Nominal Index [Citation: 2023 LiveLaw (Ker) 250-263]Muhammed Rafi Kunnulpurayil v. Sub Inspector of Police & Anr., 2023 LiveLaw (Ker) 250Mukesh @ Nandu V State of Kerala, 2023 LiveLaw (Ker) 251XXX v. State of Kerala, 2023 LiveLaw (Ker) 252Sundaran V. State of Kerala, 2023 LiveLaw (Ker) 253Sanu & Anr. v. State of Kerala, 2023 LiveLaw (Ker) 254Navas V State of Kerala, 2023 LiveLaw...
Nominal Index [Citation: 2023 LiveLaw (Ker) 250-263]
Muhammed Rafi Kunnulpurayil v. Sub Inspector of Police & Anr., 2023 LiveLaw (Ker) 250
Mukesh @ Nandu V State of Kerala, 2023 LiveLaw (Ker) 251
XXX v. State of Kerala, 2023 LiveLaw (Ker) 252
Sundaran V. State of Kerala, 2023 LiveLaw (Ker) 253
Sanu & Anr. v. State of Kerala, 2023 LiveLaw (Ker) 254
Navas V State of Kerala, 2023 LiveLaw (Ker) 255
Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors., 2023 LiveLaw (Ker) 256
K. Rajendra Prasad V State Of Kerala, 2023 LiveLaw (Ker) 257
Satheesh Kumar R V Kerala State Sports Council & Another, 2023 LiveLaw (Ker) 258
Yeshwanth Shenoy V The Chief Justice High Court of Kerala & Others, 2023 LiveLaw (Ker) 259
Sabarinathan v. State of Kerala, 2023 LiveLaw (Ker) 260
Kerala CBSE Schools Management Association & Ors. v. State of Kerala & Ors., Sarosh P. Abraham v. State of Kerala & Ors.2023 LiveLaw (Ker) 261
Jithin P V State of Kerala, 2023 LiveLaw (Ker) 262
Jeffin Jose T V The Central Board of Secondary Education, 2023 LiveLaw (2023) 263
Judgments/Orders This Week
Kerala High Court Elucidates Mode In Which Accused Must Request Court For Adducing Defence Evidence
Case Title: Muhammed Rafi Kunnulpurayil v. Sub Inspector of Police & Anr.
Citation: 2023 LiveLaw (Ker) 250
The Kerala High Court recently addressed the question as to the mode in which an accused ought to request the Court for adducing the defence evidence.
Justice Bechu Kurian Thomas, perused Section 233 Cr.P.C. which stipulates 'Entering Upon Defense', and observed that as per the provision, if the accused applies for the issue of any process for compelling the presence of any witness or the production of any document or thing, the judge shall issue such process, unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It thus noted that the action of making a prayer or a request is the meaning to be ascribed to the word ‘applies’ as provided in Section 233 Cr.P.C.
When Application For Anticipatory Bail Is Not Pressed Interim Bail Stands Vacated: Kerala High Court
Case Title: Mukesh @ Nandu V State of Kerala
Citation: 2023 LiveLaw (Ker) 251
The Kerala High Court recently held that a person who was granted interim bail after executing the bail bond cannot rely on the interim bail order to submit that the main bail application has become infructuous. The Court held that as a consequence of the main application being dismissed as not pressed, the interim order granting bail to the petitioner would be vacated and the bail bond executed would cease to exist.
A single bench of Justice A Badharudeen observed,
“It is held that since the petition has been not pressed and dismissed and the interim bail granted stands vacated, the petitioner is relegated back to the date of filing of the anticipatory bail application and it is ordered that the petitioner is not on bail as of now and the police is at liberty to arrest the petitioner and proceed with the investigation in this matter, since the allegations are very serious.”
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 252
The depiction of a woman's naked body should not be regarded as sexual or obscene always, observed the Kerala High Court while discharging a mother from a criminal case pertaining to making a video of her children painting on her semi-nude body.
Taking note of the woman's explanation that the video was made to challenge patriarchal notions and to spread a message against the over-sexualization of the female body, the High Court observed that the video cannot be regarded as obscene. She was chargesheeted for offences under under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
Case Title: Sundaran V. State of Kerala
Citation: 2023 LiveLaw (Ker) 253
The Kerala High Court recently held that there is no embargo on prosecution producing a relevant document even after submission of the final report or charge sheet, with the court’s permission. The Court also held that genuineness and veracity of the documents produced at a later stage could be dealt with during the trial.
A single bench of Justice Raja Vijayaraghavan V relied on the Apex Court decision in Central Bureau of Investigation v. R.S. Pai and another [2002 (5) SCC 82] to hold that if a mistake is made by the investigating officer by not producing some document of relevance at the time of submitting the report or the charge sheet, it is open to the investigating officer to produce it with the permission of the court.
The Court also relied on the decision in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re. v. State of Andra Pradesh and Ors. to hold that the Court may allow the document to be received on file and examine the genuineness and veracity of the document produced at the trial stage:
“the Presiding Officer has to decide objections to questions during the course of the proceeding or failing it at the end of the deposition of the witness concerned. This will result in de-cluttering the record and, what is more, also have a salutary effect of preventing frivolous objections.”
Case Title: Sanu & Anr. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 254
The Kerala High Court on Friday granted bail to two persons accused of assaulting a female Advocate Commissioner who had been deputed by the Munsiff's Court at Varkala to execute an Order, and the accompanying Advocate Clerk, during the local inspection.
Justice Ziyad Rahman A.A. noted that although the allegations against the petitioners were of serious nature, the petitioners had remained in custody for about 50 days since the date of arrest, and that there has also been substantial progress in the investigation.
"...after taking into account all relevant aspects, including the fact that the petitioners have been under judicial custody since 12.04.2023, I am inclined to grant bail to the petitioners subject to appropriate conditions to ensure that they are not influencing the witnesses. This is mainly because, taking note of the period of detention undergone by the petitioners and the stage of the investigation, further incarceration of the petitioners appear to be not necessary," the Court observed.
Misuse Of Liberty By Accused Sufficient Ground For Bail Cancellation: Kerala High Court Reiterates
Case Title: Navas V State of Kerala
Citation: 2023 LiveLaw (Ker) 255
The Kerala High Court recently reiterated that the misuse of the liberty granted to a person released on bail is sufficient ground to cancel the bail.
The Court held as above while considering the challenge to an order of the Special Judge that cancelled the statutory bail granted to a man booked under the NDPS Act for possession of 40.5kgs of Ganja, who was subsequently found in possession of 14.250 kgs of Ganja and 850 gms of Hashish oil and armed weapons with three others.
A single bench of Justice Raja Vijayaraghavan V while refusing to interfere with the order of the Special Judge observed:
“As the petitioner has misused the liberty granted to him, the learned Special Judge was well justified in canceling the bail. In that view of the matter, the impugned order does not warrant any interference. However, it is made clear that the above order shall not stand in the way of the petitioner surrendering before the jurisdictional court and seeking regular bail. “
Case Title: Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors.
Citation: 2023 LiveLaw (Ker) 256
The Kerala High Court recently held that married daughters belonging to the Hindu Malayala Kammala caste would also be entitled to a share in the self-acquired property of their parent.
The Court in this case was dealing with a case in which it was contended that the females would not be entitled to a share in the property, since as per the custom of the community, they were given in marriage in the customary Kudivaippu form, after giving streedhanam.
It held that any custom governing intestate succession in respect of the self acquired property of a Hindu that was inconsistent with the provisions of the Hindu Succession Act, 1956 (hereinafter, 'Act, 1956'), would be abrogated immediately on coming into force of the statute, by virtue of Section 4.
Case Title: K. Rajendra Prasad V State Of Kerala
Citation: 2023 LiveLaw (Ker) 257
The Kerala High Court recently observed that the maximum amount of gratuity payable under the Payment of Gratuity Act, 1972 must be calculated from the date on which gratuity became payable and not on the date the amount was actually disbursed.
The Court was considering the plea of a retired Regional Engineer from the Kerala State Housing Board whose DCRG and last month pay was withheld due to audit objections. The Petitioner retired in the year 2002. He had earlier approached the Court and the Secretary of the Board was directed to disburse the withheld amounts. However, according to the petitioner, in light of the 2010 Amendment to the Payment of Gratuity Act, 1972 under Section 4(3) he is entitled to a maximum gratuity of Rupees Ten Lakhs.
Dismissing the petitioner’s claim a single bench of Justice Murali Purushothaman observed:
“The gratuity is payable to an employee on the termination of his employment. The gratuity payable to an employee shall not exceed the maximum that is notified under the respective enactments as on the date on which the gratuity becomes payable. Even if it is assumed that the petitioner's claim for gratuity was under the Payment of Gratuity Act, 1972, the maximum amount of gratuity payable under the said Act has to be determined with respect to the date on which the gratuity became payable and not on the date on which sanction was accorded for payment of DCRG or the date on which the amount was actually disbursed to him. Therefore, there is no merit in the contention of the petitioner that he is entitled to the maximum gratuity of Rs.10,00,000/- as per section 4(3) of the Payment of Gratuity Act, 1972, as amended by Act 15 of 2010.”
Case Title: Satheesh Kumar R V Kerala State Sports Council & Another
Citation: 2023 LiveLaw (Ker) 258
The Kerala High Court recently directed the State Sports Council to reconsider the application of a candidate under the Khelo India Scheme which was rejected for crossing the prescribed upper age limit, despite a provision in the selection notification of age relaxation for deserving candidates.
The candidate had applied to the post of Swimming Trainer at the District Sports Academy, Pirappancode under the State Level Khelo India Centre Scheme. However, he was not selected to the post, as he was beyond the upper age limit of 40 prescribed for the post and also because he failed to show that he had been active in swimming after the year 2002.
However, the Court noted that the selection notification allowed for relaxation of the age limit if the candidate is an exceptional sportsperson. The Court took specific note of the documents produced by the candidate in his appeal which showed the appellant was active in swimming in recent years. The Court observed that it was only because he failed to produce sufficient supporting documents at the time of the interview that the relaxation of age limit was not considered and his application was rejected.
Case Title: Yeshwanth Shenoy V The Chief Justice High Court of Kerala & Others
Citation: 2023 LiveLaw (Ker) 259
The Kerala High Court on Friday dismissed the petition filed by Adv. Yeshwanth Shenoy alleging that a sitting judge has limited the number of cases listed before the bench to only 20 matters a day, terming it a 'Publicity Interested litigation' to malign judges and the judiciary.
A single bench of Justice P V Kunhikrishnan terming it a frivolous writ petition for popularity and news value, observed:
“Lawyers are the officers of the Court; they are part of the judiciary. If these types of litigations are filed by the lawyers, what is the message that will go to the Society? A lawyer having 21 years of practice filing a writ petition before this Court arraying a Judge of this Court and the Hon'ble Chief Justice as party and making wild allegations without any basis.”
Case Title: Sabarinathan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 260
The Kerala High Court recently held that the decision of the Additional Sessions Judge in a NDPS case, allowing an application for extension of detention and the period of investigation is illegal on account of the failure of the Court to inform the accused as regards the filing of the application and of his right to object to the same.
The Court arrived at the above decision while considering a petition against order allowing Public Prosecutor's application under Section 36A(4) NDPS Act, for the further detention of the accused for a period of 180 days.
Justice Raja Vijayaraghavan V. observed that the failure of the Court to give oral notice would vitiate the entire proceedings.
"The mere fact that the presence of the accused was secured virtually will not serve any purpose as the accused was not made aware of the filing of the application and there are no materials to suggest that the accused was granted an opportunity to formally raise his objections to the application for extension of detention. In that view of the matter, the impugned order cannot be sustained under law," the Court observed.
Case Title: Kerala CBSE Schools Management Association & Ors. v. State of Kerala & Ors. and Sarosh P. Abraham v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 261
The Kerala High Court recently directed the State government to consider the representations filed by the Kerala CBSE School Management Association challenging the proposed guidelines framed by the Director of General Education (DGE) for setting up Fee Regulatory Committee and fixing the fee in CBSE/ICSE affiliated schools and unaided schools in the State that follow Kerala State syllabus.
Justice P.V. Kunhikrishnan passed the Order and further directed the State to pass appropriate orders in the matter within three months, after affording an opportunity of hearing to the petitioners.
Accused Has No Vested Right To Seek Joint Trial: Kerala High Court
Case Title: Jithin P V State of Kerala
Citation: 2023 LiveLaw (Ker) 262
The Kerala High Court recently held that an accused has no vested right to seek a joint trial under Section 220 of the Code of Criminal Procedure,1973. The Court observed that if the offences form part of the the same transaction, they can be tried together in a joint trial.
A single bench of Justice K Babu observed as follows about Section 220 (Trial for more than one offence) of the Cr.PC:
“The Section is an enabling provision. It permits the Court to try more than one offence in one trial. The Court may or may not try all the offences together in one trial. If the Court tries the offences separately, it does not commit any illegality. The accused in a case has no vested right to seek joinder of charges and trial of more offences in one trial.”
Case Title: Jeffin Jose T V The Central Board of Secondary Education
Citation: 2023 LiveLaw (2023) 263
The Kerala High Court recently directed the Commissioner of Entrance Examinations to extend the time limit for uploading Plus Two Examination marks of 33 students of St. Paul’s Public School, Thrissur for the KEAM-2023 (Kerala Engineering Architecture Medical) Entrance Exam.
A single bench of Justice P V Kunhikrishnan passed the order after 33 pointed anomaly in the Mathematics internal/practical marks awarded to them by the school. The students had sought a direction for issuance of fresh mark sheets incorporating the correct marks and extension of time limit to upload their marksheets in the portal for the KEAM-2023 entrance examination.
Other Significant Developments This Week
Case Title: XXX v. State of Kerala
The Kerala High Court on Monday quashed the proceedings against controversial activist Rehana Fathima before the lower court in the matter relating to the circulation of a video that showed her children painting on her semi-nude body.
Justice Kauser Edappagath passed the order.
The allegation against Fathima was that she had asked her two minor children, a boy and a girl of the ages 14 and 8 years respectively, to paint on her semi-nude body, the video of which was thereafter circulated. She had contended that the act was meant to impart sex education to her children and rid the stigma about nudity.
In A First, Kerala High Court Undertakes 'Virtual Site Visit' Of Alleged Encroachment In Forest Land
Case Title: One Earth One Life v. Union of India & Ors.
In an unprecedented step, the Kerala High Court took a virtual view of 56.77 hectares of land in Agali Village.
The Division Bench comprising Chief Justice S.V. Bhatti and Justice Basant Balaji, in a matter pertaining to encroachment of forest land in Agali Village, had directed the parties to visit the forest site and give a virtual access to the same, after identifying the location.
Case Title: Yeshwanth Shenoy v. Union of India
The Kerala High Court recently refused to modify its previous order dated May 5, 2023, directing the Directorate General of Civil Aviation (DGCA) to check the factual aspects averred by a lawyer in a petition seeking suspension of ticket booking portals of GO First Airlines. The Court had further directed the DGCA that if the same were found to be correct, the Airlines would have to be directed to suspend its ticket booking portals and to further stop their agents from taking any flight bookings.
The Court in this case was dealing with the plea moved by a lawyer seeking the suspension of ticket booking portals of Go First Airlines. An interlocutory application was filed by the Airline company to modify the aforementioned previous Order of the Court. The Court on perusing the same found that no such modification was necessary.
"The petitioner is free to approach the 2nd respondent (DGCA) and convince him about their stand, and if such request is received from the petitioner, the 2nd respondent will give an opportunity of hearing to the 1st respondent (Union of India) and pass appropriate orders in it, in accordance with law," Justice P.V. Kunhikrishnan observed
Case Title: State Bank of India & Anr. v. Noel Paul Fredy
The Kerala High Court recently stayed the Single Bench decision which held that an application for education loan by a student could not be rejected on the ground of a low CIBIL (Credit Information Bureau (India) Limited) score.
The Division Bench comprising Chief Justice S.V.N. Bhatti and Justice Basant Balaji passed the Order on taking the view that the writ jurisdiction of the Court could not be invoked on matters involving grant of loan.
In a bid to inculcate value based, civic sense in school students and mould them into responsible citizens of the Country, the Kerala High Court has developed yet another novel initiative named ‘SAMVADA’, under the aegis of the High Court Legal Services Committee (HLSC).
The Project which was conceived by Justice A. Muhamed Mustaque in his capacity as the Chairman of the High Court Legal Services Committee, and is now flourishing under the guidance of Justice A.K. Jayasankaran Nambiar, targets school students of Grade VIII-Grade XII in the State, under the State Board, CBSE and ICSE syllabi. ‘Catch them Young and Watch them Grow’ is the motto of the Project.
Case Title: Suo Motu v. State of Kerala
The Kerala High Court recently directed the State Government to nominate a senior most bureaucrat to assist the Court in matter of suo motu proceedings initiated in light of the tragic boat accident in Tanur area of Malappuram district, which claimed 22 lives, including 15 children in May, 2023.
The Division Bench comprising Chief Justice S.V.N. Bhatti and Justice Basant Balaji passed the Order.
As per media reports, the tourist boat which had allegedly been functioning without the mandatory fitness certificate, had possibly capsized due to overcrowding. It is alleged that the boat which only had around twenty seats, had accommodated persons over and above its capacity.
Case Title: St. Stephen's Malankara Catholic Church v. State of Kerala
The Kerala High Court directed the authorities designated by it to identify 'holding areas' for disposal of illegal boards, flags, and festoons erected in public places, as it was informed that the waste disposal facilities in the State are already 'overwhelmed'.
Court said after the designated authorities remove illegal hoardings to the holding areas, the printing agencies will be required to remove such hoardings from the holding areas within 7 days of issuance of notice by the Secretary of the Local Self Government Department (LSG).
Justice Devan Ramachandran warned that failure to comply with the above direction will attract penal consequences for printing agencies, in the nature of action for prosecution and recovery of amounts for the destruction of the boards in a scientific manner.
Case Title: Amal Jyothi College of Engineering & Anr. v. State of Kerala & Ors.
A plea has been moved in the Kerala High Court seeking police protection for the management personnel, staff, vehicle and students of Amal Jyothi College of Engineering, amidst protests and alleged threats by the members of various student political organizations, following the suicide of a second year BTech student in the ladies hostel of the college on June 2, 2023.
It is the case of the petitioners that following the incident, several persons belonging to student political outfits such as the Students Federation of India (SFI), Kerala Students Union (KSU), Social Democratic Party of India (SDPI), and Democratic Youth Federation of India (DYFI), gathered at the main gate of the campus, shouting slogans in abusive language and blocking the ingress and egress to and from the college. It is averred that such members of student political organizations forcefully entered the campus, and threatened that the staff, students, and any person inside the campus from leaving the premises, and blocked the gates.
Case Title: Amal Jyothi College of Engineering & Anr. v. State of Kerala & Ors.
The Kerala High Court directed the police authorities to extend adequate protection to the management personnel, staff, and others of Amal Jyothi College of Engineering for the smooth functioning of the College for a period of one month.
Justice N. Nagaresh while granting interim protection, observed, "Since it is admission time, if ingress and egress to the college is obstructed, it will affect the functioning of the College".
Case Title: Adv. Manoj Rajagopal v. State of Kerala & Ors
The Kerala High Court closed the petition filed by a lawyer seeking Rs. 1 Crore compensation for the bereaved family members of the 23 years old house surgeon, Dr. Vandana Das, who was brutally killed by an injured man brought to the government hospital in police custody.
The Division Bench comprising Justice Devan Ramachandran and Justice Kauser Edappagath took note of the Government Order sanctioning Rs. 25 Lakhs to the parents of the deceased as ex gratia payment.
The bench also expressed doubts regarding the locus standi of the petitioner but declared that it would not be addressing the issue in light of the GO dated June 2.
"The adequacy of the amounts ordered by the Govt is not something that is within the purview of our competence to adjudicate, and in any event, these are issues that are fully within the province of the Govt," the Court observed.
YouTube Video Against Judges : Kerala High Court Asks Contemnor To Express Apology Through YouTube
Case Title: Suo Motu v. K.M. Shajahan
The Kerala High Court asked K.M. Shajahan, the then private secretary of the former Chief Minister of Kerala V.S. Achuthanandan, to tender an unconditional apology, expressing regret for having streamed the objectionable video levelling serious allegations against Judges of the Court after admitting that he has committed contempt of court, and to also, stream a video in his YouTube channel expressing his regret for the same.
The Court refused to accept Shajahan's affidavit, on finding it not to be an 'unconditional apology' in terms of Rule 14(a) of the Contempt of Courts (High Court of Kerala) Rules.
Shajahan had levelled serious allegations against the Judges of the High Court in his speech which is available in the YouTube video channel 'Prathipaksham'. The speech pertained to an Advocate taking money from clients under the pretext of bribing judges. The Court had initiated suo motu contempt proceedings in the matter on finding Shajahan's allegation that some Judges of the High Court are also involved in the aforementioned incident to be contemptuous and scandalizing the judiciary.
Case Title: Suo Motu V State of Kerala
The Kerala High Court asked the Municipal Corporations in the State to put a system in place where residents are provided with a contact number which can be used to alert authorities of unauthorised littering in their area, so that immediate action can be taken.
A Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji stated that the Chief Secretary must ensure that this target is achieved and in case of any default he would not be “morally eligible” to receive salary. The Court was hearing the suo moto proceedings initiated to monitor solid waste management in the State, in wake of the fire that broke out in Brahmapuram in March 2023.
Case Title: Yeshwanth Shenoy V The Chief Justice High Court of Kerala & Others
The Kerala High Court dismissed the petition filed by Adv. Yeshwanth Shenoy alleging that a sitting judge has limited the number of cases listed before the bench to only 20 matters a day, terming it a 'Publicity Interested litigation' to malign judges and the judiciary.
The lawyer had moved the Court alleging that Justice Mary Joseph was limiting the list of cases before her Court. The Chief Justice, being the Master of Roster, Justice Joseph had no power to direct the Registry to curtail the list, the Petitioner contended.
A Single bench of Justice P V Kunhikrishnan observed that the Court of Justice Mary Joseph being a hearing court cannot be compared to that of an admission court:
“A hearing matter cannot be disposed of like an admission matter. The admission court and the hearing court are entirely different. Sometimes, a hearing of an appeal will take a full day or days. That does not mean that the Judge is not doing his duty. “