023 LiveLaw (Ker) 75

Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency 2023 LiveLaw (Ker) 76

Siji V State of Kerala 2023 LiveLaw (Ker) 77

Rajaneesh Kumar R. & Ors. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 78

Femeena E. v. State of Kerala 2023 LiveLaw (Ker) 79

State of Kerala rep. by Additional Chief Secretary & Ors. v. Dr. Louis J. Kattady & Ors. 2023 LiveLaw (Ker) 80

Thaikkudam Bridge v. Hombale Films & Ors. 2023 LiveLaw (Ker) 81

Manu Dev V XXX and Another 2023 LiveLaw (Ker) 82

XXX v XXX 2023 LiveLaw (Ker) 83

Aleyamma Kuruvilla v. Mahatma Gandhi University 2023 LiveLaw (Ker) 84

Major Vellayani Devi Temple Advisory Committee & Anr. v. State of Kerala & Ors. and Sreeraj Krishnan Potti M.S. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 85

R v. R 2023 LiveLaw (Ker) 86

Kalukutty v. P.M. John & Anr. 2023 LiveLaw (Ker) 87

Shanil v. State of Kerala & Anr. and other connected matters 2023 LiveLaw (Ker) 88

Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors. 2023 LiveLaw (Ker) 89

State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor, 2023 LiveLaw (Ker) 90

Anilkumar & Anr. v. State of Kerala, 2023 LiveLaw (Ker) 91

Gireesh V Antony, 2023 LiveLaw (Ker) 92

Southern Railway V M R Ramakrishnan, 2023 LiveLaw (Ker) 93

C.V. Balan & Ors. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 94

The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr, 2023 LiveLaw (Ker) 95

Sunil N.S. v. State of Kerala 2023 LiveLaw (Ker) 96

V. Mohanlal v. State of Kerala & Ors. 2023 LiveLaw (Ker) 97

Thachanalil Shyju V State of Kerala, 2023 LiveLaw (Ker) 98

Anantha Narayanan & Others V Malabar Devaswom Board & Others, 2023 LiveLaw (Ker) 99

Arun P Wilson and Others V State of Kerala and Others, 2023 LiveLaw (Ker) 100

K.J. Abraham v. The District Geologist2023 LiveLaw (Ker) 101

Yasin Sunu V State of Kerala,2023 LiveLaw (Ker) 102

Lalithambika & Ors. v. Grievance Redressal Committee & Ors.2023 LiveLaw (Ker) 103

Jamshid P.V. v. State of Kerala, 2023 LiveLaw (Ker) 104

Sam Joseph V State of Kerala and Others, 2023 LiveLaw (Ker) 105

K C Antony V State of Kerala and Others 2023 LiveLaw (Ker) 106

Pradeep and Others V State of Kerala and Others, 2023 LiveLaw (Ker) 107

R. Helan Thilakom v. State of Kerala & Ors. 2023 LiveLaw (Ker) 108

A. Saudamini v. Union of India & Ors, 2023 LiveLaw (Ker) 109

Vimal K. Mohanan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 110

Judgments/Orders

Justice V G Arun said that as per the COVID-19 advisory for patient admission to CFLTCs issued by the Government, the Centre identified as COVID Health Care Centre should treat all mild and moderate symptomatic persons under surveillance and should be utilised for treating positive cases when need arises.

Case Title: P.K. Sajeev & Ors. v. Eldho P. Mathew & Ors.

Citation: 2023 LiveLaw (Ker) 53

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

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

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

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

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

Case Title: Gopal C V Central Bureau of Investigation

Citation: 2023 LiveLaw (Ker) 121

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

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

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

Case Title: Jollyamma Joseph @ Jolly V State of Kerala

Citation: 2023 LiveLaw (Ker) 122

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

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

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

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

Citation: 2023 LiveLaw (Ker) 123

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

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

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

Case Title: XXXXXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 124

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 125

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

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

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

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

Citation: 2023 LiveLaw (Ker) 126

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 127

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

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

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

Case Title: XXX v. State of Kerala

Citation: 2023 LiveLaw (Ker) 128

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 129

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

The Single Judge Bench of Justice Gopinath P. observed,

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

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

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

Citation: 2023 LiveLaw (Ker) 130

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

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

Commercial Court Shall Not Allow Written Statement To Be Taken On Record After Lapse Of 120 Days From Service: Kerala High Court

Case Title: Anil MP V Capital Finserv Ltd

Citation: 2023 LiveLaw (Ker) 131

The Kerala High Court recently held that the Commercial Court shall not allow a written statement filed in a suit to be take on record if 120 days has passed since the date of service of summons.

A single bench of Justice C S Dias observed that under Section 16 of Commercial Courts Act, 2015, the Code of Civil Procedure,1908 will stand amended while being applied to commercial disputes as set out in the Schedule to the Commercial Courts Act. As a result, Orders V and VIII of the CPC have been amended by the Schedule. As per the amended provision, a defendant has to file the written statement within 120 days of the service of summons. If the defendant fails to do so, the right to file a written statement in the suit stands forfeited and the court will refuse to accept the written statement on record at a later stage.

Kerala High Court Issues Additional Directions For Efficient Implementation Of Reservation For Differently Abled In Aided School Appointments

Case Title: Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters.

Citation: 2023 LiveLaw (Ker) 132

The Kerala High Court modified the order of a single bench that directed the State to give effect to its 2018 decision regarding reservation for employment in favour of persons with disabilities in aided educational institutions and also to take immediate steps to address the backlog in the appointments in the arising vacancies.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas said:

1. The State's Educational Officers must provisionally approve appointments made for vacancies set aside for individuals with disabilities that arose between18.11.2018 and 08.11.2023, as long as the appointments are in order. These vacancies should be treated as temporary, and the approval will only be valid until the incumbents who are regularly appointed take charge. The officers should also ensure that the pay and allowances due to these individuals are disbursed. 2. If, despite following the detailed procedure prescribed by the government, regular appointments cannot be made for the vacancies mentioned in direction (1), the vacancies can be treated as substantive, and the approvals already granted can be made permanent. 3. Even if regular appointments are made for the vacancies mentioned in direction (1), the concerned teacher should be absorbed into the next immediate vacancy in the same school or any school under the same management, provided they are qualified for such appointment. The teachers should be treated as claimants under Rule 51A of Chapter XIVA of the Kerala Education Rules. 4. The Managers of all aided schools can hire individuals on a daily wage basis to fill vacancies that arose after November 8th, 2021, until they fully comply with the directions contained in the judgment of the single bench and the judgment in appeal.

Three Grounds For Grant Of Bail In Susantha Ghosh Case By Apex Court Not Exhaustive; Kerala High Court Enumerates Other Factors

Case Title: George Kurian @ Pappan v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 133

The Kerala High Court recently held that the three factors laid down in Susanta Ghosh v. State of West Bengal (2012) by the Apex Court while considering grant of bail to an accused, namely, chances of tampering with the evidence; chances of interfering with the investigation; and chances of absconding, are not exhaustive.

The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same.

Kerala High Court Refuses To Defer Trial In Ranjith Sreenivasan Murder Case, Says Supplementary Chargesheet Against Conspirators Can Be Filed Later

Case Title: Haris and Others V State of Kerala and Another

Citation: 2023 LiveLaw (Ker) 134

The Kerala High Court recently refused to defer the trial of 15 persons who are accused of murdering BJP leader Ranjith Sreenivasan on account of political rivalry. The accused are said to be the Socialist Democratic Party of India/Popular Front of India (SDPI/PFI) workers. The accused persons allegedly had gathered in an unlawful assembly and committed Sreenivasan's murder with deadly weapons like hatchets and hammers in December 2021.

The investigation officer last year submitted the final report against accused 1 to 15 who allegedly committed the murder. Accused Nos.16 to 35, the petitioners who approached the high court, allegedly participated in the larger conspiracy which led to the murder. However the investigation officer reserved the liberty to submit an additional chargesheet after completing the investigation against them.

The plea filed by Accused 16 to 35 challenging the “split-chargesheet” filed by the investigation officer was dismissed by a single bench of Justice K Babu.

Schools Not Required To Obtain From State “Formal Prior Recognition Letter” Every 5 Yrs To Continue Affiliation: CBSE To Kerala High Court

Case Title: The Village International School & Anr v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 135

The Central Board of Secondary Education (CBSE) recently informed the Kerala High Court that the 'Formal Prior Recognition Letter' issued by the State Government to schools under the Right of Children to Free and Compulsory Education Rules ('RTE Rules'), Kerala, is not confined to any particular period, and that no further such recognition letter would be necessary for extending the affiliation to the Board every five years.

It was further informed by the Standing Counsel of CBSE S. Nirmal that as per the latest Handbook issued by the CBSE, Schools also had the option to produce a 'System Generated Self Certification/System Generated DEO Certificate' with respect to the aspects mentioned in Appendix-III of the Affiliation Bye-Laws and that the CBSE would act upon the same while processing the application for continuation of affiliation.

The Single Judge Bench of Justice Devan Ramachandran, thus observed in this regard that the said stand of the CBSE, "renders the position ineluctably clear that, the schools now have the option of approaching them for continuing their self affiliation based on their own certification or a System Generated Certification; and it is only if the same is found to be insufficient and they being so informed by the CBSE, would they then require to apply for and obtain the certificate as per Appendix - III of the “Affiliation Bye-Laws”, from the Educational Authority".

Trespasser Having No Jural Relationship With State Can't Insist On Procedure For Eviction Under Public Premises Act: Kerala High Court

Case Title: Harris T.K. v. Greater Cochin Development Authority & Anr.

Citation: 2023 LiveLaw (Ker) 136

The Kerala High Court recently held that a rank trespasser has no recognition under law as far as illegal occupation of a public premise is concerned, and that the Court cannot accord such person with some sort of protection regarding the illegal use of the premise.

The Court in this case was dealing with a rank trespasser who was an occupant of a room in Greater Cochin Development Authority (GCDA), and had trespassed into the common area. He had no case that the said area had been let out to him or even that he had been permitted to use it. However, he claimed that he could not be removed except under the procedure established by law, as contemplated by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter, 'Act, 1971').

Elucidating that the Act,1971 is an enactment for eviction of unauthorized occupants of public premises, the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen went on to observe that the same postulates that the occupant but for termination, is deemed to have a relationship of that between the public authority and the occupant.

"For example, if he is an occupant of a room in GCDA by way of lease or licence, if his jural relationship comes to an end by invoking the provisions of the contract or the provisions of law, he can only be evicted by invoking the Public Premises (Eviction of Unauthorised Occupants) Act, 1971," the Bench explained in the appeal before it.

Police Officer Is Gazetted Officer For Search Of A Person U/S 50 NDPS Act Unless He Is Part Of Investigating Team: Kerala High Court

Case Title: Nithin V State of Kerala

Citation: 2023 LiveLaw (Ker) 137

The Kerala High Court recently held that any police officer being a gazetted officer would be competent to conduct a search under Section 50 (conditions under which search of persons shall be conducted) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The only exception to this would be a police officer part of the detecting or investigating team, as such an officer could not be considered an independent officer for the purposes of the search.

The court also clarified that ensuring the presence of the gazetted officer at the place of search, instead of taking the accused to the gazetted officer would not be considered non-compliance of Section 50 of the NDPS Act.

A single bench of Justice A Badharudeen was considering the bail application of a man who was arrested for possession of 0.9 grams of MDMA intended for sale which is punishable under the NDPS Act.

When Loan Has Been Repaid, Bank Can't Withhold Title Documents Merely Because Borrower Transferred Mortgaged Property : Kerala High Court

Case Title: Vinu Madhavan V State Bank Of India

Citation: 2023 LiveLaw (Ker) 138

The Kerala High Court held that a bank could not retain the security documents related to a mortgaged property if the loan amount has been paid in full by the borrower, merely because during term of the mortgage, it was alienated to a third party by the borrower.

A single bench of Justice Shaji P Chaly held that : “merely because the property was transferred by the petitioner during the subsistence of the mortgage, however the interest of the Bank is protected by closing the loan account, the Bank is not entitled to withhold the security documents on the ground that the petitioner has transferred the property during the subsistence of the mortgage.”

IOs, Public Prosecutors Can't Casually Seek Extension Of Time For Completing Probe In NDPS Cases, Requisite Training Be Imparted: Kerala High Court

Case Title: Dayal v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 139

Observing that investigating officers and public prosecutors in many cases are showing laxity in properly framing and submitting petitions under Section 36A (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Kerala High Court has asked the Director General of Prosecution and Director General of Police to take appropriate action for imparting requisite training and refresher courses to the officers.

"The necessity of clearly setting out the twin requirements for seeking extension of detention of accused beyond 180 days cannot be overlooked or dealt with in a casual manner under any circumstance. This is an aspect that should engage the attention of the Director General of Prosecution and the Director General of Police," Justice V. G. Arun said.

Senior Citizen Offsprings Of 94-Yr-Old Who Died In Road Accident Entitled To Compensation For 'Loss Of Parental Consortium': Kerala High Court

Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors.

Citation: 2023 LiveLaw (Ker) 140

The Kerala High Court recently considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'.

Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed,

"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children".

Kerala High Court Quashes Governor's Order Suspending KTU Syndicate Resolutions

Case Title: I.B. Satheesh M.L.A. v. The Chancellor, APJ Abdul Kalam Technological University & Ors.

Citation: 2023 LiveLaw (Ker) 141

The Kerala High Court quashed the order of the Chancellor of the APJ Abdul Kalam Technological University, Arif Mohammed Khan, who is also the Governor of the State, suspending the resolutions issued by the Syndicate and Board of Governors of the University.

Justice Sathish Ninan passed the above order noting that the proviso to Section 10(3) of the APJ Abdul Kalam Technological University Act, 2015 (hereinafter, 'Act, 2015') contemplates the opportunity to show cause before the issuance of any such order suspending or modifying any resolution of any authority.

"When the power is traced under a statutory provision, compliance in terms thereof is the mandate. Where the law prescribes a thing to be done in a particular manner and following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure," the Court observed.

Kerala High Court Grants Parole To 'Ripper Jayanandan' For Attending Daughter's Wedding

Case Title: Indira v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 142

The Kerala High Court granted parole for a period of fifteen days to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the wedding of his daughter. In the petition filed by the wife of the convict, their daughter, Advocate Keerthi Jayanandan had appeared as the counsel.

Justice Bechu Kurian Thomas, while allowing the petition, observed,

"... this Court cannot be oblivious to the glorious right to liberty enshrined in Article 21 of the Constitution of India. The liberty of every individual and the right to life guaranteed under the aforesaid constitutional provision has been interpreted to include the right to live with human dignity. Though a convict, petitioner's husband also enjoys the facets of right to life and liberty within the limits of law. Normally the opportunity to participate in the wedding of a daughter has to be treated as part of that liberty. When the statute permits the grant of emergency parole, there is no reason why such a facet of his liberty ought to be denied to him despite him being a convict".

Kerala High Court Asks Centre To Consider Allowing Vehicles To Pass Without Paying Toll During Busy Hours

Case Title: Nithin Ramakrishnan V Union Of India

Citation: 2023 LiveLaw (Ker) 143

The Kerala High Court asked the Centre to consider allowing vehicles to pass through toll booths without paying toll during busy hours of traffic when the queue of vehicles is long.

A division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen asked the Union Government to consider giving retrospective effect to the Policy Circular dated 24.5.2021 of the NHAI Policy Guidelines/ Management of Plaza, 2021 which provides for lifting of the boom barrier to allow free flow of traffic anytime the queue of vehicles in any lanes becomes longer than 100 meters. This free flow of traffic without collecting toll amount will be allowed till the queue comes within 100 meters, according to the circular.

Kerala High Court Refuses To Interfere With Trial Court's Order For In-Camera Proceedings In Koodathayi Murder Case

Case Title: Jollyamma Joseph @ Jolly V State of Kerala

Citation: 2023 LiveLaw (Ker) 144

The Kerala High Court refused to interfere with the order of the trial court that directed proceedings to be held in-camera in the trial for the murder of Roy Thomas, where his wife Jolly Joseph is the prime accused.

A single bench of Justice Bechu Kurian Thomas said,

"Unless the applicant is able to show that prejudice has been caused on account of the order directing in-camera proceedings to be held, this Court ought not, in exercise of the inherent jurisdiction, interfere with the satisfaction exercised by the trial Judge".

False Promise Of Marriage: Kerala High Court Refuses To Quash Rape Case, Says Accused Obtained Consent Only For Sexual Relations

xxx v. State of Kerala

Citation: 2023 LiveLaw (Ker) 145

The Kerala High Court recently refused to quash the criminal proceedings that had been initiated against a person for allegedly raping a woman under the false promise of marriage, on the ground that the facts prima facie established that he had never intended to marry her.

Justice K. Babu perused Section 90 of the Indian Penal Code which refers to the expression 'consent', and noted that for the purposes of Section 375, consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.

'Practising Christian, Not A Scheduled Caste Member': Kerala High Court Annuls CPM MLA A Raja's Election From Reserved Constituency

Case Title: D. Kumar v. A. Raja

Citation: 2023 LiveLaw (Ker) 146

The Kerala High Court declared CPM candidate A. Raja's 2021 election from the Devikulam Assembly constituency as void.

Justice P. Somarajan said Raja is not a member of 'Hindu Parayan' within the State of Kerala and thus not qualified to be chosen to fill the Devikulam Assembly constituency that had been reserved for Scheduled Caste among Hindus.

[Kerala Wetland Act] Property Cannot Be Termed 'Paddy Land' For Sole Reason That It Is Lying Fallow: High Court

Case Title: Sudheesh.U V The Revenue Divisional Officer Palakkad

Citation: 2023 LiveLaw (Ker) 147

The Kerala High Court recently reiterated that a property cannot be termed as paddy land under the Kerala Conservation of Paddy Land and Wetland Act, 2008 for the sole reason that property is lying as fallow. The court observed that the Revenue Divisional Officer must also be satisfied that the land is suitable for paddy cultivation apart from it being fallow, for it to fall under the category of paddy land under the 2008 Act.

A single bench of Justice Viju Abraham observed that: “Going by the definition in Section 2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of Section 2(xii) of the Act, 2008.”

Media Or Govt Agencies Have No Right To Peep Into Private Lives Of Citizens Without Any Valid Reason: Kerala High Court Slams Online Media Channels

Case Title: Sumesh G.S @ Sumesh Marcopolo V State Of Kerala

Citation: 2023 LiveLaw (Ker) 148

The Kerala High Court recently came down heavily on certain online media channels for broadcasting private moments of a woman and said it is disheartening to note that some online news channels "are in the habit of publishing sleaze more than news."

A single bench of Justice VG Arun while criticising the recent media trend of publishing private content of individuals in the name of news said: “In my opinion, publication of another person's private moments for public viewing is, by itself, an offensive act, even if there is no law preventing such action. No person, whether it be the media or Governmental agencies, have the right to peep into the private lives of the citizens of this country, without there being a valid reason.”

Preventive Detention Order Can Be Passed Against Person Already In Judicial Custody On Subjective Satisfaction Of Detaining Authority: Kerala High Court

Case Title: Megha Oshin v State of Kerala

Citation: 2023 LiveLaw (Ker) 149

The Kerala High Court recently held that an order of preventive detention can be passed against a person already in judicial custody if the detaining authority is satisfied of its necessity.

A division bench comprising of Justice Alexander Thomas and Justice C.S. Sudha held that based on parameters such as the immediate possibility of release of the detenu from judicial custody and if released on bail, the likelihood to continue to indulge in prejudicial activities must be considered by the detaining authority while passing an order of preventive detention when the person is already in judicial custody.

Prescribing Qualifications In Addition To UGC's Minimum Qualification For Teaching Posts To 'Uplift Education Quality' Constitutional: Kerala High Court

Case Title: Dr. Usha V. Parameswaran and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 150

The Kerala High Court recently upheld the constitutional validity of Section 45A of the Kerala University of Fisheries and Ocean Studies Act, 2010 (KUFOS Act) on the ground that the qualifications for teaching posts prescribed in addition to the UGC Regulations is for uplifting the quality of education.

A single bench of Justice Sathish Ninan was considering a plea challenging the constitutional validity of Section 45A of the KUFOS Act on the ground that it was repugnant to the qualifications prescribed by the University Grants Commission (UGC) Regulations. The petitioners also challenged the employment notification issued by the Kerala University Of Fisheries And Ocean Studies for filling up posts prescribing the above qualifications.

Enacting Movie Scene Doesn't Mean Actors Actually Consumed MDMA: Kerala High Court Quashes NDPS Case Against Makers Of 'Nalla Samayam'

Case Title: Omar Abdul Vahab & Anr. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 151

The Kerala High Court recently quashed the criminal proceedings that had been initiated against the Director and Producer of the Malayalam movie 'Nalla Samayam' on the allegation that trailer of the movie depicted a scene wherein one of the characters lauded MDMA to give energy and happiness to users.

Justice V.G. Arun observed that Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) which stipulates punishment for consumption of narcotic drug or psychotropic substance would not apply, since mere enactment of scenes in a movie could not lead to the assumption that the actors had actually done what they had enacted.

"I am certain that Section 27 will not apply, since enactment of scenes in a movie cannot lead to the assumption that the actors had actually done what they had enacted. If that reasoning is adopted, actors in villainous roles stand the risk of being tried and convicted for murder, arson and rape," the Court observed.

Application For Condonation Of Delay Not Required When Victim Appeals Against Acquittal, Affidavit Explaining Delay Sufficient: Kerala High Court

Case Title: T Peethambaran V State of Kerala

Citation: 2023 LiveLaw (Ker) 152

The Kerala High Court held that when a victim belatedly files an appeal against a judgement of acquittal, it is not essential to file an application for condonation of delay and that an affidavit explaining the delay would suffice.

The court also held that it is not necessary for the appellate court to pass a specific order in relation to the delay.

A single bench of Justice Bechu Kurian Thomas observed, “A delay condonation petition is not required to be filed by a victim who prefers an appeal even after a delay of more than 90 days. The only requirement is to file an affidavit explaining the delay. If the Appellate Court is satisfied with the explanations offered, the court is entitled to proceed to consider admission of the appeal.”

Article 243ZE | Kerala High Court Directs State To Constitute Metropolitan Planning Committee For Kochi Without Further Delay

Case Title: Adv. Richard Rajesh Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 153

The Kerala High Court recently directed the State Government to complete the process of constituting the Metropolitan Planning Committee (MPC) for Kochi as mandated under Article 243ZE of the Constitution without further delay.

A division bench comprising Chief Justice S Manikumar and Justice Murali Purushothaman while considering a Public Interest Litigation (PIL) filed by natives of Kochi City, recorded the submission of the Additional Chief Secretary that the setting up of the Metropolitan Planning Committee was already in motion. The court also directed the State to take immediate steps to form the Kochi Metropolitan Development Authority, to ensure proper urban planning for the Kochi Metropolitan area:

“Having given due consideration to the material on record, in particular, the averments that steps have been taken to constitute a Metropolitan Planning Committee for the Metropolitan area of Kochi, as mandated under Article 243ZE, taking note of the length of time, i.e. nearly 2 decades, we direct the Chief Secretary, Secretariat, Thiruvananthapuram, the Additional Chief Secretary to the Government, Local Self Government Department, Thiruvananthapuram, and the Principal Director, Local Self Government Department, respondents 1, 3 and 4 respectively, to finalize the preparation of the process already undertaken and as explained in the foregoing paragraphs of the counter affidavit filed by the 3rd respondent, and constitute the Metropolitan Planning Committee for Kochi, as mandated under Article 243 ZE, and also to take immediate steps for the formation of Kochi Metropolitan Development Authority, for the purpose of implementing, coordinating and supervising the orderly development of Kochi Metropolitan area, within four months from the date of receipt of a copy of this judgment.”

No Criminal Action Merely On Allegation Of Wrong Order Passed By Public Servant: Kerala HC Quashes Corruption Case Against Deputy Collector, Others

Case Title: P.T. Jose & Ors. v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 154

The Kerala High Court has made it clear that criminal proceeding cannot be initiated against a public servant merely on the ground that a wrong or incorrect order was passed by him/her.

Stating thus, it quashed the FIR and proceedings initiated against Taluk Land Board Chairman, Deputy Collector (LR) and Tahsildar of Thrissur, other Board members under the Prevention of Corruption Act.

Justice Kauser Edappagath found the prosecution case unsustainable, no allegation of any illegal gratification was made. It observed, "If a public servant acting as a quasi-judicial authority under a statute passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order."

Kerala High Court Dismisses Public Service Commission's Plea Against KAT Order Permitting Transgender Person To Apply

Case Title: Kerala Public Service Commission V. Arjun Geetha & Others

Citation: 2023 LiveLaw (Ker) 155

The Kerala High Court recently dismissed the plea of the Kerala Public Service Commission (KPSC) challenging the interim order of the Kerala Administrative Tribunal that had permitted a transman by the name of Arjun Geetha, to apply for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion.

A division bench comprising Justice S V Bhatti and Justice Basant Balaji considering the plea of the Public Service Commission stated, “we are compelled to observe that the State Government/2nd respondent examine protection granted to the transgender persons by the Act, and the needful is done without subjecting them to avoidable litigation”.

Doctrine Of Pleasure Subject To Rule Of Law: Kerala High Court Quashes Governor's Order Removing 15 Senate Members From Kerala University

Case Title: Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors

Citation: 2023 LiveLaw (Ker) 156

The Kerala High Court quashed the order of Governor Arif Mohammed Khan, Chancellor of the University of Kerala, withdrawing the nomination of 15 members of the University Senate.

A single bench of Justice Sathish Ninan held that the order of the Chancellor withdrawing the nominations of the members invoking the doctrine of pleasure was unsustainable in law and arbitrary:

“it is evident that the order is not based on any reason, but, was rather founded on prejudice. It was an unreasoned act, without regard to the facts and circumstances”, the court observed.

Deputationist Has No Indefeasible Right To Continue In Borrowing Department, Repatriation Permissible If Work Not Satisfactory: Kerala High Court

Case Title: Ajin K.A. & Ors. v. The Joint Deputy Director & Ors.

Citation: 2023 LiveLaw (Ker) 157

The Kerala High Court dismissed the petition filed by Civil Police Officers who had been deputed to the Bureau of Immigration, seeking to continue on deputation till the expiry of their period.

Reiterating that deputationists do not have a right to claim that they should be permitted to complete the entire tenure in the borrowing department, the Single Judge Bench of Justice N. Nagaresh, went on to state that the concept of repatriation was also inherent in deputation as long as the deputationist has not been permanently absorbed in the borrowing Department.

"A deputationist does not have indefeasible right to continue in the borrowing Department. Repatriation can be resorted to on the grounds of unsuitability or unsatisfactory work. As long as the repatriation of the petitioners does not amount to reversion or imposition of penalty and as long as the decision is not vitiated by bias, the petitioners cannot have any legal grievance in the matter," the Court observed.

No Data Regarding Exact Population: Kerala High Court Holds Notifications Declaring Lakshadweep's Gram Panchayat Constituencies Ultra Vires

Case Title: Niyas V The District Collector Palakkad

Citation: 2023 LiveLaw (Ker) 167

The Kerala High Court recently observed that in the Kerala Conservation of Paddy Land and Wetland Rules, 2008, where two authorities, the Revenue Divisional Officer (RDO) and the Local Level Monitoring Committee (LLMC) have been given the power to redress the same grievance, i.e., removal of a property erroneously included in the data bank as paddy land, the procedure laid out for both authorities are different.

Pointing to this "lacuna" in the 2008 Rules, the court noted that while the LLMC is required to conduct a local inspection, it is not mandatory for the RDO to do so, even though the RDO has no specialized mechanism to ascertain the characteristic the land.

A single bench of Justice Viju Abraham held that to address this issue, the RDO is to follow the same procedure prescribed to be followed by the LLMC under the Act.

Justice Bechu Kurian Thomas while dismissing a plea alleging State's Top officials of influencing others to destroy petitioner's life, imposed a cost of Rs.25,000/- payable to the Kerala Legal Services Authority.

"Access to justice, though a fundamental right, cannot be extended to a right to prefer misconceived and frivolous petitions. The nature of reliefs claimed for and the nebulous pleadings are indicative of absence of any particular right of the petitioner having been infringed," the Court observed while dismissing the petition.

'TRAI Regulations In Public Interest, No Arbitrariness Made Out': Kerala High Court Dismisses AIDCF's Plea Challenging New Tariff Order

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

Citation: 2023 LiveLaw (Ker) 173

The Kerala High Court dismissed the plea filed by All Indian Digital Cable Federation (AIDCF) challenging the Telecom Regulatory Authority of India's (TRAI) new Tariff Order, under which broadcasters had increased channel prices for cable TV operators for inclusion in bouquet from INR 12 to INR 19 per channel.

AIDCF, which is an apex body with several multi system operators (MSOs), that provide cable services to consumers, had moved an application seeking urgent hearing following the issuance of disconnection notices by the Indian Broadcasting and Digital Foundation (IBF) on failure to sign new interconnection agreements with revised prices.

The Single Judge Bench of Justice Shaji P. Chaly found that AIDCF had failed to establish any illegality, arbitrariness, unbridled exercise of power, mala fides or any other legal infirmities with respect to the New Tariff Order and the 2022 Regulations of TRAI that justified the interference of the Court. It also noted that the impugned Regulations were issued by TRAI for protecting public interest and regulating and controlling the telecommunication services for public good.

Purposeful Attempts By Jail Authorities To Create Impression That Convict Is Not Well-Behaved And Deny Leave/Parole Is Illegal: Kerala High Court

Case Title: Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 174

The Kerala High Court held that any purposeful attempt made to create an impression that a convict is not a well-behaved person in turn to deny leave to him is illegal.

Justice Bechu Kurian Thomas, while allowing a petition seeking ordinary leave for a convict, observed that

“There has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal…an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself”.

S.151 CrPC | Arrest Without Warrant In Absence Of Knowledge Of Design To Commit Cognizable Offence Violates Article 21: Kerala High Court

Case Title: Anand Mahadevan V State Of Kerala

Citation: 2023 LiveLaw (Ker) 175

The Kerala High Court has reiterated that the police cannot arrest a person under Section 151 of the Code of Criminal Procedure (arrest to prevent the commission of cognizable offences), without the knowledge of the existence of a design to commit a cognizable offence and a belief that the commission of the offence can only be prevented by the arrest of the person.

A single bench of Justice Bechu Kurian Thomas observed that since extraordinary powers of arresting without a warrant has been granted to the police in case of knowledge of a design to commit a cognizable offence, strict interpretation of section 151 was important to avoid any misuse of such powers:

“The object of Section 151 of the Code is one of preventive justice and before invoking the said provision, it must be evident that there is imminent danger. Unless the arrest under Section 151 of the Code is based upon a bonafide belief of the existence of a design to commit a cognizable offence and without arresting the person, the threat of commission of offence cannot be averted, only then can the Police Officer be clothed with the power to arrest under Section 151 of Code. The corollary of the above is that, without the knowledge of a design and without an imminent threat to commit a cognizable offence, a Police Officer cannot arrest, that too without a warrant from the Magistrate in exercise of the power under Section 151 of the Code.”

Kerala High Court Vacates Stay On NGT Order After Communication From SC Registry That It Has Already Been Affirmed By Apex Court

Case Title: State of Kerala V Shefy Joseph

Citation: 2023 (Ker) LiveLaw 176

The Kerala High Court recently vacated its interim order staying NGT's direction to M/s.Cochin Granites to pay environmental compensation for its illegal and unauthorised mining activities.

A challenge to the said order of the National Green Tribunal had been earlier dismissed by the Supreme Court. Subsequently, a review petition was filed which was also dismissed by the Apex Court. However, the order came to be stayed by the Kerala High Court in a plea filed by the State.

The Supreme Court had directed its Registry to communicate its orders to the Registrar General of the High Court, who placed it before a single bench of Justice Viju Abraham for consideration. Vacating the interim order in light of the orders of the Apex Court, the court held:

“..the Apex Court has dismissed the appeal and review petition challenging the order of the National Green Tribunal. In view of the fact that the order impugned in these writ petitions has been challenged unsuccessfully by filing an appeal and a review petition before the Hon'ble Apex Court, I am of the opinion that the interim order granted in both the writ petitions i.e., W.P(C) No.13221 of 2022 and W.P(C) No.17340 of 2022 on 15.06.2022 and subsequently extended, is not liable to be extended further and the request for extending the interim order in both the writ petitions is accordingly declined.”

Kerala High Court Orders Capture, Radio-Collaring & Relocation Of Rogue Elephant 'Arikomban' To Parambikulam Tiger Reserve

Case Title: In Re Bruno v. Union of India & Ors.

Citation: 2023 (Ker) LiveLaw 177

The Kerala High Court ordered that the rogue elephant, 'Arikomban', which had been wreaking havoc in human settlements in Chinnakkanal and Santhanpara Panchayaths in the Idukki District, ought to be captured, radio-collared and relocated to the Muthuvarachal/Orukomban within the Parambikulam Tiger Reserve.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. issued the above order after perusing the report filed by the Committee of Experts that had been constituted by it to advise the Court on matters pertaining to Human-Elephant conflict situations arising in the State.

"Having considered the report of the Committee and having heard the counsel appearing for the various parties in this writ petition including parties who sought to get themselves impleaded in the writ petition as also the learned Additional Advocate General appearing for the State of Kerala, we are of the opinion that the Committee has considered all the relevant aspects and has come to the conclusion that the best possible way to deal with the present situation is only to capture, radio-collar and translocate the animal to the Parambikulam Tiger Reserve. We are convinced that this is the best option, despite the submission of the learned Additional Advocate General that it is for the Chief Wildlife Warden to take a final decision as to whether the elephant has to be translocated or kept in captivity," the Court observed in its Order.

Kerala High Closes Suo Moto PIL Against Child Labour, Beggary; Directs Social Justice Dept To Monitor Govt Initiatives

Case Title: Suo Motu V The Secretary To Government

Citation: 2023 LiveLaw (Ker) 178

The Kerala High Court recently directed the Kerala State Legal Services Authority (KELSA) to review the steps taken by it to protect and rehabilitate children engaged in begging and child labour, as well as the steps taken to combat drug abuse among children.

The court also directed the Secretary to the Government of the Social Justice Department to monitor and review the initiatives taken by the Government in this regard.

A division bench of Justice S Manikumar and Justice Murali Purushothaman passed the order while closing a public interest litigation aimed at reducing the number of children involved in child labour, begging, and trafficking in the state.

Permitting Indian Citizen To Take Child Abroad Does Not Foreclose Right Of Other Spouse To Get Custody: Kerala High Court

Case Title: XXX v. YYY

Citation: 2023 LiveLaw (Ker) 179

The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country. It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.

It observed, "If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".

S. 27A Kerala Wetland Act | Conversion Fees Exempted For Property Less Than 25 Cents Purchased Even After 2017 Cut-Off: High Court

Case Title: Sumesh U. & Anr. v. The Revenue Divisional Officer, Palakkad & Ors. and Saresh Sanker & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 180

The Kerala High Court recently declared that the fees prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 with respect to conversion of a property purchased after December 2017, cannot be insisted if the property measures less than 25 cents.

Bench of Justice Anu Sivaraman rejected the contention that 'any property' purchased after December, 2017 would lose the exemption even when the said property was less then 25 cents, even prior to the transaction. It observed, "A reading of the provisions of the Act, the Rules, the Schedule as well as Ext.R3(a) Government Order would make it amply clear that the exemption would be lost only in case there is a transaction after 30.12.2017 by which, a property having a larger extent is fragmented to make the individual parcels of land of an extent of less than 25 cents."

Family Court Can't Dispose Application For Time Bound Adjudication Merely Saying 'Case Will Be Disposed At Earliest', Must Fix Time Frame: Kerala HC

Case Title: XXX v XXX

Citation: 2023 LiveLaw (Ker) 181

The Kerala High Court on Monday held that when an application is filed seeking time bound disposal of a matter, the family court cannot dispose such an application passing an order that the case “will be disposed of at the earliest”.

A division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar observed

“… if the applicant has stated any justifiable or valid reason for early hearing or time bound disposal, the Family Court has to pass an order in that interlocutory application ordering early hearing or time-bound disposal of that case or cases, specifying the time limit in that order."

Right To Be Forgotten | Kerala High Court Refuses To Expunge Remarks Suggesting Google To Use AI Tools To Remove Identifiers From Judgments Online

Case Title: Google Inc. v. XXXX & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 182

The Kerala High Court recently refused to expunge remarks from its Right to be Forgotten judgment, whereby it was opined that Google is not 'content blind' and it cannot shirk liability to remove judgments and content disclosing personal details of parties.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen dismissed the petition filed by the search engine platform, seeking review of its judgment rendered last year in Vysakh K.G. v. Union of India & Anr. and other connected cases [2022 LiveLaw (Ker) 665].

'Calculated Attempt To Exonerate Influential Accused': Kerala High Court Cancels Further Investigation In Misappropriation Case Against Vellappally Natesan

Case Title: Surendra Babu v. State of Kerala & Ors. and Vellappally Natesan v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 183

The Kerala High Court paved for trial to proceed against SNDP Yogam General Secretary Vellappally Natesan, in a case alleging misappropriation of funds.

The Single Judge Bench of Justice Ziyad Rahman A.A. set aside the permission granted by a Magistrate Court in Kollam to conduct further investigation. It noted that the request for further investigation was made by a former member of the investigation team, that too after his retirement. Stating that bonafides in making such a request is highly suspicious, the Court was prima facie satisfied that,

"...there is a calculated attempt to exonerate the accused, a very influential person, without even a trial".

The Court thus directed the CJM to conduct trial based on the final report already produced, as expeditiously as possible.

'No Usurpation In Office, Eligible For Post': Kerala High Court Upholds Appointment Of Prof Venkateshwarlu As Central University VC

Case Title: Dr. Naveen Prakash Nautiyal V Union Of India

Citation: 2023 LiveLaw (Ker) 184

The Kerala High Court dismissed a batch of petitions that challenged the appointment of Prof. H Venkateshwarlu as the Vice Chancellor of the Central University of Kerala.

A division bench of Chief Justice S Manikumar and Justice Murali Purushothaman held that the selection and appointment of the VC was as per the provisions of the Central Universities Act, 2009 and the statutes thereunder: “The 3rd respondent has been appointed as Vice Chancellor, by the Visitor, the competent authority, as per the statutory provisions and is holding office with legal authority and there is no usurpation in office by the 3rd respondent. He has the necessary qualification and eligibility for the post. This Court will not sit in judgment over the wisdom of the Visitor in the choice of the person to be appointed as the Vice-Chancellor.”

Kerala Gold Smuggling Case: High Court Dismisses Plea Seeking Probe Into Alleged Involvement Of CM Pinarayi Vijayan, Other Officials

Case Title: Aji Krishnan V Union of India

Citation: 2023 LiveLaw (Ker) 185

The Kerala High Court dismissed a petition seeking a time bound investigation by Customs and the Enforcement Directorate into the alleged role of Chief Minister Pinarayi Vijayan, former speaker P Sreeramakrishnan and other high ranking officials of the Chief Minister's office on allegations of money laundering and gold smuggling using diplomatic channels

A single bench of Justice Bechu Kurian Thomas dismissed the petition observing that apprehensions of the petitioner that proper investigation was not being conducted in the gold smuggling case was baseless: “The Customs as well as the Enforcement Directorate, have conducted or are conducting proper investigations. There are also no reasons to assume that if the involvement of any person is revealed in the investigation, they will not be proceeded against. For, the dictum “Be you ever so high, the law is above you” applies with equal vigour to all, irrespective of status or position.”

'Appalled By Insensitivity Towards Plight Of Animal' Kerala High Court Refuses To Interfere With Translocation Of Tusker 'Arikkomban'

Case Title: K Babu V Union Of India

Citation: 2023 LiveLaw (Ker) 186

The Kerala High Court refused to interfere with its earlier direction to translocate the wild tusker 'Arikomban' to Parambikulam Tiger Reserve despite the review petition filed by MLA K Babu citing apprehensions of residents near the proposed site of translocation about the elephant entering human settlements.

The court on 5th April had directed to tranquilise and translocate the elephant along with a radio collar to Parambikulam Tiger Reserve on the advice of an expert committee due to concerns raised by the residents of Anayirangal region about the elephant entering areas of human settlement and causing damage.

A division bench of Justice A.K.Jayasankaran Nambiar and Justice Gopinath P while refusing to allow the review petition observed: “We are also appalled by the total insensitivity demonstrated to the plight of the animal in question, which has been directed to be translocated from its original habitat to a new one only because there is every likelihood that the availability of plentiful natural food and water resources there would deter it from foraging in human settlements. The fact that the elephant will be radio-collared and its movements monitored by the forest/wildlife officials ought to have sufficed to allay the apprehensions of the petitioner, as the 'surprise' element of any conflict situation is effectively removed through the monitoring mechanism instituted and now in place.”

EPF Pension | Kerala High Court Directs EPFO To Allow Opting Of Higher Pension Without Insisting On Submission Of Option Form Under Para 26(6) Of The Scheme

Case Title: Saheer S V Union Of India

Citation: 2023 LiveLaw (Ker) 187

The Kerala High Court directed the Employees Provident Fund Organization to modify its online system to allow employees/pensioners to comply with the directives of the Supreme Court for opting for higher pension without having to provide copies of the option under paragraph 26(6) of the Employees Provident Fund Scheme, 1952.

A single bench of Justice Ziyad Rahman while granting the interim order observed: “the Employees Provident Fund Organization and the authorities under the same are directed to make adequate provisions in their online facility to enable the employees/pensioners to furnish the options in tune with the directions of the Honourable Supreme Court, without the production of the copies of option under paragraph 26(6) of the Scheme, 1952 and the details thereof, for the time being”.

Kerala High Court Sets Aside Sessions Court Order Dropping Culpable Homicide Charges Against IAS Officer Sreeram Venkataraman

Case Title: State of Kerala v. Sreeram Venkitaraman and Wafa Najim @ Wafa Firoz v. State of Kerala

Citation: 2023 LiveLaw (Ker) 188

The Kerala High Court set aside a Sessions Court order dropping culpable homicide charges against IAS Officer Sreeram Venkitaraman in the infamous road rage case.

The order was however upheld to the extent it discharged Venkittaraman under Sections 184 and 185 of the Motor Vehicles Act, that relates to dangerous driving and drunken driving, and Section 3(2) of the Prevention of Damage to Public Property.

Justice Bechu Kurian Thomas observed, "Driving vehicles after consuming alcohol can lead to temporary or partial impairment of cognitive faculties. This disability can lead to error in judgment relating to distance calculation, distinguishing objects, speed control and even other factors that are essential for safe driving. Blurred vision and reaction to sudden stimuli are also known consequences of alcohol consumption. Thus, when a motor vehicle is driven after consuming alcohol, road accidents become a predictable consequence. In such a scenario, attributing knowledge to the driver of the vehicle that death can be likely consequence of drunken driving is legally tenable".

Movie Inspired By A Person's Life Doesn't Mean It Is Completely Their Life Story: Kerala High Court Dismisses PIL Against Film 'Kurup'

Case Title: Sebin Thomas v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 189

The Kerala High Court dismissed an Advocate's PIL against release of Malayalam movie 'Kurup' which is based on the biography of a proclaimed offender named Sukumara Kurup. The petitioner had sought protection of right to privacy of 'proclaimed offenders', under Article 21 of the Constitution of India.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman observed that although the story does get inspiration from the life story of a proclaimed offender, it did not however indicate that the story was the complete life story of that person, nor that publication of the same would affect his right to privacy.

LIFE Mission Case: Kerala High Court Dismisses M Sivasankar's Bail Plea

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

Citation: 2023 LiveLaw (Ker) 190

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

Justice A. Badharudeen observed that although the petitioner could not be regarded as a person who would flee from trial,

"...However, his propensity to tamper with the evidence and to influence witnesses could be foreseeable, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala".

No Allegation Of Any "Demand": Kerala High Court Quashes Proceedings Against Ex-MLA KM Shaji In Plus Two Bribery Case

Case Title: K M Shaji V State of Kerala

Citation: 2023 LiveLaw (Ker) 191

The Kerala High Court quashed the proceedings initiated by the Vigilance and Anti Corruption Bureau against Indian Union Muslim League (IUML) leader and former MLA K M Shaji, in connection with the plus two bribery case.

A single bench of Justice Kauser Edappagath quashed the FIR as it was of the view that no prima facie case was made out against Shaji:

“I conclude that the allegations made in Annexure A FIR and the evidence collected in support of the same, even if believed in toto, do not prima facie disclose a cognizable offence or make out a case against the applicant. Hence, no purpose will be served in proceeding with the matter further. Accordingly, all further proceedings against the petitioner pursuant to Annexure A FIR are hereby quashed.”

Kerala High Court Refuses Bail To Two Andhra Pradesh Natives Accused Under UAPA For Spreading Maoist Ideology

Case Title: Chaithanya V Union of India

Citation: 2023 LiveLaw (Ker) 192

The Kerala High Court refused to set aside the order of a Special NIA court denying bail to two Andhra Pradesh natives for their alleged involvement in the terrorist organization CPI(Maoists).

The accused persons are alleged to have been involved in radicalizing youth and persuading them to join the terrorist organisation. The AP natives are said to have been recruiting members to Dalams, the armed wing of the CPI (Maoist), in Wayanad area. They have also been accused of providing them with training, with the aim of posing a threat to the unity, integrity, and sovereignty of India.

A Division Bench of Justice Alexander Thomas and Justice C S Sudha denied bail to the accused persons noting that the offences alleged against them are of a 'grave and serious' nature: “Since there are materials to show that A-5 & A-6 have been actively involved in the above terrorist organization and that too, located in various States, there is serious likelihood of both of them absconding or fleeing away from the long arm of the law, in case they are released on bail”.

Lok Ayukta Cannot Investigate Matters Relating To Selection Of Candidates By Political Parties: Kerala High Court

Case Title: Pannyan Raveendran v. Shamnad A. & Anr.

Citation: 2023 LiveLaw (Ker) 193

The Kerala High Court recently held that the Kerala Lok Ayukta cannot investigate into matters relating to selection of candidates by political parties for contesting election.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman while considering a petition filed by the State Secretary of Communist Party of India (CPI), Pannyan Raveendran, challenging the order of the Kerala Lok Ayukta finding such a complaint to be maintainable, and observed that,

"A political party has the discretion to choose a candidate of its choice subject to the requirement of providing necessary information regarding criminal antecedents etc; of the candidate so that the voter can exercise his right to franchise in an effective manner".

How Prefix “Professor” Induced Voters? Kerala High Court Dismisses Plea Against Election Of Education Minster R Bindu For Alleged Misrepresentation

Case Title: Thomas J Unniyadan v R Bindu

Citation: 2023 LiveLaw (Ker) 194

The Kerala High Court dismissed a petition challenging the election of Education Minister R Bindu from Irinjalakuda Constituency in the General Election held in 2021 to the Kerala Legislative Assembly.

The petition was filed seeking a declaration that her election was void on the ground that she misrepresented herself as “Professor R Bindu”, even though she was not a designated Professor, in order to induce voters. The petition also alleged that she indulged in other corrupt practices in contravention of the provisions of the Representation of People Act, 1951.

A single bench of Justice Sophy Thomas observed: “showing the name of the 1st respondent as 'Prof.R.Bindu' in Annexures-E to G notice, pamphlet etc., and doing election campaign also in that name will not amount to corrupt practice as envisaged under Section 123(2) of the RP Act, as the Returning Officer corrected her name as Prof.R.Bindu in the list of contesting candidates and Ballot paper, as per the Proviso to Rule 8(2) of the Conduct of Election Rules, 1961, on being satisfied as to the genuineness of her request in Annexure-C, as she was popularly known as Prof.R.Bindu.”

Every Unmarried Daughter Has Right To Get Reasonable Marriage Expenses From Her Father Irrespective Of Religion: Kerala High Court

Case Title: XXX & Anr. v. YYY

Citation: 2023 LiveLaw (Ker) 195

The Kerala High Court recently considered the question as to whether there is a provision entitling a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom, and answered the same in the affirmative.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar perused the provisions of the Hindu Adoptions and Maintenance Act, 1956, as well as the Muslim position on the aspect as revealed in Ismayil v. Fathima & Anr. (2011), and observed that,

"The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one's religion".

Kerala High Court Directs State To Comply With Previous Directions To Prevent Unlawful Protests In Public Spaces

Case Title: The Trivandrum Chamber of Commerce and Industry & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 196

The Kerala High Court recently directed the State machinery to comply with the directions issued by the Apex court as well as the High Court time and again regarding the controlling of unlawful protests, campaigns, and other such assembly of people being staged at public spaces meant for public use.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman was considering a public interest litigation seeking the issuance of further directions to the competent State and Police authorities to remove unlawful assemblies of people around the Raj Bhavan and State Secretariat areas, Thiruvananthapuram, and thus formulate guidelines with respect to the earmarking of certain public areas in the State for the purpose of holding mass assemblies.

Building Owner Can Decide If Parking Fees Is To Be Levied From Customers Utilizing Its Shopping Facility: Kerala High Court In Plea Against Lulu Mal

Case Title: Bosco Louis V State of Kerala, Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd

Citation: 2023 LiveLaw (Ker) 197

The Kerala High Court recently held that it is up to the building owner to determine whether or not to charge customers for parking their vehicles while using the shopping facility and services offered in the building.

However, the court also held that for operating multilevel parking facilities around the commercial establishment that operate as stand-alone buildings used for parking, a licence under Section 475 of Kerala Municipality Act is required.

A single bench of Justice V G Arun was hearing two writ petitions challenging the collection of parking fees from vehicles parked in the parking area of Lulu Shopping Mall at Edappally in Kochi. The petitions sought for a refund of the money collected and also for a direction to refrain the mall from collecting any parking fee. The court held that:

“collection of fees from the vehicles parking in the 1083 parking slots in the basement of Lulu Mall is legal, but collection of fees from vehicles parking in the multilevel parking facility, without obtaining a licence under Section 475 of the Kerala Municipality Act, is illegal. If the company intends to utilise the multilevel parking facility near the shopping mall and collect parking fees from persons using the facility, that can be done only under a licence issued in terms of Section 475 of the Act.”

Granting Anticipatory Bail To Persons Who Flee Country Being Aware Of FIR Registered Against Them Is Not Proper: Kerala High Court

Case Title: Anu Mathew V State of Kerala

Citation: 2023 LiveLaw (Ker) 198

The Kerala High Court recently held that it may not be appropriate to grant anticipatory bail in circumstances where the accused fled the country being fully aware of a non-bailable offence registered against him/her.

The court also observed that while considering a bail application filed by an accused who is abroad, courts must consider imposing the condition that the accused shall be available for interrogation by a Police Officer, as and when required and that the accused shall not leave India without the previous permission of the Court.

A division bench of Justice Alexander Thomas and Justice C S Sudha observed:

“if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad,” the court observed.

Courts Can Entertain Plea For Anticipatory Bail Even If Accused Is Abroad At The Time Of Filing The Application: Kerala High Court

Case Title: Anu Mathew V State of Kerala

Citation: 2023 LiveLaw (Ker) 198

The Kerala High Court recently held that anticipatory bail application is maintainable even if the accused is in a foreign country at the time of filing the application.

In view of the reference made by a single bench of the Court, the division bench comprising of Justice Alexander Thomas and Justice C S Sudha was considering the question of whether a person who is outside India can file an application for anticipatory bail.

The reference was made by a single bench of Justice P.V Kunhikrishnan as it differed from the law laid down by the single bench of Justice Bechu Kurian Thomas in the case of Vijay Babu v. State of Kerala [2022 (4) KLT 24] where it was held that a person who is outside India can file an anticipatory bail application, as long as before the final hearing, the accused is in India. The single bench while making the reference had opined that when the Court in Shafi S.M. v. State of Kerala and Anther [2020 (4) KHC 510] had already held that an application under Section 438 Cr.P.C. cannot be filed by an accused sitting in a foreign country, then the single bench in Vijay Babu's case ought not to have decided the matter without referring the same to the Division Bench.

The division bench took the view that a pre-arrest bail can be entertained in a case where the accused is in a foreign country at the time of filing of the application under Sec.438 Cr.PC. The Court referred to the decisions in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565] and to Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. [(2020) 5 SCC 1] to observe that the Supreme Court has consistently stated that courts should be cautious about imposing unnecessary limitations on the scope of Section 438 as denial of bail amounts to deprivation of personal liberty.

Appointment Of Headmaster Invoking Minority Status Of Institute Can Only Be Accepted If Specified Through Form 27 Of Kerala Education Rules: High Court

Case Title: Xavier T.J v State Of Kerala

Citation: 2023 LiveLaw (Ker) 199

The Kerala High Court recently held that the when a Headmaster is appointed bypassing seniority, such appointment can only be accepted if it is indicated in the appointment order that the appointment is being made by invoking the minority status of the institute.

A single bench of Justice P V Kunhikrishnan observed that when a Manager of an educational institute appoints a headmaster by overlooking seniority in exercise of its minority rights, this should be made clear in the appointment order under Form 27 of KER (Kerala Education Rules) by striking out paragraph 3 of the form that states there is no other candidate qualified and eligible for promotion to the said post.

Correctness Of Allegations In FIR To Be Tested During Trial; Not By High Court While Exercising Jurisdiction U/S 482 CrPC: Kerala High Court

Case Title: XXX & Ors. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 200

The Kerala High Court recently reiterated the view that the High Court, while exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se.

The Single Judge Bench of Justice K. Babu relied upon a catena of Apex Court decisions such as State of West Bengal v. Swapan Kumar Guha (1982), State of Kerala v. O.C. Kuttan (1999), M/S Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra & Ors. (2021), and Minakshi Bala v. Sudhir Kumar & Ors., to observe that, the High Court has no jurisdiction to examine the correctness or otherwise of the allegations raised in such documents.

If Unmarried Muslim Daughter Is Not Entitled To Maintenance U/S 125 CrPC, Family Court Can Consider Claim Under Muslim Personal Law: Kerala High Court

Case Title: XXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 201

The Kerala High Court recently held that if a claim for maintenance under Section 125 of the CrPC made by an unmarried muslim daughter, who has attained majority, is not valid, the same claim can be made under Muslim Personal Law and the Family Court can consider it to prevent multiplicity of proceedings.

A division bench of Justice Alexander Thomas and Justice Ziyad Rahman observed that:

“We would hold that, for a major unmarried Muslim daughter, who is not suffering from any physical or mental abnormality or injury, as envisaged in clause (c) of sub-section 1 of Sec.125 of the Cr.P.C., a claim made before the Family Court under Sec.125 of the Cr.P.C., will not be maintainable. However, in case the claimant appears to be otherwise eligible for maintenance, in terms of Muslim Personal Law, then the Family Court need not drive the litigant to file a fresh claim and with the wholesome objective of avoidance of multiplicity of proceedings in maintenance claims, the Family Court can entertain the maintenance plea, under Muslim Personal Law.”

Eligibility Criteria In Prospectus Can Be Amended When There Is Discrimination Between Similarly Situated Candidates: Kerala High Court

FIR U/S 57 Kerala Police Act Is For Locating Missing Person; Does Not Contemplate Investigation Unlike FIR U/S 154 CrPC: Kerala High Court

Case Title: Mahesh Thampi v. The Deputy Director of Education & Ors.

Citation: 2023 LiveLaw (Ker) 218

The Kerala High Court recently held that a teacher in an aided school governed by the Kerala Education Act (hereinafter, 'the Act') and the Kerala Education Rules (hereinafter, 'the KER'), can be dismissed from service on the basis of conviction in a criminal case, without following the procedures prescribed under Rules 65, 74 and 75 of Chapter XIVA KER.

The Division Bench comprising Justice P.B. Sureshkumar and Justice Sophy Thomas referred to Rule 77A of KER which stipulates that where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. Explaining its scope the bench observed:

"...where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. In other words, where a penalty is imposed on a teacher on the ground of his conduct which had led to his conviction on a criminal charge, it is not necessary to follow the procedure prescribed in Rule 75 and the competent authority is empowered to pass appropriate orders in such cases as it deems fit."

Vehicles With Multi-Colour LED, Neon Lights Can't Be Treated As Compliant With MV Act For Grant Of Fitness Certificate: Kerala High Court

Case Title: Anoop K.A V. Biju Prabhakar

Citation: 2023 LiveLaw (Ker) 219

The Kerala High Court recently held that vehicles that install additional LED, laser, neon lights or flash lights cannot be granted certificate of fitness as they do not comply with the provisions of the Motor Vehicles Act. The Court observed that installation of such additional lights could 'dazzle' the drivers of approaching vehicles and could pose serious threats to safety of other road users.

The Court also held that a fine of Rs.5,000/- per alteration must be imposed on vehicles installing lighting, light-signalling devices and retro-reflectors in violation of AIS-008.

A Single Judge Bench of Justice Anil K. Narendran observed,

"...vehicles which are fitted with after-market multi-coloured LED/laser/neon lights, flash lights, as seen in the screenshots reproduced hereinbefore, which are being used in a public place, openly flouting the safety standards prescribed in AIS-008, which are capable of dazzling the drivers of the oncoming vehicles, pedestrians and other road users, thereby posing a potential threat to the safety of other road users, have to be dealt with in an appropriate manner, strictly in accordance with the law. In addition to the penal consequences provided in the statutory provisions referred to hereinbefore, the owner of the vehicle has to be imposed with a fine of Rs.5,000/- per such alteration; i.e, Rs.5,000/- for each after-market multi-coloured LED/laser/neon lights, flash lights. Such goods vehicles cannot be treated as vehicles which comply with the provisions of the Motor Vehicles Act and the Rules made thereunder, for the purpose of grant of certificate of fitness.”

S.153 IPC | Expression 'Malignantly' Or 'Wantonly' Giving Provocation With Intent To Cause Riot Indicates Higher Degree Of Malice: Kerala High Court

Case Title: Sanjeev S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 220

The Kerala High Court recently explained the scope and extent of Section 153 of the Indian Penal Code, 1860 which refers to the offence done malignantly or wantonly to give provocation to the extent of causing a riot.

The Single Judge Bench of Justice Bechu Kurian Thomas elucidated that the presence of the two expressions, 'malignantly' or 'wantonly' in the provision indicates that there ought to be a higher degree of malice or evil that is projected or evident in the act alleged.

[Special Marriage Act] Registering Authority Cannot Refuse Online Solemnization Of Marriage: Kerala High Court

Case Title: Dhanya Martin v. State of Kerala & Anr. and other connected cases

Citation: 2023 LiveLaw (Ker) 221

The Kerala High Court recently held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas made its interim order dated September 9, 2021 in this regard absolute, and directed the State Government to follow the directions therein until the Government prescribes any other mode for compliance.

Illicit Sale Of Liquor Should Be 'In Praesenti' To Attract Offence Under Kerala Abkari Act: High Court

Case Title: Jolly Vaerghese v. State of Kerala

Citation: 2023 LiveLaw (Ker) 222

The Kerala High Court held that the sale of liquor ought to be made in praesenti in order to attract the offence under Section 55(i) of the Kerala Abkari Act (hereinafter, 'the Act').

Section 55(i) of the Act states that a person who sells or stores for sales liquor or any intoxicating drug in contravention of the Act or any Rule or Order made under the Act shall be punished.

Justice V.G. Arun, while considering an anticipatory bail application of the petitioner-accused who had been found in possession of 2.75 litres of Indian Made Foreign Liquor, observed, "There is prima facie merit in the contention that mere possession of the Indian Made Foreign Liquour (IMFL), that too within permissible limits, cannot lead to a presumption that the liquor was intended for sale. The sale should be in presenti, for the offence under Section 55(i) to be attracted."

Continued Mutual Consent Of Both Parties Necessary For Granting Divorce Decree U/S 13B Hindu Marriage Act: Kerala High Court

Case Title: Jayaraj R. v. Kavya G. Nair

Citation: 2023 LiveLaw (Ker) 223

The Kerala High Court has held that in order to seek divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955, there ought to be mutual consent of the parties when they move the court with a request to pass a decree of divorce, as well as at the time when the court is called upon to make an enquiry, if the petition is not withdrawn, to pass the final decree.

Relying on the Apex Court decision in Smruti Pahariya v. Sanjay Pahariya (2009), the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed:

"...it is only on the continued mutual consent of the parties that a decree for divorce under Section 13B of the said Act can be passed by the court. If the petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent."

Selection Process Vitiated By Bias: Kerala High Court Quashes List For Appointment Of Anganwadi Workers

Case Title: Sreedevi S. & Ors. v. The Selection Committee, Chennithala, Thripperumthara Grama Panchayat & Ors.

Citation: 2023 LiveLaw (Ker) 224

The Kerala High Court recently quashed the selection list for appointment of Anganwadi workers in Anganwadi Centre Nos.81, 84, 96 and 155 of Chennithala Thriperumthura Grama Panchayat under the Integrated Child Development Services (ICDS) Mavelikkara Project.

Justice N. Nagaresh, on finding the selection process vitiated by bias, quashed the same and directed the respondents- Director and Officer of the Women and Child Development, the Child Development Project Officer, and the Chennithala Thriperumthura Grama Panchayat- to constitute a fresh Selection Committee and conduct the selection process afresh, considering the candidature of those who had already participated in the process, within 2 months.

Case Title: Petro David v. State of Kerala

Citation: 2023 LiveLaw (Ker) 225

The Kerala High Court recently set aside the order of a Magistrate Court by which the latter vacated its own order allowing cross-examination of certain witnesses, merely on the ground that the counsel for the accused could not appear on the day the witnesses were examined.

Observing that the impugned order issued by JFCM Court at North Paravur was unjustifiable, the Single Judge Bench of Justice C.S. Dias observed:

"Having considered the facts and circumstances of the case, and the materials on record, I am of the definite view that the court below after applying its mind, exercising its discretion and by holding that the injured and the occurrence witnesses have to be examined on the same day, it was unreasonable and unjustifiable on the part of the court below to have vacated the said order for the mere reason that the counsel for the petitioner was absent on the day when the witnesses were examined. This is an addition to the fact the court below had imposed a cost of Rs.4,000/- on the petitioner to meet the expenses of CWs 1 to 4, who were present before the court below and were put to inconvenience".

High Court Has Power To Prescribe Conditions For Inter-District Transfers Of Employees In Administrative Side Of Judiciary: Kerala High Court

Case Title: Ratheesh Dasan V. State Of Kerala

Citation: 2023 LiveLaw (Ker) 226

The Kerala High Court recently held that High Court has the power to prescribe conditions for inter district transfers of employees in the administrative side of the judiciary. The Court observed that this power is derived from Article 235 of the Constitution which grants the High Court the power to exercise complete administrative control over the subordinate courts.

A single bench of Justice N Nagaresh observed,

“The courts are institutions or an organism where all the limbs complete the whole system of courts. When the constitutional provision is of such wide amplitude to cover both the courts and persons belonging to the judicial office, there would be no reason to exclude the other limbs of the courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control. Such control is exclusive in nature, comprehensive in extent and effective in operation.”

Possession Of Live Cartridge Without Corresponding Weapon Not An Offence Under Arms Act: Kerala High Court

Case Title: Shantanu Yadav Rao Hire v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 227

The Kerala High Court recently ruled that the presence of a live cartridge alone that had been seized from the bag of a passenger during the security check at the airport without seizure of any corresponding fire-arm would indicate that there was no 'conscious possession' by such passenger, and hence, would not amount to an offence under the Arms Act, 1959.

Elucidating Section 25 of the Act that pertains to 'possession of firearm', Justice Bechu Kurian Thomas, observed,

"Possession of a fire-arm under section 25 of the Act means conscious possession involving a mental element. Mere custody, without any element of consciousness or knowledge of that possession, cannot amount to an offence under the Act. It is settled law that the possession of a fire-arm under the Arms Act must have the element of consciousness or knowledge of that possession on the person charged with such offence. Further, even if he has no actual physical possession, if he nonetheless has power or control over the weapon, his possession will amount to a conscious possession, even if the actual possession is with a third party."

Bail Bond Cannot Be Cancelled After Transfer Of Case Without Issuing Notice To Accused And Sureties: Kerala High Court

Case Title: Muhammed Abdulla Sha V State of Kerala

Citation: 2023 LiveLaw (Ker) 228

The Kerala High Court recently held that when a court transfers a case to another court, the transferor court must issue notice to the accused and sureties without which bail bonds cannot be cancelled.

A single bench of Justice Bechu Kurian Thomas observed,

A division bench of Justice A K Jayasankaran Nambiar and Justice Mohammed Nias C P observed,

“Ordinarily, the disposal of a case in Courts must be as per the seniority, namely chronological basis, and deviation from that must be an exception on valid and genuine grounds. No litigant should normally be allowed to jump the queue or steal a march over the other litigants who filed cases earlier. Only if a litigant files an application stating the reason for an early hearing of the case and only if the court is satisfied with the reasons furnished can a case be posted out of turn."

Transfer Of Employee To Maintain Internal Harmony In Organization Not Punishment, Enquiry Not Required: Kerala High Court

Case Title: Nixy James V Kerala State Road Transport Corporation

Citation: 2023 LiveLaw (Ker) 236

The Kerala High Court recently held that an employee in service can be transferred on administrative grounds in order to maintain a harmonious atmosphere in office for its smooth functioning.

A single bench of Justice Sathish Ninan also observed that departmental action may not be required in light of such transfers as they are not to be considered as punishment, but only a means to maintain a good work environment:

“When an employee is transferred to maintain the smooth running of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or inappropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration, to enforce a decorum and ensure probity.”

'Unhealthy, Unscientific & Deleterious Practices To Be Prevented, Even If Done In Name Of Religion': Kerala High Court On Animal Sacrifice

Case Title: Raveendran P.T. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 237

The Kerala High Court recently observed that all unhealthy, unscientific and deleterious practices are to be prevented, even if the same has been done in the name of religion. The Court made the observation while ordering probe against the ritualistic sacrifice of birds and animals at a private residence.

Justice V.G. Arun further directed that if it is found that a place of worship for conducting rituals had been constructed, with members of the public participating in it, immediate action ought to be taken to stop the same.

The court added that if it is found that slaughter of animals and birds is taking place in the precincts of the building, appropriate action under the Kerala Animals and Birds Sacrifices Prohibition Act also ought to be taken.

A single bench of Justice Gopinath P observed,

“when an application is brought before the Tribunal, under Section 17 of the Act, the Tribunal must be alive to the fact that the Bank/Financial Institution has initiated the proceedings without any adjudication and that the powers conferred under the Act are drastic and can have disastrous consequences for the borrower. This is all the more reason for the Tribunal to apply its mind with reference to the contentions taken before it (even at the interim stage) before deciding to grant or reject a prayer for interim relief.”

It added, "The provisions of the RDB Act (Recovery of Debts and Bankruptcy Act, 1993) read with provisions of the Tribunals Reforms Act, 2021 and the Tribunal (Conditions of Service) Rules, 2021 make it clear that it must be manned by a person who “is, or has been, a District Judge”. The orders issued by the Tribunal must therefore demonstrate reasonableness of its decision."

Life Insurance Policy Can Be Repudiated For Suppression Of Material Facts Regarding Health Condition Of Insured: Kerala High Court

Case Title: Zonal Manager, Life Insurance Corporation of India & Ors. v. Rosamma Varkey

Citation: 2023 LiveLaw (Ker) 242

The Kerala High Court recently held that details regarding the illness suffered by the proposer/assured, the previous treatment administered to him including hospitalization, and so on, which are raised as specific queries in the proposal form of the insurance company are material facts, and in the event of any material suppression or furnishing of false information by the proposer/assured regarding the same, the Insurance Company would be entitled to repudiate the policy.

Justice Sathish Ninan, further went on to observe that it would not be open for the claimant to contend that someone else had filled the proposal form on his behalf, and that the mentioning of the false particulars could thus not be attributed to him.

"Taking it to be that or accepting that the proposal form was filled up not by the proposer but by any other person including an agent/employee of the defendant, that could only be construed to have been done for and on behalf of the proposer and on his instructions. The proposer has signed the proposal form undertaking that all the entries made in the proposal are true and correct. He cannot be heard to say that it was someone else who filled up the proposal form and that he affixed signature to the proposal form without reading or understanding the materials furnished therein," the Court observed.

Scribe Being One Of The Attesting Witnesses Not More Competent Than Other Attesting Witnesses To Prove Execution Of Will: Kerala High Court

Case Title: P Nanikutty V. K U Kalpakadevi

Citation: 2023 LiveLaw (Ker) 243

The Kerala High Court recently held that when the scribe is one of the attesting witnesses of a will, he is not more competent than other attesting witnesses to depose the execution of the Will. The Court noted that there is no law in place which states that when the scribe of a Will is one of the attesting witness, he/she is the best witness and is the most competent to depose the execution of the Will.

A single bench of Justice Mary Joseph observed,

“If the scribe is an attesting witness to the Will, he can be examined as an attestor to establish the execution of the Will and his competency will only be equivalent to the other attesting witness...There is no prescription in law that for establishing the execution of a Will the scribe must be examined. The examination of a scribe can be resorted to when he is an attesting witness to the document. In all other circumstances the law did not contemplate examination of a scribe to establish the execution of the Will.”

Magistrate Court Having Jurisdiction Cannot Refuse An Accused Permission To Surrender: Kerala High Court

Case Title: Joseph Thomas V State of Kerala

Citation: 2023 LiveLaw (Ker) 244

The Kerala High Court recently held that a Magistrate cannot refuse a person accused of an offence, permission to surrender to its jurisdiction under Sections 436 and 437 of Code of Criminal Procedure, 1973.

A single bench of Justice K Babu observed:

“When the Code permits a person accused of an offence to surrender before the Court having jurisdiction over the subject matter, it cannot refuse permission. When an accused appears before the Court and applies for surrender, his prayer shall be accepted.”

Kerala High Court Dismisses Plea To Bring Back 'Arikomban', Says No Allegation Of Neglect Against Authorities In Tamil Nadu

Case Title: Sabu M. Jacob v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 245

The Kerala High Court dismissed the plea filed by Sabu M. Jacob, the President of the 'Twenty-20 Party', and the Managing Director of Kitex Garments, seeking safe translocation of rogue elephant 'Arikomban' back to Kerala.