Nominal Index [Citations: 2024 LiveLaw (Ker) 727 – 747]Nimija v State of Kerala, 2024 LiveLaw (Ker) 727Case Title: TNS India Pvt. Ltd. and Another v State of Kerala, 2024 LiveLaw (Ker) 728Aji v State of Kerala, 2024 LiveLaw (Ker) 729Visakh v State of Kerala and Another, 2024 LiveLaw (Ker) 730X v State of Kerala, 2024 LiveLaw (Ker) 731K K Damodaran & Co. v Union of India, 2024 LiveLaw...
Nominal Index [Citations: 2024 LiveLaw (Ker) 727 – 747]
Nimija v State of Kerala, 2024 LiveLaw (Ker) 727
Case Title: TNS India Pvt. Ltd. and Another v State of Kerala, 2024 LiveLaw (Ker) 728
Aji v State of Kerala, 2024 LiveLaw (Ker) 729
Visakh v State of Kerala and Another, 2024 LiveLaw (Ker) 730
X v State of Kerala, 2024 LiveLaw (Ker) 731
K K Damodaran & Co. v Union of India, 2024 LiveLaw (Ker) 732
Unni K E v State of Kerala, 2024 LiveLaw (Ker) 733
X. v Y, 2024 LiveLaw (Ker) 734
Simil v State of Kerala , 2024 LiveLaw (Ker) 735
Ajith Prasad Edacherry v State of Kerala, 2024 LiveLaw (Ker) 736
P.S.Sreedharan Pillai v State of Kerala , 2024 LiveLaw (Ker) 737
Adv. M. Baiju Noel v Additional Chief Secretary and Others, 2024 LiveLaw (Ker) 738
Aloysius Alexander v S. Jayakumar @ Panambil S. Jayakumar and Others, 2024 LiveLaw (Ker) 739
Chandrasekharan v State of Kerala, 2024 LiveLaw (Ker) 740
Sheba Sam Benjamin v State of Kerala, 2024 LiveLaw (Ker) 741
XXX v Union of India, 2024 LiveLaw (Ker) 742
M/s Knowell Realtors India Pvt. Ltd. v. Assistant Commissioner of Income Tax, 2024 LiveLaw (Ker) 743
Baiju George v. Commissioner Of Goods And Service Taxes Department, 2024 LiveLaw (Ker) 744
The Assistant Commissioner Of State Tax v. Bhima Jewellery And Diamonds P. Ltd., 2024 LiveLaw (Ker) 745
Suo Motu JPP initiated by the High Court, 2024 LiveLaw (Ker) 746
Binumon KP v Kerala Public Service Commission and Another, 2024 LiveLaw (Ker) 747
Judgments/ Orders This Week
Case Title: Nimija v State of Kerala
Citation: 2024 LiveLaw (Ker) 727
The Kerala High Court has stated that body shaming of a woman by her sister-in-law would prima facie amount to wilful conduct to cause injury to health of a woman to attract an offence of cruelty under Section 498A of the IPC.
Justice A. Badharudeen stated that spouses of siblings who are residing in the matrimonial home would also come under the term relative in Section 498A.
Case Title: TNS India Pvt. Ltd. and Another v State of Kerala
Citation: 2024 LiveLaw (Ker) 728
The Kerala High Court has asked investigating agency Internal Security Investigation Team (ISIT) to inform Central Government about the "suspicious" survey allegedly conducted by a foreign agency without sanction from it.
The Internal Security Investigation Team (ISIT) after investigation alleged that the foreign agency, Princeton Survey Research Associates (PSRA) had conducted the survey with the intention to spoil the existing communal harmony and create emotional conflict among the Muslim Community. Justice P. V. Kunhikrishnan was hearing a plea moved by an Indian company–which had entered into a contract with PSRA to conduct the survey–seeking quashing of a criminal case registered against them for allegedly carrying out malicious acts to outrage religious feelings.
Case Title: Aji v State of Kerala
Citation: 2024 LiveLaw (Ker) 729
The Kerala High Court stated that the accused right to access documents, including digital documents excluding those which affect the privacy of the victim.
Justice A. Badharudeen stated that the accused cannot be denied the right to view the pen drive containing CCTV visuals which are part of prosecution records for defending his case, as part of his right to a fair trial.
Case Title: Visakh v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 730
The Kerala High Court has set aside an order cancelling bail of a man booked under NDPS Act, observing that there is nothing to show that the accused interfered in the investigation or trial. The bail was cancelled by the Sessions Judge on the ground that the petitioner involved himself in another crime and thereby violated the bail condition.
Justice K. Babu observed that there should be overwhelming reasons for cancelling a bail.
Case Title: X v State of Kerala
Citation: 2024 LiveLaw (Ker) 731
The Kerala High Court has held that a woman can seek protection against matrimonial cruelty under Section 498A of the Indian Penal Code when there is either "religious or customary" marriage between the parties which has the "colour of legal marriage", even if such marriage was later found to be invalid under law.
Justice Sophy Thomas in its order observed that although there was no registration of marriage under Secular law, the Nikah of the girl who was originally Hindu was conducted with the first accused after she converted to Islam. The Court thus stated that marriage of minor girl on attaining puberty was considered as a valid marriage under the Muslim Personal Law and thus offence of cruelty would be attracted against her husband and in-laws.
Case Title: K K Damodaran & Co. v Union of India
Citation: 2024 LiveLaw (Ker) 732
The Kerala High Court has held that the Port Trust Authority is empowered to take decisions regarding movement of vessels, boats, watercrafts within port waters to ensure the safety and security of passengers and watercraft.
Justice Syam Kumar V.M., however emphasized that the statutory authority must hear the party and make a decision objectively, ensuring fairness and adhering to the principles of natural justice.
Case Title: Unni K E v State of Kerala
Citation: 2024 LiveLaw (Ker) 733
The Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumarheld that integrating categories and giving seniority based on Kerala General Subordinate Service Posts in the Rural Development Department (Amendment) Special Rules of 2008 is a policy decision and any anomaly in it would be beyond Court's domain for rectification.
Case Title: X. v Y
Citation: 2024 LiveLaw (Ker) 734
While deciding a review petition pertaining to a custody dispute, the Kerala High Court said that a party is not estopped when the error is committed by the court itself. A division bench of Justice P. B. Suresh Kumar and Justice C. Pratheep Kumar underscored that the court has a duty to correct its own mistake.
Case Title: Simil v State of Kerala
Citation: 2024 LiveLaw (Ker) 735
The Kerala High Court has stated that showing or waving a black flag at a person cannot be perceived as a defamatory or illegal act to attract an offence under Section 499 of the IPC.
The Court further stated that even if a flag of any colour is displayed as a form of protest, it cannot be regarded as defamation in the absence of any law prohibiting such an act.
Justice Bechu Kurian Thomas observed that waving a black flag could be a sign of support or protest and that it depends on perception.
Case Title: Ajith Prasad Edacherry v State of Kerala
Citation: 2024 LiveLaw (Ker) 736
The Kerala High Court has held that any overt act which involves a physical contact with sexual intent constitutes 'sexual assault', even if there is no penetration.
Justice A. Badharudeen noted that under Section 7 of POCSO Act, which defines 'sexual assault', includes within its ambit any other act which involves physical contact with sexual intent.
Case Title: P.S.Sreedharan Pillai v State of Kerala
Citation: 2024 LiveLaw (Ker) 737
The Kerala High Court quashed a case registered under Section 505 (1)(b) (statements conducing to public mischief) of the IPC against former State BJP President and present Goa Governor P.S. Sreedharan Pillai for allegedly making statements supporting the Thantri's decision to deny entry of women at Sabarimala Temple, against the Apex Court decision in Young Indian Lawyers Association case.
Justice P.V.Kunhikrishnan quashed the case against Sreedharan Pillai on finding that he was inaugurating a meeting of the BJP's Youth Wing, Yuva Morcha Samsthana Samithi, and that the event was only accessible to a private or exclusive group of people and not the general public.
he Court further observed that Sreedharan Pillai, as the Governor of Goa, is immune from criminal proceedings under Article 361 of the Constitution.
Case Title: Adv. M. Baiju Noel v Additional Chief Secretary and Others
Citation: 2024 LiveLaw (Ker) 738
While ordering further investigation into the allegedly insulting remarks made by Minister for Fisheries, Culture and Youth Affairs Saji Cherian, the Kerala High Court observed that post the 2003 amendment to Section 2 of Prevention of Insults to National Honour Act, even disrespect shown to the Constitution by words either spoken or written or by acts can amount to conduct falling foul of the Act.
Perusing through the language of the provision Justice Bechu Kurian Thomas in its order noted that it indicated that the words “otherwise shows disrespect to” were not part of the statute initially.
Case Title: Aloysius Alexander v S. Jayakumar @ Panambil S. Jayakumar and Others
Citation: 2024 LiveLaw (Ker) 739
The Kerala High Court on Thursday (21st November) dismissed the appeal filed by a police officer against the attachment of his property in a case of custodial torture of an advocate.
The police officer appealed against the attachment before the High Court saying that the said property is used as a security in a loan he has taken. He submitted that due to the attachment order, the bank is planning to recall the loan and initiate SARFAESI proceedings against the property. He further submitted that such an action would also affect the advocate's right to ultimately realise damages.
Justice G. Girish noted that the property was a security for the loan much before it was attached by the Court order. The Court observed that there is no basis for apprehension for the bank as it will have the right to proceed against the property in case the officer defaults on the loan.
Case Title: Chandrasekharan v State of Kerala
Citation: 2024 LiveLaw (Ker) 740
The Kerala High Court has dismissed the bail application of a police officer who is accused of raping a 14-year-old minor girl who is stated to be a member of the scheduled caste.
Justice K Babu observed that Courts must not lightly entertain bail applications when "serious offences" are alleged and a "prima facie case" is made out. The court underscored that where the offence complained is of such nature "as to shake the confidence of the public" there bail shall not be granted
Are Government Pleaders Gazetted Officers? Kerala High Court Asks Govt To Clarify
Case Title: Sheba Sam Benjamin v State of Kerala
Citation: 2024 LiveLaw (Ker) 741
The Kerala High Court has asked the government to issue a notification or instruction clarifying whether Government Pleaders, Senior Government Pleaders, and Special Government Pleaders are Gazetted Officers within one month.
Justice Gopinath P. was considering a writ petition filed by an Indian woman who wanted to marry an American citizen and her application submitted under the Special Marriage Act was rejected, stating that the Government Pleader who attested her document was not a gazetted officer.
Case Title: XXX v Union of India
Citation: 2024 LiveLaw (Ker) 742
While permitting a 16-year-old school going girl to terminate her over 26-week-pregnancy, the Kerala High Court said that the mental trauma undergone by the minor girl who had been stated to be subjected to "repeated sexual assault", cannot be an irrelevant consideration.
A division Bench of Chief Justice Nitin Jamdar and Justice S. Manu in its November 8 order allowed the writ appeal of the mother after the report of the psychiatrist stated that the minor does not have the mental capacity to continue with the pregnancy and that would adversely affect her mental health.
Case Title: M/s Knowell Realtors India Pvt. Ltd. v. Assistant Commissioner of Income Tax
Citation: 2024 LiveLaw (Ker) 743
The Kerala High Court has stated that income from the sale of immovable properties is to be treated as 'capital gains,' not 'business income' for taxation purposes.
The Division Bench of Justices A.K. Jayasankaran Nambiar and K.V. Jayakumar observed that “the requirement of ensuring uniformity and consistency in tax assessments cannot be overlooked, especially while categorizing the nature of the activity carried on by an assessee to earn its income for the purposes of taxation.”
Case Title: Baiju George v. Commissioner Of Goods And Service Taxes Department
Citation: 2024 LiveLaw (Ker) 744
The Kerala High Court stated that the medical condition cited by the assessee is not sufficient grounds to justify condoning a four-year delay in filing the appeal.
The Bench of Justice Gopinath P. observed that “the assessee has not made out any ground for grant of relief in the writ petition. Admittedly, the assessee filed appeals against the orders only in the month of February 2024 i.e., four years after the date on which the orders against which the appeal was sought to be filed had been issued.”
Case Title: The Assistant Commissioner Of State Tax v. Bhima Jewellery And Diamonds P. Ltd.
Citation: 2024 LiveLaw (Ker) 745
The Kerala High Court stated that the department cannot reopen an assessment that has already been settled by issuing a fresh notice if the period of limitation had expired before the date of the amendment extending the timeline for reopening.
The Division Bench of Justices A.K. Jayasankaran Nambiar and K.V. Jayakumar observed that “…….no doubt, in those cases where the erstwhile period of limitation of five years had already expired before the date of the amendment of Section 25(1) in 2017, the Revenue would not be permitted to re-open assessments that had been settled, through a fresh notice issued thereafter invoking the six-year period of limitation.”
Case Title: Suo Motu JPP initiated by the High Court
Citation: 2024 LiveLaw (Ker) 746
The Kerala High Court has said that its Registry will seek "administrative orders" from Chief Justice if it receives any judicial orders to connect cases from a different roster without any assigned specific reason or without a direction to obtain permission from the Chief Justice.
The Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu directed the Registry to place before the Chief Justice any such order of the Court without delay, for passing necessary administrative orders.
Case Title: Binumon KP v Kerala Public Service Commission and Another
Citation: 2024 LiveLaw (Ker) 747
While hearing a plea against the rejection of a man's candidature to the post of a typist on account of his promotion prior to recruitment to the post, the Kerala High Court said that 'recruitment by transfer' under the relevant rules requires that the condition prescribed in the concerned recruitment notification is scrupulously followed till appointment is effected.
A division bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed that when the notification says that recruitment by transfer shall be made from persons holding low paid post in government services, the qualification of the candidate is expected to be holding the low paid post at the time of recruitment, as appointment by transfer does not envisage appointment of a person with a higher scale of pay.
Other Important Developments This Week
Case Title: N Prakash v Shankar Jiwal IPS & Anr
Case Number: Con Case (C) 2481/2024
The Director General of Police of Tamil Nadu has informed the Kerala High Court that a new circular dated November 13 has been issued outlining detailed guidelines to be followed while making arrests of accused persons outside the state's borders.
The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. have granted time to the Public Prosecutor to submit the circular issued by the DGP.
Kerala High Court To Consider Validity Of 55-Yrs Upper Age Eligibility Criteria For Mediators
Case Title: Adv P U Ali v High Court of Kerala
Case Number: WP(C) NO. 40455 OF 2024(R)
The Kerala High Court is set to consider whether a maximum age limit of 55 years could be stipulated as an essential eligibility condition for submitting applications for applying to the position of Mediators in the Mediation Centres of the Kerala State Mediation and Conciliation Centre.
Justice V.G.Arun by relying upon the Apex Court decision in Tej Prakash Pathak and others v. Rajasthan High Court and others, observed that in the absence of rules to contrary, the employer has discretion to devise selection procedure and establish benchmarks for various stages of the process. However, the Court expressed doubt regarding the fixation of a maximum age limit of 55 years as an essential eligibility criterion in the notification, stating that the matter warrants consideration.
Case Title: Suo Motu v Union of India
Case No: SSCR 78/ 2024
Following accidents of two vehicles carrying pilgrims on the Sabarimala route, the Kerala High Court has directed the Police and Motor Vehicle Department to ensure that the vehicles carrying Sabarimala pilgrimage strictly comply with its direction prohibiting modifications and unauthorized fittings in vehicles.
On November 17, a KSRTC bus deployed in the Nilakkal Pampa chain service caught fire, reportedly due to a short circuit. Fortunately, the bus was not carrying any passengers. Another contract carriage vehicle carrying pilgrims from Tamil Nadu reportedly overturned on their way.
The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. noted that the contract carriage was fitted with unauthorized LED lights and other fittings in the driver cabin that could cause glare in the windshield.
Case Title: Suo Motu v State of Kerala
Case Number: WPC 32952/2024
The Kerala High Court today inquired from the State government as well as the Director General of Police whether there are any orders/ guidelines regulating the conduct of Police officers in court premises.
The Division Bench of Justice A. K. Jayasankaran Nambiar and Justice K. V. Jayakumar made this observation while considering a suo motu petition initiated after a letter was submitted by the Kerala High Court Advocates' Association regarding an alleged attack on a lwayer by a police officer in the premises of Ramankary Magistrate Court, Alappuzha.
Case Title: Adv. M Baiju Noel v State of Kerala
Case Number: WP (Crl) 1042/2024
The Kerala High Court has ordered investigation by crime branch into the alleged insulting remarks made against the Constitution by State's Minister for Fisheries, Culture and Youth Affairs, Saji Cherian.
Justice Bechu Kurian Thomas ordered thus in a petition moved by a lawyer against the police closing investigation against the Minister.
Case Title: Women In Cinema Collective v State of Kerala & Others
Case Number: WPC 41327/2024
The Kerala High Court today admitted a petition moved by Women In Cinema Collective (WCC) for formulation of guidelines for regulating the Malayalam Film Industry, until the Government enacts special legislation in this regard.
The Special Bench of Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha, hearing the matters relating to Justice Hema Committee Report has directed the State Government to file its counter.
Case Title: Sudhakaran K V v K Prabhakaran
Case Number: WP(C) NO. 16253 OF 2023
The Kerala High Court has called upon the Pollution Control Board to come up with a 'permanent plan of action' to ensure that producers and manufacturers of plastic cups, plates, covers and other products do not carry their business in violation of the provisions of the Plastic Waste Management Rules of 2016.
The Division Bench of Chief Justice Nitin Jamdar and Justice S.Manu stated that continuous monitoring is required in the matter, which will have to be done by the Pollution Control Board with the help of local authorities and police.
Case Title: In Re: Prevention And Management Of Natural Disasters In Kerala V State Of Kerala
Case Number: WP(C) 28509/ 2024 & Connected Cases
The Kerala High Court came down heavily on the CPI(M) led LDF government in the State for coming together with Congress-led UDF in opposition to organize a flash Harthal in Wayanad on November 19, to protest Centre's alleged reluctance in granting additional assistance for rehabilitation works post-landslide.
The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice K V Jayakumar orally remarked that flash harthals are "anti-people" as they affect the life and livelihood of citizens. It stated that the conduct of the government is "distressing and disturbing" and grossly unfair to the people.
Retired Doctor Moves Kerala High Court To Appoint A Custodian For Her Living Will
Case Title: Martha Jacob v State of Kerala
Case No: WP(C) 41377/ 2024
A retired doctor recently moved the Kerala High Court seeking a custodian for her living will.
A living will contains instructions about the medical treatment to be administered in future when the person is terminally ill or no longer able to give informed consent. The matter came before Justice Gopinath P.