Nominal Index [Citation: 2022 LiveLaw (Ker) 603-617]Mani C Kappen v. Sunny Joseph & Ors. 2022 LiveLaw(Ker) 603Kuriachan Chacko & Ors v. State of Kerala & Ors. and Joy John & Anr v. State of Kerala & Ors. 2022 LiveLaw (Ker) 604Suo Motu v. Baiju Kottarakkara 2022 LiveLaw (Ker) 605Suhadath K.K. v. Shihab K.B. & Anr. 2022 LiveLaw (Ker) 606Aswin Krishna Prasad v. State...
Nominal Index [Citation: 2022 LiveLaw (Ker) 603-617]
Mani C Kappen v. Sunny Joseph & Ors. 2022 LiveLaw(Ker) 603
Kuriachan Chacko & Ors v. State of Kerala & Ors. and Joy John & Anr v. State of Kerala & Ors. 2022 LiveLaw (Ker) 604
Suo Motu v. Baiju Kottarakkara 2022 LiveLaw (Ker) 605
Suhadath K.K. v. Shihab K.B. & Anr. 2022 LiveLaw (Ker) 606
Aswin Krishna Prasad v. State of Kerala & Ors. 2022 LiveLaw (Ker) 607
Devika K.D. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 608
M.K. Surendrababu v. Kodungalloor Town Co-Op Bank Ltd. & Ors. and other connected cases 2022 LiveLaw (Ker) 609
Prasoon Sunny v. State of Kerala & Ors. 2022 LiveLaw (Ker) 610
Union of India & Anr v. Pavithran K. & Anr and other connected cases 2022 LiveLaw (Ker) 611
Hombale Films LLP v. The Mathrubhumi Printing and Publishing Co. Ltd. & Ors. 2022 LiveLaw (Ker) 612
Sujith A. V. v. State of Kerala and Anr. 2022 LiveLaw(Ker) 613
XXXXX v. State of Kerala 2022 LiveLaw(Ker) 614
Tino Thankachan v. State of Kerala & Anr. 2022 LiveLaw (Ker) 615
M.A. Hakkim v. M/S Patanjali Agro India Pvt. Ltd. and connected cases 2022 LiveLaw(Ker) 616
Praicy Joseph v. Regional Transport Officer (Registration Authority), Ernakulam & Anr. 2022 LiveLaw (Ker) 617
Orders/Judgments This Week
Case Title: Mani C Kappen v. Sunny Joseph & Ors.
Citation: 2022 LiveLaw(Ker) 603
The Kerala High Court has held that the petitions filed under the Representation of People Act, 1951 come within the ambit of orders passed by the Apex Court extending the period of limitation in the wake of the widespread COVID-19 pandemic.
Justice C. Jayachandran observed:
"The expression "all other proceedings" as employed in the original order dated 23.03.2020 and "any other laws which prescribed period(s) of limitation for instituting proceedings" as employed in orders dated 08.03.2022, 27.04.2021, 23.09.2021 and 10.01.2022 leaves no room for any doubt that the Supreme Court intends to extend the period of limitation/outer limit fixed under any enactment. This Court, therefore, finds little merit in the contention of the petitioner that the benefit of the orders extending limitation is not applicable to a proceeding under the Representation of the People Act, 1951".
Case Title: Kuriachan Chacko & Ors v. State of Kerala & Ors. and Joy John & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 604
The Kerala High Court on Friday held that inclusion of events/ materials in the additional charge sheet, that are subsequent to filing of initial final report, is legally permissible. It added that as long as the evidence collected and the subsequent events point towards the commission of crime for which the report has been filed, the investigating agency would be justified in collecting such materials also and is in fact bound to forward it with the report.
The Single Judge Bench of Justice Bechu Kurian Thomas was of the view that determining as to whether such materials are relevant or even admissible are to be agitated during the trial. "The right of the investigating agency to collect all evidence cannot be cribbed, cabined or crippled. The Investigating Officer has to unearth the real truth behind the alleged crime so as to serve the ends of justice. In the said process, if he chances upon or collects materials that are even subsequent to the filing of the initial final report, it cannot be stated as a legal proposition that those materials cannot be included in the further final report or that they are prohibited. Under section 173(8) Cr.P.C, the officer has the power to obtain further evidence, both oral and documentary. The term 'further evidence' cannot be interpreted restrictively as including only those that were prior in time to the initial final report. Such evidence, if collected and included in the further final report, will be a matter to be appreciated, as mentioned earlier, at the time of trial", the Court observed.
Case Title: Suo Motu v. Baiju Kottarakkara
Citation: 2022 LiveLaw (Ker) 605
The Kerala High Court on Monday closed the suo motu criminal contempt proceedings against Malayalam film director Baiju Kottarakkara that had been initiated against him for making abusive remarks during a news channel discussion against a trial court judge, who is hearing the 2017 actor abduction and assault case.
The division bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C. P. disposed of the case after Kottarakkara tendered an unconditional apology. "Taking note of the averments in the additional affidavit filed by the respondent before this Court, and having viewed the contents of the compact disc wherein the respondent has tendered an unconditional public apology for his actions, we deem it appropriate to take a lenient view in the matter and close this Contempt of Court Case, by accepting the aforesaid unconditional apology tendered by the respondent contemnor. We also accept and record his undertaking that he will exercise due care and caution in future, while making comments in relation to the judiciary on public platforms, keeping in mind that incorrect and irresponsible statements made in public have the propensity to undermine public", the Court observed.
Case Title: Suhadath K.K. v. Shihab K.B. & Anr.
Citation: 2022 LiveLaw (Ker) 606
The Kerala High Court on Friday upheld the Magistrate Court's order granting an amount of Rs. 31,68,000/- as maintenance to a divorced woman under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Single Judge Bench of Justice Kauser Edappagath observed that the parties hail from financially strong backgrounds and have a "very high" standard of living. It reiterated, "It is trite that the court while fixing the reasonable and fair provision of maintenance to be paid to a divorced woman shall keep in view the status of parties, capacity of the former husband to pay maintenance and also other attendant circumstances. The amount so fixed must be enough to take care of the future needs of a woman in the prevailing socio-economic...It has come out in evidence that both the petitioner and the 1st respondent are hailing from very financially well settled families and their standard of living was very high."
Case Title: Aswin Krishna Prasad v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 607
Ruling that neurostimulator is neither a treatment nor a cure, the Kerala High Court on Monday declared a 19-year-old, who suffers from primary generalised dystonia — a movement disorder that causes the muscles to contract involuntarily, eligible to be included in the 5% quota for admission of persons with disabilities in KEAM-2022 exam. "Consequently, the Commissioner for Entrance Examinations is directed to include the petitioner's name in the provisional list of PwD candidates," said the court.
The teenager, who had a pulse-generator or neurostimulator implanted in 2016 had applied for the common admission to professional degree courses through KEAM-2022. Since he has a bench disability of 40 percent, he claimed reservation meant for PwDs. The State Medical Board had found the petitioner suitable for all courses except fisheries, but not eligible for PwD quota since he was found to be having zero percentage disability with the neurostimulator.
Justice V.G. Arun observed that the pulse-generator (neurostimulator) that had been implanted in him to provide relief to his dystonia symptoms was neither a treatment nor a cure.
Case Title: Devika K.D. v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 608
The Kerala High Court recently held that the previous opinion of the Advisory Board, which led to the revocation of the earlier detention order, and even the revocation of such detention order, are crucial materials which ought to be examined and considered by the detaining authority before it takes a decision for another detention under the Kerala Anti-Social Activities (Prevention) Act, 2007.
The Division Bench comprising Justice Alexander Thomas and Justice Sophy Thomas, observed, "...the non consideration of such relevant materials is fatal and the decision making process ... is liable to be interdicted".
The court added:"It was the bounden duty of those authorities, more particularly, the detaining authority, to consider the impact and effect of the said opinion of the Advisory Board, to decide as to whether the ingredients of Section 13(2) are duly fulfilled. It is all the more necessary when the Advisory Board, in its previous opinion, has pointed out specific procedural flaws and that therefore, the parameters in clause (iii) of Section 13(2) would then be highly relevant and prominent. So, at least after such due consideration by the detaining authority, the non confidential part of the opinion of the Advisory Board, in favour of the detenu, which led to the revocation of the previous detention order, and the order of the State Government, revoking the previous detention order, should have been made available to the detenue concerned, as well as for the consideration of the detaining authority, as they are relevant and crucial".
Case Title: M.K. Surendrababu v. Kodungalloor Town Co-Op Bank Ltd. & Ors. and other connected cases
Citation: 2022 LiveLaw (Ker) 609
Commenting on the delay in adjudication of cases, the Kerala High Court recently observed that introspection by the judiciary is also necessary or otherwise, people will lose faith in the system. The court directed its Registrar General and Registrar (Judiciary) to bring to the Chief Justice's notice the old writ petitions pending in different jurisdictions and take appropriate steps in accordance with his directions.
Justice P.V. Kunhikrishnan said some of the writ petitions are pending for about 20 years in the high court and blamed the Registry for "the sorry state of affairs". "I am forced to say that there are some latches on the part of the registry also for this sorry state of affairs. It is the duty of the registry to report before the jurisdictional roaster judge about the old cases, after getting permission from the Honourable Chief Justice. The jurisdictional judge may not be knowing about the old cases because in High court, the usual practice is that, once the cases are admitted, unless there is an urgent memo or a petition for an early hearing or other petitions for any directions, it will not be listed except for final hearing," said the court.
Kerala High Court Asks Jail Authorities To Ensure Privacy In Lawyer-Client Meetings
Case Title: Prasoon Sunny v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 610
The Kerala High Court on Friday directed the State and prison authorities to explore the possibility of providing sufficient space for advocates and clients to privately interact in jails.
While Senior Government Pleader Tek Chand submitted that there are space constraints in certain sub-jails, Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed, "...there should be sufficient space for the advocates and clients, to interact, and privacy should also be taken note of". The Court was dealing with a petition filed by Advocate Prasoon Sunny stating that there is no privacy for lawyer-client interactions in jails.
Case Title: Union of India & Anr v. Pavithran K. & Anr and other connected cases
Citation: 2022 LiveLaw (Ker) 611
The Kerala High Court on Tuesday held that a Government servant who retires on the last working day of the preceding month and whose annual increment falls due on the first of the succeeding month is not entitled for sanction of annual increment for the purpose of pension and gratuity.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. passed the above order in a batch of petitions filed by Union of India against the order of Central Administrative Tribunal holding the retirees to be entitled to the same.
Case Title: Hombale Films LLP v. The Mathrubhumi Printing and Publishing Co. Ltd. & Ors.
Citation: 2022 LiveLaw (Ker) 612
The Kerala High Court on Wednesday dismissed as not maintainable the petitions filed by Hombale films (producer of Kantara movie), against the ad-interim injunction orders passed by the Palakkad District Court and the Kozhikkode District Court restraining the use of song 'Varaha Roopam' in the movie. It was held that the remedy before the High Court cannot be invoked when other remedies are available against the interim orders. The injunction orders were passed in the copyright infringement suits filed alleging that "Varaharoopam" was plagiarised from the song "Navarasam" of Kerala-based band Thaikkudam Bridge.
The High Court bench of Justice C.S. Dias observed that the petitioner had approached the Court under Article 227 of the Constitution of India, completely bye-passing the procedure laid down in the Code of Civil Procedure, while dealing with applications under Order 39 of the Code. "The supervisory jurisdiction of this Court is not to be exercised to inter-meddle with every ad-interim order passed by the subordinate courts. If that is the case, the Courts of original jurisdiction and appellate Courts will become defunct, and this Court will be flooded with such litigation, unsettling and dislodging the legislative framework laid down under the Code", it observed, while dismissing the petitions.
Case Title: Sujith A. V. v. State of Kerala and Anr.
Citation: 2022 LiveLaw(Ker) 613
The Kerala High Court on Friday reiterated that a prosecution witness who was examined in chief, cross-examined and re-examined, cannot be compelled to appear before the Court as Defence Witness under Section 233(3) CrPC. Section 233(3) CrPC provides that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
Justice A. Badharudeen relying on the law laid down by the Apex Court in State of Madhya Pradesh v. Badri Yadav observed that: "Thus the law is very clear on the point that the provisions of the sub-section 3 of Section 233 CrPC could not be understood as one compelling the attendance of any prosecution witness, who was examined in chief already, cross-examined and reexamined, to be examined as a defence witness".
Non-Reporting Of Child Sexual Abuse Is A Bailable Offence Under POCSO Act: Kerala High Court
Citation: XXXXX v. State of Kerala
Citation: 2022 LiveLaw(Ker) 614
The Kerala High Court on Thursday held that the offence punishable under Section 21 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is a bailable offence. Section 21 makes the failure to report an offence under POCSO Act punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment can extend upto one year.
Justice Bechu Kurian Thomas said if the statute does not declare a particular offence as bailable or non-bailable, reference has to be made to the schedule attached to the CrPC.
The court noted Section 21 of POCSO Act makes contravention of Section 19 and Section 20 of the Act punishable but by itself does not declare the offence to be a non-bailable offence."A reading of the Schedule to Cr.P.C. extracted above evidences that if, under other laws, the offence is punishable with imprisonment for less than three years or with fine only, the offence is bailable and non-cognizable. It is thus evident that section 21 of the POCSO Act, which provides for a punishment of six months or a maximum of one year, is a bailable offence," said the court.
Promise Of Marriage Made To A Married Woman Cannot Become A Basis For Rape Case: Kerala High Court
Case Title: Tino Thankachan v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 615
The Kerala High Court on Tuesday reiterated that a man's promise to marry an already-married woman is not enforceable in law, and any sexual relation between them on the basis of such a promise would not attract the ingredients of Section 376 of the Indian Penal Code.
Quashing a rape case registered by the Punaloor Police Station in 2018, Justice Kauser Edappagath observed that the married woman voluntarily had sex "with her lover" and she knew pretty well that she cannot enter into a lawful marriage with him as she was already married. "Recently this Court in XXX Vs. State of Kerala [2022 KHC 296] has held that the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC".
Case Title: M.A. Hakkim v. M/S Patanjali Agro India Pvt. Ltd. and connected cases
Citation: 2022 LiveLaw(Ker) 616
The Kerala High Court recently reiterated that the intention of the parties to an agreement, as to the seat of arbitration, can be determined from their conduct.
Justice N. Nagaresh was dealing with a case where the Sale Contract between the parties prescribed Haridwar as the seat of arbitration but the subsequent High Sea Sale Agreement prescribed Kollam as the seat. While determining the question as to which of the above seats would be final, the High Court observed, "Intention of the parties as to the seat of arbitration should be determined from other clauses in the agreement and the conduct of the parties...As the initial Sales Contracts were specifically made contingent upon signing of "mutually acceptable" High Sea Sales Agreements and the subsequently executed and "mutually acceptable" High Sea Sales Agreements specified that arbitration should be held at Kollam, the joint intent of the parties can only be taken as one deciding that the seat of arbitration should be Kollam." The bench further observed, "Contracts are to be interpreted according to their purpose. The purpose of contract is the interest, objectives and values that the contract is designed to actualise. It comprises joint interest of the parties".
Prima Facie New Vehicle Having Temporary Registration Can Ply On Roads: Kerala High Court
Case Title: Praicy Joseph v. Regional Transport Officer (Registration Authority), Ernakulam & Anr.
Citation: 2022 LiveLaw (Ker) 617
The Kerala High Court on Wednesday held that prima facie a car dealer can deliver a new motor vehicle to the owner on the strength of a temporary certificate of registration issued under Section 43 of the Motor Vehicles Act, 1988, after assigning a temporary registration mark under Rule 53C of the Central Motor Vehicle Rules, 1989.
Justice P.V. Kunhikrishnan held that distinguishing between persons who obtained permanent registration number and those who are awaiting a 'fancy' permanent registration number, particularly when both paid the entire consideration, tax and insurance amount, is prima facie discriminatory.
Other Significant Developments
Case Title: Suo Motu v. Union of India & Ors.
The Kerala High Court, in a special sitting convened on Saturday, directed the Travancore Devaswom Board to inform citizens through the Virtual-Q platform that for the time being, no tour operator in aviation sector has been granted permission for helicopter facility at Nilakkal. The said direction was issued in light of a Limited Liability Partnership, namely, Enhance Aviation Services Ltd. offering 'Sabarimala Ayyappa Darshan Helicopter Service Package' without requisite permissions.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed, "Considering the fact that Sabarimala and its vicinity has been declared as Special Security Zone in terms of the notification issued under Section 83(1) and (2) of the Kerala Police Act, 2011 and taking note of various aspects of crowd management and other security aspects in Sabarimala, as pointed out in the report of the Assistant Inspector General of Police, which we have referred to in the order dated 10.11.2022 in SSCR No.23 of 2022, various directions have been issued restricting the movement of vehicles from Nilakkal and prohibiting parking of vehicles on the roadside from Nilakkal to Pamba. Despite all such restrictions, the 11th respondent offered darshan and other facilities to Sabarimala pilgrims as part of its 'Helicopter Service Package' without obtaining any permission whatsoever from the Travancore Devaswom Board".
Kerala Chief Justice S. Manikumar Waylaid By Drunk Man In Kochi; Accused Arrested
The Kerala High Court Chief Justice S. Manikumar's official vehicle was stopped by a person near Goshree Bridge in Kochi around 2 am on Monday, according to media reports.
The reports said that Chief Justice Manikumar was returning from the airport through the Container Road, when the accused person, who has been identified as Tijo, jumped in front of the vehicle and started hurling verbal abuses against the state's senior-most judge. The Muluvukad police have registered a case against the accused upon a complaint received from the Chief Justice's security staff, namely Antony Perera, and have arrested him.
Case Title: State of Kerala v. Eldose Kunnappilly
The Kerala High Court on Monday reserved its order on the petitions seeking cancellation of the order granting anticipatory bail to Congress MLA Eldhose Kunnappilly in the case accusing him of rape and attempt to murder of a woman.
Justice Kauser Edappagath, during the arguments today, said: "Even in a case where 100 times you consent for sexual relations, if you do not give consent to the 101st time, it amounts to rape. No doubt".
Case Title: M/S Adani Vizhinjam Ports Pvt Ltd & Ors v. Dr. V.P. Joy IAS & Ors.
The Kerala High Court on Tuesday said that protestors in Vizhinjam need to comply with its orders for unhindered ingress and egress to Adani Project site.
Justice Anu Sivaraman said: "There is the authorization by this court to see that ingress and egress is provided. It is not as if the police or Central forces are powerless. It is only to see that there is no law and order situation, and the people who are there are not put to peril. Please don't take that as a trump card. It is not very difficult to see that the order is complied with. Just removing the pandhal is not a difficult proposition for anybody. To say that there is some kind of inability either in this court to pass an order or in the police to carry out that order is a misapprehension".
Case Title: State of Kerala v. Sreeram Venkitaraman
The State Government has approached the Kerala High Court against the Additional Sessions Court I, Trivandrum order dismissing the culpable homicide charges against IAS Officer Sriram Venkitaraman and his friend, Wafa Firoz, in the alleged drunk driving case related to the death of journalist K.M. Basheer in 2019.
The Sessions Court, while dropping the charges under Section 304 which provides punishment for culpable homicide and Section 201, which penalizes causing disappearance of evidence of offence or giving false information, last month had however maintained that the other charges under Sections 304 A (causing death by negligence) and 279 (rash and negligent driving) of the IPC and Section 184 of the Motor Vehicles Act would stand. Venkitaraman had argued that there was no evidence regarding him having driven the vehicle in a drunken state.
R. Baji v. Kerala State Road Transport Corporation Ltd.
The Kerala High Court on Thursday asked the State government to formulate a permanent solution or scheme for resolving the issues faced by KSRTC in dispensing salary to its employees.
Justice Devan Ramachandran was hearing the petitions filed by the employees of Kerala State Road Transport Corporation seeking direction to the Corporation and its Managing Director to formulate a scheme for payment of salary to its employees at least before the 5th day of every month.
Case Title: Babu Thomas v. Mini Antony IAS & Anr.
The Kerala High Court on Wednesday directed the Secretary to the Government, Food and Civil Supplies Department, and the Director of the Civil Supplies Office of the Commissioner of Civil Supplies to implement its directions to disburse arrears, if any, payable to the Ration Dealers, for distribution of COVID-19 Free Food Kits and Onam kits.
Justice N. Nagaresh was dealing with a contempt plea, filed by the Organizing Secretary of All Kerala Retail Ration Dealers' Association stating that the Department has not complied with High Court's direction dated February 2, 2022.
Case Title: State of Kerala v. Sreeram Venkitaraman
The Kerala High Court on Friday stayed the order dropping culpable homicide charges IAS Officer Sreeram Venkitaraman in the 2019 rash driving case.
Admitting State's appeal against the order passed by the Additional Sessions Court I, Trivandrum, Justice Ziyad Rahman A.A., said: "Considering the facts and circumstances of the case, I am inclined to pass an interim order. Accordingly, it is ordered that the operation of the order dated 19.10.2022 in Crl. M.P. 2325/2022 in SC No. 595/2021 shall stand stayed for a period of 2 months". The Court has also issued notice to the respondent herein.
A suo motu case alleging professional misconduct has been registered by the Bar Council of Kerala against the lawyers of a Kochi-based law firm.
The case has been initiated against Advocates B.A. Aloor, Prasanth K.P., Anuraj S., Krishnenthu Suresh, Vishnu Dileep, and Mohammed Ameer of Aloor Associates on the basis of media reports stating that they "created dramatic scenes" in the court "in connection with the incident of gangraping a 19-year-old girl in Kochi."