Kerala High Court Monthly Digest - July 2023 [Citations: 302-362]

Govindarajan @ Govind v. Vidya & Anr., 2023 LiveLaw (Ker) 304

Shamir T.J v. State of Kerala & Ors., 2023 LiveLaw (Ker) 305

Thushar Nirmal Sarathy v. State of Kerala, 2022 LiveLaw (Ker) 306

Cheriyathoda Cheriyakoya & Ors v. Cheriyathoda Kunni Kunni & Ors, 2022 LiveLaw (Ker) 307

V. Anilkumar & Ors. v. State of Kerala & Anr., 2023 LiveLaw (Ker) 308

Justin T.J v. State of Kerala, 2022 LiveLaw (Ker) 309

Sheela Sunny v. State of Kerala & Anr., 2023 LiveLaw (Ker) 310

Harikrishnan v. State of Kerala & Ors., 2022 Livelaw (Ker) 311

Suo Motu v. Yeshwanth Shenoy, 2023 LiveLaw (Ker) 312

Jayaprakash P.P v. Sheeba Revi, 2022 LiveLaw (Ker) 313

Afeefa C.S & Anr v. Director General of Police & Ors, 2023 LiveLaw (Ker) 314

Joseph Thomas v. State of Kerala, 2023 LiveLaw (Ker) 315

State of Kerala v. Arumugham and connected matters 2023 LiveLaw (Ker) 317

Abdul Jabbar v. Khadeeja Beevi & Ors. 2023 LiveLaw (Ker) 318

Smrithy George v. State of Kerala & Ors. 2023 LiveLaw (Ker) 319

K. Suresh Kumar v. State of Kerala & Ors. 2023 LiveLaw (Ker) 320

Arun A. v. Marriage Officer 2023 LiveLaw (Ker) 321

M. Sivasankar v. Directorate of Enforcement & Anr. 2023 LiveLaw (Ker) 322

Mathrubhumi Printing & Publishing Co. & Ors. v. Station House Officer & Ors. 2023 LiveLaw (Ker) 323

Adv. Mohammed Salih P.M. v. Union of India & Ors. 2023 LiveLaw (Ker) 324

Suo Motu v. Nipun Cherian 2023 LiveLaw (Ker) 325

Jayaprakash v. State of Kerala & Anr 2023 LiveLaw (Ker) 326

Varghese Vijesh v. State of Kerala & connected matters 2023 LiveLaw (Ker) 327

Paulose v. Baiju & Anr. 2023 LiveLaw (Ker) 328

Amal E & Anr v. State of Kerala 2023 LiveLaw (Ker) 329

Rebeka Mathai v. State of Kerala & Ors. 2023 LiveLaw (Ker) 330

X v. State of Kerala 2023 LiveLaw (Ker) 331

Sholly Lookose v. V.I. Joseph 2023 LiveLaw (Ker) 333

Vijayan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 334

Sajitha & Anr v. Baldbose & Anr 2023 LiveLaw (Ker) 335

Asokan v. Krishna Ezhuthassan & Ors. 2023 LiveLaw (Ker) 336

Narayanankutty K v. Special Devaswom Commissioner & Ors 2023 LiveLaw (Ker) 337

Marykutty Kurian & Anr. v. Babu Joseph & Anr. 2023 LiveLaw (Ker) 338

Shajan Scariya v. State of Kerala & Anr. 2023 LiveLaw (Ker) 339

M/S Lisie Medical Institutions v. State of Kerala & Ors. 2023 LiveLaw (Ker) 340

Balachandran v. Sub Registrar and connected matters 2023 LiveLaw (Ker) 341

Tamil Nadu State Transport Corporation v State of Kerala & Ors. 2023 LiveLaw (Ker) 342

Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala 2023 LiveLaw (Ker) 343

Manaf M v Union of India 2023 LiveLaw (Ker) 344

Ashok Harry Pothen v. Premlal 2023 LiveLaw (Ker) 345

Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr 2023 LiveLaw (Ker) 346

Diamond Crushers v. State of Kerala & Ors. 2023 LiveLaw (Ker) 347

Santha Kumari v. State of Kerala & Ors. 2023 LiveLaw (Ker) 348

Sumesh v. State of Kerala & Anr 2023 LiveLaw (Ker) 349

Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 350

Enose v. State of Kerala 2023 LiveLaw (Ker) 351

Kochu Mani & Anr v. State of Kerala 2023 LiveLaw (Ker) 352

Kallantavide Ramesan v State of Kerala 2023 LiveLaw (Ker) 353

Safir P. v. Commissioner of Customs (Preventive) 2023 LiveLaw (Ker) 354

Aster Medcity & Ors. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 355

Bipin Sunny v. State of Kerala & Ors. 2023 LiveLaw (Ker) 356

M/S Mariyas Soaps and Chemicals & Anr. v. M/S Wipro Enterprises Ltd. & Anr. 2023 LiveLaw (Ker) 357

Sinoj Thomas v. Balal Grama Pachayat & Anr. 2023 LiveLaw (Ker) 358

State of Kerala v. V.C Vinod and connected matters 2023 LiveLaw (Ker) 359

Raju v. State of Kerala 2023 LiveLaw (Ker) 360

Punjab National Bank & Anr. v. Central Bureau of Investigation & Ors. 2023 LiveLaw (Ker) 361

The Oriental Insurance Company Ltd v. Abdul Khader 2023 LiveLaw (Ker) 362

Case Title: Vijaya K Vs. Muraleedharan K G

Citation: 2023 LiveLaw (Ker) 302

The Kerala High Court recently held that an award passed by a Lok Adalat must contain all the characteristics of a decree to make it enforceable. The Court observed that Order 20 Rules 6 (1) and (9) of the Civil Procedure Code, 1908 which deals with the contents of a decree, must be adhered to.

A division bench of Justice Muhamed Mustaque and Justice Sophy Thomas observed that

“To execute an award, it must have all the characters of a decree to enforce it. If the award is blank and only refers to the obligation without referring to the nature of the obligation to be performed, it become in-executable. The award passed by the Lok Adalat is based on the agreement between the parties. The officers, presiding over such Adalat must apply their mind while passing the award to ensure that such award is executable. They must refer to Order 20 Rules 6 (1) and (9) of the Civil Procedure Code which refers to the contents of decree.”

Case Title: Ambika B. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 303

The Kerala High Court quashed the detention order of a person who had been detained under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 on the ground of unreasonable delay on the part of the detaining authority in seeking additional particulars from the sponsoring authority. The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha on taking note of the factual circumstances of the case held that the time consumed by the detaining authority for seeking additional particulars in the case could not be said to be reasonable, thereby justifying the delay.

Case Title: Govindarajan @ Govind v. Vidya & Anr.

Citation: 2023 LiveLaw (Ker) 304

The Kerala High Court recently reiterated that an application for amendment can be permitted by a Family Court despite the absence of provisions for amendment in the Code of Criminal Procedure (Cr.P.C.). The Single Judge Bench of Justice V.G. Arun relied upon various precedents and proceeded to observe that technicalities would not have any place in maintenance cases under Section 125 of Cr.P.C.

S.482 CrPC Can Be Invoked To Secure Justice Despite Availability Of Revisional Remedy: Kerala High Court

Case Title: Shamir T.J v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 305

The Kerala High Court has recently held that inherent powers under Section 482 CrPC can be invoked to secure justice and to prevent abuse of court process despite the availability of a revisional remedy under Section 397. Justice Ziyad Rahman A.A disagreed with the findings in Bayyarapu Suresh Babu v. State of Andra Pradesh & Ors (2021) and observed that the availability of a revisional remedy is not an absolute bar from the Court exercising its inherent powers on a matter.

Kerala High Court Warns Prison Authorities Against Unnecessary Delay, Detention Of Lawyers Visiting Clients in Jail

Case Title: Thushar Nirmal Sarathy v. State of Kerala

Citation: 2022 LiveLaw (Ker) 306

The Kerala High Court recently highlighted the vital role of lawyers as officers of the court in criminal cases and observed that when lawyers visit their clients in prison, it is the duty of prison officials to respect their professional duties and avoid unnecessary delays or detentions. Justice P.V. Kunhikrishnan expressed shock after a lawyer who was forced to approach the Court to obtain the signature of his client convicted in a criminal case lodged at Central Prison. The Judge made it clear that any unwarranted obstacles faced by lawyers in meeting their clients in jail will be viewed seriously by the Court going forward.

Order XLIII CPC | Conditional Orders Allowing Restoration Of Suits And Imposing Penalties Are Appealable: Kerala High Court

Cheriyathoda Cheriyakoya & Ors v. Cheriyathoda Kunni Kunni & Ors

Citation: 2022 LiveLaw (Ker) 307

The Kerala High Court has held that an order allowing the restoration of a dismissed suit for non-prosecution or setting aside an ex-parte decree, when accompanied by a conditional order imposing a penalty or cost, is an appealable order under Order XLIII of the CPC. Justice P. Somarajan reasoned that non-compliance with the condition will effectively result in rejection of the restoration application and such order is thus, appealable.

Prima Facie False Implication Of Tribal Youth In Wildlife Offence: Kerala High Court Refuses Anticipatory Bail To Accused Forest Officers

Case Title: V. Anilkumar & Ors. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 308

The Kerala High Court recently dismissed the appeal preferred by certain forest officers against the refusal of anticipatory bail in a case pertaining to false implication and torture of a tribal youth in connection with an alleged wildlife offence. Justice V.G. Arun passed the order on finding prima facie materials to attract the offence under Section 3(p) (Punishment for instituting false, malicious or vexatious suit or criminal or other legal proceedings against a member of SC/ST) of the SC/ST (Prevention of Atrocities) Act, 1989.

S.36A NDPS Act | Presence Of Accused Mandatory While Hearing Extension Application, Mere Notice Not Sufficient: Kerala High Court

Case Title: Justin T.J v. State of Kerala

Citation: 2022 LiveLaw (Ker) 309

The Kerala High Court recently held that the accused must be produced either physically or virtually while considering the application for extension of remand filed under Section 36A(4) of the NDPS Act and that neglect of the same goes beyond a simple procedural violation. Justice Raja Vijayaraghavan V pointed out that failure to do so would be equivalent to legally stripping the accused of their right to claim default bail.

Kerala High Court Quashes FIR Against Beauty Parlour Owner In Fake Drugs Case

Case Title: Sheela Sunny v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 310

The Kerala High Court quashed the FIR against Sheela Sunny, the owner of a beauty parlour in Chalakudy, who had been accused of possessing 0.106 grams of the drug LSD stamp. Sunny had sought the case to be quashed on the ground that the case was false and that the chemical analysis report was negative and no LSD had been detected in the stamp. Justice Kauser Edappagath passed the Order.

KAAPA | Delay In Initiating Proceedings Doesn't Invalidate Restraint Order If Nexus To Anti-Social Activity Not Severed: Kerala High Court

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

Citation: 2022 Livelaw (Ker) 311

The Kerala High Court recently held that a delay in initiating proceedings under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 does not always severe the live link between prejudicial activity and the initiation of legal action. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that an accused engaging in yet another prejudicial activity shortly after receiving such an order bolsters the necessity of the order.

Judges Can't Succumb To Wild Allegations Of Bias: Kerala High Court Rejects Plea By Advocate Facing Contempt For Recusal Of Justice Sophy Thomas

Case Title: Suo Motu v. Yeshwanth Shenoy

Citation: 2023 LiveLaw (Ker) 312

The Kerala High Court recently rejected the application moved by Advocate Yeshwanth Shenoy, seeking recusal of Justice Sophy Thomas from hearing the suo motu contempt proceedings initiated against him for alleged misbehaviour in Court. The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas rejected the application.

'Intent To Foster Personal Interaction' Essential Ingredient Of Stalking, Mere Threat Or Abuse Doesn't Attract S.354D IPC: Kerala High Court

Case Title: Jayaprakash P.P v. Sheeba Revi

Citation: 2022 LiveLaw (Ker) 313

The Kerala High Court has recently held that a mere threat or abuse by a man towards a woman would not attract the offence of stalking under Section 354-D of IPC. Justice K. Babu added that to qualify as stalking, a man must have repeatedly followed a woman and made contact or attempted to contact her, despite clear indications of disinterest from the woman, particularly demonstrating sexual interest or lewd behaviour by the man.

Kerala High Court Grants Interim Police Protection To Lesbian Couple Amid Alleged Threats From Family

Case Title: Afeefa C.S & Anr v. Director General of Police & Ors.

Citation: 2023 LiveLaw (Ker) 314

The Kerala High Court on Wednesday passed an interim order granting police protection to a lesbian couple who alleged that they were being targeted by their parents and henchmen. This comes less than a month after a Division Bench closed a habeas corpus petition filed by one of the women (Sumayya) seeking the release of her lesbian partner Afeefa from the custody of her family. While directing the police to provide the couple with adequate protection, Justice P.V. Kunhikrishnan also issued notice to the concerned authorities of the State police and to Afeefa's parents.

Jurisdictional Court Cannot Deny Accused's Right To Surrender If Permitted By CrPC: Kerala High Court

Case Title: Joseph Thomas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 315

The Kerala High Court recently held that a Magistrate cannot conclude that the accused was not in the custody of the Court when he voluntarily surrenders to its jurisdiction; it should take such accused in custody and deal with him as per law. Justice K. Babu added that when CrPC permits an accused to surrender before the Court having jurisdiction over the subject matter, the jurisdictional court cannot refuse permission.

Prima Facie Evidence Of Long Cohabitation: Kerala High Court Says Refusing Alleged Father's DNA Test May Brand Child As 'Bastard', Mother 'Immoral'

Case Title: XXX v. YYY & Anr.

Citation: 2023 LiveLaw (Ker) 316

The Kerala High Court held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside.

"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as ‘bastard’ and ‘immoral’," the Single Judge Bench of Justice Mary Joseph observed.

S.361 IPC | Minor's Consent Immaterial, Guardian's Consent Determining Factor In Kidnapping Cases: Kerala High Court Reiterates

Case Title: State of Kerala v. Arumugham and connected matters

Citation: 2022 LiveLaw (Ker) 317

The Kerala High Court reiterated that a minor's consent is irrelevant for the offence of kidnapping under Section 361 of the Indian Penal Code (IPC) and that it is the guardian's consent that determines whether the act falls within its scope.

Justice K Babu added that the use of force or fraud is not necessary; even persuasion by the accused that leads to the minor willingly leaving the legal guardian's custody is sufficient to invoke the section. If the minor is moved out of the guardian's custody with their consent, without any fraud, force, or deceit, it still constitutes an offence under Section 361.

'Gift' Under Mohammedan Law Not Valid In Absence Of Delivery Of Possession To Donee: Kerala High Court

Case Title: Abdul Jabbar v. Khadeeja Beevi & Ors.

Citation: 2023 LiveLaw (Ker) 318

The Kerala High Court declared as invalid a gift deed under Mohammedan law where the donee was only allowed to enjoy half a cent from a total of 3 cents of the schedule property, and there was no positive assertion by the donor that possession of the rest of the property is handed over to the donee.

Justice P.G. Ajithkumar observed: "...on a conjoint reading of the whole of the recitals in Ext.A1 (gift deed) does not enable to find or infer that possession of 2½ cents of property was delivered over to the appellant. Such a recital is totally lacking in Ext.A1, whereas, there is a positive assertion that the donor would continue to enjoy the property. From the above the possible deduction is that, the donor did not intend to hand over the possession of 2½ cents of property to the donee immediately".

Section 294 CrPC Intended To Expedite Trials, Avoid Delay Caused By Recording Irrelevant Evidence: Kerala High Court

Case Title: Smrithy George v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 319

The Kerala High Court observed that the object of Section 294 of CrPC was to expedite trials and avoid unnecessary delay by recording irrelevant evidence. Section 294 provides that no formal proof is required for certain documents filed before any court.

Justice Raja Vijayaraghavan V also added that endorsement of admission or denial of such document by the defence counsel or the Public Prosecutor, as the case may be, is sufficient for compliance with Section 294.

"The object of Section 294 of the Code is to accelerate the pace of the trial by avoiding the time being wasted by the parties in recording unnecessary evidence. Where the genuineness of any document is admitted or its formal proof is dispensed with, the same may be read in evidence. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 of the Code personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence on the document filed by the prosecution or on the application/report with which the same is filed is sufficient compliance of Section 294 of the Code."

KAAPA | Detention Order Can't Be Issued Without Determining Sufficiency Of Bail Conditions Already Imposed On Accused: Kerala High Court

Case Title: K. Suresh Kumar v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 320

The Kerala High Court set aside a detention order which was issued by the detaining authority without determining the nature of the bail conditions already imposed on the detenu.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed,

"It is trite that when an accused in a criminal case, who is enlarged on bail with conditions is sought to be detained in preventive detention, it is incumbent on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities and despite the conditions, if the detaining authority still considers that the detenu is required to be detained, the detaining authority is at liberty to pass an order of detention. In other words, the duty of the detaining authority is that he should pointedly consider the order passed by the court granting bail to the detenu and the conditions thereof and after due application of mind, pass orders, either to detain or not to detain the detenu."

Foreign Matrimonial Judgments Valid In Indian Courts If Parties Consented To Jurisdiction Abroad: Kerala High Court Reiterates

Case Title: Arun A. v. Marriage Officer

Citation: 2023 LiveLaw (Ker) 321

The Kerala High Court reiterated that foreign judgments can be accepted as conclusive in India where the parties voluntarily and effectively submit to the jurisdiction of the foreign court and consent to the grant of the relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

Justice P.V Kunhikrishnan observed that in such circumstances, it was allowed to stray from the general rule that foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court and the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married.

LIFE Mission Case: Sivasankar Withdraws Plea For Bail On Medical Grounds After Kerala High Court Expresses He Should Approach Supreme Court

Case Title: M. Sivasankar v. Directorate of Enforcement & Anr.

Citation: 2023 LiveLaw (Ker) 322

Case Title: Suo Motu v. Nipun Cherian

Citation: 2023 LiveLaw (Ker) 325

The Kerala High Court on Thursday sentenced 'V4 Kochi' President, Nipun Cherian, to four months imprisonment and a fine of Rs. 2,000 in the suo motu contempt case for his statements against a sitting judge of the High Court.

The contempt case pertains to a speech made by Cherian before farmers, fishermen, and representatives of the local people of Chellanam where he had levelled 'allegations of corruption' against a sitting judge of the High Court. The speech was live streamed and uploaded in the Facebook page of 'V4 Kochi' on October 25, 2022.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. refused to accept Cherian's request to stay the sentence so that he could approach the Supreme Court in appeal. The Court clarified that the appeal could be filed even while serving the sentence.

Kerala High Court Grants Bail To Litigant Who Vandalized Family Court Judge's Car

Case Title: Jayaprakash v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 326

The Kerala High Court granted bail to a litigant who had made headlines for vandalising the car used by a Thiruvalla Family Court Judge.

Justice Ziyad Rahman A. A granted bail to the petitioner considering that he had been in custody since mid-June without entering any findings on the merits of the case.

Can't Include New Categories In PSC Recruitment Notifications Unless Allowed By Existing Rules: Kerala High Court

Case Title: Varghese Vijesh v. State of Kerala & connected matters

Citation: 2022 LiveLaw (Ker) 327

The Kerala High Court has held that new categories or posts for appointments cannot be included in State services in the absence of existing enabling recruitment rules prescribing such inclusion.

Justice N. Nagaresh reiterated that the rights and obligations of individuals employed by the Union and the States are derived from the governing rules that regulate their service.

"The law is therefore clear that the rights and obligations of the persons serving the Union and the States are to be sourced from the Rules governing their service. As the petitioners were not eligible for appointment as Assistant Engineers till 30.01.2023, the PSC cannot be directed to consider the candidature of the petitioners in any selection process conducted prior to 30.01.2023."

Complainant U/S 138 NI Act Does Not Come Within Ambit Of 'Victim' U/S 2(wa) CrPC: Kerala High Court

Case Title: Paulose v. Baiju & Anr.

Citation: 2023 LiveLaw (Ker) 328

The Kerala High Court held that the complainant in a prosecution under Section 138 of the Negotiable Instruments Act would not fall within the ambit of the word 'victim', as defined under Section 2(wa) Cr.P.C.

Section 2(wa) Cr.P.C. defines victim as "a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir".

Justice V.G. Arun arrived at the said finding by relying upon the decision in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors. (2019). The Apex Court had held therein that Section 378(4) is to be confined to an order of acquittal passed in a case instituted upon a complaint, and had further went on to clarify that the word 'complainant' as defined in Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate and has nothing to do with the lodging or registration of an FIR.

Financial Transactions With Co-Accused Alone Not Sufficient To Impose Embargo U/S 37 NDPS Act: Kerala High Court

Case Title: Amal E & Anr v. State of Kerala

Citation: 2023 LiveLaw (Ker) 329

The Kerala High Court held that mere reliance on financial transactions and the confession of a co-accused should not be considered sufficient grounds for imposing an embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.

While refraining from making a conclusive finding at this stage, Justice Ziyad Rahman A.A held that the absence of substantial evidence raises reasonable doubt regarding the petitioners' involvement in the case.

"From the perusal of the case records, it can be seen that, apart from the aforesaid (financial) transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the accused, there is nothing."

Kerala High Court Directs KIRTAD To Hear BCom Student Seeking Community Certificate On Basis Of Mother's Caste

Case Title: Rebeka Mathai v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 330

The Kerala High Court set aside the reports prepared by the Kerala Institute for Research Training and Development (KIRTAD) recommending against grant of community certificate to a 19 year old B.Com student born to an inter-religious couple.

Petitioner's mother belonged to 'Paniya' community, a recognized Scheduled Tribe community and father to Orthodox Syrian Christian. She claimed to be raised within the cultural bounds of the Paniya Tribe as her paternal family was estranged to them.

Single Judge Bench of Justice Viju Abraham, found that the reports by the authority was prepared without adverting to the relevant facts and circumstances of the particular case. It thus directed KIRTAD to reconsider her case after providing an opportunity of hearing.

Murder Case: Kerala High Court Grants Interim Bail To Minor To Visit His Ailing Mother

Case Title: X v. State of Kerala

Citation: 2023 LiveLaw (Ker) 331

The Kerala High Court recently granted interim bail to a minor, accused of murder among other offences, to enable him to visit his ailing mother and consult his lawyer.

Justice P.V Kunhikrishnan noted that the petitioner is already serving a prison sentence in another case, while granting one week of interim bail to him.

"It is an admitted fact that the petitioner is convicted in another case and is undergoing imprisonment. It is also submitted that the petitioner will get parole if one week bail is granted in this case. I do not want to make any observation about the same. Considering the facts and circumstances of the case, I think one week bail can be granted to the petitioner. The local police is free to make surveillance as far as the petitioner is concerned for one week," said the bench.

S.29A(4) Arbitration Act | Courts Can Extend Arbitrator's Mandate Without Parties' Consent: Kerala High Court

Legal Heirs Of Deceased Original Plaintiff Need Not Be Separately Impleaded In Counter Claim: Kerala High Court

Case Title: Sholly Lookose v. V.I. Joseph

Citation: 2023 LiveLaw (Ker) 333

The Kerala High Court recently held that legal heirs of the deceased original plaintiff need not be separately impleaded as counter claim defendants, in order for the counter claim not to stand abated.

Justice P. Somarajan explained that a counter claim ought to be treated as a plaint and governed by the rules applicable to plaints by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C..

"Necessarily, the plaintiff/plaintiffs in the suit would stand in the status of a defendant/defendants as against the counter claim, when treated as a plaint. When the original plaintiff passed away and legal heirs were brought on record by impleadment as supplementary plaintiffs, they would stand stepped into the shoes of the original plaintiff and necessarily would acquire the character of defendants as against the counter claim raised. Hence, there is no need to implead them once again separately as counter claim defendants could be raised only against the plaintiff in the suit and that it would not be permissible to implead any other person in the suit for the purpose of counter claim," the Court explained.

'No Deceitful Intention': Kerala High Court Quashes Cheating Case Against Cancer Patient Who Failed To Clear Loan Taken Against Sister's Property

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

Citation: 2023 LiveLaw (Ker) 334

The Kerala High Court quashed criminal proceedings initiated by a woman against her brother and a relative (the 1st and 2nd accused, respectively), who failed to repay a loan taken against her property for the 1st accused person's cancer treatment.

Justice A. Badharudeen observed that accused-petitioners failure to fulfil the terms of the contract to repay the amount and to discharge the liability would only amount to 'breach of contract' and not the offence of cheating.

The Court emphasized that mere breach of contract would not constitute an offence of cheating and that 'deceitful intention' to get wrongful gain to the accused and corresponding loss to the victim ought to be established at the very inception in order to constitute the offence of cheating.

"It is true that, if accused Nos.1 and 2 failed in fulfilling the terms of the contract to repay the amount and to discharge the liability, then, the said act would attract only breach of contract and the same shall not come under the purview of cheating. That is to say, mere breach of contract by itself, would not constitute an offence of cheating and cheating as an offence shall be established by the ingredients hereinabove extracted and by establishing deceitful intention to get wrongful gain to the accused and corresponding loss to the victim at the very inception," Justice Badharudeen observed.

Lack of Awareness Or Communication Not A Valid Ground To Challenge Lok Adalat Award: Kerala High Court

Case Title: Sajitha & Anr v. Baldbose & Anr

Citation: 2023 LiveLaw (Ker) 335

The Kerala High Court recently held that being unaware of the contents of a Lok Adalat award or not being communicated of the same is not a valid ground to challenge the award.

Holding so, Justice Mohammed Nias C.P. dismissed a petition challenging the award issued by the Lok Adalat in a divorce and maintenance case.

"The ground that she was not aware of the contents of the compromise and that she was not communicated about the same by her counsel cannot be accepted. At any rate, the same cannot be a ground to challenge the award of the Lok Adalat."

Right Of Lateral Support Available To Neighbouring Owner Only So Long As He Keeps His Land In Its Natural State: Kerala High Court

Case Title: Asokan v. Krishna Ezhuthassan & Ors.

Citation: 2023 LiveLaw (Ker) 336

The Kerala High Court was recently faced with the question as to whether the removal of soil by a landowner, subsequent to the institution of a suit, would disentitle such landowner from raising a claim for easement right of lateral support from his neighbour's land.

The Single Judge Bench of Justice P.G. Ajithkumar took the view that if the unexcavated portions of the plaint schedule property are left as such, the lateral support to the landowner's property, which is retained in its original level can be ensured. The Court however, added that if the landowner also lowered the level of his respective properties, he would then be precluded from claiming natural right of lateral support in view of Section 7 of the Indian Easement Act, 1882 ('Easements restrictive of certain rights').

Kerala High Court Warns Religious, Political Bodies Against Obstructions On Public Roads

Case Title: Narayanankutty K v. Special Devaswom Commissioner & Ors

Citation: 2023 LiveLaw (Ker) 337

The Kerala High Court recently urged religious and political organisations in the State to strictly comply with its earlier directives preventing obstruction of pedestrian and traffic movement on public roads during festivals and protests.

In the earlier judgment, a Division Bench of Justice Anil K Narendran and Justice P.G Ajithkumar had highlighted the need to maintain roads constructed according to prescribed standards and guidelines without any encroachment on pedestrian facilities.

"Footpaths are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions to free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances," Court had said.

Road Accident Death Unfortunate, Will Be Equally Unfortunate If Innocent Auto Driver Who Tried To Help Is Made Accused: Kerala High Court

Case Title: Marykutty Kurian & Anr. v. Babu Joseph & Anr.

Citation: 2023 LiveLaw (Ker) 338

The Kerala High Court recently observed that when a person who attempts to help a road accident victim lying unattended for several hours is falsely implicated as an accused, they would think twice before extending a helping hand.

Justice Sophy Thomas made the observation in a case wherein an auto rickshaw driver who attempted to help a road accident victim by taking him to the hospital was implicated as an accused.

"True, it was unfortunate that a young man lost his life in a road traffic accident by falling down from his bike. It will be equally unfortunate, if an innocent person, who tried to help the injured by taking him to hospital in his autorickshaw, was made an accused in a criminal case," the Court observed.

Kerala High Court Directs Police To Serve Section 41A CrPC Notice To Shajan Skariah Before Arrest In Cases Against Him

Case Title: Shajan Scariya v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 339

The Kerala High Court directed that Shajan Skaria, editor of YouTube channel Marunadan Malayali, shall not be arrested without first issuing a notice under Section 41A Cr.P.C. or a notice intending to arrest stating a non-bailable offence against him. The Court further directed that such notice shall grant Skaria 10 days' time.

The Court passed the order while considering the plea filed by Skaria seeking directions to be issued to the State Police Chief not to arrest him without granting him sufficient opportunity to explain his stand, or without issuing notice under Section 41A Cr.P.C. The petitioner further sought necessary directions to be issued to the Home Secretary to to issue necessary directions in light of the Apex Court decision in Kumar Antil v. Central Bureau of Investigation & Ors. (2022), wherein it had been held that the accused would be entitled to be in case of any non-compliance of Section 41 and 41A Cr.P.C..

Justice P.V. Kunhikrishnan orally asked why Skaria was sought to be arrested without issuing notice.

"Supreme Court also passed an order in this regard...now you're behind this man. Don't arrest him without any notice. He should be given an opportunity to content his case as per law. I will make it clear that if there is any ground to arrest, after complying with Section 41A, you can arrest," the Court orally remarked.

'Not Providing Free Medical Relief': Kerala High Court Dismisses Lisie Hospital's Plea Seeking Building Tax Exemption

Case Title: M/S Lisie Medical Institutions v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 340

The Kerala High Court recently dismissed the Appeal preferred by Lisie Hospital, claiming building tax exemption in respect of one of its buildings constructed in the year 2013.

The Apex Court in February 2023, had remanded the matter to the High Court for decision on the factual aspects of the case, after clarifying that the term 'charitable purposes' in Section 3(1) of the Kerala Building Tax Act (hereinafter, 'the Act') would not be limited to "free medical relief" alone.

Lisie Hospital had sought tax exemption relying on tax exemption for 'buildings used principally for religious, charitable or educational purposes or as factories or workshops'.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. in the writ appeal before it, found that the building in question was not used 'principally' for providing free medical relief for inclusion under the definition of 'charitable purpose'.

"...we find that it is not in dispute that the building of the appellant was not principally used for providing free medical relief as required under the statutory provision for inclusion under the definition of charitable purpose. It is also not the case of the appellant that it rendered in the said building, any of the other services that qualify as charitable purpose under Section 3 of the Act. We therefore cannot see how the appellant’s building would qualify for the exemption under Section 3 of the Act in respect of the medical relief provided in the building in question," the Court observed.

[Transfer Of Possessory Rights] Sub-Registrar Can't Refuse Registration For Lack Of Prior Documents: Kerala High Court

Case Title: Balachandran v. Sub Registrar and connected matters

Citation: 2023 LiveLaw (Ker) 341

The Kerala High Court recently reiterated that the inability of persons transferring possessory rights to produce prior documents is not a valid reason for the Sub Registrar to refuse registration.

Justice Gopinath P thus emphasised that possessory rights can be transferred without any legal barriers, emphasising that the Sub Registrar should not inquire into the nature of possession, whether based on lease or title and only the rights possessed by the petitioner could be conveyed to the transferee.

"The persons executing the document can only transfer the right that they have and merely because they are purporting to transfer possessory rights and they are not been able to produce any prior documents cannot be a ground for the Sub Registrar to refuse registration."

TN State Transport Corporation Not Exempted From Toll Fees In Kerala, Reciprocal Agreement No Basis For Exemption: Kerala High Court

Case Title: Tamil Nadu State Transport Corporation v State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 342

The Kerala High Court recently observed that the Tamil Nadu State Transport Corporation's (TNSTC) vehicles are not exempted in Kerala from paying toll fees as per the Toll Act and operating based on a reciprocal agreement does not exempt them from paying the fees.

Justice Mohammed Nias C.P thus added that the contractor responsible for toll collection has the right to demand payment of toll fees from TNSTC.

"The agreements were produced as Exts.R4(a) and R4(b). The buses of the Petitioner Corporation were never exempted. Even as per Toll Act amended in 1990 only those motor vehicles belonging to the Government of Kerala or the Government of India and any stage carriage operated by the KSRTC were exempted. It is clear from Ext.R4(a) list that the petitioner's vehicles are not exempted from paying the toll. Nothing produced by the petitioner enables them to get any exemption from payment of toll."

Kattakkada Christian College Elections Row: Kerala High Court Grants Bail To Former Principal, SFI Leader

Case Title: Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 343

The Kerala High Court granted bail to the former Principal of Christian College, Kattakada, G.J. Shyju, and Student Federation of India (SFI) leader Visakh A in the case related to alleged impersonation, falsification of documents and misrepresentation during the college elections held in May 2023.

The Single Bench of Justice Ziyad Rahman A.A. took note of the period of detention already undergone by the petitioners and the fact that there was substantial progress in the investigation during which necessary recoveries were already affected.

'Some Legal Battles Not Worth Winning': Kerala High Court Awards ₹8 Lakh Compensation To Man Injured After Railway Constable Misfires Service Gun

Case Title: Manaf M v Union of India

Citation: 2023 LiveLaw (Ker) 344

The Kerala High Court granted over ₹8 lakhs as compensation to a man who sustained a gunshot injury from a misfired service gun by a Railway Constable more than a decade ago.

Justice P.V Kunhikrishnan expressed disappointment with the Railway and took the view that in situations like this, it ought to have risen to the occasion and redressed the petitioner's grievance without asking him to lead a legal battle.

"All legal battles are worth fighting, but some are not worth winning," the Court added.

No Single Litmus Test To Distinguish Licence From Lease: Kerala High Court Encourages Examining Parties' Intentions, Full Agreement

Case Title: Ashok Harry Pothen v. Premlal

Citation: 2023 LiveLaw (Ker) 345

The Kerala High Court has reiterated that to distinguish between a lease and a license one has to consider the agreement between parties as a whole and the intentions of the parties involved rather than the nomenclature used in the document and reading a few isolated provisions.

A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar observed that there was no single litmus test to decide the nature of a document.

"It is thus the settled law that the nature of a document has to be understood not by its nomenclature or by interpreting one or two clauses in it in isolation, but by interpreting the document as a whole. Going by the principles laid down by the Apex Court as well as this Court, there cannot be a single litmus test to decide whether the transaction in Ext.P1 is a lease or licence."

Anticipatory Bail Not Available For Offences Under UAPA Under Any Circumstance: Kerala High Court

Case Title: Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr

Citation: 2023 LiveLaw (Ker) 346

The Kerala High Court held that exclusion of application of Section 438 CrPC to cases under the Unlawful Activities (Prevention) Act, 1967 is absolute and thus no application for anticipatory bail is permissible for offences punishable under the UAPA under any circumstances.

A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that if it were interpreted differently and anticipatory bail was allowed, it would create an absurd situation where accused individuals could get anticipatory bail unconditionally, while regular bail would be subject to specific conditions.

"If the scheme of the UAP Act is that no person accused of an offence punishable under Chapter IV and VI of the UAP Act shall be released on bail unless the twin conditions referred to in subsection (5) of Section 43D are satisfied, there cannot be any doubt that the Statute does not contemplate grant of anticipatory bail to accused under any circumstance whatsoever, for if the provision is interpreted to hold that the Statute does not bar absolutely the application of Section 438 of the Code, in the absence of any restriction in the Statute in the matter of granting anticipatory bail, it would lead to an anomalous and absurd position that anticipatory bail can be granted to a person accused of an offence punishable under the UAP Act unconditionally and restrictions would apply only in the matter of claiming regular bail."

[Kerala Land Reforms Act] Legal Fiction Of Section 7E Deems Purchasers As 'Tenants', Not 'Cultivating Tenants': High Court

Case Title: Diamond Crushers v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 347

The Kerala High Court observed that the legal fiction created by Section 7E of the Kerala Land Reforms Act, 1963 (KLR Act) makes the purchaser a tenant, and the term 'tenant' has a wider definition, which includes a deemed tenant.

Justice T.R Ravi added that the Section starts with a non-obstante clause, which means it prevails over any other provision in the Act.

"As per Section 7E, the fiction created is to deem a purchaser as a tenant. The purchase can be of land of any nature. There is no requirement that the land should be paddy land where cultivation is being carried out. The fiction does not create a “cultivating tenant” as sought to be contended by the respondents based on the Certificate of Title."

'No One Else Can Give To Ward All That A Mother Can': Kerala High Court Unites Differently Abled Child With Mother

Case Title: Santha Kumari v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 348

No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".

Case Title: Sumesh v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 349

The Kerala High Court recently held that if a Magistrate forwards a complaint involving both cognizable and non-cognizable offences to the police, and the police investigation reveals only a non-cognizable offence, the Magistrate is legally authorised to proceed with the trial for that offence.

Justice A. Badharudeen reiterated that if a case involves both cognizable and non-cognizable offences, the police can investigate and file a charge sheet for all the offences as per Section 155(4) of CrPC.

"...if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) [of Section 155] provides that even a noncognizable case shall, in that situation, be treated as cognizable."

"Since the law is settled in the facts of the given case, though the Magistrate forwarded a complaint involving offences cognizable and non-cognizable in nature to the police and the police files a report finding that non-cognizable offence was committed, the Magistrate is legally empowered to proceed with the trial."

Tanur Boat Accident: Kerala High Court Grants Bail To Chief Surveyor And Senior Port Conservator

Case Title: Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 350

The Kerala High Court granted bail to Chief Surveyor of the Kerala Maritime Board, Sebastian Joseph, and the Senior Port Conservator, Baypore, Prasad V.V., who had been arrested in connection with the tragic Tanur boat accident that claimed 22 lives, including 15 children in Malappuram district.

Justice Ziyad Rahman A.A. passed the order on noting that substantial progress had been made in the investigation and further incarceration of the petitioners was not required.

The petitioners had been arrested on June 11, 2023, and have been in judicial custody ever since.

"...now the petitioners have been in judicial custody since 11.6.2023, and as on the date, more than 40 days have elapsed since the date of their arrest. Even though the learned ADGP highlighted that there are high chances of the evidence being tampered with and the witnesses being influenced, if the petitioners are released on bail, I do not find any justifiable reason to accept the contention. It is reported that, both the petitioners are already under suspension, and therefore, I do not find any possibility of them tampering with the evidence. Moreover, it is evident from the report of the investigating officer that the records kept in the office of the petitioners in connection with the incident were already seized," the Court observed while allowing the bail applications.

Ingredients Of 'Criminal Breach Of Trust' & 'Misappropriation' Must To Establish Offence U/S 13(1)(c) Prevention Of Corruption Act: Kerala High Court

Case Title: Enose v. State of Kerala

Citation: 2023 LiveLaw (Ker) 351

The Kerala High Court recently upheld the conviction of a Lower Division Clerk (L.D. Clerk) working on deputation in the Directorate of Higher Secondary Education, Thiruvananthapuram, under the Prevention of Corruption Act, 1988, for embezzlement of certain amount and forgery of document in that regard.

Justice Kauser Edappagath observed that an amount of ₹74,789/- that had been entrusted with the appellant-accused was misappropriated by him.

"To attract the offence of criminal breach of trust, the prosecution has to prove that there was entrustment of property with the accused and he has dishonestly misappropriated the same for his personal use. Once the entrustment is established by the prosecution, the burden shifts to the accused to account for the property entrusted. It is settled that if the entrustment is proved and the explanation given by the accused is not satisfactory, then it can be presumed that the accused has committed the offence of criminal breach of trust and misappropriation. The modus operandi of the accused, how he committed the misappropriation etc. need not be proved by the prosecution. The fraudulent intention of the accused can be inferred from the attending circumstances. The same ingredients of criminal breach of trust and misappropriation have to be proved by the prosecution for establishing the offence under section 13(1)(c) of the PC Act as well," the Court explained while finding the accused guilty of the offence.

Corroborative Evidence Necessary To Prove Guilt Of Accused, Mere Recovery Statement Insufficient: Kerala High Court

Case Title: Kochu Mani & Anr v. State of Kerala

Citation: 2023 LiveLaw (Ker) 352

The Kerala High Court recently held that merely recovering the object does not establish guilt unless there are other materials connecting the accused to the commission of the offence.

Observing so, Justice Ziyad Rahman A held that the trial court's reliance on the disclosure statements without sufficient corroborative evidence was unjustifiable.

"...apart from the aforesaid disclosure statement, there is nothing to connect the accused persons with the commission of the offences, and since I have found that the disclosure statements are inadequate for holding the appellants guilty, the only irresistible conclusion possible is that the prosecution miserably failed in establishing the guilt of the accused."

Discrepancies In Witness Statements Can Be Fatal To Prosecution In Politically Charged Situations: Kerala High Court

Case Title: Kallantavide Ramesan v State of Kerala

Citation: 2023 LiveLaw (Ker) 353

The Kerala High Court recently observed that glaring discrepancies in the witness statements become significant in politically charged situations and that they cast doubt on the credibility of the prosecution case.

Justice Ziyad Rahman A added that a mere strong or probable suspicion, not supported by proper and positive evidence, is inadequate to prove the guilt of the accused as it fails to establish the truth beyond doubt.

"....as all of the independent witnesses including the victim belong to a particular political party, and the accused belong to the rival political party, the evidence has to be scrutinized with care and caution. In such circumstances, the discrepancies and contradictions as mentioned above have to be given much more emphasis...in the light of the principles laid down by the Hon’ble Supreme Court, it appears to be fatal to the prosecution case."

"...suspicion, however strong or probable it may be, is not sufficient to hold the accused guilty. The distance “may be true” to “must be true” has to be covered by the prosecution by adducing proper and positive evidence."

Vehicle Cannot Be Seized By Customs On Mere Apprehension That It May Be Used For Transporting Smuggled Goods: Kerala High Court

Case Title: Safir P. v. Commissioner of Customs (Preventive)

Citation: 2023 LiveLaw (Ker) 354

The Kerala High Court held that a vehicle cannot be seized by customs on an apprehension that it may be used as a means of transporting smuggled goods.

Justice Bechu Kurian Thomas observed that under Section 115 of the Customs Act, 1962, which provides for 'Confiscation of conveyances', the power of confiscation can only arise if the vehicle was actually used or is being used for smuggling goods and not for apprehended use or future use.

The Court was of the opinion that the words ‘used as a means of transport’ in section 115(2) of the Act can only be interpreted as ‘already used as a means of transport’ or as ‘presently being used as a means of transport’, and a possible 'future use' could not be brought within its purview.

"If a possible future use of a vehicle as a means of transport for smuggling goods confers a power of confiscation of such a vehicle, that power will be unbridled, absolute and unregulated. The discretion to seize or not to seize a vehicle for apprehended future use as a means of transport of smuggled goods will confer an unregulated discretion devoid of any clarity for its exercise. Such conferment of vast and unguided powers will even fall foul of Article 14 of the Constitution of India," the Court observed.

Kerala High Court Quashes Proceedings Against Aster Medcity, Doctors Accused Of Flouting Organ Transplantation Protocol

Case Title: Aster Medcity & Ors. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 355

The Kerala High Court quashed the criminal proceedings against Aster Medcity and nine doctors who had been accused of violating the provisions of the Transplantation of Human Organs and Tissues Act, 1994.

Justice Ziyad Rahman A.A. passed the order.

If Anticipatory Bail Is Denied By High Court, Successive Application Should Also Be Filed Before HC, Not Sessions Court: Kerala High Court

Case Title: Bipin Sunny v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 356

The Kerala High Court recently observed that if the High Court denies anticipatory bail to a person, the successive applications citing change in circumstances should also be filed before the High Court and not before the Sessions Court.

Justice A. Badharudeen deprecated the practice of filing of subsequent anticipatory bail applications before the Sessions Court, after dismissal of the anticipatory bail plea by the High Court, by suppressing such adverse order. The Court opined that the said practice could not be justified.

"Therefore, in order to keep judicial discipline in tact, in cases where the High Court rejected anticipatory bail plea, second or successive anticipatory bail applications, pointing out change in circumstances, have to be filed before the High Court and not before the Sessions Court," it held.

Registered Trademark Owner Can't Seek Prohibitory Injunction If Opposite Party's Mark Is Also Registered, May Sue For Passing Off: Kerala High Court

Case Title: M/S Mariyas Soaps and Chemicals & Anr. v. M/S Wipro Enterprises Ltd. & Anr.

Citation: 2023 LiveLaw (Ker) 357

The Kerala High Court recently set aside a District Court order restraining M/S Mariyas Soaps and Chemicals from using their registered trademark ‘Chandra’ for being prima facie similar to Wipro's soap range ‘Chandrika’.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed it is settled law that an owner of a registered trademark cannot sue for infringement of his registered trademark if the opposite party also has the trade mark which is registered.

The bench was however quick to add that an aggrieved party may bring action for passing off. It observed,

"The rights granted by the registration in the form of exclusivity are not absolute but are subject to the provisions of the Act. Section 28(3) of the Trade Marks Act provides that the rights of two registered proprietors of identical or nearly resembling trademarks shall not be enforced against each other. However, they shall have the same rights as against the third parties. Further, the rights in passing off are emanating from the common law and not from the provisions of the Act and they are independent of the rights conferred by the Act."

Panchayats Can't Claim Expertise Over Competent Statutory Bodies And Stop Legally Permissible Entrepreneurial Projects: Kerala High Court

Case Title: Sinoj Thomas v. Balal Grama Pachayat & Anr.

Citation: 2023 LiveLaw (Ker) 358

The Kerala High Court recently observed that Panchayats should only wield their designated powers and not assume the role of enforcers in all public interests, particularly in areas where other competent statutory authorities hold expertise and decision-making authority.

Justice N. Nagaresh added that citizens pursuing start-ups and projects should be able to rely on clearances from these specialised bodies without additional hurdles from local self government institutions.

"When such specialised and expert statutory bodies are created, Panchayat Committees, who cannot claim expertise in those areas, cannot take a view contrary to that of other competent statutory authorities. Citizens who opt for start ups and entrepreneurships should be able to rely on the decisions and clearances given by specialised statutory bodies and go ahead with their projects. Local Self Government Institutions cannot take a view different from the views of other statutory bodies and stop or create hurdles for the entrepreneurs in going ahead with projects which are permitted under laws."

"The Panchayat institutions but can exercise only those powers conferred on and vested with them by legislature. The Panchayats cannot act as if they are protectors and enforcers of all public interests and exercise powers not vested with them."

Customised Software Designed For Specific User Remains Taxable As 'Goods': Kerala High Court

Case Title: State of Kerala v. V.C Vinod and connected matters

Citation: 2023 LiveLaw (Ker) 359

The Kerala High Court recently reiterated that software customised for a specific user and not sold to other users still falls under the category of 'goods' defined under Article 366(12) of the Constitution for the purposes of levy of sales tax under the Kerala General Sales Tax Act (KGST Act).

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P added that customised software satisfies the attributes of 'goods' as it possesses utility, and can be bought, sold, transmitted, transferred, delivered, stored, and possessed.

"even a customised software will satisfy the definition of 'goods' for, it is evident that it has the attributes having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. Once the said attributes are seen satisfied in the software in question, then whether the software is treated as customised or non-customised, it would nevertheless be categorised as 'goods' for the purposes of levy of tax... We are therefore of the view that merely because the software developed by the respondent/assessee in the instant case was customised for a particular user and was not sold to other users, the charges collected from the customer cannot escape the levy of sales tax under the KGST Act."

Rape Survivor's Testimony Not To Be Discredited For Delayed Disclosure If Otherwise Reliable: Kerala High Court

Case Title: Raju v. State of Kerala

Citation: 2023 LiveLaw (Ker) 360

The Kerala High Court recently observed that the evidence provided by a prosecutrix under Section 376 IPC should not be discredited merely because the sexual abuse began when she was a child but she did not disclose it until she was much older.

A Division Bench of Justice P.B Suresh and Justice C.S Sudha added that the credibility of the prosecutrix evidence in such cases would differ from case to case.

"A child who was subjected to sexual assault by her father, not disclosing the same to anyone during her childhood, is no reason to think that what is spoken to by her at a matured age is false. The question whether the evidence tendered by such a person is reliable, is to be decided having regard to the facts and circumstances of each case."

Kerala High Court Orders CBI Probe Into Alleged Embezzlement Of ₹12.5 Crore By PNB's Former Senior Manager

Case Title: Punjab National Bank & Anr. v. Central Bureau of Investigation & Ors.

Citation: 2023 LiveLaw (Ker) 361

The Kerala High Court has directed the Central Bureau of Investigation (CBI) to take over the investigation of a case involving Punjab National Bank's former senior Manager, accused of cheating and defrauding the Bank of an amount of more than twelve and a half crore rupees.

The present case was registered at the instance of the current Senior Manager of the Bank alleging the commission of offences under Sections 409 ('Criminal breach of trust by public servant, or by banker, merchant or agent') and 420 ('Cheating and dishonestly inducing delivery of property') of IPC against the former official.

Case Title: The Oriental Insurance Company Ltd v. Abdul Khader

Citation: 2023 LiveLaw (Ker) 362

The Kerala High Court recently held that while computing compensation in motor accident cases, the multiplier method proposed by the Supreme Court in Sarla Verma v. Delhi Transport Corporation remains applicable even if the accident resulted in serious injuries instead of death.

Justice C. Jayachandran clarified that the purpose of adopting the multiplier method was to achieve uniformity and consistency in compensation assessments, regardless of the nature of the injury.

"The very purpose of adopting the multiplier method in Sarla Verma (supra) is to do away with the considerable variation and inconsistency in assessing compensation and also to bring uniformity and consistency....the Honourable Supreme Court (has) opined that following the multiplier method will subserve the cause of justice, avoiding unnecessary contentions before the Tribunals and Courts. If this be the logic for adopting the multiplier method, can any change in the legal position be conceded for the reason that the result of the accident is an injury - especially in cases of serious injuries - instead of a death? The answer to the above question is surely negative, in the estimation of this Court, having regard to the logic and purpose behind adopting the multiplier method."

Case Title: Dr. C.P. Abdul Kabeer v. Shashank Mani Tripathi IAS & Ors.

The Kerala High Court has directed the Lakshadweep Administration to immediately take steps for appointing veterinary doctors to attend to the health care of animals, and birds, within three weeks. The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas directed such doctors to be appointed on contract or permanently. It further directed the Secretary of the Department of Fisheries, Agriculture and Animal Husbandry of Lakshadweep, Shashank Mani Tripathi, to appear before it in person if no action is taken within the stipulated time.

Life Mission Case: ED Challenges Maintainability Of Sivasankar's Plea In Kerala High Court Seeking Interim Bail On Medical Grounds

Case Title: M. Sivasankar v. Directorate of Enforcement & Anr.

The Kerala High Court directed that the plea filed by M. Sivasankar, former Principal Secretary to the Chief Minister of Kerala and accused in the Life Mission case, seeking interim bail on the grounds of ill-health be posted before the roster Bench. Justice Kauser Edappagat passed the Order on the submission made by the DSG appearing on behalf of the Enforcement Directorate (ED) that the present application was not maintainable. Sivasankar is in custody in connection with the Life Mission money laundering case, since his arrest by the Enforcement Directorate on February 14. On February 24, 2023, Sivasankar was remanded to judicial custody until March 8, 2023. Subsequently, the remand was extended and Sivasankar has been continuing under judicial custody.

Qatar Airways Asked To Compensate Kerala High Court Judge For Denying Boarding Despite Having Pass

Case Title: Bechu Kurian Thomas v. Qatar Airways & Anr.

The District Consumer Disputes Redressal Commission at Ernakulam directed Qatar Airways to pay an amount of Rs. 7,50,000/- to Justice Bechu Kurian Thomas, Judge of the Kerala High Court, for precluding him from boarding the flight despite having the necessary boarding passes, due to overbooking. The Commission comprising the President D.B. Binu and Members V. Ramachandran and Sreevidhia T.N. passed the Order on Justice Thomas' complaint alleging deficiency of service on the part of the airline company in the year 2018.

Kerala High Court Issues Notice To Actor Vinayakan In Plea Seeking Action For Allegedly Abusing Co-Passenger While Boarding Indigo Flight

Case Title: Jibi James v. Union of India

The Kerala High Court issued notice to Malayalam film actor Vinayakan in the plea seeking action to be taken by Indigo Airlines against the actor for allegedly abusing a co-passenger while boarding the flight. Justice P.V. Kunhikrishnan allowed the application by the petitioner impleading the Actor as an additional respondent in the matter, and issued him notice before admission. It also directed the Deputy Solicitor General of India to get instructions.

Supreme Court Collegium Recommends Appointment Of Gujarat HC Justice Ashish J Desai As Kerala High Court CJ

The Supreme Court has recommended the appointment of Justice Ashish J Desai, a judge at the Gujarat High Court as the Chief Justice of Kerala High Court. The current Chief Justice of Kerala High Court is Justice S Venkatanarayana Bhatti. The recommendation was made to fill the vacancy in the office of the Chief Justice of the Kerala High Court that would arise consequent to the recent recommendation by the Collegium to elevate Justice Bhatti to the Supreme Court.

Kerala High Court Stays Orders For Collecting Blood Samples Of Children Of Rape Victims For DNA Testing

Case Title: Suo Motu v. State of Kerala

The Kerala High Court has stayed various lower court orders directing the collection of blood samples of children of rape and Protection of Children from Sexual Offences Act (POCSO) survivors for DNA testing. Justice K. Babu passed the Order staying the implementation of six lower court orders of Mancheri Fast Track Sessions Court, Kattapana POCSO Special Court, Ramankari Judicial First Class Magistrate Court, Kollam Additional Sessions Court I, Devikulam POCSO Special Court, and Palakkad Sessions Court.

Kerala High Court Stays GO For Constitution Of 'Students Grievance Redressal Cells' In Colleges For 1 Month

Case Title: The Council of Principals of Colleges in Kerala & Anr. v. State of Kerala & Ors.

The Kerala High Court stayed the Government Order (G.O.) directing the Principals of all colleges to constitute a 'Students' Grievance Redressal Cell' in their institutions, for a period of one month. The said G.O. also mandated the formation of a University Appellate Forum/Tribunal in Universities to act as the appellate authority to the orders of the Student Grievance Redressal Cell.

In A First, Kerala High Court Set To Introduce Machine Scrutiny Of Bail Applications

In an unprecedented measure, the Kerala High Court is set to introduce a module for Machine Scrutiny of Bail Applications. This novel feature, which is the first of its kind in the country, and which has been developed by the High Court's technical team, shall provide for automated scrutiny of Bail Applications. It will be operational from July 10, 2023.

Brahmapuram Fire: Kerala Govt Suggests High Court To Constitute Special Bench To Consider Issues Under Solid Waste Management Rules

Case Title: Suo Motu v. State of Kerala

The Kerala government suggested the High Court constitute a Special Bench for consideration of the Brahmapuram fire incident and other matters relating to Solid Waste Management Rules, 2016 while the Court was considering the suo motu proceedings initiated by it in the wake of a fire at the Brahmapuram Solid Waste Management Plant in March 2023. The Division Bench comprising Chief Justice S.V.N. Bhatti and Justice Basant Balaji thereby directed the Registrar (Judicial) to take orders on the administrative side for constituting such a Special Bench, upon the submission made by the Advocate General.

Kerala High Court Publishes More Than 300 Judgments Translated To Malayalam

The Kerala High Court has translated more than 317 of its judgments in Malayalam and published the same on its website. The Court has been able to achieve this milestone under the guidance of Justice A. Muhamed Mustaque, Chairman of the Committee in charge of Computerization, and Justice Raja Vijayaraghavan V and Dr. Justice Kauser Edappagath, members of the Artificial Intelligence Assisted Legal Translation Advisory Committee.

Kerala: More Than 5000 Judgments Of District Judiciary Translated To Malayalam

The Kerala High Court has translated more than 5000 judgments of the District Judiciary into Malayalam language. Presently, around 5186 judgements have been translated from English to Malayalam and are made available on the official websites of District Courts. It has proposed to translate and publish in Malayalam at least five judgments from each Court in the District judiciary.

Kerala High Court Stays Criminal Proceedings Against Disabled Couple Accused Of Encroaching Neighbour's Property, Damaging Compound Wall

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

The Kerala High Court stayed the criminal proceedings initiated against a differently abled couple and their senior citizen father, who had been alleged to have encroached upon the property of their neighbour and caused damage to the compound wall on the property. Justice Raja Vijayaraghavan V. stayed the proceedings against the accused petitioners for a period of one month.

Justice Alexander Thomas Appointed As Acting Chief Justice Of Kerala High Court

Justice Alexander Thomas has been appointed as the Acting Chief Justice of the Kerala High Court, following the appointment of Chief Justice S.V. Bhatti as Judge of the Supreme Court of India.

Marunadan Malayalee Editor Shajan Skariah Moves Kerala High Court Seeking Anticipatory Bail In Case For Allegedly Humiliating Priest On YouTube

Case Title: Shajan Scariya v. State of Kerala & Anr.

Shajan Skariah, Editor of Marunadan Malayali has moved an anticipatory bail plea before the Kerala High Court in case alleging that he interacted with a priest through his YouTube channel with dishonest intention to insult and humiliate the priest among other religions.

The matter pertains to a conversation between Skariah and a priest that was telecast through his YouTube Channel on January 4, 2023.

Supreme Court Collegium Recommends Making 4 Additional Judges Of Kerala High Court Permanent

The Supreme Court Collegium has recommended the names of four Additional Judges of the Kerala High Court to be made permanent judges.

The names of the Judges are as follows: Justice Basant Balaji; Justice Chandrasekharan Kartha Jayachandran; Justice Sophy Thomas; and Justice Puthen Veedu Gopala Pillai Ajithkumar.

The Kerala High Court Collegium had, on March 17, 2023, unanimously recommended the names of the aforementioned Judges for permanent appointment. The Chief Minister and the Governor of the State of Kerala had also concurred with the recommendation.

Centre Notifies Transfer Of Justice Dinesh Kumar Singh From Allahabad HC To Kerala High Court

The Central Government has notified the transfer of Justice Dinesh Kumar Singh from Allahabad High Court to Kerala High Court, following the Supreme Court Collegium's recommendation in this regard.

Case Title: State v. Roshan Shiju

A Kerala Court recently sentenced a person to pay a fine of R. 34,000/- and simple imprisonment till the rising of court, for permitting his minor brother to ride his motorcycle that too without displaying the registration mark on the front and back side of the vehicle.

The Ernakulam Additional Chief Judicial Magistrate Naina K.V. passed the order and added that the registration of the vehicle would be cancelled for a period of 12 months, and that the license of the accused would stand cancelled for three months.

Kerala Police Officer Suspended For Assaulting Lawyer

The City Police Commissioner, Ernakulam, has suspended trainee Sub-Inspector K Saiju of Ernakulam North Police Station for assaulting a lawyer.

Saiju was alleged to have assaulted Advocate Srinath C.V. and his friend on July 13, 2023. Saiju allegedly hurled abusive words against the lawyer, as well.

Another lawyer, Advocate Sreekanth, was also alleged to have been beaten by the said police officer on July 8.

Kerala Court Acquits Auto Drivers Accused Of Threatening, Harassing Woman For Hiring Uber Taxi At Railway Station

Case Title: State v. Anilkumar & Ors.

A Kerala Court recently acquitted four auto rikshaw drivers who were accused of threatening and harassing a woman for hailing an Uber Taxi at a railway station.

The Judicial First Class Magistrate-II Balram M.K. acquitted the accused persons on noting that the prosecution had failed to prove that they committed the offences alleged against them or acted in furtherance of common intention.

New Chief Justices Appointed In High Courts Of Gujarat, Kerala, Telangana And Odisha

New chief justices have been appointed in the High Courts of Gujarat, Kerala, Telangana, and Odisha.

The President of India has, after consultation with the Chief Justice of India, appointed the judges.

Holding Woman's Hand, Threatening Her Without Intention To Outrage Her Modesty Not Offence U/S 354 IPC: Kerala Court

Case Title: State v. Anoop

A Kerala Court recently held that merely holding a woman's hand and threatening to kill her would not attract the offence of assault or criminal force to outrage a woman's modesty under Section 354 IPC.

The Judicial First Class Magistrate II Aluva Santhosh T.K., observed that in order to commit the offence under Section 354 IPC, it would have to be proved that the accused used criminal force or assaulted a woman either with an intention to outrage her modesty or with the knowledge that it was likely that he would thereby outrage her modesty.

"Mere assault or criminal force does not amount to an offence. The culpable intention to outrage the modesty of the victim is to be proved. Mere holding PW1’s hand and threatened her that he would kill her will not attract offence under Section 354 of IPC," the Court stated.

Contempt Petitioner Cannot Be Insisted To Provide Name & Age Of Respondent's Father, Mother Or Husband: Kerala High Court

Case Title: Mount Zion College of Engineering, Kadamanitta v. Dr. Divya S. Iyer

The Kerala High Court recently held that a contempt petitioner cannot be insisted upon to provide the age and name of the father, mother, or husband of the respondent in the contempt case.

The Single Judge Bench of Justice V.G. Arun passed the Order on finding merit in the contention advanced by the petitioner's counsel that as per Rule 5(a) of the Contempt of Court Rules, the contempt petitioner is only required to provide the name, occupation and full address of the respondent.

'Resolution On Uniform Civil Code Can't Be Moved In Corporation Council' : Kerala High Court Stays Municipal Corporation's Proposal

Case Title: Navya Haridas v. State of Kerala & Ors.

The Kerala High Court stayed the Kozhikode Municipal Corporation's proposal to pass a resolution on Uniform Civil Code.

Justice N. Nagaresh issued the interim order staying all further proceedings pursuant to the notice with the proposed resolutions issued by the Corporation, to the extent it permits consideration of the Agenda Item No.137 with regard to the Uniform Civil Code and Central Government.

Justice Dinesh Kumar Singh Sworn In As Judge Of Kerala High Court

Justice Dinesh Kumar Singh was sworn in as a Judge of the Kerala High Court today.

Justice Singh has been transferred from the Allahabad High Court following the Supreme Court Collegium's recommendation in this regard. The Collegium had rejected his request to be transferred to nearby States such as Delhi, Punjab & Haryana, Madhya Pradesh or Rajasthan.

Lawyer Prefers Appeal Against Dismissal Of Plea Challenging 'Limited Listing' Of Cases Before Kerala High Court Judge

Case Title: Yeshwanth Shenoy v. The Chief Justice, High Court of Kerala & Ors.

Advocate Yeshwanth Shenoy has moved a writ appeal in the Kerala High Court against dismissal of his plea challenging limited listing of cases before the bench of Justice Mary Joseph.

Single Bench of Justice PV Kunhikrishnan had, on June 9, 2023, dismissed his plea stating that no direction can be issued that a judge should hear a particular number of cases in a day. "As per Rule 92 of Rules of the High Court of Kerala, 1971, the Bench or Judge has the discretion to issue special or general directions regarding the posting of cases assigned to him/her by the Chief Justice," it had observed.

In this appeal, Shenoy claims that his plea was on the issue of the 'listing of cases' being limited to 20 before the Court, and not 'hearing the same'. He submits that the Single Judge had confused 'listing' with 'hearing' and adjudicated on a non-issue.

Transgender Couple Moves Kerala High Court Praying Their Child's Birth Certificate Should Reflect Them As 'Parents', Not Father & Mother

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

A plea has been moved in the Kerala High Court by the nation's first transgender parents seeking a direction to be issued to the Secretary, Kozhikode Corporation, to issue a new birth certificate for their child, showing the names of the couple as just 'parents', instead of 'father' and 'mother', respectively.

The matter was adjourned to next Thursday by the Single Bench of Justice N. Nagaresh after State's counsel pointed certain technical defects in the petition. Meanwhile, the bench asked the State counsel to find out what could be done to resolve the petitioners' "genuine grievance".

Excise Commissioner Has Ordered Relocation Or Closure Of BEVCO Outlet Situated In Residential Area: Govt Tells Kerala High Court

Case Title: Aslam Ahammed S.R. & Ors. v. State of Kerala & Ors.

After several residents of Pothencode in Thiruvananthapuram District approached the Kerala High Court against nuisance created due to operation of a BEVCO (Kerala State Beverages (Manufacturing & Marketing) Corporation) outlet in their area, Excise Commissioner Mahipal Yadav has issued an order directing either relocation or closure of the outlet.

Govt pleader Jacob E.Simon informed Justice Devan Ramachandran that the outlet will be removed from the area within a month.

Plea In Kerala High Court Challenges Transport Authority's Decision To Implement Uniform Colour Code On All Ambulances

Case Title: C. H. Muhammed Koya Memorial Charitable Centre v. State of Kerala & Anr.

A charitable trust claiming to own a fleet of ambulances has moved the Kerala High Court challenging the Transport Authority's decision to implement uniform colour code on all ambulance vehicles in the State.

With effect from January 1, all new ambulances in Kerala are painted white and comply with other stipulations. So far as old ambulances are concerned, the Authority had decided to implement the colour code on them as and when the vehicle is produced for renewal of fitness certificate.

Justice Ashish Jitendra Desai Takes Oath As Chief Justice Of Kerala High Court

Justice Ashish Jitendra Desai took oath as the Chief Justice of the Kerala High Court.

Kerala Governor Arif Mohammed Khan administered the oath of office to the new Chief Justice, at a ceremony held at Raj Bhavan.

Chief Justice Desai is presently the 38th Chief Justice of the Kerala High Court.

Case Title: SSH (name withheld) v. Union of India & Ors.

A plea has been moved in the Kerala High Court by a person who was acquitted in a cheating case, seeking to redact his name and other identities from the public domain.

A Single Judge Bench of Justice P.V. Kunhikrishnan issued notices to the Central, State Governments, Google and The New Indian Express.

The petitioner said that he is aggrieved that despite him having been acquitted in a cheating case, there are several news articles and images of him on the internet with the heading 'Man Held For Handing Over Invalid Cheque to Shop'.

Guidelines Necessary To Ensure Doctors Are Duly Qualified : Kerala High Court Seeks State's View

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

The Kerala High Court sought the views of the Government on a plea seeking guidelines to ensure that appointment orders of medical practitioners in the State are issued to selected candidates only after getting their educational certificates verified and authenticated by the Universities that have issued them. It directed the Government to file an affidavit in this regard.

The Single Judge Bench of Justice P.V. Kunhikrishnan clarified that the same was not intended to "demoralize the hard working doctors in the state", but to ensure that there were no culprits in the profession.

CBI Court Convicts Income Tax Officer For Taking Bribe From Ernakulam Doctor

Case Title: Inspector of Police, CBI v. Dinesh K.K.

The CBI Special Court, Ernakulam, has sentenced an Income Tax Department officer to rigorous imprisonment for a period of 4.5 years and fine of Rs. 50,000/- for taking bribe from a doctor.

The Additional Special Sessions Judge (SPE/CBI)-III, Ernakulam, KK Balakrishnan passed the order.

The prosecution case against the accused Income Tax official, KK Dinesh, was that he had obtained a bribe of Rs. 10 Lakhs from a doctor. It is alleged that Dinesh had threatened the doctor to give him the bribe, lest the latter incur a liability of crores of rupees.

Centre Notifies Appointment Of Four Additional Judges As Permanent Judges Of Kerala High Court

The Central Government issued a notification appointing Justices Basant Balaji, Chandrasekharan Kartha Jayachandran, Sophy Thomas, and Puthen Veedu Gopala Pillai Ajithkumar, as permanent Judges of the Kerala High Court.

Contempt Petition In Kerala High Court Against Police Officer Alleging Violation Of DK Basu Guidelines

Case Title: Sulaikha & Anr. v. Viswanadh R. IPS & Ors.

A contempt petition has been filed in the Kerala High Court against four police officers over alleged violation of D.K. Basu guidelines on arrest [DK Basu v. State of West Bengal (AIR 1997 SC 610)].

A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas on Thursday sought response from the respondents.

Monson Mavunkal Case: IG Lakshman Files Quashing Plea Before Kerala High Court

Case Title: Gugulloth Lakshman IPS v. State of Kerala & Anr.

Kerala's Inspector General of Police, Gugulloth Lakshman, has approached the High Court seeking to quash the case registered against him for his alleged involvement in Monson Mavunkal cheating case.

Single Judge Bench of Justice Rajavijayaraghavan V. has directed the Public Prosecutor to take instructions.