Nominal Index [Citations: 2023 LiveLaw (Ker) 433-446] Greik Xavier V Sub Inspector Of Police 2023 LiveLaw (Ker) 433Vinayakumar K.R. v. State of Kerala 2023 LiveLaw (Ker) 434Lalitha V Krishna Pillai 2023 LiveLaw (Ker) 435Dr Raju Antony V Kerala State Council For Science, Technology And Environment And Connected Cases 2023 LiveLaw (Ker) 436Biju Mathew & Anr. v. Deputy Superintendent of...
Nominal Index [Citations: 2023 LiveLaw (Ker) 433-446]
Greik Xavier V Sub Inspector Of Police 2023 LiveLaw (Ker) 433
Vinayakumar K.R. v. State of Kerala 2023 LiveLaw (Ker) 434
Lalitha V Krishna Pillai 2023 LiveLaw (Ker) 435
Dr Raju Antony V Kerala State Council For Science, Technology And Environment And Connected Cases 2023 LiveLaw (Ker) 436
Biju Mathew & Anr. v. Deputy Superintendent of Police, Kodungalloor & Ors. 2023 LiveLaw (Ker) 437
Chandi Samuval V Saimon Samuval 2023 LiveLaw (Ker) 438
Karthik S Nair V State of Kerala 2023 LiveLaw (Ker) 439
Zulu Haris v. Union of India & Ors. 2023 LiveLaw (Ker) 440
XXX v. State of Kerala & Anr. 2023 LiveLaw (Ker) 441
Lalamma John V Jijo Varghese 2023 LiveLaw (Ker) 442
Anu v. State of Kerala 2023 LiveLaw (Ker) 443
Swaroop V State of Kerala 2023 LiveLaw (Ker) 444
Arvind Singh Rajpoot v. M/S Intersight Holidays Pvt. Ltd. & Ors. 2023 LiveLaw (Ker) 445
Maheen Ali V State of Kerala 2023 LiveLaw (Ker) 446
Judgments/Orders This Week
Case title: Angels Nair V The Principal Secretary
Citation: 2023 LiveLaw (Ker) 432
The Kerala High Court directed the State government to consider if further conditions have to be issued while granting permission to use forest land for non-forest purposes like shooting movies, so as to ensure that no damage is caused to the forest and wildlife.
Justice Viju Abraham, held thus,
“The respondents are also directed to consider whether any further additional conditions need be imposed in the matter while granting permission to use the forest for non-forest activities like the one done in the present case, so that no damage is caused to the forest and wild life. With the above said direction WP(C) No.7107 of 2020 is disposed of.”
Case Title: Greik Xavier V Sub Inspector Of Police
Citation: 2023 LiveLaw (Ker) 433
The Kerala High Court quashed a 12 years old cruelty case against husband, observing that the parties have settled their disputes and the victim does not want to prosecute the matter further.
Justice K Babu added that no useful purpose is likely to be served by allowing criminal prosecution based on a FIR, the investigation of which commenced twelve years back but reached nowhere.
“Speedy investigations and trial are mandated by the letter and spirit of the provisions of the Code and the constitutional protection enshrined in Article 21 of the Constitution,” the bench observed.
Case Title: Vinayakumar K.R. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 434
The Kerala High Court analysed the scope of Section 451 CrPC which empowers the criminal courts to make orders for interim custody of seized property produced before it during trial and inquiry of an offence.
The Single Judge Bench of Justice Raja Vijayaraghavan V. was of the considered view that when a property is so produced before the criminal court, the said court would have the discretion to make such an order as it thinks fit for the proper custody of such article, pending the conclusion of the enquiry or trial. However, it cuationed,
"Where the property, which has been the subject matter of an offence, is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases."
Case title: Lalitha V Krishna Pillai
Citation: 2023 LiveLaw (Ker) 435
The Kerala High Court has held that the power of a revisional court under Section 397 to 401 of the Criminal Procedure Code, 1973 ("CrPC") cannot be equated to that of an Appellate Court.
The Bench comprising Justice K Babu thereby upheld the order of dismissal passed by a Magistrate.
“Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”
Case Title: Dr Raju Antony V Kerala State Council For Science, Technology And Environment And Connected Cases
Citation: 2023 LiveLaw (Ker) 436
The Kerala High Court recently held that when there is no evidence linking the accused to the incident in disciplinary proceedings, the appellate authority must reconsider the case by addressing specific contentions without merely reiterating the previous orders.
Justice Devan Ramachandran held thus:
“I am, therefore, of the firm view that the appeals of the petitioners before the Executive Committee of the “Council” must be reconsidered, after affording them necessary opportunities of being heard, addressing their specific contention that this is a case where there is no evidence at all to link them to the alleged incident and further that said incident never did happen, as could be established by them from the evidence and testimony of the witnesses. The question whether the punishment imposed against them would require a further reduction on account of the various other mitigating factors as may be noticed or projected, should also cease the attention of the said Executive Committee.”
Case Title: Biju Mathew & Anr. v. Deputy Superintendent of Police, Kodungalloor & Ors.
Citation: 2023 LiveLaw (Ker) 437
The Kerala High Court has held that the role of the District Level Authorization Committee, which considers applications seeking permission for organ transplant, is 'divine' and that it must not raise technicalities in clearing such applications.
Single Bench of Justice P.V. Kunhikrishnan added that if subjective satisfaction is arrived at, the Authorization Committee has to grant approval for the removal and transplantation of the human organs.
"A man is in the death bed. He is hoping that he will get a life from another person. The Authorization Committee and Police shall always try to help the man in the death bed rather than to find out some technicalities and unsupported suspicions to conclude that there is commercial transaction or money transaction," it observed.
Case title: Chandi Samuval V Saimon Samuval
Citation: 2023 LiveLaw (Ker) 438
The Kerala High Court held that a positive law is no sine qua non for granting past and future maintenance and that the right of the elder to such maintenance is recognised irrespective of their religion.
Justice A. Muhamed Mustaque and Justice Sophy Thomas observed thus:
“Even without any positive aid of law the court could have recognized the right of the elder irrespective of the religion to claim the past maintenance and future maintenance. Merely for the reason that the legislation had only provided measures for the award of prospective maintenance, that cannot result in denial of the claim for past maintenance.”
Case title: Karthik S Nair V State of Kerala
Citation: 2023 LiveLaw (Ker) 439
The Kerala High Court held that recalling a witness under Section 311 CrPC must be done only when there is a strong and valid reason to do which should be recorded by the competent authority.
Justice K Babu held thus, “Recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision.”
The Court added that the power of recalling a witness must not be used arbitrarily or capriciously to cause prejudice to the accused.
“The prejudice to be caused to the accused is highly important in this regard. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is the main object of the criminal procedure and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused.”, the Court stated.
Case Title: Zulu Haris v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 440
The Kerala High Court directed the Commissioner of Entrance Exam (CEE) and the State and Central Governments to make specific mention in the prospectus about the mandatory submission of NEET (National Eligibility cum Entrance Test) scorecard for admission vide Kerala Engineering Architecture Medical (KEAM) entrance examination.
Justice P.V. Kunhikrishnan observed that while it may be improper to intervene in the admission process, the concerned authorities had to make it clear in the prospectus that the NEET scorecard should also be submitted to be admitted through KEAM.
"When an admission process is going on, it is not proper on the part of this Court to interfere in the admission process... But I make it clear that respondents shall make specific mention in the prospectus in future regarding the uploading of NEET score card."
Case Title: XXX v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 441
The Kerala High Court has held that bar on grant of anticipatory bail for certain rape offences, as indicated under Section 438(4) of CrPC, will not be attracted if such offences are prima facie not made out from the material placed on record or the allegations appear to be false.
Section 438(4) bars anticipatory bail to an accused allegedly involved in offences punishable under Sections 376(3) (rape of woman under 16 years of age), 376 AB (rape on woman under twelve years of age), 376 DA (Gang rape on a woman under sixteen years of age) and 376 DB (Gang rape of a woman under 12 years of age).
Single Bench of Justice Ziyad Rahman A.A. observed that merely because any of the offences under Sections 376 (3), 376 AB, 376 DA and 376 DB are incorporated amongst other offences in the FIR, the valuable rights of the accused cannot be denied if a prima facie case is not made out.
"When there are no convincing reasons to find out such a prima facie case as to the said offences, the prohibition contained in the said provision should not be brought into force automatically, without any application of mind, thereby denying the personal liberty of a person, which is a fundamental right under the Constitution of India. When there are reasonable and valid grounds to suspect the veracity of the allegations, the court should not hesitate to pass appropriate orders to protect the personal liberty of the person against whom such accusations are made," the Bench noted.
Case Title: Lalamma John V Jijo Varghese
Citation: 2023 LiveLaw (Ker) 442
The Kerala High Court refused to interfere with an order passed by a competent Family Court in the UK directing a minor child to be brought back from India to England, where her parents reside.
The child was residing with her maternal grandmother in India following a dispute between her parents. She was brought to India by her mother and the UK Court is seized with a plea moved by her father and grandfather, seeking her custody. The mother had given an undertaking that she would produce the child before the UK Court.
A division bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that before honouring a competent foreign court's order in child custody matters, it has to ensure that the welfare of the child will be protected.
In the present case, it observed that the UK court had noted the measures to protect the welfare of the child. Thus it said,
“Parental custody is always preferred as the parents are competent to protect the welfare of the child. We are not persuaded to accept the arguments of the learned counsel for the petitioner, as the UK court had noted the measures to protect the welfare of the children. When the competent court of jurisdiction in UK has already taken measures, the comity of courts demands to respect that order unless such order is passed without any jurisdiction.”
Case Title: Anu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 443
The Kerala High Court granted anticipatory bail to a 21-year-old who has been accused of catching hold of a 15-year-old girl’s hand, with an intention to outrage her modesty.
The prosecution case against the petitioner-accused was that he, along with the second accused in the case, came on a bike, and caught hold of the minor girl’s hand intending to outrage her modesty. The duo has been booked under Section 354 IPC (‘Assault or criminal force to woman with intent to outrage her modesty’), and Sections 8 (‘Punishment for sexual assault’) r/w 7 (‘Sexual assault’) and 16 (‘Abetment of an offence’) of the POCSO Act.
Justice Kauser Edappagath observed that the First Information Statement did not reveal that the said act was done by the applicant with 'sexual intent' or with the intention to outrage the modesty of the victim.
“The only allegation is that the applicant came in a bike and caught hold of the hand of the victim. There is nothing to suggest in the F.I.S. that, the said act was done by the applicant with sexual intent or with the intention to outrage the modesty of the victim. The applicant has no criminal antecedents. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary. For these reasons, it is a fit case where pre-arrest bail can be granted to the applicant,” the Court observed.
Case title: Swaroop V State of Kerala
Citation: 2023 LiveLaw (Ker) 444
The Kerala High Court held that an aided school's properties cannot be mortgaged without obtaining permissions from concerned authorities under the Kerala Education Act and Rules.
Justice Basant Balaji observed thus:
“A duty is cast on a Manager, and the Manager should submit a statement of movable and immovable properties to the educational authorities. Without the permission of the educational authorities, the Manager cannot mortgage, sell, or lease the property.”
S.142 NI Act | Third Party Cannot Prosecute Drawer For Dishonour Of Cheque: Kerala High Court
Case Title: Arvind Singh Rajpoot v. M/S Intersight Holidays Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Ker) 445
The Kerala High Court recently laid down that a third party cannot prosecute the drawer of cheque for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Section 138 of the NI Act stipulates the penalty for dishonour of cheque for insufficiency of funds in the account.
Perusing Section 142(a) of the Act which provides that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, the Single Judge Bench of Justice A. Badharudeen proceeded to observe:
"...Therefore, a complaint alleging commission of offence punishable under Section 138 of the NI Act shall be filed either by the 'payee' or by the 'holder in due course' of the said cheque and no other person entitled to lodge a complaint and the court shall take cognizance acting on a complaint in writing filed by the 'payee' or 'holder in due course'".
Case title: Maheen Ali V State of Kerala
Citation: 2023 LiveLaw (Ker) 446
The Kerala High Court granted pre-arrest bail to an 18 year old boy under Section 438 of CrPC who was alleged to have kidnapped and raped a 17 year old girl. The Court held that the applicant and victim were having consensual sexual relationship and that she went voluntarily with him as they were involved in a romantic relationship.
Justice Kauser Edappagath, while allowing the anticipatory bail application observed thus:
“The reading of FIS would show that, the applicant who was aged 18 years and the victim who was aged 17 years, got acquainted through Instagram two years back and they were in romantic relationship. The FIS would further show that, on 09.04.2023, the victim voluntary went along with the applicant to his friend’s house. On 15.07.2023 also, the victim voluntarily went to the house of the applicant. An over all reading of the FIS shows that the alleged sexual act was consensual in nature.”
Other Significant Developments This Week
Case name: Rani George V Union of India
Case number: WP (Crl.) No. 1206 Of 2022 & WPC No. 42320 Of 2022
The Kerala High Court is set to hear a habeas corpus plea filed by a mother seeking to be united with her 21 years old Autistic child who is presently in UAE under the custody of the father.
During the hearing, the division bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas sought the help of Advocate Anil Malhotra to aid the Court in the matter. It observed thus:
“The writ petitions proceed on two contentions that the medical intervention alone would not be sufficient to protect the welfare of the child and the mother's role is also essential to protect the interest of the autistic child. As of now, the report indicates that, medically the child is being taken care of by the father. The mother came to India consequent upon the dispute with the father of the child. The jurisdiction and the scope of interference are intertwined with the welfare of the autistic child. All these matters has to be considered by this Court. This question is very peculiar based on the facts. We are of the view that the assistance of Adv.Anil Malhotra can be sought who can appear before this Court through online.”
Case: G.M. Anna Aluminium vs Sunil Kumar
Case No.: A/162/2017
Recently, the Kerala State Consumer Disputes Redressal Commission (Thiruvananthapuram) bench comprising of Justice Sri K Surendra Mohan (President), Ajith Kumar (Judicial Member) and Radhakrishnan (Member) held a manufacturer of chili powder liable for selling chili powder packets with substantial weight deficits. Further, the bench noted that the customers generally rely on the packet labelled weight and are unlikely to suspect the genuineness of the weight displayed.
Kerala High Court Judge Speaks In Support Of Advocate Clerks' Protest Against Mandatory E-Filing
The Kerala Advocate Clerks' Association held a hunger strike on the day of Onam near the Kerala High Court to protest against the decision to implement mandatory e-filing in courts.
Justice PV Kunhikrishnan, judge of the Kerala High Court, spoke at the protest meet in support of the clerks' cause. At the outset, he urged the clerks to not protest against the High Court, reminding them that they are also part of the High Court. He added that while changes are inevitable in all fields, some changes will create difficulties.
Centre Notifies Appointment Of Justice CS Sudha As Permanent Judge Of Kerala High Court
The Central Government has notified the appointment of Justice C.S. Sudha as a permanent Judge of the Kerala High Court.
The Supreme Court Collegium headed by Chief Justice D.Y. Chandrachud, had, on August 18, 2023, recommended Justice Sudha's name for appointment as a permanent Judge of the Kerala High Court.