Kerala High Court Monthly Digest: November 2023 [Citations: 614-697]

Alfa One Global Builders Pvt. Ltd. V Nirmala Padmanabhan, 2023 LiveLaw (Ker) 615

Nijesh Chandran & Ors. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 616

Balamuraly G v Vinod T R, 2023 LiveLaw (Ker) 617

Thomas Abraham & Ors. v. The Mission Director & Anr., 2023 LiveLaw (Ker) 618

M/S. Global Plasto Wares Versus Assistant State Tax Officer, 2023 LiveLaw (Ker) 619

Gireeshkumar T.M. & Ors. v. State of Kerala & Ors. and connected matter, 2023 LiveLaw (Ker) 620

Joseph George v. Cochin Devaswom Board & Ors., 2023 LiveLaw (Ker) 621

Advocate Rajesh Kumar C v Prasad M Cherian, 2023 LiveLaw (Ker) 622

George Varghese v. Treesa Sebastian & Ors. and connected matter, 2023 LiveLaw (Ker) 623

Elon Christ Stephen v Steaphen Antony Venasious ,2023 LiveLaw (Ker) 624

E.K. Anil v. Tahasildar & Ors., 2023 LiveLaw (Ker) 625

Prajila M. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 626

Jose v State of Kerala, 2023 LiveLaw (Ker) 627

Binoy Paulose v Union of India, 2023 LiveLaw (Ker) 628

Roli Pathak v Union of India 2023 LiveLaw (Ker) 629

Shibu J v State of Kerala 2023 LiveLaw (Ker) 630

Mathrubhumi Printing & Publishing Co. Ltd v State of Kerala 2023 LiveLaw (Ker) 631

XXX & Anr. v. Union of India & Ors. 2023 LiveLaw (Ker) 632

Shoma G. Madan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 633

Deepak K. v The Kerala State Election Commission & connected case 2023 LiveLaw (Ker) 634

Pattakka Suresh Babu v. State of Kerala 2023 LiveLaw (Ker) 635

State of Kerala & Ors. v. Binoj K.B. & Ors. 2023 LiveLaw (Ker) 636

Sunil Kumar @ Rakkan v State of Kerala and connected matter 2023 LiveLaw (Ker) 637

Vishnu v State of Kerala 2023 LiveLaw (Ker) 638

Lilly Krishnan v State of Kerala 2023 LiveLaw (Ker) 639

Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 640

Shijo Das v. State of Kerala 2023 LiveLaw (Ker) 641

Sreeja @Sini v State of Kerala 2023 LiveLaw (Ker) 642

Raveendranath v State of Kerala 2023 LiveLaw (Ker) 643

Mahesh Mohan v. Indian Institute of Management, Kozhikode & Anr. 2023 LiveLaw (Ker) 644

Madhusoodanan Namboothiri V State Of Kerala 2023 LiveLaw (Ker) 645

Divya S.S Rose v. State of Kerala & Ors. 2023 LiveLaw (Ker) 646

Gopakumar P. v Travancore Devaswom Board 2023 LiveLaw (Ker) 647

Tomy K M v State of Kerala 2023 LiveLaw (Ker) 648

P.S. Rajeev v. The Sree Narayana Trusts 2023 LiveLaw (Ker) 667

Ramachandran P v State of Kerala 2023 LiveLaw (Ker) 668

Malarkodi P v. Union of India 2023 LiveLaw (Ker) 669

Santhosh Kumar P M v John M T 2023 LiveLaw (Ker) 670

Joy v Mary 2023 LiveLaw (Ker) 671

Prathibha v State of Kerala 2023 LiveLaw (Ker) 672

Manoj Kumar & Ors. v. State of Kerala 2023 LiveLaw (Ker) 673

M/S Global Plasto Wares v. Assistant State Tax Officer & Ors. 2023 LiveLaw (Ker) 674

Rajappan Assari v. State of Kerala 2023 LiveLaw (Ker) 675

Sunil D. Emmatty & Anr v. Union of India & Ors. and other connected matters 2023 LiveLaw (Ker) 676

P.B. Prasobh & Ors. v. K.A. Muhammed Faisal & Anr. 2023 LiveLaw (Ker) 677

Latha v. T V Sahadevan 2023 LiveLaw (Ker) 678

Antony Joseph v. State of Kerala 2023 LiveLaw (Ker) 679

Rijas M T v. Hafseena M 2023 LiveLaw (Ker) 680

P.V. Nidhish v. Sivaprakash 2023 LiveLaw (Ker) 681

Shibli K v Union of India 2023 LiveLaw (Ker) 682

P.H. Babu Ansari & Anr. v. Municipal Council & Ors. 2023 LiveLaw (Ker) 683

M/S.Gaiagen Technologies Private Limited Versus State of Kerala 2023 LiveLaw (Ker) 684

Udayakumar v State of Kerala 2023 LiveLaw (Ker) 685

The Corporate Manager v. Beena Hilkushi and Ors., 2023 LiveLaw (Ker) 686

Babumon K.G. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 687

Sreekuttan S. v. Sree Keralavarma College & Ors. 2023 LiveLaw (Ker) 688

P.N.Saseendran V Kalamassery Municipality 2023 LiveLaw (Ker) 689

Jayakrishna Menon v State of Kerala 2023 LiveLaw (Ker) 690

Faizal Abdul Samad v. A.N. Sasidharan & Anr. 2023 LiveLaw (Ker) 691

Krishnapriya K P V State of Kerala 2023 LiveLaw (Ker) 692

Afsal Hussain v. K.S. Muhammed Ismail & Anr. 2023 LiveLaw (Ker) 693

S. Sadananda Naik v. The Ministry of Road Transport and Highways & Ors. 2023 LiveLaw (Ker) 694

Shihad M.P. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 695

M. Liju v. Kerala State Election Commission & Anr. 2023 LiveLaw (Ker) 696

XXX v. District Collector & Ors. 2023 LiveLaw (Ker) 697

Case title: State of Kerala v P.K Radhakrishnan

Citation: 2023 LiveLaw (Ker) 614

The Kerala High Court held that after a government servant has retired from service and the proceedings primarily become about loss recovery, disciplinary proceedings under Rules 15 and 16 of KCS (CC&A) Rules are no longer applicable. Instead, Rule 3, Part III of the Kerala Service Rules applies, although it governs the recovery of losses from a pensioner found guilty of misconduct during their service.

Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen added that the new proceedings must conform to Rule 3 with a requisite adherence to the principles of natural justice: “However, in the light of the fact that the proceedings have been confined to the recovery of loss as the respondent had retired from the service, the proceedings already initiated under Rules 15 and 16 of KCS (CC&A) Rules would vanish and the proceedings will have to be in accordance with the Rule 3 part III of the Kerala Service Rules (for short, 'KSR').”

No Appeal Before Division Bench U/S 5 Kerala High Court Act Against Order In Writ Petition Merely Seeking To Invoke S.482 CrPC: High Court

Case title: Alfa One Global Builders Pvt. Ltd. V Nirmala Padmanabhan

Citation: 2023 LiveLaw (Ker) 615

The Kerala High Court has made it clear that an appeal before division bench under Section 5 of the Kerala High Court Act, 1958 is not maintainable against a single judge's order in a writ petition where the relief sought was merely to exercise inherent powers under Section 482 CrPC.

The provision states that an appeal shall lie to a bench of two judges from the order of a single judge who was exercising original jurisdiction under Article 226 of the Constitution. Court said where the writ jurisdiction was invoked merely to seek relief under Section 482 CrPC, an appeal under Section 5 will not lie.

In the instant case, the appeal was filed under Section 5 (i) of the Kerala High Court Act, against the order of a single judge in a criminal writ petition under Article 226 read with Section 482 of CrPC. A Division bench comprising Chief Justice A.J. Desai and Justice V.G. Arun, dismissed the writ appeal and observed thus: “Considering the above-referred decisions of the Hon’ble Division Bench of this Court as well as the Hon’ble Apex Court, we are of the view that appeal would not lie against the impugned judgment where the learned single Judge has refused to exercise the inherent powers under Section 482 of the CrPC for quashing of a criminal case filed against the appellants. Hence, the appeal is dismissed only on the ground of maintainability.”

Kerala High Court Refuses Anticipatory Bail To Family Accused Of Cheating Woman Through Fake Matrimonial Profile

Case Title: Nijesh Chandran & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 616

The Kerala High Court refused to grant anticipatory bail to three persons who had allegedly cheated a woman by putting up a fake profile on a matrimonial website.

The prosecution allegation was that the 1st petitioner who is a 38 year old man who is already married, had put up a matrimonial profile claiming himself to be a doctor, and had gone to the house of the de facto complainant with his wife and mother (2nd and 3rd petitioners herein), under the pretext of fixing marriage with the de facto complainant.It is alleged that the 1st petitioner had thereafter obtained 150 sovereigns of gold from the de facto complainant, by convincing the latter that he required money urgently for the medical treatment of his father, whereafter he pledged the same, and obtained loan. Justice Gopinath P. was of the considered view that the plea for anticipatory bail could not be granted in light of the clear allegations against the respondents.

Concurrent Jurisdiction U/S 397 CrPC: Kerala HC Says No Bar On Approaching High Court For Revision But More Appropriate To Move Sessions Court First

Case title: Balamuraly G v Vinod T R

Citation: 2023 LiveLaw (Ker) 617

The Kerala High Court has clarified that when concurrent revisional jurisdiction is available under Section 397 CrPC to approach the High Court as well as the Sessions Court, it is just and appropriate to first approach the Court of the lowest forum, that is, the Sessions Court. The Court was quick to add this does not mean that there is any bar in approaching the High Court first, without exhausting the remedy before the Sessions Court.

Justice P.G. Ajithkumar has relied upon the Full Court decision in Sivan Pillai v. Rajamohan and others (1978) to state it is prudent to invoke the jurisdiction of the lowest forum first before approaching the High Court when concurrent remedy was available under Section 397 CrPC. The Court noted parties might be located in the Sessions Division concerned and thus it would be easier to issue notice to the accused who might be residing within the jurisdiction of the Sessions Court.

Administrative Orders Devoid Of Reasons Not Inherently Illegal, But Authorities Not Encouraged To Pass Such Orders: Kerala High Court

Case Title: Thomas Abraham & Ors. v. The Mission Director & Anr.

Citation: 2023 LiveLaw (Ker) 618

The Kerala High Court quashed the order issued by the District Programme Co-ordinator of the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) terminating the services of six Quality Monitors for unsatisfactory work.

Justice Raja Vijayaraghavan V noted that the impugned order had been passed merely on finding that the performance was unsatisfactory, without any data being placed before the authority substantiating the same. "No order of an administrative authority communicating its decision is rendered illegal on the grounds of absence of reasons ex-facie, and it is not open to the court to interfere with such orders merely on the grounds of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same," the Court observed.

Penalty Is Payable On Failure To Deposit Tax Collected Within A Period Of Thirty Days From The Due Date: Kerala High Court

Case Title: M/S. Global Plasto Wares Versus Assistant State Tax Officer

Citation: 2023 LiveLaw (Ker) 619

The Kerala High Court has held that the penalty is payable on failure to deposit the tax collected by him within a period of thirty days from the due date of the payment of the tax.

The bench of Justice Dinesh Kumar Singh observed that in Sub-sections 6, 8, and 9 of Section 73 of the GST Act, 2017, it is provided that if a person chargeable to tax fails to deposit the tax collected by him within a period of thirty days from the due date of the payment of such tax, Sub-section 8 will not have any effect, and such a person is liable to pay a penalty.

Kerala High Court Prevents Public Service Commission From Taking U-Turn, Admitting Candidates With Higher Qualification After Opposing It

Case Title: Gireeshkumar T.M. & Ors. v. State of Kerala & Ors. and connected matter

Citation: 2023 LiveLaw (Ker) 620

The Kerala High Court laid down that the Kerala Public Services Commission cannot alter its previous stance and subsequently admit candidates with higher qualifications for the post of Lower Division Clerk (LDC) in the Kerala Water Authority.

The petitioners in the present writ petitions were aggrieved by the inclusion of candidates who do not have the prescribed qualifications, but higher qualifications, as per the notification to the post of LDC, in the rank list published by the Public Service Commission (PSC). Justice Raja Vijayaraghavan V. observed, “it is imperative to recognize that the Public Service Commission, having steadfastly maintained a particular stance in the earlier proceedings and vigorously objected to the acceptance of candidates with advanced qualifications, cannot justifiably alter its stance by subsequently admitting individuals with higher qualifications. Such a reversal of position, if sanctioned, holds the potential to reopen previously concluded judgments of the Court. This not only raises concerns regarding the abuse of the judicial process but also carries significant ramifications for the overall administration of justice."

Kerala High Court Upholds Devaswom Commissioner's Order Refusing Permission To Shoot Film At Vadakkunnathan Temple Ground

Case Title: Joseph George v. Cochin Devaswom Board & Ors.

Citation: 2023 LiveLaw (Ker) 621

The Kerala High Court upheld the order issued by the Special Devaswom Commissioner of the Cochin Devaswom Board denying permission to the proprietor of ‘Appu Pathu Pappu Production House’ from shooting a few scenes of the film ‘PANI’ on the ground of Sree Vadakkunnathan Temple in Thrissur.

The Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed, “Any permission granted for film shooting in the parking area of the Kshethra Maidan or near the roads leading to Sree Vadakkunnathan Temple from ‘Manikandanaal’ area, parking area, etc., will result in the movement of the devotees through those roads leading to the temple being restricted or regulated by the members of the production unit or even by ‘bouncers’ engaged by the production units in film shooting sites. Therefore, the Cochin Devaswom Board cannot grant permission for any such activities in Sree Vadakkunnathan Kshethra Maidan.”

Co-operative Societies Act | Can't Invoke Writ Jurisdiction To Challenge Disputed Questions Of Fact Concerning Committee Election: Kerala High Court

Case title: Advocate Rajesh Kumar C v Prasad M Cherian

Citation: 2023 LiveLaw (Ker) 622

The Kerala High Court has held that writ jurisdiction cannot be invoked under Article 226 of the Constitution to challenge disputed questions of fact concerning election to the Managing Committee of a Society.

Justice N. Nagaresh relied upon various judicial precedents and observed that factual disputes regarding election to the Managing Committee of a Society have to be settled by a Co-operative Arbitration Court under Section 69 of the Kerala Co-operative Societies Act, 1969.

Family Court Has Jurisdiction To Entertain Plea Seeking Reliefs U/S 18-22 Domestic Violence Act: Kerala High Court

Case Title: George Varghese v. Treesa Sebastian & Ors. and connected matter

Citation: 2023 LiveLaw (Ker) 623

The Kerala High Court has laid down that the Family Court has the jurisdiction to entertain a petition seeking reliefs under the Protection of Women from Domestic Violence Act, 2005.

"What is discerned from the provisions of Section 12 is that an aggrieved person is free to elect any of the reliefs. The legislature in the wisdom has framed the Act by taking into consideration the doctrine of election. The parties are free to elect either a remedy under Section 12 or reserve the right to claim other reliefs as provided under Sections 18, 19, 20 and 21 in the manner and mode as has been done. The plain and simple reading of the provisions of Section 26 left the question clear and unambiguous that a party seeking a claim under any provisions of the civil or criminal court much less a family court can always claim relief in addition as provided under Sections 18, 19, 20, 21 and 22 of the Act," the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha explained

Maintenance Application Under Chapter IX CrPC Cannot Be Dismissed For Default: Kerala High Court

Case title: Elon Christ Stephen v Steaphen Antony Venasious

Citation: 2023 LiveLaw (Ker) 624

The Kerala High Court considered whether an application filed for maintenance allowance under Chapter IX of CrPC can be dismissed for default (non-appearance of party seeking maintenance). Chapter IX, Section 125-128 of CrPC contemplates Order for Maintenance of Wives, Children and Parents.

Justice C.S. Dias observed that Magistrate has no implicit power to dismiss an application filed under Chapter IX CrPC for default summarily. In the facts of the case, the application was dismissed for non-representation of the petitioner-minor son who was appearing through his mother for claiming maintenance from the respondent-father.

Kerala Building Tax Act, 1975 | Buildings To Be Assessed Separately If Structurally Different: High Court

Case Title: E.K. Anil v. Tahasildar & Ors.

Citation: 2023 LiveLaw (Ker) 625

The Kerala High Court has held that where separate buildings are constructed, albeit for for a common purpose, the buildings would have to be assessed separately for the purposes of building tax, if the same are structurally different.

Perusing Section 5 of the Kerala Building Tax Act, 1975, (hereinafter, the 'Act, 1975'), which provides that the plinth area has to be assessed on every building, the construction of which is completed, Justice Shoba Annamma Eapen observed: "For assessment of building tax, if structures are different, the buildings have to be assessed separately and the only exception is that it should not be an appurtenant building for more enjoyment of the main building".

Sports Disciplines Extremely Expensive, Govt Should Support Athletes From Disadvantaged Sections: Kerala High Court

Case Title: Prajila M. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 626

The Kerala High Court called upon the State Government and the Kerala Sports Council (KSC) to provide assistance to a young professional handball player, who had been injured during the Junior Girls National Handball Championship. The young handball player, who belonged to a middle class family, and suffere from a ligament tear, had approached the player, who belonged to a middle class family, and suffere from a ligament tear, had approached the KSC for financial aid, stating her grievance that her future as a handball player would be jeopardized without the same.

Justice Devan Ramachandran was of the considered opinion that the State authorities ought to provide necessary assistance to the sports professional, since a vibrant society requires not just persons in academic and service pursuits, but also athletes and sportspersons inclucated with a robust sporting culture.

Kerala HC Orders Probe Into Alleged Attack On Viyyur Prison Inmates, Says Jail Officials Can't Adopt 'Third Degree' Measures To Enforce Discipline

Case title: Jose v State of Kerala

Citation: 2023 LiveLaw (Ker) 627

"Jail is not a place to show the physical strength of jail officials," the Kerala High Court observed while hearing a plea filed by the convicted prisoners of Viyyur Central Prison at Thrissur alleging that the Deputy Superintendent of Jail along with other officers brutally manhandled and caused serious injuries to them.

Justice P.V. Kunhikrishnan directed that an independent inquiry has to be conducted by the State Crime Branch and disciplinary proceedings can also be initiated against the officials responsible for this.

Writ Jurisdiction Cannot Be Invoked Under Article 226 Against Decisions Of Lender/Banker Unless Compelling Reasons Like Statutory Violations: Kerala High Court

Case title: Binoy Paulose v Union of India

Citation: 2023 LiveLaw (Ker) 628

The Kerala High Court has made it clear that the jurisdiction of writ court cannot be invoked against decisions of lending institutions like banks unless there were compelling reasons such as violations of rules, regulations or statutory provisions. The petitioner had approached the writ court against the decision of the bank rejecting his request for restructuring of the loan.

Justice K.Babu observed that the bank has rejected the request of the petitioner for restructuring of the loan after considering the viability of his proposal. “It is trite that lending has always been the discretion of lending institutions on broad parameters. This Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, cannot replace the wisdom of the lender/banker in the process of lending unless there are compelling reasons, in a sense that there are all-around violations of the rules and regulations or any of the statutory provisions in this regard.”, Court observed.

Indian Olympic Association Should Have Resolved Internal Rift Of Volleyball Federation, Not Cancelled National Championship: Kerala High Court

Case Title: Roli Pathak v Union of India

Citation: 2023 LiveLaw (Ker) 629

The Kerala High Court has expressed empathy towards the volleyball players who could not participate in the National Games, 2023 due to internal rifts in the administration of the Volleyball Federation of India (VFI). The Adhoc Committee of VFI decided to cancel the Volleyball championship in the 37th National Games of India, 2023 due to the internecine disputes within the Federation.

Prior to the formation of the VFI, the game was controlled by the Indian Olympic Association (IOA). IOA is the governing body, responsible for regulating the National Games.

Justice Devan Ramachandran observed that the IOA should have resolved the disputes within the Federation rather than cancelling the Volleyball Championship in the National Games.

“In the afore scenario, this Court can do nothing more than to hold empathy for the situation of the petitioners; but before parting, it is necessary to say that, in the interest of the game, the Indian Olympic Association ought to have resolved the disputes within the ‘Federation’, keeping in mind the schedule of National Games and without disturbing it; but alas, this has not been done, but they appear to have chosen the easier path of cancelling the competition in Volleyball itself.”

[NDPS Act] Seizure Mahazar Sent To Court Becomes A Public Document, Accused Entitled To Certified Copy: Kerala High Court

Case Title: Shibu J v State of Kerala

Citation: 2023 LiveLaw (Ker) 630

The Kerala High Court held that seizure mahazar, once prepared and sent to the Court by police or other officers becomes a public document. It noted that a certified copy of seizure mahazar cannot be denied to the accused as he might need it to mould and understand his case at the stage of bail application itself.

Justice P.V.Kunhikrishnan observed thus:

“I am of the considered opinion that, once the seizure mahazar is prepared and sent to the court, it is a public document. There is no bar in issuing a certified copy of the seizure mahazar to an accused especially because the same is necessary for him to mould his case at the stage of filing the bail application also.”

[Kerala Building Tax Act 1975] Remaining Area Used For Ancillary Purposes Of Factory Also Exempted From Payment Of Building Tax: High Court

Case Title: Mathrubhumi Printing & Publishing Co. Ltd v State of Kerala

Citation: 2023 LiveLaw (Ker) 631

The Kerala High Court recently considered whether some ‘area’ used in relation to a factory can be given exemption from payment of the building tax under Section 3(1)(b) of the Kerala Building Tax Act 1975. Section 3 (1)(b) provides that buildings principally used for religious, charitable or educational purposes or as factory or workshop can be exempted from building tax.

Justice Dinesh Kumar Singh observed that the term ‘principally’ under Section 3(1)(b) means ‘predominantly’ and held if the building was predominantly used as a factory, then remaining area used for ancillary purposes of the factory would also be exempted from payment of building tax.

“The authority has to assign the correct meaning to the word ‘principally’. In my view, ‘principally’ means predominantly. If the predominant purpose is running the factory, the area in which ancillary purposes related to the factory are being carried out is also liable for exemption under Section 3(1)(b) of the Act.”

Kerala High Court Allows Married Couple's Plea To Terminate 32-Week Pregnancy On Grounds Of Foetal Abnormality, Mother's History Of Depression

Case Title: XXX & Anr. v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 632

The Kerala High Court allowed the medical termination of a 32-week pregnancy of a woman.

The parents-to-be had approached the Court seeking termination of pregnancy on the ground that the unborn child was suffering from severe neurological and respiratory abnormalities, as revealed from medical reports, and that even if the pregnancy was allowed to be continued, the child would have serious complications which would not allow it to lead a normal life.

Justice Devan Ramachandran also took note that the expectant mother, who is the 1st petitioner herein, had a history of depression.

"I am of the firm view that taking note of the mental health of the mother, which is vital to a child if it is to be born alive, and respecting her autonomy with respect to her physiological and psychological requirements, I deem it appropriate to allow this writ petition," the Court observed.

No Wrongful Gain Or Loss: Kerala High Court Quashes Proceedings Against Wife For 'Fraudulently' Registering Vehicle In Dead Husband's Name

Case Title: Shoma G. Madan & Anr. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 633

The Kerala High Court has laid down that in order to satisfy the definition of 'fraudulently' it would be sufficient to if there was a non-economic advantage to the deceiver or a non-economic loss to the deceived, and that both elements need not co-exist.

The Single Judge Bench of Justice K. Babu clarified that the expression 'defraud' involves two elements, namely, deceit and injury.

Relying upon the decision in Dr. Vimla v. The Delhi Administration (1963), the Court observed:

"Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rarecases where there is a benefit or advantage to the deceiver but no corresponding loss to the deceived, the second condition is satisfied".

Defection A Menace To Democracy, Stringent Financial Penalties Needed Against Defectors : Kerala High Court

Case Title: Deepak K. v The Kerala State Election Commission & connected case

Citation: 2023 LiveLaw (Ker) 634

The Kerala High Court held that defection is a menace to the Indian representative democracy and that the existing laws were ineffective in curbing defection effectively.

Justice Bechu Kurian Thomas noted that despite anti-defection laws, many persons commit acts of defection. Taking into account the nature of orders that can be issued against defectors under the existing laws, Justice Thomas held that stringent financial penalties have to be imposed. It observed that only financial penalties will affect the defectors and deter them from committing acts of defection.

“Once an elected representative is found disqualified due to defection, the burden on the exchequer is immense due to the inevitable bye-elections. However, the person responsible for such nefarious activity is not affected seriously due to the nature of the orders that can be issued under the existing law. Considering the entire scenario, this Court has a wishful thinking that the time has come to contemplate on including stringent financial penalties for acts of defection. Unless a monetary pinch is felt by the defector, the evil acts that are sought to be remedied by the anti-defection law will continue. However, as it is a matter that requires a legislative exercise, this Court fervently hopes that the legislature will bestow its consideration earnestly.”

'Prisoner Has As Much Right To Study As Person Outside Confines Of Jail': Kerala High Court Permits Two Life Convicts To Attend Online LLB Classes

Case Title: Pattakka Suresh Babu v. State of Kerala

Citation: 2023 LiveLaw (Ker) 635

The Kerala High Court has called for the integration of technology in the criminal justice dispensation system in order to permit two life convicts to attend LL.B. classes in the online mode for the academic year 2023-24.

The Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath, emphasized upon the importance of education in reforming and rehabilitating prisoners.

"...a convict is entitled to basic human rights and has the right to live with dignity in jail. The prisoners’ right to education is a human right grounded in the right to dignity. A prisoner has as much a right to pursue study as a person free from the confines of jail. The aims of imprisonment include reformation and rehabilitation apart from deterrence. Education can contribute to a sense among prisoners that they remain a part of the wider community. Prison education can provide a source of hope and aspiration whilst making purposeful use of time in detention. It also helps them lead better lives once they are free. Thus, ensuring that prisoners have access to education is essential to achieving the reformative and rehabilitative objectives of imprisonment as well," the Bench observed.

Kerala High Court Sets Aside Order To Raid Religious Places For Seizing Firecrackers But Upholds Restriction On Bursting Them At Odd Hours

Case Title: State of Kerala & Ors. v. Binoj K.B. & Ors.

Citation: 2023 LiveLaw (Ker) 636

The Kerala High Court partially quashed the Order of the Single Judge calling for the conduct of raids in all religious places by District Collectors, and taking into possession firecrackers alleged to be illegally stored therein, with the assistance of the Commissioners of Police.

The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun, however added that the ban imposed by the Single Judge against the bursting of crackers at 'odd times' would be retained.

The Court clarified that firecrackers could be burst between 6AM to 10 PM in accordance with the directions issued by the Apex Court in other cases in this regard, and that the District Administration could take a call on the bursting of crackers during odd hours on a case-to-case basis.

[S.447 IPC] Intention To Commit Any Offence/ Intimidate, Insult Or Annoy Possessor Necessary To Establish Criminal Trespass: Kerala High Court

Case Title: Sunil Kumar @ Rakkan v State of Kerala and connected matter

Citation: 2023 LiveLaw (Ker) 637

The Kerala High Court has made it clear that to establish an offence of criminal trespass under IPC, the prosecution must prove beyond doubt that the accused persons entered into the property to commit criminal trespass with an intention to commit any offence or to cause intimidation, insult or annoyance.

Justice C.S. Dias thus acquitted two persons who were convicted for the commission of the offence of criminal trespass, citing lack of above ingredients.

“...the accused had no intention to commit any offence or intimidate, insult or annoy PW1 when they entered his house. The prosecution has miserably failed to establish beyond doubt that the accused had entered the property with an intention to commit the offence. Therefore, the revision petitioners/accused are entitled to the benefit of doubt.”

There Cannot Be Unilateral Decision From Court While Scheduling Trial, Convenience Of Lawyer Should Also Be Considered: Kerala High Court

Case Title: Vishnu v State of Kerala

Citation: 2023 LiveLaw (Ker) 638

“There cannot be a unilateral decision from the Court alone while scheduling trial”, the Kerala High Court said adding that the convenience of the lawyer should also be taken into consideration by the Court while fixing a date for the trial.

Justice P.V. Kunhikrishnan observed that when lawyers make genuine submissions for rescheduling the trial to another date, the Court should show magnanimity to accept it and schedule the trial as requested by them, after considering the convenience of the court also.

“There cannot be a unilateral decision from the Court alone while scheduling trial. Accused has got a right to choose his lawyer for conducting the trial and hence the convenience of the lawyer also should be taken care of by the Court. But, the submission of the lawyer should be genuine. Whether the submission of a lawyer for getting a date for trial is genuine or not is to be decided by the Court at the stage of scheduling the trial. If the submission of the lawyer of the accused or prosecution is genuine, the Court should be magnanimous to accept it and schedule the trial as requested by them after considering the convenience of the Court also.”

Munsiff-Magistrate Trainee Can't Be Appointed As District Judge By Direct Recruitment From Bar: Kerala High Court

Case title: Lilly Krishnan v State of Kerala

Citation: 2023 LiveLaw (Ker) 639

Relying on the Supreme Court's landmark decision in Dheeraj Mor v. High Court of Delhi (2020), the Kerala High Court has held that a Munsiff Magistrate Trainee cannot be appointed as a District Judge by direct recruitment in the quota set apart for lawyers.

It has clarified that only a practising advocate who was continuing practise even as on the date of appointment is eligible to be appointed to the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar.

A division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar thus denied relief to a Munsiff Magistrate Trainee, whose candidature for the post of District Judge was rejected on the ground that she was not a 'practising advocate' on the date of application.

Can't Invoke Article 226 Jurisdiction For Removal Of Dangerous Trees, Approach SDM U/S 133 CrPC: Kerala High Court

Case Title: Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 640

The Kerala High Court recently held that the remedy in case of a tree standing dangerously on any property would be before the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973.

Justice Bechu Kurian Thomas explained that the writ jurisdiction under Article 226 of the Constitution could not be invoked for the said purpose.

“The jurisdiction under Article 226 of the Constitution of India cannot be invoked for the purpose of directing cutting and removal of trees, especially since there is no basic order that has been produced to exercise such a jurisdiction or to allege inaction,” the Court explained.

Abkari Act | Tamper-Proof Despatch Of Sample Must; Lack Of Specimen Seal, Not Examining Persons Handling Samples Fatal: Kerala High Court

Case Title: Shijo Das v. State of Kerala

Citation: 2023 LiveLaw (Ker) 641

The Kerala High Court laid down that the absence of specimen seal in the mahazar and forwarding note, non-mentioning of the name of the Excise Guard in the forwarding note, non-examination of the clerk who despatched the sample or the Excise Guard who took the sample to the lab, and so on are serious laches which would be fatal to the prosecution in a case under the Abkari Act.

"Absence of proper impression of specimen seal in the mahazar and absence of sample seal in the forwarding note etc. are circumstances to doubt the identity of the sample seized and the sample sent for chemical analysis. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused, was the sample which reached the hands of the chemical examiner", Justice Sophy Thomas explained.

Kerala High Court Orders Release Of Woman Detained Under Preventive Detention Law To Take Care Of Her Daughter In Advanced Pregnancy Stage

Case Title: Sreeja @Sini v State of Kerala

Citation: 2023 LiveLaw (Ker) 642

The Kerala High Court has ordered release of a woman detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA Act), considering that her daughter is at an advanced stage of her pregnancy.

The Division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen said normally courts do not interfere in detention orders, but it is not devoid of such power when fundamental rights are involved.

“In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior right available to such person on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified.”

Kerala High Court Acquits NDPS Accused Citing Prosecution's Failure To Produce His Alleged Written Consent For Search In Absence Of Magistrate

Case Title: Raveendranath V State of Kerala

Citation: 2023 LiveLaw (Ker) 643

The Kerala High Court recently acquitted an accused under the NDPS Act citing prosecution's failure to produce alleged written communication made to him regarding his right to be searched before Magistrate under Section 50 of the Act and his alleged written consent waiving such right.

Justice N. Nagaresh held that failure on the part of the prosecution to produce communication or consent letter obtained in compliance with Section 50 caused prejudice to the accused. The Court added that the evidence of illicit narcotic drugs / psychotropic substances recovered by the police in violation of the safeguards provided under Section 50 of the NDPS Act cannot be relied upon to convict the accused.

“…The prosecution further stated that the appellant had given his consent to dispense with the presence of gazetted Officer / Magistrate during search, that also in writing. If such communications in writing existed, the prosecution ought to have produced the same before the court. The non- production of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified. In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble. In the afore facts of the case, I find that failure of the prosecution to produce Section 50 communication / information before the court has seriously prejudiced the appellant and conviction of the appellant cannot be justified under the circumstances.”

Reservation Under Central Educational Institutions (Reservation And Admission) Act Applies To IIMs: Kerala High Court

Case Title: Mahesh Mohan v. Indian Institute of Management, Kozhikode & Anr.

Citation: 2023 LiveLaw (Ker) 644

The Kerala High Court recently held that Indian Institute of Management (IIM), Kozhikode would have to follow the reservation policy stipulated under the Central Educational Institutions (Reservation and Admission) Act, 2006 ('Act, 2006'), for admission to Ph.D. Practice Track Course.

The Court noted that the proviso to Section 8 of the Indian Institute of Management Act, 2017, says that every Institute shall be a Central Education Institution for the purposes of the Central Educational Institutions (Reservation and Admission) Act, 2006.

"There can hence be no dispute that the 2006 Act will apply insofar as the admissions to the Indian Institute of Management are concerned," the Court observed.

Rejecting IIM's argument that the provisions of the Act, 2006 as regards reservation would apply only to cases where there is an annual permitted strength, which is identified earlier and not in case of Ph.D.(PT) for which there is no annual permitted strength prescribed, Justice T.R. Ravi, observed:

"The requirement of reservation under the enactment cannot be defeated by not prescribing the number of seats that are permitted to be filled up for a particular course in a particular year. If there is no annual permitted strength as contended, the only manner in which the provision can be understood is the total number of seats that are sought to be filled up in a particular year is the annual permitted strength".

Sabarimala Temple : Kerala High Court Dismisses Plea Challenging Melsanthi (Chief Priest) Selection

Case Title: Madhusoodanan Namboothiri V State Of Kerala

Citation: 2023 LiveLaw (Ker) 645

The Kerala High Court dismissed a writ petition filed challenging the selection of the Melsanthi (Chief Priest) of Sabarimala Temple for the year 2023-24 alleging foul play.

The Division bench comprising Justice Anil K. Narendran and Justice G. Girish viewed video clippings of the selection process shown by Asianet News as well as CCTV footage from the camera installed in the Temple during the hearing. Taking note of the fact that large number of persons were inside the ‘Sopanam enclosure’ infront of the Sabarimala Temple while drawing lots for the selection of Melsanthi, the Court directed that entry of persons will be limited.

“However, the entry of persons to the ‘Sopanam enclosure’ of Sabarimala Sree Dharma Sastha Temple, at the time of draw of the lots shall be confined to the Special Commissioner, Sabarimala, the President of Travancore Devaswom Board (in his absence, a Member of the Travancore Devaswom Board), the Devaswom Commissioner and the Observer appointed by this Court.”

Kerala High Court Quashes Corruption Case Against Range Officer Accused Of Taking Bribe After Prosecution Fails To Establish Voice Samples

Case Title: Divya S.S Rose v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 646

The Kerala High Court has quashed the proceedings under Prevention of Corruption Act initiated against a Range Officer at Social Forestry Range accused of taking bribe, citing prosecution's failure to establish his voice sample to prove the telephonic conversation she allegedly had with the complainant.

Justice K. Babu noted that the analysis by the Forensic Science Laboratory (FSL) had found that the identity of the speaker could not be positively ascertained from the voice sample that had been alleged to be that of the accused petitioner's, due to the speech amount being too little and low signal-to-noise ratio.

It further found that the allegation levelled against the petitioner by the 3rd respondent that the former insisted on bribe from him was also doubtful considering that the petitioner had taken a tough stand against the latter, and insisted on him completing the work in terms of the contract, which, in the opinion of the Court, could only be the inference of a prudent man.

Lack Of Necessary Parties, Specific Averments In Writ Petition Can't Be Cured By Filing Impleadment Application: Kerala High Court

Case Title: Gopakumar P. v Travancore Devaswom Board

Citation: 2023 LiveLaw (Ker) 647

The Kerala High Court dismissed a writ petition on the finding that specific averments should be made against the parties while filing the writ petition itself and they need not be arrayed as parties later by filing an impleading application.

The Division Bench comprising Justice Anil K. Narendran and Justice G. Girish added that the writ petition lacked specific averments in tune with the reliefs sought for and necessary parties were not arrayed in the party array.

“A mere application for impleadment, after the filing of this writ petition, will not serve the purpose, since the writ petition for seeking such a relief should contain specific allegations against the Temple Advisory Committee and its members. In the absence of necessary averments in the writ petition in support of the reliefs sought for and necessary parties in the party array, we find no reason to entertain this writ petition.”

S.28 POCSO Act | Offences Under SC/ST Act Can Be Tried By POCSO Court If Part Of Same Transaction: Kerala High Court

Case Title: Tomy K M v State of Kerala

Citation: 2023 LiveLaw (Ker) 648

The Kerala High Court has permitted a POCSO Court to try the offences under SC/ST Act relating to abuse and assault of the minor victim's father stating that the two offences were closely connected as the incident occurred within half hour of the offence under POCSO Act.

Justice Gopinath P. relied on MS.P xxx Vs. State of Uttarakhand & Anr. (2022 LiveLaw (SC) 554) which explained when two or more acts constitute the same transaction for the purpose of being tried together.

Section 28(2) of the POCSO Act also stipulates that while trying an offence under the POCSO Act, the Special Court may also try other offences under which the accused was charged at the same trial.

“Having regard to the law laid down in MS.P xxx’s case (supra) and also having regard to the provisions of Section 28(2) of the POCSO Act, I am of the view that S.C.No.555 of 2022 on the file of the District and Sessions Court, Kottayam should be transferred and tried before the Fast Track Special Court (POCSO), Erattupetta,” the bench thus ordered.

[Kerala Preventive Detention Law] High Court Confines Operation Of Externment Order Issued With Four Months Delay

“Having adverted to the factual situation as above, as we find there is much delay affecting the proprietary of the impugned order, no interference is called for to set aside the order. However, also taking note of the fact that the order is already in operation for more than three months, we confine the operation of the externment order till today (10.11.2023).”

Kerala High Court Directs Removal Of Encroachment On Road Margins Near National Highway, Says Notice Not Required

Case title: Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram

Citation: 2023 LiveLaw (Ker) 650

“The illegal occupation of road margins is even more evil when the occupation is in front of a hospital. The vice of such occupation has its tentacles rooted in several anti-social activities as well. Therefore, it is essential that the Corporation, the Police as well as the District Administration and even the National Highway Authorities act in unison to remove such encroachers and prevent a repetition of such offending acts.”

'Decision of Majority Decision Of House': Kerala HC Rules That Minority Dissenter Of Municipal Council's Resolution Cannot Invoke Article 226 To Challenge Same

Case Title: Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters

Citation: 2023 LiveLaw (Ker) 651

Justice Bech Kurian Thomas was of the considered opinion that the Municipal council cannot challenge its own decision, and if such a procedure is given the stamp of legality, the same would result in an anomalous situation, since even a sole dissenting member would become entitled to challenge the decisions of the Municipality before higher forums, which is not permitted under law.

Limitation Act | Party Not Entitled To Delay Condonation As A Matter Of Right Despite Showing 'Sufficient Cause': Kerala High Court

Case Title: Sathy M.P. & Anr. v. Sarasa & Ors. and connected matter

Citation: 2023 LiveLaw (Ker) 652

Perusing Section 5 of the Limitation Act which provides for the extension of the prescribed period in certain circumstances, the Single Judge Bench of Justice K. Babu observed: "The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different...The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds"

Committing Magistrate Lacks Jurisdiction To Consider Application For Withdrawal From Prosecution U/S 321 CrPC: Kerala High Court

Case title: State of Kerala v N R Shaji

Citation: 2023 LiveLaw (Ker) 653

The Kerala High Court held that the Committing Magistrate has no implicit power to consider an application filed by the Public Prosecutor or Assistant Public Prosecutor under Section 321 for withdrawal from prosecution.

Justice C.S. Dias observed that the Magistrate ought to have directed such application to the Sessions Court. “once it appears to the Magistrate that the offence is exclusively triable by the Court of Session, then other than for considering matters relating to bail and remand as provided under clauses (a) to (d) of the said provision, the Magistrate has no implicit power to entertain any other matter, including an application under Section 321.”

Authorities Will Do Needful To Prevent Illegal Abandonment Of Newborn Babies : Kerala High Court

Case title: Alex Mampuzha @ Alexander K v State Police Chief

Citation: 2023 LiveLaw (Ker) 654

“As far as the prayers are concerned, we are of the considered opinion that the respondent authority will do the needful.”, Chief Justice A.J.Desai and Justice V.G. Arun stated.

Section 147 MV Act| Loading/Unloading Worker In Goods Carriage Also Entitled To Benefit Of Policy In Case Of Death, Injury: Kerala High Court

Case Title: United India Insurance Co. Ltd. v. Abdul Razaque O.V. & Anr.

Citation: 2023 LiveLaw (Ker) 655

"...loading and unloading of the goods transported in a goods carriage is to be treated as part and parcel of the purpose for which the goods carriage is intended to. Viewed from the above angle, it is to be held that loading and unloading of the goods in a goods carriage is inseparably connected with the usage of a goods carriage. In the above circumstances, unless and until the persons loading and unloading the goods in a goods carriage are also covered under clause (c) of the first proviso to Section 147(1) of the MV Act, the purpose of the aforesaid provision will not be served, in its true spirit," Justice C. Pratheep Kumar observed.

Insolvency & Bankruptcy Code : Section 14 Does Not Bar Finalisation Of Assessment, Adjudication Proceedings: Kerala High Court

Case Title: Platino Classic Motors India Pvt. Ltd. v. Deputy Commissioner of Central Tax and Central Excise & Ors.

Citation: 2023 LiveLaw (Ker) 656

"On the resolution once the reference has been admitted, there is moratorium for recovery of the tax dues but, there is no bar for finalisation of the assessment and adjudication," Justice Dinesh Kumar Singh observed.

Kerala High Court Asks 65-Year-Old Convicted For Causing Death By Negligent Driving To Do Community Service, Applies Probation Of Offenders Act

Case title: Saji Charivukala Puthenveedu v State of Kerala

Citation: 2023 LiveLaw (Ker) 657

Justice G. Girish held that there was no legal embargo for the Court to invoke its power under the Act to release a person who was convicted under Section 304A IPC for causing death by negligence in appropriate cases to meet the ends of the justice.

Titanium Company Scam : Kerala High Court Orders CBI Investigation, Says State VACB Not Equipped To Deal With International Transactions

Case title: S Jayan v State of Kerala

Citation: 2023 LiveLaw (Ker) 658

“Resultantly, respondent No.4 is directed to issue orders entrusting the investigation in VC 01-2015/SIU-1 of VACB (Special Investigation Unit-I), Thiruvanathapuram with the CBI. Respondent Nos.5 and 6 are directed to take over the investigation in VC 01-2015/SIU-1 of VACB (Special Investigation Unit-I), Thiruvanathapuram. The CBI shall complete the investigation within six months from this date. The investigating agency is at liberty to approach this Court seeking extension of time, if found necessary.”, Justice K. Babu stated.

Complaint Seeking Refund Of Earnest Money Deposit Cannot Be Filed Before Local Self Govt Ombudsman: Kerala High Court

Case Title: Secretary, Poovachal Grama Panchayat v. Secretary, Ombudsman for Local Self Government & Anr.

Citation: 2023 LiveLaw (Ker) 659

Relying on the decisions in John.A., Ansons Group Architects v. Chanagacherry Municipality & Anr. (2011), and Kulukkalloor Grama Panchayath v. Ombudsman for Local Self-Govt. Institution & Ors. (2013), the Single Judge Bench of Justice Shoba Annamma Eapen, held:"...it is clear that a complaint seeking refund of the amount deposited by way of earnest money deposit for participating in the public auction will not come under the definition of 'allegation' or 'complaint' as enumerated in Section 271F of the Kerala Panchayat Raj Act,1994".

Kerala High Court Rejected Candidate's Vote Who Allegedly Voted For Himself, Cites Ambiguity/Uncertainty In Ballot Paper

Case title: Bastin Babu v State of Kerala

Citation: 2023 LiveLaw (Ker) 660

Justice Bechu Kurian Thomas observed that the intention of the voter was not reflected on the ballot paper. As per Rule 11 of the Kerala Municipality Standing Committee Rules, 2000, a voter has to mark ‘X’ on the ballot paper against the name of the candidate for whom he intends to vote. The Court perused the ballot paper and observed that ‘X’ was not marked properly against his name and rejected his vote.

[S.14 Disabilities Act] District Court And Designated Authority Have Concurrent Jurisdiction To Grant Limited Guardianship: Kerala High Court

Case title: Abootty K.A. v Kolangottil Pathumma

Citation: 2023 LiveLaw (Ker) 661

The Kerala High Court has held that both the District Court as well as the designated authority notified by the State Government have concurrent jurisdiction to consider the petition for the appointment of limited guardian under Section 14(1) of the Rights Of Persons With Disabilities Act, 2016 (hereafter, the Act).

Justice Basant Balaji relied upon Section 14(1) of the Act and the rules framed thereunder to state that both the District Court and the Designated Authority have concurrent jurisdiction for granting limited guardianship.

“A combined reading of Section 14 (1) coupled with Rules 4, 7 and 8 of the Kerala Rules, it is amply clear that the District Court or the designated authority notified by the State Government has concurrent jurisdiction to entertain a petition or appointment of a limited guardian of person who is coming under the definition of ‘person with disability’ under Section 2(s) of the Act.”

Even A Blank Cheque Leaf Attracts Presumption Under S.139 NI Act If Voluntarily Signed & Given Towards Payment : Kerala High Court

Case Title: P.K. Uthuppu v. N.J. Varghese & Anr.

Citation: 2023 LiveLaw (Ker) 662

The Kerala High Court laid down that the presumption under Section 139 of the Negotiable Instruments Act (NI Act) that cheque has been issued in discharge of a debt or liability, would be attracted, even if a blank cheque is voluntarily signed and handed over as payment.

Relying upon the decision in Bir Sing v. Mukesh Kumar (2019), Justice Sophy Thomas observed: "The onus to rebut the presumption under Section 139 of the N.I Act that the cheque has been issued in discharge of a debt or liability, is on the revision petitioner. Even if a blank cheque leaf is voluntarily signed and handed over by the accused, towards some payment, it would attract the presumption under Section 139 of the N.I Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".

Kerala High Court Directs KELSA To Appoint Persons To 5 Vacant Posts In Permanent Lok Adalat Sanctioned By State Government

Case Title: Bobby P. Kuriakose v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 663

The Kerala High Court has directed the Kerala State Legal Services Authority (KELSA) to appoint persons to 5 posts, namely, Head Clerk, Bench Assistant, Clerical Assistant (Daily Wages), Confidential Assistant, and Office Assistant at the Permanent Lok Adalat, which had been sanctioned by the State Government vide its Order.

Justice Devan Ramachandran passed the Order on being informed by the State that vide its Order dated October 2010, the aforementioned 5 posts had been sanctioned.

Preventive Detention Not To Be Used As Punitive Measure, But To Secure Public Order In Larger Interest Of Society: Kerala High Court

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

Citation: 2023 LiveLaw (Ker) 664

"Dention order is a serious matter depriving liberty of the citizens. That means, except on valid grounds a person cannot be deprived of his liberty. The detention order, therefore,must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007(for short 'KAAPA Act'). That means, the offence in which he is involved in the past will have to be analysed to arrive at a conclusion that he will be a threat to the society when he is enlarged without detention," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed.

IBC| Mere Uploading Of Application U/S 96 Cannot Be Regarded As 'Filing' For Interim Moratorium To Operate: Kerala High Court

Case Title: Jeny Thankachan v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 665

Justice N. Nagaresh explained that the operation of interim and final moratorium under Sections 96 and 101 of the IBC 2016 have serious repercussions, as the legal proceedings against would be deemed to have been stayed and creditors of the debtor would not be able to initiate any legal action proceeding in respect of any debt of the debtor, once an application is filed. The Bench thus said that such provision would have to be strictly construed.

Talaq-E-Hasan And Talaq-E-Ahsan Valid: Kerala High Court Quashes Criminal Proceedings Against Muslim Husband As Talaq Not Instantaneous

Case Title: Saheer v. State of Kerala & Connected matter

Citation: 2023 LiveLaw (Ker) 666

Interpreting the law on triple talaq, the Kerala High Court recently quashed criminal proceedings against a Muslim husband on finding that he pronounced talaq-e-hasan which was legal and valid under Muslim Personal Law.

“The copies of the talaq kuries would show that several mediations took place. It is further revealed that respondent No.3 did not co-operate for a Court Centred Mediation also...The materials placed before the Court would reveal that a series of mediations to reconcile the disputes between the parties failed. There are no indications that the talaq pronounced by the petitioner was instantaneous or irrevocable. The resultant conclusion is that the talaq pronounced by the petitioner is not talaq-e-biddat prohibited under Section 4 of the Act.”

Relying upon the landmark decision of the Apex Court in Shayara Bano v. Union of India (2017), Justice K. Babu observed that talaq-e-biddat or other similar forms of instant talaq were void and unconstitutional and not talaq-e-hasan or talaq-e-ahsan.

Court's Power To Issue Directions For A Trust Not Independent Of Scheme Framed In Its Respect Under Section 92 CPC: Kerala High Court

Case Title: P.S. Rajeev v. The Sree Narayana Trusts, Special Jurisdiction Case No.6 of 2023

Citation: 2023 LiveLaw (Ker) 667

The Kerala High Court recently reiterated that finality of a decree does not preclude a court settling scheme under Section 92 CPC from modifying it and that the court's power to amend the scheme or to issue directions for effective functioning of a Trust is derived from the scheme itself.

The Division Bench comprising Justices P.B. Suresh Kumar and Johnson John was considering the scope of its jurisdiction to adjudicate disputes relating to the affairs of the Trust. In course, it analyzed a scheme framed w.r.t. the Trust under Section 92 CPC, which was amended by the court from time to time.

Organ Donation | Merely Because Donor Hails From Disadvantaged Social Background, Can't Presume There's Exploitation: Kerala High Court

Case title: Ramachandran P v State of Kerala

Citation: 2023 LiveLaw (Ker) 668

The Kerala High Court recently held that the District Level Authorization Committee (DLAC) cannot deny authorization for organ donation based on an assumption that the donor was exploited as she was from a disadvantaged community.

Justice Devan Ramachandran observed that DLAC cannot assume or presume based on the social status of the donor that the organ was not offered out of affection and altruism.

“I am guided to the impression that ‘DLAC’ appears to have taken the afore view being swayed by the social status of the donor, who appear to be from a disadvantaged one; and thus somehow has presumed that she appears to be subjected to exploitation by the 1st petitioner. However, the impugned Ext.P12 report cannot add any force to this presumption or assumption - as the case may be; and am, therefore, of the firm view that ‘DLAC’ must reconsider the matter, based on the statements that have already been recorded, but adverting specifically to the “Certificate of Altruism”, which the petitioners are stated to have produced before them, from the competent Police Authority.”

Accidental Fall Of Passenger While Trying To Alight From Wrong Train Amounts To 'Untoward Incident': Kerala High Court Orders Compensation

Case Title: Malarkodi P v. Union of India

Citation: 2023 LiveLaw (Ker) 669

The Kerala High Court has held a passenger’s accidental fall from moving train, while trying to alight on realizing that it was the wrong train, to be an ‘untoward incident’ and not ‘self-inflicted injury’.

Taking a view that the dependents of the deceased passenger were entitled to compensation, Justice C. Pratheep Kumar observed thus:

“In this case, the respondent has no case that the deceased had any intention to inflict any such injury to himself. On the other hand, he was trying to alight from the train as it was the wrong train. In the above circumstances, it is to be held that there was no intention on the part of the deceased to inflict any injury to himself and as such it is a clear case of accidental falling coming within the purview of 'untoward incident', as defined under Section 123(c) of the Railways Act.”

Amendments Not Required For Adjudication Of Real Issues Between Parties Ought Not To Be Allowed: Kerala High Court

Case Title: Santhosh Kumar P M v John M T

Citation: 2023 LiveLaw (Ker) 670

The Kerala High Court recently set aside an order of the Magistrate Court allowing respondent's application in the suit to amend their pleadings stating that amendments, that are not required for adjudicating the real dispute between the parties and are outside the scope of the reliefs sought in the suit, ought not to be allowed.

Justice C. Jayachandran noted that the amendment sought was belated also.

“The title of the plaintiff over the plaint schedule property has not so far been challenged by the respondents, or for that matter by anybody else, before any forum. Nor has the respondents preferred any counter claim in that regard. Therefore, an amendment, seeking to incorporate facts pertaining to the title of the plaintiff, is not going to serve any useful purpose. It cannot be said that such averments are required for the adjudication of the real issue in controversy by and between the parties, having regard to the scope of the reliefs sought for in the suit. In such circumstances, the amendment sought for ought not to have been allowed. Moreover, the amendment sought for is belated as well.”

In Partition Suit, Courts Must Ascertain Interested Parties At The Outset; Absence Of Necessary Party Fatal Defect: Kerala High Court

Case Title: Joy v Mary

Citation: 2023 LiveLaw (Ker) 671

The Kerala High Court recently distinguished between necessary parties and proper parties to a suit. It held that necessary party was a party who was entitled to a right to relief in the suit and whose presence would enable the Court to effectually adjudicate the suit. It held that a person who was only remotely or indirectly interested in a suit was not a necessary party.

Justice K. Babu held that “absence of a necessary party is a fatal defect, but the absence of a proper party is not” and observed thus:

“The Code of Civil Procedure does not contain any express provision as to who should be considered necessary parties, but it is clear from an examination of the rules of Or.1 of the Code that two conditions must be satisfied so that a party may be considered a necessary party namely; first, there must be a right to some relief against him in respect of the matter involved in the suit and, secondly, his presence is necessary to enable the court, effectually and completely, to adjudicate upon and settle all the questions involved in the suit. A person who is only indirectly or remotely interested is not a necessary party. A person who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in deciding on the point in issue is a proper party in that suit".

Body Of Infant Disposed In Sea Believing It To Be Lifeless: Kerala High Court Sets Aside UP Couple's Murder Conviction

Case Title: Prathibha v State of Kerala

Citation: 2023 LiveLaw (Ker) 672

The Kerala High Court deliberated upon the legal issue as to whether a conviction for culpable homicide under section 299 IPC was sustainable if the body of the infant was disposed of in the sea believing it to be lifeless.

The Court was hearing an appeal against the conviction of parents for allegedly causing the death of their infant child and disposing of the body in the sea. The Sessions Court had convicted the parents under Section 302 (punishment of murder), 201 (causing disappearance of evidence) read with Section 34(common intention).

On analyzing Section 299 IPC, the Division Bench comprising Justice P.B.Suresh Kumar and Justice Johnson John acquitted the parents and observed that the offence of culpable homicide was not attracted as the acts were performed on the body of the infant believing it to be lifeless. It noted that there was no intention or knowledge on the part of the parents to put an end to the life of the infant.

“As evident from the extracted definition itself, the provision is attracted only when a person does an act which causes death of another, either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. These three are the species of mens rea contemplated in the provision, and unless it is established that the act of the accused would fall under any of these, it would not amount to an offence of culpable homicide. Therefore, in order to attract the Section, the act must be one performed with the intention of putting an end to a human life or with the knowledge that the same may put an end to a human life Needless to say, if the act is performed on a body which the person concerned believed to be lifeless, the offence is not attracted, for when the act was performed, the person concerned could have neither had the intention of putting an end to the human life nor had the knowledge that the act performed by him may or is likely put an end to human life.”

S.196 CrPC | Excessive Delay In Applying For Sanction Can't Be Excluded U/S 470 While Computing Limitation: Kerala High Court

Case Title: Manoj Kumar & Ors. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 673

The Kerala High Court recently laid down that a delay of nearly five years in re-submitting a request for obtaining sanction for taking cognizance of an offence Section 153(A) of the IPC ('Promoting enmity between different groups on grounds of religion, race, place of birth, residence') cannot be accepted.

It also held that prosecution cannot contend that that period is liable to be excluded under Section 470(3) Cr.P.C.

Section 470(3) Cr.P.C. stipulates that, "Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded".

"When the Explanation says that the date on which the application was made and the date of receipt of the order of the Government are allowed to be excluded from the period taken for obtaining sanction, the intention of the Legislature is clear. The provisions under Section 470 of the Code that allows exclusion of the period taken for obtaining sanction requires a strict interpretation. When there occurred a delay of nearly five years to re-submit the request for obtaining sanction, the prosecution cannot be heard to contend that that period is liable to be excluded under Section 470(3) of the Code," Justice P.G. Ajithkumar observed.

GST Act | Authority's Failure To Mention Statutory Provision In Show Cause Notice Doesn't Prejudice Defaulter If Facts Stand Admitted: Kerala High Court

Case Title: M/S Global Plasto Wares v. Assistant State Tax Officer & Ors.

Citation: 2023 LiveLaw (Ker) 674

The Kerala High Court has made it clear that merely because the show cause notice issued to a defaulter under the GST Act did not refer to a particular statutory provision that may be attracted against such defaulter, the same cannot be said to have caused prejudiced when the facts leading to the invocation of the statutory provision concerned were admitted.

The Court was dealing with a case where penalty was imposed under Section 73(11) of the Central Goods and Services Tax Act [CGST Act]/State Goods and Services Tax Act [SGST Act] ('CGST/SGST Act') for non-payment of tax due to the State.

Section 73(11) of the GST Act states, "notwithstanding anything contained in sub-section (6) or sub-section (8), penalty under sub-section (9) shall be payable where any amount of self-assessed tax or any amount collected as tax has not been paid within a period of thirty days from the due date of payment of such tax".

"While it may be a fact that Ext.P1 notice issued to the appellant did not specifically refer to Section 73(11) of the CGST/SGST Act, when we find that, on the admitted facts, the appellant had not paid tax due to the State despite collecting the same from its customers, then, as per the statutory provisions, it is the provision of Section 73(11) and not the provision of Section 73(8) that will apply to determine the penal liability of the appellant," the Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Kauser Edappagath observed.

Mere Commercial Transaction Without 'Entrustment' Of Property For Specified Purpose Won't Attract Criminal Breach Of Trust: Kerala High Court

Case Title: Rajappan Assari v. State of Kerala

Citation: 2023 LiveLaw (Ker) 675

The Kerala High Court has reiterated that there ought to be an express or implied trust of property or entrustment for any specific purpose in order to attract the liability for criminal breach of trust as provided under Section 406 IPC.

Justice P. Somarajan explained that the mere existence of a commercial transaction and deposit of amount with any person or institution would not attract criminal breach of trust as defined under Section 405 IPC.

"A deposit of amount with a person, if it is intended for keeping the same without the liability of interest or any premium payable on that account would attract the criminal liability under Section 406 IPC, if it was dishonestly misappropriated, converted or dispossessed in violation of any direction prescribing the mode of its user or any legal contract. On the contrary, when the deposit is for the purpose of incurring interest, failure to return the amount as agreed would not canvass the criminal liability under Section 406 IPC, unless it constitutes entrustment of the said amount or any dominion over the property for any specific purpose either express or implied or to utilise the periodical interest for any such specific purpose, either express or implied. In short, a mere deposit of amount with any banker, financial institution or any person, if it is for getting interest, unless satisfies the abovesaid cardinal ingredients, cannot be brought under the purview of criminal breach of trust as defined under Section 405 IPC and no criminal liability can be fastened for the offence punishable under Section 406 IPC," the Bench observed.

Inaction Of Sports Council Led To Disputes Regarding Hockey Team For 2023 National Games: Kerala High Court

Case Title: Sunil D. Emmatty & Anr v. Union of India & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 676

The Kerala High Court recently berated the Sports Council for its failure to take any action when it received a report from the Observer as regards certain concerns in the elections to Kerala Hockey, that apparently led various issues including dispute as to the selection list of players to represent the State in the National Games in November, 2023.

"The irony is that if the “Sports Council” had completed their actions earlier, without having waited for nearly one and half years after the elections, the latter limb of the controversy would have never arisen. It is their inaction in the matter, which has led to the disputes regarding the Teams; but here again... they have acted only at the eleventh hour," Justice Devan Ramachandran observed.

S.197 CrPC | 'Excess' No Ground To Circumvent Sanction When Alleged Act Of Public Servant 'Reasonably Connected' With Official Duty: Kerala HC

Case Title: P.B. Prasobh & Ors. v. K.A. Muhammed Faisal & Anr.

Citation: 2023 LiveLaw (Ker) 677

The Kerala High Court held that the protection of sanction as provided under Section 197 Cr.P.C. would apply when the alleged act done by a public servant is reasonably connected with the discharge of his official duty.

Section 197 Cr.P.C. provides that when a public servant who is not removable from his office save by or with the sanction of the government, is accused in any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State or the State Government.

"...the protection given under Section 197 would be available when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. If there is a reasonable connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of the protection," Justice N. Nagaresh explained.

Independent Contractor Not Employee, His Dependants Not Entitled Under Employees Compensation Act: Kerala High Court

Case Title: Latha v T V Sahadevan

Citation: 2023 LiveLaw (Ker) 678

The Kerala High Court recently upheld an order passed by the Employees Compensation Commissioner (Industrial Tribunal), Idukki which rejected the compensation claim of the dependents of the deceased on the finding that he was an independent contractor and not an employee within the purview of the Act.

The deceased was an electrician and used to supply light and mike sets for conducting small programs and he died due to electrocution while connecting mike set for the function organized by the respondents.

Justice C. Pratheep Kumar observed that the deceased was an independent contractor and his work was not controlled by the respondents and was not an employee under the Act.

“The mike set used in this case belonged to the deceased. Since it was only a hiring of mike set for the purpose of a programme, there was no necessity for the deceased to do his work personally. Instead, he could have done the same by engaging his own employees. His work of connecting the mike set is not controlled by the respondents. In the above circumstances, it is to be held that deceased Babu was not an employee but an independent contractor. Therefore, the impugned order passed by the Commissioner is perfectly justified.”

Kerala High Court Refuses To Direct Govt To Mediate Unified Mass Dispute At St. Mary's Basilica, Says State Can't Intervene In Religious Matters

Case Title: Antony Joseph v. State of Kerala

Citation: 2023 LiveLaw (Ker) 679

The Kerala High Court refused to allow a plea seeking a direction to the Government to settle a dispute pertaining to unified Mass at St. Mary's Cathedral Basilica, Ernakulam.

The petitioners averred that the Church remained closed due to disputed between rival factions, and sought mediation involving eminent personalities such as the Arcbishop of Ernakulam, the Synod of Major Archiepiscopal Church of Ernakulam, the Athiroopa Samrakshana Samithi, the Commissioner of Police and the Station House Officer of Central Police Station and such others, to resolve the issue.

Justice Devan Ramachandran was of the considered view that the State or its functionaries could not intervene in the matter, since the same was of religious, and not temporal nature.

"...what the petitioner projects is exclusively a religious activity, into which normally, the State or its functionaries cannot intervene. This is well settled through a catena of judgments of this Court and the Supreme Court, and therefore, this Court cannot cause any deviation, merely because the petitioners seek a settlement between the warring factions," the Court observed.

Destitute Women And Children Made To Loiter In Courts, Parliament Should Think Of A Comprehensive Maintenance Law: Kerala High Court

Case Title: Rijas M T v, Hafseena M

Citation: 2023 LiveLaw (Ker) 680

The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation.

"Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time is ripe for the Parliament to ponder in bringing corresponding changes in Chapter IX of the Code [Order for Maintenance of Wives, Children and Parents] to make it consonance with the law declared in Rajnesh or even think of a comprehensive maintenance law," Justice CS Dias observed.

Real Estate Appellate Tribunal Can Appoint Commission For Getting Material Aspects Required For Settling Disputes: Kerala High Court

Case Title: P.V. Nidhish v. Sivaprakash

Citation: 2023 LiveLaw (Ker) 681

The Kerala High Court recently laid down that that the Kerala Real Estate Appellate Tribunal, which has special power to regulate its own procedure, can appoint a Commission as well, if the Tribunal is of the opinion that appointment of such a Commission is necessary for getting certain material aspects, which are required for the purpose of deciding the matter in controversy in between the promoter and allottee.

The Court added that the said power is not drawn from Order XLI Rule 27 of the Code of Civil Procedure (CPC). Order XLI Rule 27 of CPC specifies the conditions under which the court may permit parties to the appeal to present evidence at the appellate stage.

Perusing various provisions of the Real Estate (Regulation and Development) Act, 2016 ('Act, 2016'), Justice A. Badharudeen observed:

"....the Appellate Tribunal has the power to regulate its own procedure and the said power is given to deal with a matter, where the Appellate Tribunal requires anything to be done within the mandate of law for addressing the real dispute in between the litigants. It is apropose to note that Section 35 of the Act, 2016, in fact, gives wide power to the Authority to enquire and appoint one or more persons to make an inquiry in relation to the affairs of any promoter or allottee or the real estate agent, as the case may be. In the said circumstances, it is difficult to lay down law, holding that the powers of the Appellate Tribunal is much less than that of the Authority when the statute specifically provides power to the Appellate Tribunal to regulate its own procedure. To be more vivid, it could not be held that the power to appoint a Commission to have enquiry available to the Authority, is not available to the Appellate Tribunal".

Disabled Candidates Not Entitled To Bring Scribe Of Own Choice To Write Competitive Exam: Kerala High Court

Case Title: Shibli K v Union of India

Citation: 2023 LiveLaw (Ker) 682

The Kerala High Court has upheld the decision of Kerala Public Service Commission (KPSC) declining a PwD candidate's request to bring his own scribe to examination.

Stating that the decision was meant to rule out any possible misuse of the scribe during exam, the Court clarified that the Commission may itself allot a scribe to the candidate from the panel prepared by it.

Analyzing the objectives of the Rights of Persons With Disabilities Act (RPwD) and the circulars issued by the KPSC, the Division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar observed thus:

“The circular issued by KPSC contains provision for providing the service of a suitable scribe from a panel prepared by them to PwD candidates on request. Since the scribes are provided from the panel prepared by KPSC, it is also capable of ensuring the purity of competitive examinations and to rule out any manipulations. Therefore, it is to be held that the above circular issued by KPSC is capable of protecting the rights of persons with disabilities and to rule out the possibility of misuse of own scribe. In the above circumstance, the conduct of the fifth respondent in declining the prayer of the appellant to chose his own scribe and providing a scribe from the panel prepared by them cannot be said to be arbitrary or unreasonable.”

Enacting Laws In English Will Not Deter Growth Of Regional Language: High Court To Kerala Govt

Case Title: P.H. Babu Ansari & Anr. v. Municipal Council & Ors.

Citation: 2023 LiveLaw (Ker) 683

The Kerala High Court emphasized the need for publishing statutes and rules in English language, as envisaged in Article 348(3) of the Constitution.

Article 348(3) permits usage of any local language other than English for use in the Legislature of the State but requires that a translation of the same in the English language be published under the authority of the Governor of the State in the Official Gazette of that State which shall be deemed to be the authoritative text thereof.

Relying upon decisions such as Thanga Dorai v. Chancellor, Kerala University (1995), and Murali Purushothaman v. State of Kerala (2002), which emphasized upon the requirement of of an English text for a Bill, Act, or Ordinance, Justice Bechu Kurian Thomas explained,

"When a State like Kerala opens its invitation for people from all over the world to invest, it would be incongruous if the laws are incomprehensible to them. The importance of English as an international language of communication and comprehension within and outside the Country cannot be ignored. Parochial considerations have to be kept aside while contemplating growth and development of the State. Enacting laws in English as mandated by the Constitution in a diverse country like India, will not have any bearing on the growth of the regional language. On the other hand, it can enhance the growth potential of the State as an investment destination with better awareness about its laws. Therefore, this Court reminds the State Government to abide by the Constitutional obligation to prepare the texts of all Statutes, Rules and other enactments in English, lest this Court be compelled to issue appropriate directions in that regard".

Kerala High Court Rejects Assessee ’s Claim For Service Tax Refund To Meet VAT Demand On Pest Control Contract

Case Title: M/S.Gaiagen Technologies Private Limited Versus State of Kerala

Citation: 2023 LiveLaw (Ker) 684

The Kerala High Court has rejected the assessee's claim for a service tax refund to meet the VAT demand on the pest control contract.

The bench of Justice Anu Sivaraman has observed that the claim of the petitioner that the service tax authorities must be directed to meet the demand for VAT, if any, found payable by the petitioner cannot be accepted.

Can't Stifle Police Investigation Initiated At Orders Of Magistrate U/S 156(3) CrPC, Accused May Raise Challenge At Cognizance Stage: Kerala HC

Case title: Udayakumar v State of Kerala

Citation: 2023 LiveLaw (Ker) 685

The Kerala High Court has said that when a FIR is registered at the directions of a Magistrate under Section 156(3) CrPC, the High Court may not exercise jurisdiction under Section 482 CrPC and quash such FIR unless there are compelling and justifiable reasons.

Justice Sophy Thomas said that in such cases, the accused may raise a challenge if final report is filed charging him/her for a cognizable offence or if he/she is aggrieved by the order of the Magistrate taking cognizance of the offence.

It observed,

"Before conducting investigation as to whether the petitioner had committed a cognizable offence or not, and before a final report is filed charging him for the offences alleged, in normal course, he cannot challenge the investigation undertaken by Police, which was so directed by the Magistrate under Section 156(3) of Cr.P.C. When investigation undertaken by Police as ordered by the Magistrate under Section 156(3) of Cr.P.C. is in progress, this Court cannot interfere with the investigation, which is a statutory function exercised by Police. Unless there are compelling and justifiable reasons, there cannot be any interference with the investigation proceedings."

Principles Of Natural Justice Crucial To Transfer Orders, Prevent Stigma & Bias: Kerala High Court

Case Title: The Corporate Manager v. Beena Hilkushi and Ors.

Citation: 2023 LiveLaw (Ker) 686

A Division Bench of the Kerala High Court recently upheld order of a Single Judge, whereby the transfer order of a teacher working under Corporate Managers was quashed.

The Bench, comprising Justices A. Muhamed Mustaque and Shoba Annamma Eapen, observed that as the transfer order was issued in accordance with Rule 10(4) of the Kerala Education Rules ("KER"), the authorities should have ensured that principles of natural justice were followed by initiating enquiry and giving an opportunity of hearing to the teacher to prevent bias.

Mere Procedural Violations Not Sufficient To Vitiate Lok Adalat's Award Of Settlement: Kerala High Court

Case Title: Babumon K.G. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 687

The Kerala High Court has recently held that in order to vitiate an award passed by a Legal Services Authority, it would have to be established that the Authority had no jurisdiction to pass such an award, and mere procedural violations would not suffice.

A division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen dismissed an intra-court appeal against a single judge's order affirming an order passed at a Lok Adalat organised by the Taluk Legal Service Authority, Kochi, and held:

"Constitution itself defines the scope of judicial review. Any regulation made invoking the statutory provision cannot enlarge or expand the scope and width of Article 226 of the Constitution of India. Nevertheless, taking note of the regulation as above, we are of the view that the intention of regulation allowing a challenge on a threshold by judicial review is on a well defined parameter under Article 226 of the Constitution of India and nothing else. Thus, procedural violation, affecting jurisdiction, the court may be able to interfere with such Award passed and mere violation itself will not be sufficient to hold that it would vitiate the award. To vitiate the award, it must be found that the authority have no competency under any other provisions to hold such Adalath to pass an Award".

Kerala High Court Sets Aside Declaration Of Election Of Chairman Of Sree Keralavarma College Union; Directs Re-Counting Of Votes To Be Carried Out

Case Title: Sreekuttan S. v. Sree Keralavarma College & Ors.

Citation: 2023 LiveLaw (Ker) 688

The Kerala High Court set aside the declaration of Students Federation of India (SFI) candidate, Anirudhan K.S., as the Chairman of the College Union of Sree Keralavarma College, Thrissur, in the plea moved by Kerala Students Union (KSU) candidate alleging arbitrariness in the recounting of votes pertaining to the election to the said post and seeking the conduct of a re-election for the same.

The Single Judge Bench of Justice T.R. Ravi, observed that the counting and re-counting of votes that were done were not in accordance with the prescribed procedure.

[S.239 Municipality Act] Advance Notice Regarding Vacancy Of Building Mandatory To Claim Remission Of Property Tax: Kerala High Court

Case Title: P.N.Saseendran v. Kalamassery Municipality

Citation: 2023 LiveLaw (Ker) 689

The Kerala High Court has made it clear that advance notice has to be served to the Secretary under Section 239(3) of the Municipality Act in the half-year claiming remission for the succeeding half-year, otherwise, no remission of property tax could be granted.

Justice Dinesh Kumar Singh observed that advance notice was mandatory for claiming remission of property tax.

“In the present case, it is evident that after 2020-21, no valid notice has been delivered as is required under sub- section (3) of Section 239 of the Kerala Municipality Act. In the absence of the notice, there arises no occasion for the Municipality to grant remission of the property tax as claimed by the petitioner. Delivery of notice by the owner in advance to claim remission in the succeeding half-year of the financial year is sine qua non to claim remission.”

[S.451 CrPC] Interim Custody Of Elephant Can Be Given To Person Possessing Better Title, Symbolic Production Sufficient: Kerala High Court

Case Title: Jayakrishna Menon v State of Kerala

Citation: 2023 LiveLaw (Ker) 690

The Kerala High Court has recently held that when a property is produced before the Trial Court during an inquiry or trial under Section 451 CrPC, the Court can hand over the interim custody of the property to the person possessing a better title.

Section 451 CrPC pertains to the power of the criminal court to order for custody and disposal of property pending trials and the provision states that the ‘Court can order as it think fits for the proper custody of the property’.

In setting aside an order of the Judicial First-Class Magistrate Court, Karunagappally which dismissed the petitioner's plea for interim custody of the elephant, a single bench of Justice P.V.Kunhikrishnan observed:

“It is clear that the point to be decided at the stage of Section 451 Cr.P.C. is who is the best-suited person for possession of the property pending trial. If there are rival claimants, who has got the better title can be decided by the Court at the stage of Section 451 Cr.P.C. subject to the final decision to be taken under Section 452 Cr.P.C. upon the conclusion of the trial."

Magistrate Should Pass Speaking Order While Fixing Quantum Of Interim Compensation Under Negotiable Instruments Act: Kerala High Court

Case Title: Faizal Abdul Samad v. A.N. Sasidharan & Anr.

Citation: 2023 LiveLaw (Ker) 691

The Kerala High Court has reiterated that Courts are required to pass a speaking order while fixing the quantum of interim compensation under the Negotiable Instruments Act ('NI Act').

Perusing Section 143A(2) which states that interim compensation, varying from 1% of the cheque amount, up to 20% of the cheque amount could be ordered by the Court while trying a case for dishonour of cheque, Justice P.V. Kunhikrishnan, noted that the Court would be duty-bound to state the reasons while fixing the quantum.

"If a court of law decided to order the maximum limit prescribed in Section 143A(2) of NI Act, as far as the interim compensation is concerned, it is the duty of the court to give reasons for the same. Similarly if the learned magistrate is giving interim compensation of 1% of the cheque amount or 2% or 3% of the cheque amount as the case may be, the reason should be mentioned. A discretion is given to the learned magistrate to determine the amount that is to be ordered as interim compensation. When discretion is given to a court of law, it should be judiciously decided. In such circumstances, a speaking order is necessary especially in a case where the maximum 20% of the interim compensation is ordered by the learned magistrate as prescribed under Section 143A of the NI Act. Similarly, if the interim compensation ordered is below 20% of the cheque amount, then also a reason should be mentioned. Therefore, without giving reason for fixing 20% of the cheque amount as interim compensation, which is the maximum limit prescribed under Section 143A(2) of NI Act, that order cannot be treated as an order made after applying the mind and exercising the discretionary jurisdiction," the Court observed.

[KAAPA Act] When Detenu Absconds, Magistrate Shall Secure Immediate Presence By Treating Detention Order As Warrant: Kerala High Court

Case Title: Krishnapriya K P v. State of Kerala

Citation: 2023 LiveLaw (Ker) 692

The Kerala High Court has recently held that when a detenu under the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short “KAAPA Act”) absconds, the Magistrate Court shall treat the detention order issued against him as a warrant and initiate steps for compelling his immediate presence before the Court.

In allowing the release of the detenu in the present case, a division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen observed that in such cases, the Magistrate shall immediately initiate proceedings of proclamation and attachment of the detenu’s property as per the provisions of CrPC and KAAPA Act to secure his presence before Court. It opined:

“We order hereafter that the Magistrate Court, in the State of Kerala shall take note of this order when a detenu is ordered to be detained under the KAAPA Act is absconded and when a report is filed under Section 6(a) of the KAAPA Act, the Magistrate Court shall immediately proceed to secure the presence of detenu as though a warrant has been issued under the Code of Criminal Procedure and by proceeding in accordance with the proceedings of the Code of Criminal Procedure. All the steps taken by the Magistrate shall be intimated to the detention authority from time to time. Other wise, the non explanation delay would frustrate the very purpose of passing detention order under the KAAPA Act.”,

Cheque Dishonour | No Vicarious Liability On Directors If Company Acquitted Of Offence Under NI Act: Kerala High Court

Case Title: Afsal Hussain v. K.S. Muhammed Ismail & Anr.

Citation: 2023 LiveLaw (Ker) 693

The Kerala High Court recently held that the directors of a company are not liable to be convicted for an offence under Section 138 ('Dishonour of Cheque') of the Negotiable Instruments Act ('NI Act') when the company itself is not found to have committed the offence.

In setting aside an order of the trial court and acquitting the petitioner, a single bench of Justice Sophy Thomas observed:

"The liability of persons referred to in Section 141 of the N.I. Act ('Offences by Companies') is co-extensive with that of the company, firm or association of individuals, in a prosecution under Section 138 of the N.I Act. When it is found that the company has not committed the offence, and it is acquitted, its directors are not liable to be convicted, for the offence for which the company has been acquitted."

Kerala High Court Says Pollution Certificates For BS-IV, BS-VI Vehicles Valid For 1 Year

Case Title: S. Sadananda Naik v. The Ministry of Road Transport and Highways & Ors.

Citation: 2023 LiveLaw (Ker) 694

The Kerala High Court has set aside a government order ("GO") issued by Kerala State Government, prescribing uniform period of validity of Pollution Under Control (PUC) Certificate for all categories of vehicles, irrespective of whether they had been manufactured under BS-IV (Bharat Stage Emission Standards-IV) or BS-VI (Bharat Stage Emission Standards-VI) norms.

Justice Dinesh Kumar Singh observed that the impugned order/notification prescribed 6 months' validity for PUC Certificate in all categories of vehicles, which was violative of Rule 115(7) of the Central Motor Vehicle Rules, 1989 ("1989 Rules").

"It is well stated that executive order cannot overwrite the statutory prescription under the Act or Rules made thereunder. I find that the impugned Government notification so far as lying down for all categories of vehicles irrespective of whether manufactured under BS-IV or BS-VI norms six months validity for PUC is in violation of the statutory prescription under Sub Rule 7 of Rule 115," Justice Singh said.

Kerala High Court Dismisses Anticipatory Bail Pleas Of Restaurateur Alleged Of Causing Death Of Customer Who Consumed Adulterated Shawarma

Case Title: Shihad M.P. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 695

The Kerala High Court refused to grant anticipatory bail to the restaurateur of 'Le Hayath Restaurant', who was alleged to have caused the death of a customer through adulterated and non-consumable 'shawarma'.

Taking note of the serious nature of the prosecution allegations, as well as the violation of the mandatory guidelines issued to the hotels, Justice Mohammed Nias C.P. was of the considered view that proper investigation ought to be conducted in the matter.

"The menace of supplying adulterated food from restaurants can lead to various health issues, including food-borne illnesses, allergies and long term health issues, besides resulting in food poisoning, digestive problems and in severe cases, pose a threat to life itself. Under such circumstances, I am not inclined to grant anticipatory bail to the petitioner," the Court observed.

Kerala Local Authorities Act | Elected Party Member Subsequently Supporting Opposite Party Liable For Disqualification: High Court

Case Title: M. Liju v. Kerala State Election Commission & Anr.

Citation: 2023 LiveLaw (Ker) 696

The Kerala High Court laid down that a member elected under the name of one party who subsequently supports the opposite party would be disqualified for voluntarily giving up membership under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (' 1999 Act').

In upholding the disqualification of the 2nd respondent under the 1999 Act, for "voluntary giving up membership" of the party under which he was elected, by 'supporting the opposite party' in a no-confidence motion raised against his own party member, a single bench of Justice Bechu Kurian Thomas observed

"If the conduct of a particular member indicates that he had, after being elected under the banner of one party, supported the opposite party, the same is sufficient to attract the disqualification of voluntarily giving up membership."

Medical Negligence | Kerala High Court Refuses Compensation To 39-Yr-Old Woman Who Delivered 5th Child Despite Post-Partum Sterilization

Case Title: XXX v. District Collector & Ors.

Citation: 2023 LiveLaw (Ker) 697

The Kerala High Court refused compensation claim of a 39-year-old woman, who alleged that she conceived and gave birth to a fifth child despite having undergone Post Partum Sterilization (PPS) surgery due to the negligence of the doctor who performed the same.

After referring to several precedents and medical opinions which affirmed the possibility of a pregnancy even after PPS surgery in certain exceptional cases, Justice CS Sudha noted that the appellant/plaintiff had conceived and delivered her fifth child nearly 5 years after the PPS surgery.

"Had the surgery actually been a failure as alleged by the plaintiff (appellant mother), the chances or possibility of the plaintiff conceiving would have been much earlier...The time gap between the surgery and the plaintiff conceiving also probabilises the contention of the defendants that it was due to the natural cause referred to hereinabove that the plaintiff happened to conceive and deliver her 5th child and not due to any negligence or carelessness of the 2nd defendant (2nd respondent doctor) in carrying out the surgery," the court observed.

Case Title: Adv. Priyanka Sharma M R v State Of Kerala & Anr.

The Kerala High Court directed the competent authority of the State Government to issue necessary notifications under the OBC Advocate Grant Scheme for the years 2021-22 and 2022-23 for disbursal of annual grant of Rs. 12,000 to the eligible junior advocates.

Justice Devan Ramachandran stated that the benefit given to the young lawyers under the Scheme cannot be denied for no perceptible reason and observed that there was no reason for non-issuance of notification for the years 2021-22 and 2022-23. It directed thus: “Therefore, I allow this writ petition with a consequential direction to the competent authority of the first respondent to issue necessary notifications under the scheme in question both for the years 2021-22 and 2022-23 at the earliest but not later than one month from date of the receipt of the copy of the judgment consequent to which the second respondent or such other competent authority will ensure that the eligible young advocates are given the benefits thereunder.”

CMRL Bribery Case: Kerala High Court Appoints Amicus Curiae To Address Arguments Following Death Of Revision Petitioner

Case Title: Gireesh Babu v. State of Kerala & Anr.

The Kerala High Court appointed an Amicus Curiae in the revision petition filed by social activist, Gireesh Babu(since deceased), against the dismissal of a complaint seeking investigation into the alleged bribery carried out by high ranking public officials of the State in connection with the mining and other business interests of the Cochin Minerals and Rutile Ltd (CMRL) by the Court of the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha.

Justice K. Babu appointed Advocate Akhil Vijay as the Amicus Curiae in the matter today: "As the petitioner is no more, Akhil Vijay is appointed as the Amicus Curiae to address the arguments, for and on behalf of the petitioner," the Court said. The deceased petitioner had accused Veena Thaikandiyil (Veena Vijayan), daughter of Chief Minister Pinarayi Vijayan (2nd accused), and her company Exalogic Solutions Pvt. ltd. (1st and 7th accused respectively), of having received illegal consideration under the guise of her father.

Surrogacy Permissible Only If Altruism And Lack Of Financial Benefits Established: Kerala High Court Orders Police To Question Proposed Mother

Case Title: Shwetha Janardhan Barve v State of Kerala

The Kerala High Court directed the DIG, Thiruvananthapuram to conduct an enquiry and submit a report after interacting with a proposed surrogate mother and her family to ensure altruistic surrogacy.

The Court stated that permission can be granted for surrogacy only if altruism and lack of financial involvement are reasonably established. The Court was considering a plea submitted by the petitioners for the issuance of a medical indication certificate from the District Medical Board for undergoing surrogacy as per the Surrogacy (Regulation) Act, 2021.

Kerala High Court Stays Food Adulteration Proceedings Against 'Dalda Vanaspati

Case Title: Bhaskar Khandait And Others V State Of Kerala

The Kerala High Court stayed criminal proceedings initiated against 'Bunge Dalda Vanaspati' in Magistrate Court for allegedly violating the provisions of the Food Safety and Standards Act, 2006. The petitioners have approached the High Court for quashing criminal complaint filed against them by the Food Safety Officer, Majeri alleging food adulteration of their product, Bunge Dalda Vanaspati. They are booked under Section 3(1)(zz)(xii), Section 20, Section 26(1), Section 26 (2)(i), Section 27 (2) (c), Section 59 (i) and Section 66 of FSSA.

Justice P.V.Kunhikrishnan admitted the matter and granted an interim stay on all criminal proceedings initiated against the petitioners.

Kerala High Court Bans Bursting Of Firecrackers In Religious Places At Odd Hours, Says No Holy Book Prescribes It Pleases God

Case Title: Binoj K.B. & Ors. v. State of Kerala & Ors.

The Kerala High Court came down heavily upon bursting of firecrackers at odd hours in religious places. The Single Judge Bench of Justice Amit Rawal called upon all District Collectors in the State to conduct raids in all religious places and take into possession crackers illegally stored in all religious place, with the assistance of the Commissioners of Police.

"I...direct the Deputy Collector with the Assistance of the Commissioner of Police, Cochin and other districts, to conduct raids in all religious places and take into possession of the crackers illegally stored in all religious places and issue instructions that henceforth onwards no crackers shall be burst in religious places at odd time as prima facie there is no commandment in any of the holy book to burst crackers for pleasing the God," the Court observed.

Sree Keralavarma College Election Case: KSU Candidate Moves Kerala High Court Alleging Malpractice In Election Result

Case Title: Sreekuttan S. v. Sree Keralavarma College & Ors.

A plea has been moved in the Kerala High Court alleging arbitrariness in the recounting of votes pertaining to the election of the College Union Chairman at Sree Keralavarma College, Thrissur.

The petitioner, a specially-abled third Year B.A. Political Science student named Sreekuttan, had initially been declared as the Chairman of the College Union. Sreekuttan was the candidate of Kerala Students Union (KSU), student wing of the Indian National Congress. The petitioner stated that he had initially been declared as the winner by 1 vote, and KSU for the very first time in 41 years in the College.

Couple Moves Kerala High Court Seeking Regulation Of Midwifery Child Birth Centres Following Death Of Newborn

Case Title: Fathimathu Suhara v Union of India

The Kerala High Court suo moto impleaded the District Police Chief (Rural) Ernakulam as an additional respondent in a plea filed by a couple who allege that their newborn child died due to lack of proper care and medical treatment from the Cochin Birth Village, a natural birthing centre that offers midwifery care.

Justice Devan Ramachandran noted that the issue was serious and required quick action from the competent authorities. It directed thus: “Taking note of the seriousness of the issues impelled, I suo motu implead the District Police Chief (Rural) Ernakulam, Office of the District Police Chief, Aluva, Kerala, as an additional respondent and direct the learned Government Pleader to obtain specific instructions from the said Authority, as to what action has been taken or is proposed against the 2nd respondent and such other institutions.”

Case Title: K.R. Prasad v. M/S Star Health and Allied Insurance Co. Ltd.

Case Number: C.C. No. 403/ 2021

The Consumer Disputes Redressal Commission at Ernakulam recently awarded a sum of Rs. 1,20,000/- as compensation to a policy holder whose claim under the 'Corona Rakshak Policy' was rejected by M/S Star Health and Allied Insurance on the ground that the policy holder had not provided treatment records for bronchial asthma.

The Bench comprising President D.B. Binu, and Members V. Ramachandran and Sreevidhia T.N. was of the view that the complainant policy holder's Bronchial Asthma condition had not been definitively diagnosed, and the rejection of the claim on that ground alone would amount to an Unfair Trade Practice.

"The 'Corona Rakshak Policy' was crafted with heartfelt intent to offer solace and support to those battling the harrowing effects of COVID- 19. The insurance company's denial, after perusing the documents, feels like a betrayal of the principles of compassion and fairness. Such a cold and narrow-minded approach, rooted in technicalities, is deeply hurtful, especially during a time when the entire world was grappling with the shock of the pandemic. It's heart wrenching to see some of the insurance firms repeatedly dismiss claims on insubstantial grounds or mere technicalities. Their focus should be on empathy rather than loopholes. Imagine the despair of a man, shaken by the devastating impact of COVID- 19, who sought refuge in the security of a policy, only to be turned away. Think of the countless souls who, while mourning the loss of loved ones or battling the virus themselves, reached out to insurance companies for help, only to be given a myriad of reasons for denial. Such actions are not just unfair; they are profoundly inhumane," the Bench observed.

Kerala Court Sentences 62 Yr Old Man Accused Of Sexually Assaulting Minor Victim To 35 Yrs Imprisonment, Rs. 1.25 Lakhs Fine

Case Title: State v. Gopinathan Nair & Anr.

Case Number: SESSIONS CASE No.1073/2013

A Kerala Court recently sentenced a 62 year old to 35 years rigorous imprisonment and imposed a fine of Rs. 1.25 Lakhs for committing the offence of rape and penetrative sexual assault on a girl child, with mental disability.

The Fast Track Special Court Judge at Thiruvananthapuram Rekha R. passed the Order.

The prosecution case is that the 2nd accused person had committed the offences of rape and sexual assault on the child in January 2013, by taking advantage of her mental disability. The first accused had also been charged with offences, however, he passed away during the pendency of the proceedings due to which the charges were ordered to be abated.

Sree Keralavarma College Election Case: Kerala High Court Calls For Records From Returning Officer

Case Title: Sreekuttan S. v. Sree Keralavarma College & Ors.

Case Number: W.P.(C) No. 36659/ 2023

The Kerala High Court directed the Returning officer to produce the records pertaining to the election of College Union Chairman of Sree Keralavarma College, in the plea filed by the KSU Candidate Sreekuttan, alleging arbitrariness in the recounting of votes during the election.

Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.

Case Number: WP(Crl.) 110/ 2023

The Kerala High Court was informed by the State government that it would be dropping charges on the bribery allegations against Advocate Saiby Jose Kidangoor.

Advocate Saiby had been accused of collecting money from clients under the pretext of bribing High Court judges. The lawyer had approached the High Court seeking to quash the FIR that had been registered against him and to stay all further proceedings. The Single Judge Bench of Justice K. Babu was informed by the Public Prosecutor today that the investigating agency had submitted a report stating that it would be dropping the charges and further action against Advocate Kidangoor, on not finding evidence against him.

Kerala High Court Directs Removal Of Offensive Facebook Post Of Ex-Judge Against Asianet News Editor

Case Title: Mrs.Sindhu Suryakumar v State of Kerala

Case Number: WP(C)No.34989 of 2023

The Kerala High Court ordered the removal of the offending Facebook post made by former sub-court judge S Sudeep against the Executive Editor of Asianet News Network Sindhu Sooryakumar. The said post was made on July 03, 2023.

Justice Mohammed Nias C.P. admitted the case and passed an interim order directing the State Police authorities and Meta Platforms Inc (parent company of Facebook) to remove and to prevent further circulation of the Facebook post.

Lawyer Moves Kerala High Court Seeking Protective Legislation For Safety Of Members Of Law Community

Case Title: Adv. Vishnu Sunil Panthalam v State of Kerala

Case Number: WP (C) No. 36838/2023

A plea has been moved before the Kerala High Court by a lawyer seeking protective legislation for ensuring the safety of members of the law community.

Justice Devan Ramachandran yesterday remarked that the legal profession is a noble and dignified profession and enquired regarding instance of attack against lawyers within court premises. The Court has sought response from the Bar Council of Kerala.

Kerala High Court Defers Recovery Of Disability Pension From 26-Yr-Old Suffering From 80% Mental Disability For 3 Weeks

Case Title: Manidas R.S. & Anr. v. State of Kerala & Ors.

Case Number: W.P.(C) 38082 of 2023

The Kerala High Court deferred the recovery of the disability pension amounting to Rs. 1,23,900/- from a 26-year old for a period of 3 weeks.

Justice Devan Ramachandran also called for the records leading to the issuance of the impugned order by the Bhoothakulam Grama Panchayat directing the return of the disability pension drawn by the 1st petitioner, as well as the denial of the pension and other consequential benefits due to the latter.

Kerala High Court Directs Constitution Of Medical Board To Consider 22-Yr-Old Law Student's Plea Seeking Scribe Due To Fibromyalgia

Case Title: Abitha P. Sunil v. State of Kerala

Case Number: WP(C) NO. 37824 OF 2023(C)

The Kerala High Court directed the District Medical Officer, Thrissur ('DMO') and the Superintendent of the Thrissur General Hospital to constitute a Medical Board to consider the request of a 22 year old law student seeking the issuance of a Certificate so as to avail the assistance of a scribe for writing her upcoming exams.

Justice T.R. Ravi passed the Order, clarifying that the necessary certificates ought to be issued to the student on or before November 18, 2023.

Lawyer Moves Kerala High Court Challenging Bar Council Of India's Bar On Election Process For State Bar Councils

Case Title: C.P. Pramod v. Bar Council of India & Anr.

Case Number: W.P. (C) No. 38124/ 2023

A lawyer has approached the Kerala High Court challenging the Order issued by the Bar Council of India (BCI) interdicting State Bar Councils from initiating the process of election for constituting a new Bar council, despite the expiry of the term of the existing Bar Council.

Justice Devan Ramachandran today sought the response of the BCI and the Bar Council of Kerala (BCK) in the matter.

Kerala High Court Seeks Views Of Bar Members On Applications Submitted For Designation As Senior Advocate

The Kerala High Court has sought the views of the Members of the Bar on the applications submitted by various candidates for designation as 'Senior Advocates'.

The notice issued by the Registrar General of the High Court has invited the suggestions of the members of the Bar and other stakeholders to be made within 30 days. It has further been stated that the views on the proposed names received by the Court, shall be expressed and sent in writing to the Registrar General with the name and full address of the sender. The High Court has taken a stance not to entertain any anonymous petitions or recommendations in this regard.

Kerala High Court Stays State Government Order Mandating Installation Of Surveillance Cameras On Private Buses

Case Title: Kerala Bus Transport Association & Anr. v. State of Kerala & Anr.

Case Number: W.P. (C) 37758/ 2023

The Kerala High Court stayed the State government's order mandating the installation of security cameras in private buses.

The Transport Commissioner had issued Orders, mandating all private stage carriers in the State to be fitted with functional surveillance cameras as a precondition for renewal of their Certificates of Fitness from November 1, 2023. Justice Dinesh Kumar Singh issued the afore interim order staying the same, on a plea moved by the Kerala Bus Transport Association challenging the orders issued by the State. The Bench has also sought the response of the State government and the Transport Commissioner on the matter.

Farmers Who Sell Grains To Govt Can't Be Shown As Borrowers In Paddy Receipt Sheets, Their Credit Rating Can't Be Affected : Kerala High Court

Case Title: K Sivanandhan V State of Kerala and other matters

Case Number: WP(C) NO. 23267 OF 2023, WP(C) NO. 24835 OF 2023, WP(C) NO. 25152 OF 2023, WP(C) NO. 25410 OF 2023, WP(C) NO. 25575 OF 2023

The Kerala High Court held that farmers who sell their paddy to the Government of Kerala through Supplyco(Kerala State Civil Supplies Corporation) under the tripartite agreement cannot be treated as borrowers. It noted that under the tripartite agreement, Supplyco has to obtain loan from the bank to make payments to the farmers, so Supplyco is the borrower and not the farmers.

Justice Devan Ramachandran clarified that farmers cannot be shown as borrowers in the paddy receipt sheet under the paddy procurement scheme and their credit rating should not be affected.

'Madhu Lynching A Blot On Social Conscience & Cultural Fabric' : Kerala High Court Refuses To Suspend Sentence Of 12 Convicts

Case Title: Marakkar v State of Kerala

Case Number: Crl.Appeal No.598/2023 & connected cases

The Kerala High Court rejected the plea for suspension of sentence of 12 convicts out of the 13 convicts in case of brutal lynching of a mentally challenged tribal youth, Madhu, to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018.

The Division Bench comprising Justice P.B.Suresh Kumar and Justice P.G. Ajithkumar rejected the suspension of sentence of Marakkar (2nd accused), Shamsudheen (3rd accused), Radhakrishnan (5th accused), Aboobacker (6th accused), Sidhique (7th accused), Ubaid (8th accused), Najeeb (9th accused), Jaijumon (10th accused), Sajeev (12th accused), Satheesh (13th accused), Hareesh (14th accused) and Biju (15th accused) considering the nature of act of parading the deceased naked on the public road and humiliating him. It observed that the act of the accused left a blot on the social conscience and the cultural fabric of the society. It also noted that the accused persons threatened the mother of the deceased while denying suspension of sentence

Granting suspension of sentence and bail to Hussain (1st accused), the Court noted that the first accused was not a party to the group that paraded and humiliated the deceased. It observed that a separate criterion has to be adopted while considering the suspension of sentence of the first accused as he joined later and was not part of the group that captured, paraded and confined the deceased.

Verify Efficacy Of ‘My Kochi’ App For Septage Waste Collection : Kerala High Court To Cochin Corporation

Case Title: Treesa K.J. v State of Kerala

Case Number: WP(C)Nos.23911/2018 & Connected matters

The Kerala High Court directed the Secretary of the Cochin Corporation to verify the efficacy of ‘My Kochi’ app which is a mobile application developed by the Kochi Corporation for septage collection and to resolve public grievances regarding it.

Justice Devan Ramachandran directed the Standing Counsel of the Corporation to obtain specific instructions and to submit a report before the Court regarding the usage of the app for the purposes of septage waste collection and disposal.

Kerala High Court Seeks To Know Purpose Of Surrogacy Rules Amendment Barring Couples From Using Donor Oocytes

Case Number: WP(C) 37874/ 2023

A plea has been moved before the Kerala High Court challenging the recent amendment introduced by Central Government in the Surrogacy Regulations Rules, 2022. As per the new amendment introduced in March 2023, intending couples who wants to undergo surrogacy can only use their own gametes and not donor gametes. Before the amendment, the rule permitted the usage of donor oocytes for surrogacy.

During the hearing today, Justice Devan Ramachandran sought response from the Central and State Governments to know the purpose behind the amendment. The Court admitted the matter and noted that it was a serious and important issue.

[Farmer's Plea] Kerala High Court Directs Expert Committee To Submit Report On Paddy Procurement Process

Case Title: K.Mohanan v State of Kerala

Case Number: WP(C) NO. 30251 OF 2023

The Kerala High Court passed an interim order directing the Expert Committee constituted by the state government to submit report on the process of paddy procurement in the state.

Justice Devan Ramachandran passed the interim order while considering a plea moved by the paddy-cultivating farmers of Palakkad district who have approached the Court seeking for measures to revamp and improve the paddy procurement system.

Eateries Must Exhibit Date & Time Of Food Preparation On Packaging: Kerala High Court In 'Shawarma Death' Case

Case Title: Prasanna E.V. v. State of Kerala & Ors.

Case Number: W.P. (C) No. 19941 of 2023

The Kerala High Court directed the issuance of instructions to eateries to exhibit the date and time of preparation of food articles on its packaging.

The Court issued the direction while considering a plea by the mother of a 16-year-old who lost her life in 2022, upon consuming the dish, 'Shawarma'. Justice Devan Ramachandran in this regard, also directed necessary steps to be taken to create awareness in the minds of the public regarding the necessity to consume such food items within the stipulated time.

Case Title: Greeshma @ Sreekutty V The Deputy Superintendent Of Police

Case Number: Crl.MC 9206/ 2023

The Kerala High Court said that the validity of the final report submitted by the Deputy Superintendent of Police in the Sharon Raj murder case shall be considered by the Trial Court.

The allegation is that the final report was prepared and submitted by the Deputy Superintendent of Police, who headed the special investigation team and not by an officer in charge of a police station as per Section 173 (2) of CrPC.

The Court was considering a petition moved by Greeshma, who allegedly poisoned Sharon Raj to weasel out of their romantic relationship. Her mother and maternal uncle are also arrayed as co-accused for allegedly abetting the crime and for destroying the evidence.

Justice P.V. Kunhikrishnan directed thus:

“The main contention of the petitioner is that the final report filed in this case is not by a competent officer…..It is an admitted fact that the case is already committed and pending trial before the Additional Sessions Court- Trial For Abkari Act Cases, Neyyatinkara. In such situation, I am of the considered opinion that this point need not be considered by this Court at this stage. The petitioner shall file a petition before the Trial Court raising this point and the Trial Court will consider the same and pass appropriate orders in accordance with law.”

Consider Closure Report Filed In Bribery Case Against Advocate Saiby Jose Kidangoor In Two Months: Kerala High Court To Special Judge

Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.

Case Number: WP(Crl.) 110/ 2023

The Kerala High Court directed that the Special Judge of the Vigilance Court shall consider the final report submitted by the investigating agency within a period of two months. The Court noted that the police, after completion of the investigation, had submitted a final report under Section 173 CrPC stating ‘further action dropped’ against Advocate Saiby Jose Kidangaoor.

Advocate Saiby was accused of collecting money from clients under the pretext of bribing judges of the High Court. The Ernakulam Central Police Station had registered the FIR against Advocate Saiby, by invoking offences under Section 7(1) of the Prevention of Corruption Act, 1988 and Section 420 of the Indian Penal Code. The Court today noted that the police have completed the investigation and submitted the final report under Section 173 CrPC.

Justice K. Babu on perusing the final report submitted before it directed that the final report shall be considered by the Special Judge.

“The learned senior counsel appearing for the petitioner prayed for a direction to the Special Judge to consider the report in a time bound manner. The special judge shall consider the report in accordance with law within a period of two months from the date of production of the certified copy of this judgment." Accordingly, the petition was closed.

Temporary Magistrate Faces Kerala Lawyers' Protest Over Direction To Arrest Advocate

The Bar Council of Kerala (BCK) announced on Monday that it has received assurance from the Judge-in-charge of Malappuram, High Court Judge Justice N. Nagaresh, that the Magistrate who allegedly verbally abused a junior lawyer and directed his arrest, shall be transferred at the earliest.

Judicial First Class Magistrate (JFCM) on temporary service, Tirur, Lenin Das, was alleged to have verbally accused Advocate Favad Pathoor, for allegedly assisting a witness during chief examination, and went onto direct his removal from Court premises, and arrest by the police.

KSRTC Moves Kerala High Court Challenging All India Tourist Permit Buses Operating As Stage Carriages

Case Title: Kerala State Road Transport Corporation v. Union of India & Ors.

Case Number: W.P.(C) 38410/ 2023

The Kerala High Court considered a petition filed by the Kerala State Road Transport Corporation (KSRTC) seeking measures to restrict the operation of All India Tourist Permit vehicles through the nationalized routes and scheme covered ROUTES formulated under the Motor Vehicles Act, 1988 (MV Act, 1988).

During the hearing, Justice Dinesh Kumar Singh asked how KSRTC could challenge an amendment brought by the Central Government in the Rules, in this case.

Kerala High Court Restrains Kannur University From Approving Appointment Of General Category Candidate To PwD Reserved Post In College

Case Title: Jose Babu v. State of Kerala & Ors.

Case Number: W.P.(C) 38159 OF 2023 (T)

The Kerala High Court recently directed Kannur University to refrain from granting approval to the appointment of a general category candidate made by the Manager of Nehru Arts and Science College, on a post reserved for physically disabled candidates.

Justice T.R. Ravi issued the interim direction, and sought the response of the respondents in the matter.

Govt Portal Redesigned To Ensure Privacy Of HIV Patients Availing Schemes: Kerala Govt Tells High Court

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

Case Number: W.P.(C).No. 231 of 2023

The Principal Secretary of Revenue Department, Tinku Biswal, informed the Kerala High Court recently that Chief Minister’s Distress Relief Fund (CMDRF) portal has been redesigned to have a page exclusively for the HIV infected persons, which would exclusively be within the control of the concerned District Collectors or their authorized officers, in a bid to ensure the privacy of such applicants.

The development comes in a plea alleging that in order to avail the benefit of a Government Order granting HIV infected persons Rs. 6,000/- largesse every 6 months, the applicants who often below to the lowest income strata of society, would have to take the assistance of platforms such as Akshaya Centre for uploading their applications and medical documents, which leads to breach of their confidentiality and privacy.

The Single Judge Bench of Justice Devan Ramachandran was further told that a person could now apply on the portal with their Medical-cum-Life Certificate issued by a competent Anti-retroviral Therapy (ART) Centre, and that the District Collector or authorized officer would then verify the same, and send the documents to the concerned ART Centre for authentication.

Kerala High Court Stays GO Directing Release Of School Buses For 'Nava Kerala Yathra Program'

Case Title: Philip Joseph v. State of Kerala & Ors.

Case Number: W.P.(C) 38552 OF 2023

The Kerala High Court has stayed the State government's order directing headmasters to release school buses upon request of the organizing committees of Nava Kerala Yathra program.

Justice Devan Ramachandran issued the direction in a plea filed by the parent of a 9th grade student averring that as per provisions of the Kerala Motor Vehicle Rules and the permit granted to school buses, such buses could only be used for transportation of students and for other educational purposes.

Kerala High Court Transfers Temporary Magistrate Facing Lawyers' Protest Over Direction To Arrest Advocate

The Judicial First Class Magistrate (JFCM) on temporary service, Tirur, Lenin Das, who was alleged to have verbally abused a junior lawyer and directed his arrest, has been transferred to Kannur to the post of Additional Munsiff.

Bar associations had launched protests against the Magistrate following reports that the officer misbehaved with a young lawyer. The Magistrate was alleged to have verbally accused Advocate Favad Pathoor, for allegedly assisting a witness during chief examination, and went onto direct his removal from Court premises, and arrest by the police.

Following Closure Of Bribery Case, Advocate Saiby Jose Kidangoor Reinstated As President Of Kerala High Court Advocates Association

The Executive Committee of the Kerala High Court Advocate Association (KHCAA) has unanimously decided to appoint Advocate Saiby Jose Kidangoor as their President. The Executive Committee has taken this decision today based on Rule 12 of the KHCAA bye-law. As per Rule 12 of the bye-law, when there is a casual vacancy in the Executive Committee, they can fill up the vacancy by Co-option from among the members of the Association.

Kerala High Court Points Lacuna In Law After Adoptive Parents Seek To Annul Daughter's Adoption Upon Her Attaining Majority, Appoints Amicus

Case Title: Rajesh P.R. v. Child Welfare Committee

Case Number: WP(C) 35823/ 2023

The Kerala High Court orally pointed the lacunae in law after a couple, who had adopted a girl child (now a major), sought its permission to annul the adoption on the ground that she hasn't integrated into the family.

The Single Judge Bench of Justice Devan Ramachandran was of the firm view that the provisions relied upon by the petitioners' counsel could not be invoked, since the child had now turned 18-years-old, due to which the Child Welfare Committee ('CWC') could not be approached for annulling the adoption.

"The child was a child when adopted, now she’s a woman. How will you annul it?...And where will she be sent? CWC has lost control over her now. They are not in charge. From today, I must treat her as a woman since she is now 18, not as a child. And I have to ensure her safety. You’ve given up, its now for me to take care of her. CWC cannot do anything now. If I declare so, she’ll be left nowhere. So I have to make sure she’s protected right away and I need a specialized agency for that. I am worried," Justice Ramachandran orally noted.

'Why Can't Banks Be Instructed To Not Reduce Credit Rating Of Farmers Due To PRS Loans?' Kerala High Court Asks

Case Title: K Sivanandhan v. State of Kerala and other matters

Case Number: WP(C) NO. 23267 OF 2023, WP(C) NO. 24835 OF 2023, WP(C) NO. 25152 OF 2023, WP(C) NO. 25410 OF 2023, WP(C) NO. 25575 OF 2023

The Kerala High Court queried the State why an administrative order cannot be issued to Banks instructing them that the credit ratings of farmers would not be reduced on account of Paddy Receipt Sheet (PRS) loan, and that SupplyCo would take full responsibility to ensure the same.

Justice Devan Ramachandran made this oral observation while considering a batch of petitions filed by aggrieved farmers who sold their paddy to the State Government through Supplyco but had not received any payment in return. The Court had disposed the writ petitions, directing payments to be disbursed to the farmers without delay.

CrPC Amendment Allowing Electronic Service Of Summons Notified In Kerala

Kerala Government has notified the Code of Criminal Procedure (Kerala Second Amendment) Act, 2023 providing for summons to be served electronically, in addition to the other modes.

The Bill amends Sections 62 and 91 of the Code of Criminal Procedure (Cr.P.C.), which stipulates the procedure for serving summons, and summons to produce document or other thing, respectively.

Kerala High Court Admits Investigating Officer's Plea Requesting UIDAI To Disclose Biometric Data To Nab Culprit From Fingerprint

Case Title: State of Kerala represented by the Deputy Superintendent of Police Crime Branch Wayanad v. UIDAI Represented by Deputy Director General & Others

Case Number: WP (CRL.) 1156/2023

The Kerala High Court recently admitted a plea moved by a Wayanad Investigating Officer requesting order to UIDAI (Unique Identification Authority of India) to compare the sample fingerprint collected by him (believed to be of a culprit) with its biometric data and disclose identity of the Aadhaar holder.

Justice PV Kunhikrishnan admitted the matter and served notice on Central Government Counsel for Deputy Director, UIDAI and Secretary of the Ministry of Electronics and Information Technology.

[Transitioning To Paperless Courts] Kerala Court Permits ED To Furnish Digital Copies Of 26,000 Page Documents To 55 Accused Persons

Case Title: Directorate of Enforcement v. Bijoy A.K. & Ors.

Case Number: Crl. M.P. No. 1140/ 2023

A Kerala Court permitted the Directorate of Enforcement (ED) to furnish digital copies of documents having 26,000 pages to be furnished to 55 accused persons, instead of hard copies.

The decision has been instrumental in enabling the ED to save around Rs. 17 lakhs of central exchequer, which was the expected expenditure it would have incurred in supplying hard copies of the documents.

The Special Sessions Judge Shibu Thomas passed the Order in a case filed by the ED against 55 persons accused of various offences under the Prevention of Money Laundering Act (PMLA), and the Indian Penal Code, 1860 (IPC).

Can't Use Children For Non-Educational Activities Like Govt's 'Nava Kerala Sadass': High Court

Case Title: P.K. Navas v. State of Kerala & Ors.

Case Number: W.P. (C) No. 39398 OF 2023

Reinforcing the fundamental right to education, the Kerala High Court has made it clear that schools and educational authorities can't compel children to participate in activities of non-educational colour, such as state government's 'Nava Kerala Sadass'.

The programme envisages direct interaction of top officials with the people and redressal of their grievances. Employees in public service and aided institutions are asked to participate in the program in the respective districts and ensure maximum participation of public, which has resulted in hindrance to the functioning of public offices, and educational institutions.

Justice Devan Ramachandran said, "...the right to education is a constitutionally protected right, which enures to every student and child, notwithstanding their class, creed or status; and it is the duty of the Educational Authorities to protect this, rather than encourage them into activities, which are in non-educational color," the Court observed.

Bar Council Of Kerala To Enquire On Kottayam Lawyers Agitation Against Chief Judicial Magistrate

The Bar Council of Kerala has constituted a Sub-Committee comprising K. P Jayachandran, Joseph John, K. K Nazzer , S. Sudarsanakumar, K.R Rajkumar and P.A Mohammed Sha for inquiring into the reasons that led to the Kottayam lawyers’ agitation against the Chief Judicial Magistrate and the subsequent developments. K. P Jayachandran is the Convenor of the Sub-Committee and Joseph John is the Member Secretary of the Sub-Committee. The Sub-Committee shall visit the Kottayam Court Centre and submit a report before the Bar Council within a period of seven days.

The advocates of the Kottayam Bar Association abstained from attending court proceedings on Thursday to protest against the initiation of criminal proceedings against Advocate Nawab M.P. based on a complaint of the Chief Judicial Magistrate. Pursuant to this, there were protest marches held in the Kottayam Court Centre against the Chief Judicial Magistrate.

Kerala High Court Gives ED Nod To Issue Fresh Summons To KIIFB, Former Minister Dr. Thomas Issac In 'Masala Bonds' Case

Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter

Case Number: WP(C) 26228/ 2022 and WP(C) 25774/ 2022

The Kerala High Court granted permission to the Enforcement Directorate (ED) to issue fresh summons to Kerala Infrastructure Investment Fund Board (KIIFB), and former Minister, Dr. T.M. Thomas Issac, in relation to the masala bonds case.

ED had issued summons to KIIFB, and the then Finance Minister, Dr. Issac, alleging violations of provisions under the Foreign Exchange Management Act (FEMA) for raising funds by issuing rupee-denominated bonds (masala bonds) abroad.

KIIFB and Dr. Issac thus filed separate petitions before the High Court challenging the issuance of the same.

Justice Devan Ramachandran took note of the submission of the Additional Solicitor General of India (ASGI) A.R.L.Sundaresan, instructed by Standing Counsel for ED Jaishankar V.Nair, that ED was willing to issue fresh summons to the petitioners and other persons who were within the scope of investigation.

Cricketer Sreesanth Moves Kerala High Court For Anticipatory Bail In Cheating Case

Case Title: S. Sreesanth v. State of Kerala

Case Number: Bail Appl. 10582/ 2023

Indian Cricketer S. Sreesanth has approached Kerala High Court seeking anticipatory bail in a cheating case.

When the matter was taken up, Justice Mohammed Nias C.P. asked the State not to take any coercive action against the Cricketer till the next date of posting on November 28, 2023 (Tuesday).