Kerala High Court Annual Digest 2022: Part-III [Citations 445-671]

Dr Joseph Skariah v. Vice Chancellor (Selection Committee Chairman) 2022 LiveLaw(Ker) 446

Mohammed Kasim H.K. v. Union Territory of Lakshadweep & Anr. 2022 LiveLaw (Ker) 447 

Sooraj V. Kumar v. State of Kerala 2022 LiveLaw(Ker) 448

Vidya Gopan & Anr v. High Court of Kerala & Ors. 2022 LiveLaw (Ker) 449

Anuvarudeen v. Sabina 2022 LiveLaw(Ker) 450

Madeswari v. K. Manickam 2022 LiveLaw (Ker) 451

Anoop v. State of Kerala & Ors. 2022 LiveLaw(Ker) 452

Noorul Islam Samskarika Sangham v. The District Collector, Malappuram & Ors. 2022 LiveLaw (Ker) 453

Usha Bai & Ors v. Pandikasalya Niyas & Ors. 2022 LiveLaw (Ker) 454

Nisha Vellapan Nair v. The Mahatma Gandhi University & Anr. and Reka Raj v. Nisha Vellapan Nair & Anr. 2022 LiveLaw(Ker) 455

Rubber Wood India Pvt Ltd & Ors v. Manojkumar P.S. & Ors. and Rubber Board v. Manojkumar P.S. & Ors. 2022 LiveLaw(Ker) 456

James Robert Edward Peirce & Ors. v. Anna Mathew & Ors. 2022 LiveLaw(Ker) 457

Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors. 2022 LiveLaw(Ker) 458

Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2022 LiveLaw (Ker) 459

Fathima Thazkiya O v. National Medical Commission and Connected Cases 2022 LiveLaw(Ker)460

Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors. 2022 LiveLaw (Ker) 461

C.P. Pappachan v. State of Kerala & Anr. 2022 LiveLaw (Ker) 509

Sheeba George v. State Election Commission & Ors. 2022 LiveLaw (Ker) 510

Nishad Mathew v. State of Kerala & Anr. 2022 LiveLaw (Ker) 511

The General Manager South Railway v. R. Haridrakumar 2022 LiveLaw (Ker) 512

Muhammad Afreethi v. Mahatma Gandhi University & Anr. 2022 LiveLaw (Ker) 516

State of Kerala & Anr. v. Veluswamy & Ors. 2022 LiveLaw (Ker) 517

Selvara A. & Ors. v. State of Kerala & Ors. and Walayar Milk Producers Cooperative Society Ltd. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 518

The Kerala State Insurance Department v. P. Rajan & Ors. 2022 LiveLaw (Ker) 519

Lalan P. R. & Anr v. Chief Registrar General of Marriages (Common) & Anr. 2022 LiveLaw (Ker) 520

Sreenath Bhasi v. State of Kerala & Anr. 2022 LiveLaw (Ker) 521

State of Kerala v. Civic Chandran and XXXXX v. State of Kerala 2022 LiveLaw (Ker) 522

Prakash Karat & Ors. v. State of Kerala & Anr. 2022 LiveLaw(Ker) 523

Solaman v. The State Police Chief and Ors. 2022 LiveLaw(Ker) 524

Suhasini v. State of Kerala & Ors. 2022 LiveLaw(Ker) 525

Chorayil Kunhiraman v. Sharaful Islam Madrassa Committee 2022 LiveLaw (Ker) 526

G. Nagendran v. Kerala State Electricity Board & Anr. 2022 LiveLaw (Ker) 527

Praveen K.R. & Anr v. State of Kerala & Ors. 2022 LiveLaw (Ker) 528

Rinu Sreejaya Aswan @ Rinu S Aswan v. Union of India & Ors. 2022 LiveLaw (Ker) 529

State of Kerala v. Civic Chandran @ V. Kuttan and XXXXX v. State of Kerala 2022 LiveLaw (Ker) 530

Muhammed Shafi & Ors v. State of Kerala & Ors 2022 LiveLaw (Ker) 531

K. T. Rajendran v. Director General & Ors. 2022 LiveLaw (Ker) 532

Jithin @ Kannan v. State of Kerala & Anr. 2022 LiveLaw (Ker) 533

The Manager, Sree Vivekananda Higher Secondary School v. State of Kerala & Ors and Other Connected Cases 2022 LiveLaw (Ker) 534

Pavithralal B. R. v. Union of India & Ors. 2022 LiveLaw (Ker) 535

M. Shabeer v. Anitha Bajee & Anr. 2022 LiveLaw (Ker) 536

Case Title: Flemingo Duty Free Shop Private Ltd. versus Airports Authority of India

Citation: 2022 LiveLaw(Ker) 445

The Kerala High Court has ruled that allegation of bias cannot be raised as a ground to seek substitution of Arbitrator under Section 29A of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Single Bench of Justice Sathish Ninan held that there is a stark difference between the substitution of an Arbitrator under Section 15(2) and the substitution of the Arbitrator under Section 29A (6) and hence, the request for substitution of an Arbitrator on the ground of bias will not come within the scope of substitution under Section 29A (6) of the A&C Act.

Kannur University Case| Kerala High Court Stays Appointment Of Priya Varghese As Associate Professor Till 31st August

Case Title: Dr Joseph Skariah v. Vice Chancellor (Selection Committee Chairman)

Citation: 2022 LiveLaw(Ker) 446

The Kerala High Court on Monday stayed the appointment of Priya Varghese, wife of K.K. Ragesh, private secretary to Chief Minister Pinarayi Vijayan as an Associate Professor at the Department of Malayalam in Kannur University till August 31st.

Justice Devan Ramachandran has passed the interim order staying the appointment of Priya Varghese as an associate professor in a petition filed by the second rank holder in the list.

Kerala High Court Grants Anticipatory Bail To BJP General Secretary Of Lakshadweep Accused Of Holding National Flag With 'Saffron Down'

Case Title: Mohammed Kasim H.K. v. Union Territory of Lakshadweep & Anr.

Citation: 2022 LiveLaw (Ker) 447

The Kerala High Court on Friday granted anticipatory bail to the BJP State General Secretary of Lakshadweep accused of insulting the national flag by holding it with 'saffron down'. Mohammed Kasim HK had been booked under Section 2 of the Prevention of Insults to National Honours Act, 1971.

Justice Viju Abraham granted pre-arrest bail on noting that custodial interrogation of the petitioner may not be necessary, considering the nature of allegations.

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

Citation: 2022 LiveLaw(Ker) 452

The Kerala High Court on Friday directed the State Government and the CBSE to issue necessary orders making it mandatory for every school in the state under their control to include a "Prevention-Oriented Program on Sexual Abuse" in the curriculum.

Justice Bechu Kurian Thomas expressing his anguish at the alarming rise in the number of sexual offences committed on school children and noticing that, in many instances, the perpetrators themselves were students, observed that the voice of the victims of sexual abuse should not be suppressed, and it is only through education that the victim can be empowered to speak out.

Case Title: Usha Bai & Ors v. Pandikasalya Niyas & Ors.

Citation: 2022 LiveLaw (Ker) 454

The Kerala High Court recently, while disposing of a Rent Control Revision Petition, held that making available parking space for building visitors is a valid reason for tenant's eviction under Section 11(3) Kerala Buildings Act, 1965.

Division Bench consisting of Justice Anil K. Narendran and Justice P. G. Ajithkumar, relying heavily on the High Court's decision in similar matters, clarified that in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord.

Court In Area Where Minor Ordinarily Resides Has Jurisdiction In Guardianship Case, Citizenship Of Child/ Parents Has No Bearing: Kerala High Court

Case Title:James Robert Edward Peirce & Ors. v. Anna Mathew & Ors.

Citation: 2022 LiveLaw (Ker) 457

The Kerala High Court recently held that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".

A Division Bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that citizenship or domicile of the father of a child, or the fact that rightly or wrongly the child had acquired a foreign passport, will have no bearing in determining the jurisdiction.

Can't Deny Occupancy Certificate For Constructions Granted Building Permit Prior To S.27A Kerala Conservation Of Paddy & Wet Land Act: High Court

Case Title: Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors.

Citation: 2022 LiveLaw(Ker) 458

The Kerala High Court recently, while disposing of two Writ Petitions, held that an Occupancy Certificate cannot be denied on the ground that the land where the building is constructed is a paddy land or wetland in respect of a building which was constructed as per a valid building permit issued prior to the coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland 2008 Act (30.12.2017).

Justice N. Nagaresh observed that when an application for an Occupancy Certificate in respect of a building which was constructed as per a valid building permit issued prior to 30.12.2017 is made, the Authorities cannot take umbrage under Section 14 to deny an Occupancy Certificate to the building on the ground that the land where the construction was made is a paddy land or wetland.

Whether Subordinate Judges' Courts Have Jurisdiction To Grant Leave, Try & Dispose Of Suit Filed U/S 92 CPC? Kerala HC Refers Issue To Larger Bench

Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors.

Citation: 2022 LiveLaw (Ker) 459

Recently, the Kerala High Court expressed its doubt as to the validity of an earlier Single Judge decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others, which had held that it was only the Principal District Judge which had the jurisdiction to grant leave for institution of a suit under Section 92 of the Code of Civil Procedure (CPC).

On noting that the above decision does not lay down the correct position of law, Justice C.S. Dias was of the considered view that the question regarding whether the Court of the Subordinate Judge is competent to grant leave to institute a suit and, thereafter, to try and dispose of the suit under Section 92 of the Code of Civil Procedure 1908, was to be decided by a Bench of two or more Judges, and thus, directed the Registry to place the same before the Chief Justice who may take the appropriate decision in this regard if deemed necessary.

NMC Direction For Govt Fee In 50% Seats Won't Apply To Private Medical Colleges & Deemed Universities In Kerala : High Court

Case Title: Fathima Thazkiya O v. National Medical Commission and Connected Cases

Citation:2022 LiveLaw(Ker) 460

The Kerala High Court recently held that the direction issued by the National Medical Commission(NMC) that the fee in 50% of seats in Private Medical Colleges and Deemed Universities should be at par with the fees in Government medical colleges will not apply in the State of Kerala.

The Court held so taking note of the fact that there is no concept of "Government Quota" or "Management Quota" in private medical colleges in Kerala and that the fees of private medical colleges are fixed by a statutory body, Admission and Fee Regulatory Committee(AFRC).

Experience Cannot Substitute Duration Of Service Required By UGC Norms: Kerala High Court

Case Title: Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors.

Citation: 2022 LiveLaw (Ker) 461

The Kerala High Court on Tuesday observed that when the UGC norms mandate 8 years of continuous service in the post of 'Reader' in order to be eligible for promotion as 'Professor', then the experience gained by a person in a post which had been gained by him pursuant to an appointment which had hitherto been declared as 'illegal' by the Court would not be sufficient to act as substitute in order to make the person eligible.

The Division Bench comprising of Justice P.B. Suresh Kumar and Justice Mary Joseph, in the review petition before it, observed that when there are norms stipulating the qualifications which have been laid down by the UGC and which are unambiguous, the Court could not substitute the same with its own interpretation to benefit a person.

Case Title: Das @ Anu v. State of Kerala

Citation: 2022 LiveLaw (Ker) 560

The Kerala High Court on Friday ruled that the protection guaranteed under Article 20(3) of the Constitution of India does not extend to protecting an accused from being compelled to give his blood sample during the investigation of a criminal case.

Justice Kauser Edappagath said the privilege of Article 20(3) is applicable only to testimonial evidence and drawing DNA samples from the body of an accused in a criminal case, especially in a case involving sexual offence, will not violate his right against self-incrimination protected under Article 20(3). "The right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusion of evidence taken from his body when it may be material."

S.138 NI Act | Director Cannot Be Prosecuted For Cheque Dishonour Without Arraying Company As Accused: Kerala High Court Reiterates

Case Title: Kallar Harikumar v. Amritha Enterprises Pvt Ltd & Anr.

Citation: 2022 LiveLaw(Ker) 561

The Kerala High Court has reiterated that when a cheque issued by a company is dishonored, prosecution under Section 138 of the Negotiable Instruments Act against its Director shall not sustain if the company is not arrayed as an accused.

Justice A. Badharudeen relying on the law laid down by the Apex Court, observed that prosecution against the director of the company merely for the reason that the director had signed the cheque shall not sustain if the company is not arraigned as an accused in the case. "In this case, admittedly, the cheque was issued for and on behalf of a company and the company is not arraigned as an accused. Therefore, in view of the above legal position, the entire prosecution is vitiated and accordingly, the concurrent finding of conviction and sentence are liable to be set aside".

It Is For Principal To Raise Before Police Any Law & Order Situation In College: Kerala High Court Denies Protection To Part-Time Lecturer

Case Title: Mathew P. Thomas v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 562

The Kerala High Court on Tuesday refused to grant police protection to a part time lecturer at St. Thomas College, Kozhencherry, who pleaded that he was being harassed and threatened by members of the Students Federation of India (SFI), following what he claimed to be a "frivolous complaint" filed against him for questioning the unauthorized absence of two girls in his class.

Justice Anu Sivaraman, passed the order after noting the submissions made in this regard by the Station House Officer of Aranmula Police Station, and the Principal of the College, and observed that it would be for the Principal to raise the issues of law and order before the police, if any such situation is prevalent in the College.

Kerala High Court Quashes Order For Transfer Of Sessions Judge Who Made Controversial "Sexually Provocative Dress" Remark

Case Title: S. Krishnakumar v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 563

The Kerala High Court on Wednesday set aside the order for transfer of Kozhikode Principal District & Sessions Judge, S. Krishnakumar, who made controversial 'sexually provocative dress' remark Civic Chandran's case.

A Division Bench consisting of Justice A K Jayashankaran Nambiar and Justice Mohammed Nias C P while allowing the judicial officer's writ appeal and quashed the order of Registrar General, transferring him to the post of Presiding Officer, Labour Court, Kollam, observed that: "...although his transfer order states that his transfer is in the exigencies of service, the circumstances under which he was transferred, and that too to a post that is not perceived by those in the service, to be of the same status as that of the Principal District & Sessions Judge in the Higher Judicial Service in the State, persuades us to view the same as punitive in nature and unfair to the appellant".

'Employer Can't Act Arbitrarily On Grant Of Leave To Employee': Kerala High Court, Allows Postal Assistant To Take 1 Year Leave For PhD

Case Title: Rousha P Ali v. Union Of India

Citation: 2022 LiveLaw(Ker) 564

Observing that the State cannot act arbitrarily and unfairly when it comes to grant of leave to employees, the Kerala High Court Tuesday directed the department of posts to permit a Postal Assistant to take an extraordinary unpaid leave of one year to enable her to pursue a PhD Course in Malayalam.

The division bench of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nambiar C. P said: "While we are aware that the grant of leave to an employee in the prerogative of the employer it does not follow that an employer who answers to the description of 'state' under Article 12 of the Constitution can act arbitrarily and unfairly in such matters".

'Basic Wages' For EPF Contribution Includes 'Interim Wages' Paid As Per Wage Board Direction: Kerala High Court

Case Title: Mangalam Publications (India) Pvt. Ltd. v. Employees Provident Fund & Ors.

Citation: 2022 LiveLaw (Ker) 565

The Kerala High Court on Wednesday said that 20% wages that had been paid to workers by the employer as 'interim relief' at the direction of government constituted Wage Board would come within the ambit of 'basic wages' for contributions under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

Justice P.V. Kunhikrishnan said that such 'interim relief' would not fall within the exceptions carved out for basic wages in Section 2(b)(ii) of the Act. The bench observed, "It is an admitted fact that 20% of the wages are paid as interim relief to all the employees. At no stretch of the imagination, this Court can conclude that this will come within the purview of Section 2(b)(ii) of the Act, 1952."

[POCSO Act] Unilateral Bail Cancellation Without Hearing Accused Not Legal: Kerala High Court

Case Title: Muhammed Yasin v. Station House Officer & Anr.

Citation: 2022 LiveLaw (Ker) 566

The Kerala High Court on Wednesday reiterated that while hearing an application for cancellation of bail, even of an accused booked under the POCSO Act, an opportunity of hearing must be accorded to the accused. It condemned the action of a local Fast Track Court which cancelled the bail of the Petitioner herein, an accused under Sections 354A(I)(i) IPC and Sections 9 and 10 of the Protection of Children from Sexual Offences Act, 2012, with an opportunity of hearing. The bail cancellation was sought on the ground that the accused-Petitioner had contacted the victim child and violated other bail conditions.

Justice Kauser Edappagath, while setting aside the bail cancellation order, observed that, "When the cancellation of bail is sought either on the ground of post conduct of the accused like violation of the conditions of the bail or on the ground of the occurrence of supervening circumstances, the court must issue notice to the accused to explain why the bail granted to him should not be cancelled. He should also be given a fair opportunity of hearing. The order cancelling the bail unilaterally without hearing the accused cannot withstand legally".

'No Specific Allegation Of False Promise of Marriage': Kerala High Court Quashes Rape Case Against Lawyer

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

Citation: 2022 LiveLaw (Ker) 567

Quashing a rape case against a lawyer, the Kerala High Court on Thursday said there is no specific allegation in the prosecutrix's statement that he had given a false promise to marry her based on which she had been induced into a sexual relationship. The prosecution case was that the accused had sexual intercourse with the woman on the basis of a false promise of marriage. Though the woman had given her no objection for quashing the proceedings, the public prosecutor had argued that the high court cannot quash a rape case even if the dispute has been settled between the parties.

Observing that the allegation is "so vague" and that woman has not been even able to disclose the dates of of alleged sexual intercourse, Justice Kauser Edappagath said admittedly the couple was in a consensual relationship for the past four years.

Hit & Run Cases: Kerala High Court Explains Procedure To Claim Compensation Under 1989 Solatium Scheme

Case Title: V.K. Bhasi v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 568

The Kerala High Court recently embarked upon a detailed analysis of the Solatium Scheme of 1989 framed by the Central Government under Section 163(1) of the Motor Vehicles Act, 1988 which provides for compensation in hit and run accidents.

Justice P.V. Kunhikrishnan was of the opinion that the general public is not aware of the Scheme or the competent authority to be approached in order to submit an application for getting compensation in 'hit and run' cases. "A reading of Sections 161 to 163 of the Act, 1988 and the Solatium Scheme, 1989, will show that it is a complete code and a time limit is also prescribed for paying the compensation in 'hit and run' motor accident cases. The victims of hit and run motor accident cases should invoke the above provisions and the statutory compensation available to them should be utilised," the bench said while explaining the Scheme in detail.

Kerala High Court Orders Release Of Electricity Charges To Private College Requisitioned As COVID Treatment Centre

Case Title: Mount Zion College of Engineering v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 569

The Kerala High Court recently directed the District Collector, Pathanamthitta to disburse electricity charges to a private college which was used as a Covid First Line Treatment Centre from May 21 to December 20 in 2020.

Justice V.G. Arun passed the order directing the officer, who is also Chairperson of Disaster Management Authority, to disburse the amount within an outer limit of two months.

Lodha Committee Recommendations On BCCI Reforms Not Applicable To District Cricket Association Elections: Kerala High Court

Case Title: Devanandan M.C. & Ors. v. The Board of Control for Cricket in India & Ors

Citation: 2022 LiveLaw (Ker) 570

The Kerala High Court has said that Justice R.M. Lodha Committee recommendations do not apply to the district cricket association elections.

Justice N. Nagaresh in a judgement delivered on Monday said the Committee and the apex court in Board of Control for Cricket v. Cricket Association of Bihar and others intended to make reforms in the governance of BCCI and bring the state cricket associations (SCAs) in harmony with such reforms, adding the top court has categorically held in its decision that the composition of the SCAs will remain unaffected "and so does the right of those forming such Associations under Article 19(1)(c)."

UR Category Candidates Can Be Excluded From Selection Process If Statute Disentitles Their Consideration Even In Absence Of Reserved Category Candidate: Kerala HC

Case Title: Sree Sankaracharya University of Sanskrit and Anr. v. Divyata Nedungadi alias Divya Balakrishnan and Anr.

Citation: 2022 LiveLaw(Ker) 571

The Kerala High Court on Thursday observed that Unreserved Category Candidates can be excluded from the selection process itself, if the statute disentitle their consideration for vacancies earmarked for a particular reserved category, even in the absence of suitable candidates.

Division bench consisting of Justice P.B. Suresh Kumar and Justice C.S Sudha said that permitting open category candidates to participate in such selection process will only give them "false hopes".

CBI Not Liable To Furnish Information Under RTI Act, Exempted U/S 24: Kerala High Court

Case Title: S. Rajeev Kumar v. The Director, Central Bureau of Investigation

Citation: 2022 LiveLaw (Ker) 572

The Kerala High Court recently observed that the Central Bureau of Investigation (CBI) is not liable to furnish any information sought under the RTI Act, as it is included in the second schedule in contemplation of Section 24 of the RTI Act which exempts certain organisations from the Act. As per Section 24 of the RTI Act, the Act shall not apply to the intelligence and security organisations specified in the Second Schedule, being organizations established by the Central Government or any information furnished by such organizations to that Government. [Information pertaining to allegations of corruption and human rights violations are not exempted.]

Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that as per a notification issued by the Government in 2011, CBI, NIA and National Intelligence Grid are included in the Second Schedule to RTI Act, and therefore, CBI is not liable to furnish any information. "Therefore, it can be seen that once CBI is included in the second schedule in contemplation of Section 24 of the Act, 2005, the said organization is not liable to furnish any information".

Statute 66 Of Calicut University Enables Incumbent In Lower Category To Claim Promotion Only To Immediate Next Higher Grade: Kerala HC

Case Title: State of Kerala & Ors v. M.V. Dines & Anr.

Citation: 2022 LiveLaw (Ker) 573

The Kerala High Court last week ruled that Statute 66 of Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching Staff) First Statutes, 1979 enables an incumbent in a lower category to claim promotion only to the immediate next grade.

Allowing Kerala government's appeal against a single judge decision, the division bench of Justice P.B. Sureshkumar and Justice C.S. Sudha rejected the argument that promotion need not be from the immediate lower category only and can be effected from any of the lower categories.

[Custody Battle] Children Have Right To Company Of Both Parents, Severing Contact With One Parent Snaps Emotional & Psychological Bond: Kerala HC

Case Title: NG v. AKG & Ors.

Citation: 2022 LiveLaw(Ker) 574

The Kerala High Court recently reiterated the settled position that while considering custody matters, Court must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of the parents.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed that if the child is denied the opportunity to interact with one of the parents, it certainly will cause "snapping of the emotional and psychological bondage". While stating so, the bench took note of the position in Yashita Sahu v. State of Rajasthan (2020) where the Supreme Court held that child has a human right to have the love and affection of both parents. "Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation and every re-union may have a traumatic and psychosomatic impact on the child," the SC had said.

Economic Backwardness Or Social Stigma No Reason To Transgress Statutory Prohibition & Grant Permission For Termination Of Pregnancy: Kerala HC

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

Citation: 2022 LiveLaw(Ker) 575

The Kerala High Court on Monday observed that economic backwardness or the possibility of social stigma cannot be a ground for transgressing the statutory prohibition prescribed by the Medical Termination of Pregnancy Act and granting permission for medical termination of pregnancy.

Justice V G Arun observed, "In the absence of any medical reasons referable to the petitioner or the foetus, economic backwardness or possibility of social stigma cannot compel this Court to transgress the statutory prohibition and grant permission for medical termination of pregnancy".

Kerala University First Statutes Imposing Upper Age Limit For Professors Contrary To UGC Regulations, Can't Operate: High Court

Case Title: Sebastian Joseph & Anr v. The University of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 576

The Kerala High Court recently held that when the UGC Regulations on Minimum Qualifications for appointment of Teachers in Universities and Colleges (UGC Regulations 2018) does not impose any upper age limit for the position of Professor, any stipulation in the Kerala University First Statutes 1977 cannot hold to the contrary.

Justice Devan Ramachandran observed, "...when the "UGC Regulations 2018" has deliberately and consciously refused to impose the stipulation of an upper age limit for the purpose of appointment as a Professor, I fail to understand how any such contra - stipulation in the "First Statutes" of the Kerala University, particularly when it was introduced as early as in the year 1986 – much before the "UGC Regulation" were framed - can operate to the detriment of persons like the petitioners".

Candidates Whose 'Interests Would Be Jeopardised' Necessary Party To Cases Challenging Appointment: Kerala High Court

Case Title: Dr Ferosh M Basheer v. The University of Kerala and Ors.

Citation: 2022 LiveLaw(Ker) 577

The Kerala High Court recently observed that in cases filed challenging the selection of a candidate to a post, the persons "whose interests would be jeopardised" by the outcome of the proceedings must also be arrayed as parties to the petition.

The division bench of Justice P. B. Suresh Kumar and Justice C. S. Sudha said: "As such, in a case of this nature, not only candidates whose interests would be affected directly on account of the outcome of the proceedings, but also candidates whose interests would be jeopardised, are necessarily to be arrayed as parties to the writ petition."

Indulging In Similar/ Other Criminal Activity Amounts To 'Supervening Circumstance' For Bail Cancellation: Kerala High Court Reiterates

Case Title: Sreeja Mannangath v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 578

The Kerala High Court on Tuesday reiterated the settled position of law that misuse of liberty granted to an accused person by indulging in similar/other criminal activities, thereby violating conditions imposed in the bail order, would amount to a 'supervening circumstance' in order to their cancel bail.

Justice A. Badharudeen passed the order while considering the petition for cancellation of bail moved by the de facto complainant/petitioner since the accused resorted to disturbing her with an attempt to outrage her modesty and committing overt acts, after his release on bail. "...It has to be held that the accused herein has no respect to the Court order and he has been repeatedly disturbing the defacto complainant in violation of the condition imposed by this Court. Therefore, these are supervening circumstances which would tempt this Court to exercise the power of cancellation of bail", the Court observed.

Kerala High Court Directs Authority Notified By Central Govt U/S 79A IT Act To Record Voice Sample Of Accused For Investigation

Case Title: Abu Thahir v. State of Kerala and Anr.

Citation: 2022 LiveLaw(Ker) 579

The Kerala High Court on Monday reiterated that recording voice sample of accused does not violate his right against self-incrimination under Article 20(3) of the Constitution and directed that the recording and testing of voice samples as part of the investigation be done in a Centre as notified by the Central Government as per Section 79A of Information Technology Act. The provision stipulates that the Central Government may, for the purpose of providing expert opinion on electronic form of evidence before any Court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Taking view of this, Justice A. Badharudeen modified the impugned order to the extent it directed the petitioner (accused in an NDPS case) to appear before the Director of All India Radio Station, and ordered him to appear before the Cyber Forensic Division, State Forensics Science Laboratory, as it is the centre notified under Section 79A of IT Act. "...who is the person capable of recording the voice sample of the petitioner? In fact, Section 79A of the IT Act, authorises the Central Government to issue notification in this regard. Therefore, the voice sample also can be collected by the Cyber Forensic Division, State Forensics Science Laboratory, Vellayambalam, Thiruvananthapuram".

Kerala High Court Extends Time For Submission Of Applications By Candidates For KSRTC Reserve Driver Posts

Case Title: Nazeem S.R. & Ors. v. Kerala State Road Transport Corporation & Ors. and Kuriakose K.B. & Ors v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 580

The Kerala High Court on Tuesday extended the time period for submission of applications by the candidates, who had earlier applied for 'Reserve Driver' posts and were included in the rank list prepared by state Public Service Commission, till November 14.

Justice Devan Ramachandran gave the petitioners the liberty to make an application to the competent authority of KSRTC along with the documents and evidence to show that they were included in the old rank list prepared by the PSC. The candidates were earlier required to file such applications before October 26. "If this is done by the petitioners, their claims will be considered by the KSRTC appropriately adverting to all other required criteria as may be satisfied," said the court.

'Just An Accused Before Court Of Law': Kerala HC Rejects Cardinal George Alencherry's Plea For Exemption From Personal Appearance In Trial Court

Case Title: Cardinal Mar George Alencherry v. Joshi Varghese & Ors.

Citation: 2022 LiveLaw (Ker) 581

Observing that when exemption is sought for the first appearance, the standards to be applied should be more stringent, the Kerala High Court on Wednesday dismissed Cardinal Mar George Alencherry's petition seeking exemption from personal appearance in the private complaint cases filed against him before the Judicial First Class Magistrate Court, Kakkanad, for alleged illegal sale of the land belonging to the Church.

Justice Ziyad Rahman A.A. observed that the exemption from personal appearance contemplated under Section 205 Cr.P.C is an exception to the normal rule and subject to the discretion of the court. "...granting an exemption to the petitioner for the first appearance in this case, would send a wrong message to the Society as well. According to the petitioner, he is a religious head required to carry out several functions in various capacities and seeks exemption on that ground. In my view, the position that he holds would not make him entitled to any special privileges when he is brought before a court of law as an accused. The statutory mandate is over and above all the superiority the accused possesses or claims to have, by virtue of his position. Irrespective of his position, he is just an accused before the court of law, who is not entitled to claim any special privilege and is required to face the proceedings just like any other citizen. The provisions of Cr.P.C does not distinguish between ordinary citizens and persons holding superior positions in their religious, political, social, or other institutions".

[Section 85(3) CrPC] Legal Heirs Of Accused Can Approach Court For Release Of Attached Property After Expiry Of Statutory Period: Kerala HC

Case Title: Vishnu M v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 582

Reiterating that there is no absolute prohibition in entertaining an application under Section 85(3) CrPC at the instance of an accused even after the expiry of statutory period, the Kerala High Court recently said that nothing will preclude the legal heir of the accused from submitting an application in this regard when the accused is no more.

Justice Ziyad Rahman A. A. relied upon the court's recent decision in Transsafe Refrigeration Private Ltd. (M/s.) and another v. State of Kerala and another wherein it was held that even after expiry of the said period, an application at the instance of the accused can be entertained. "In the light of the observations made by this Court in the said decision, it is clear that there is no absolute prohibition in entertaining an application at the instance of the accused even after the expiry of the statutory period," the bench said.

Medical Officer Says Asking Clinical Doctors To Select Dialysis Patients For Financial Aid Affects Their Duty, Kerala HC Asks Health Secretary To Decide

Case Title: Dr. Prathibha K. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 583

The Kerala High Court recently directed State's Principal Health Secretary to decide a medical officer's representation seeking to relieve clinical doctors from the responsibility of participating in meetings of Gram-level Administrative Committees for the purpose of deciding list of beneficiaries eligible for financial assistance for kidney dialysis. The Petitioner alleged that to participate in such meetings, Medical Officers of Primary, Family and Community Health Centres have to abstain from their duties, which in turn adversely affects other ordinary patients. He apprehended that "doctors in the primary, family, and community health centre will be implicated in some criminal case under the prevention of corruption Act for the corruption done by the Panchayath Governing Body in granting and distributing money for the kidney dialysis treatment to in eligible candidates and its misuse." The petitioner thus sought that rather non-clinical doctors be vested with the aforesaid responsibility.

Justice N. Nagaresh has directed the Health Secretary to take appropriate decision in the matter, within a period of two months.

Authority To File Final Report & Grant Sanction To Prosecute Same Under Promotion Of Tree Growth Act: Kerala HC Asks Legislature To Clear Anomaly

Case Title: Jose and Ors. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 584

The Kerala High Court on Tuesday pointed an inconsistency in Sections 9 and 12 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and urged the legislature to clear the same by way of an amendment. Section 9 provides that a person not below the rank of a Forester can seize the trees together with the tools, if the same is found to be in contravention of Section 6 of the Act. Sub-section (3) thereof provides that the Divisional Forest Officer (DFO) is the competent authority to file a final report before the competent Magistrate Court. However, the DFO is also the prosecution sanctioning authority under Section 12 of the Act.

In this light Justice A. Badharudeen observed: "The legislature must apply its wisdom either to designate an officer below the rank of the Divisional Forest Officer to file report as provided under Section 9(3) or the sanctioning authority shall be a person holding the post superior to the post of the Divisional Forest Officer. Such an amendment is inevitable to clear the inconsistency."

S.36A(4) NDPS Act | Apart From Reasons To Detain Accused Beyond Statutory Period, Prosecutor's Report Must Disclose Progress Of Investigation: Kerala HC

Case Title: Ubaid A.M. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 585

The Kerala High Court on Thursday held that in order to extend the statutory period of 180 days to complete the process of investigation as per Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the report produced by the Public Prosecutor ought to disclose the progress of investigation in addition to the reasons to detain the accused person.

Justice A. Badharudeen observed, "...a mere re-production of the application or request of the Investigating Officer by the Public Prosecutor in his report, without demonstration of the application of his mind and record of his own satisfaction would not render his report as the one envisaged under Section 36-A(4) of the Act. Similarly, in the report, the Public Prosecutor shall narrate the progress of investigation and the specific reason for the detention of the accused beyond 180 days".

Kerala Service Rules | Govt Cannot Summarily Reject Employees' Leave Application Under Rule 91A For Pursuing PhD: High Court

Case Title: Gisha Marin Jose v. State of Kerala and Ors.

Citation: 2022 LiveLaw(Ker) 586

Questioning the government's decision to not grant leave to its employees under Rule 91A of Part I Of Kerala Service Rules for pursuing PhD, the Kerala High Court on Monday said the State cannot summarily reject a leave application for Doctoral or Postdoctoral Research.

Justice Devan Ramachandran rejected the government's argument that a general decision has been taken to not extend leave under Rule 91A to PhD candidates.

Extend Proper Facilities To Sabarimala Pilgrims During Mandala-Makaravilakku Festival: Kerala HC To Devaswom Boards

Case Title: Suo Motu v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 587

The Kerala High Court on Thursday directed the Travancore Devaswom Board and the Cochin Devaswom Board to ensure that proper facilities are provided to Sabarimala pilgrims in the temples under their management during Mandala-Makaravilakku festival season of 1198 ME (2022-23). "The Temple Advisory Committees of those temples, which are identified as Sabarimala Edathavalams, and also other temples which are identified by the concerned Devaswom Board to provide facilities to Sabarimala Pilgrims during Mandala-Makaravilakku festival season, shall render necessary assistance to the concerned Sub Group Officer/Devaswom Officer in providing proper facilities to Sabarimala pilgrims in the respective temples," said the court.

The division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar also directed Guruvayur Devaswom Managing Committee to ensure that proper facilities are provided to the Sabarimala pilgrims in the Guruvayur Sree Krishna Temple.

Kerala High Court Quashes KUFOS VC Dr Riji John's Appointment, Asks Chancellor To Form New Search Committee

Case Title: Dr. K.K. Vijayan v. The Chancellor and Dr G. Sadasivan Nair v. State of Kerala

Citation: 2022 LiveLaw(Ker) 588

The Kerala High Court on Monday quashed the appointment of the Vice-Chancellor of Kerala University of Fisheries and Ocean Studies (KUFOS), Dr. K. Riji John.

The division bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly said that the constitution of the selection committee and its recommendation in John's case was illegal.

...we have no hesitation to hold that the selection of Dr. K. Riji John as the Vice Chancellor of the Kerala University of Fisheries and Ocean Studies, overlooking the UGC Regulations, 2018, cannot be sustained under law. We are also of the view that the Search cum Selection Committee constituted is also in violation of the UGC Regulations, 2018.

'Court Cannot Be Swayed By Public Outcry': Kerala High Court Grants Pre-Arrest Bail To 3 KSRTC Employees In Assault Case

Case Title: Milan Dorich v. State of Kerala

Citation: 2022 LiveLaw(Ker) 589

The Kerala High Court recently granted pre-arrest bail to the three Kerala State Road Transport Corporation (KSRTC) employees, who were booked in September for assaulting a man and his daughter for demanding renewal of a concession certificate for her.

The video of the incident had been leaked in the media, causing a public outcry against the incident.

Justice Bechu Kurian Thomas in the order observed that the courts must strictly confine to the allegations and the statements given by the witnesses and their legal implications.

Detaining Authority Must Be Aware That Detenu Is Already In Custody & Must Show Compelling Reasons To Pass Preventive Detention Order: Kerala HC

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

Citation: 2022 LiveLaw (Ker) 590

The Kerala High Court recently reiterated the settled position that an order of preventive detention can be passed against a person who is already in custody, subject to the condition that the detaining authority is aware of the detenu already being in detention, and secondly, that there are compelling circumstances justifying such preventive detention.

The Division Bench comprising Justice Alexander Thomas and Justice Sophy Thomas added that the detaining authority must be satisfied from the material produced before it that the detenu is likely to be released from custody in the near future whereafter, he is very likely to indulge in further prejudicial activities.

Law College Elections | Returning Officer Can Only Verify Validity Of Nomination Paper, Not Competence Of A Candidate: Kerala HC

Case Title: Bennat Tom V. v. Calicut University & Ors.

Citation: 2022 LiveLaw (Ker) 591

While dealing with a case relating to 'Class Representative' elections in the Government Law College at Kozhikode, the Kerala High Court held that the power vested in a Returning Officer is limited to verifying the validity of a nomination paper, and not determining the eligibility/ competence of a candidate.

In the instant case, Justice Devan Ramachandran observed that the Returning Officer had rejected Petitioner's nomination paper on the ground that if he won the elections, it would be a futile exercise since his classes were set to end soon. Turning down such an approach, the bench observed,

"...what the Returning Officer has actually done is not to decide the validity of the nomination, but the eligibility of the petitioner to contest the election – which the said Authority surely obtained no competence or jurisdiction to have done."

S.138 NI Act | Whether Demand Notice Issued To Correct Address Is Matter Of Evidence, Not Reason To Quash Complaint: Kerala High Court

Case Title: K.P. Ramachandran Nair & Anr. v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 592

The Kerala High Court on Tuesday refused to quash a complaint under Section 138 Negotiable Instruments Act, merely because the demand notice issued in local language was returned unserved.

Justice A. Badharudeen, observed that there is a presumption that service of notice has been effected when it is sent to the correct address by registered post. It further added, "Issuance of notices in the correct address is a matter of evidence and, therefore, the same is not a reason to quash the complaints."

"Real Teaching Experience Needed" : Kerala HC Directs Kannur University To Re-Examine Credentials Of Priya Varghese, Wife Of CM's Private Secretary

Case Title: Dr Joseph Skariah v. Vice-Chancellor (Selection Committee Chairman)

Citation:2022 LiveLaw(Ker) 593

The Kerala High Court on Thursday allowed the plea challenging the selection of Priya Varghese, wife of K.K. Ragesh, private secretary to Chief Minister Pinarayi Vijayan as an Associate Professor at the Department of Malayalam at Kannur University and directed the competent authority of the University to reconsider the credential of the 5th respondent (Priya Varghese) and decide whether she should continue on the Rank List. On such enquiry being completed and the Rank List sufficiently modified, further action to make an appointment can be taken forward.

Lowest Bidder Doesn't Enjoy Indefeasible Right To Be Awarded Contract, Can't Approach Court Against Tender Cancellation For Valid Reasons: Kerala HC

Case Title: Omassery Labour Contract Co-Operative Society & Ors v. Mukkam Municipality & Ors.

Citation: 2022 LiveLaw (Ker) 594

The Kerala High Court on Wednesday held that even if a tender process had been validly initiated, the Municipality is vested with the authority to cancel the said process for valid reasons, and call for fresh tenders. It added that there can be no cause for illegality or impropriety being imputed to the same, if the said decision is taken after considering the various complaints before it.

The Single Bench of Justice T.R. Ravi observed, "When the law does not recognise any indefeasible right in a lowest bidder to be awarded a contract, the petitioners cannot be heard to contend that they being the lowest bidders in a tender which was cancelled for specific reasons, are entitled to approach the Court under Article 226 of the Constitution for annulling the decision to cancel and request for directions to award the contract in their favour".

Kerala High Court Rejects State's Appeal Against Order Quashing Its Decision To Halt Grant Of Pension To Paravur Ruler's Legal Heirs

Case Title: State of Kerala Rep. by Chief Secretary & Ors. v. Ravi Parameswara Raja

Citation: 2022 LiveLaw (Ker) 595

The Kerala High Court on Wednesday held that the Constitution of India's 26th Amendment would not alter the obligation of the State under Article 295 (2) to pay annuity to the legal heirs of the Malayala Brahmin family that possessed sovereign rights over the territory of Paravur, which now falls under Ernakulam district.

The court was dealing with a matter relating to pension of the Malayala Brahmin family which had relinquished its sovereign rights over Paravur to the rule of Travancore State in 764AD, In consideration of the relinquishment, the ruler of Travancore State would pay annuity to the family. In 1971, the annuity was treated as a family pension.

Aadhaar Card Not Recognized As Document For Proof Of Date of Birth Under Juvenile Justice Act: Kerala High Court

Case Title: Sofikul Islam v. State of Kerala

Citation: 2022 LiveLaw(Ker) 596

The Kerala High Court on Thursday observed that Aadhaar card is not recognized by the Juvenile Justice (Care and Protection of Children) Act, 2015, as a document of proof of the date of birth of an accused under the Act.

Justice Bechu Kurian Thomas observed that when there is a dispute regarding the age of an accused, if a certificate from the school is available, which specifies the date of birth, that alone can be looked into for the purpose of identifying the date of birth of the alleged child under section 94(2)(i) of the JJ Act, 2015.

Application For Default Bail Filed Through E-Filing Valid, Cannot Ignore It For Want Of Physical Copy: Kerala High Court

Case Title: Akshay@Ajeesh@Ananthu v. State of Kerala & Anr and Akhila A.P. @ Lalu & Anr v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 597

The Kerala High Court on Thursday held that an application for default bail, filed timely through e-filing mode, cannot be ignored by the trial courts for want of production of physical copy of the same.

Justice A. Badharudeen, said: "Now we are in the E-world. In many Courts e-filing is made mandatory and steps to complete mandatory e-filing in all Courts in India are on its final call. Such being the scenario, how can a court ignore an application filed through e-filing mode to hold that there was no petition filed within time for want of production of physical copy of the same within time".

Income Tax Act does not impose any limitation for filing an application for condonation of delay: Kerala High Court

Case Title: K C Antony Versus Principal Commissioner

Citation: WP(C) No. 13511 Of 2021

Citation: 2022 LiveLaw(Ker) 598

The Kerala High Court has held that Section 119(2)(b) of the Income Tax Act does not impose any limitation for the purposes of filing an application for condonation of delay.

The single bench of Justice Gopinath P. has observed that it was completely wrong on the part of the department to treat the date of filing of the application for condonation of delay as the relevant date for the purpose of considering whether it was filed within 6 years or not.

Kerala HC Deprecates Invocation Of Writ Jurisdiction Alleging 'Breach Of Duty' By Police To Register Complaint When The Dispute Is Civil In Nature

Case Title: Santhosh Kumar Nair v. Suresh P. Sreedharan & Ors.

Citation: 2022 LiveLaw (Ker) 599

The Kerala High Court on Tuesday held that a threat of illegal eviction/ trespass can be remedied by approaching a civil court. It added that High Court's writ jurisdiction cannot be invoked in such cases seeking police protection, when even the basic facts are disputed and the rights claimed cannot be established in summary proceeding under Article 226 of the Constitution.

A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran was dealing with a writ appeal preferred by a Landlord, against the Singhe Judge's order in a writ petition preferred by the tenant alleging trespass and seeking police protection against illegal eviction.

Muslim Marriages Not Excluded From POCSO Act, Physical Relationship With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Court

Case Title: Khaledur Rahman v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 600

The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.

Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.

The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436). "With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.

Interest Not Leviable For Belatedly Deducting TDS If There Is No Liability: Kerala High Court

Case Title: Special Tahsildar V. Union Of India

Citation: 2022 LiveLaw(Ker) 601

The Kerala High Court has held that where there is no liability to deduct TDS, the mere fact that TDS was so deducted and paid to the Income Tax Department belatedly, cannot give rise to a claim for interest under Section 201(1A) of the Income Tax Act.

The single bench of Justice Gopinath P. has observed that the delay in remitting the amounts deducted as TDS arose only on account of the fact that the officer in question was deputed for election duty for the period from January 2014 to May 2014 in connection with the Lok Sabha Election of 2014.

Kerala HC Directs Chief Secretary To Consider BJP State President's Representation Against Govt Employees' Participation In CPI (M)'s Raj Bhavan March

Case Title: K. Surendran v. State of Kerala

Citation: 2022 LiveLaw(Ker) 602

The Kerala High Court on Tuesday directed the Chief Secretary to consider the representation filed by the BJP State Unit President K. Surendran against participation of government employees in CPI(M)'s demonstration outside Governor Arif Mohammad Khan's official residence.

The Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly, while disposing of the petition seeking to prevent the government from participating in the protest, refused to pass any direction. However, it directed the Chief Secretary to consider the letter submitted by the BJP State Unit President K. Surendran.

Limitation Extension Orders Passed By SC During Covid-19 Apply To Petitions Moved Under Representation Of People Act: Kerala HC

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".

During Further Investigation, Police Can Include Relevant Materials That Are Subsequent To Filing Of Initial Final Report: Kerala High Court

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.

Contempt Case: Kerala High Court Lets Off Baiju Kottarakkara With Warning After Unconditional Apology

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.

Parties' Standard Of Living 'Very High': Kerala HC Upholds ₹31.6 Lakh Compensation U/S 3 Muslim Women (Protection Of Rights On Divorce) Act

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."

'Neurostimulator Neither Treatment Nor Cure': Kerala High Court Declares Teenager With 40% Disability Eligible For PwD Quota In KEAM Courses

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.

KAAPA | Detaining Authority Duty-Bound To Consider Previous Opinion Of Advisory Board; Non-Consideration Of Relevant Materials Fatal: Kerala HC

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".

Cases Pending For Years, Introspection By Judiciary Necessary; Otherwise People Will Lose Faith: Kerala High Court Issues Directions To Registry

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.

Retired Employee Can't Seek Annual Increment For Pension & Gratuity If It Falls Due A Day After Superannuation: Kerala HC

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.

Kantara Movie: Kerala HC Dismisses Petitions Challenging Restraint Orders Against "Varaharoopam" Song; Allows Hombale Films To Avail Alternative Remedies

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.

S.233(3) CrPC | Prosecution Witness Cross-Examined By Accused Cannot Be Compelled To Appear As Defence Witness: Kerala HC

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".

Intention Of Parties As To Seat Of Arbitration Can Be Determined From Their Conduct: Kerala High Court

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.

'Courts Created To Adjudicate Substantial Interest Of Parties, Not Dispose Cases In Numerical Quantity': Kerala High Court

Case Title: Muhammed Shanavas v. Radhakrishnan & Ors.

Citation: 2022 LiveLaw (Ker) 618

The Kerala High Court recently said that a solitary instance of absence of a counsel or party on the day the case is listed cannot be a ground for the application being dismissed for default.

The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said: "The courts are created to adjudicate substantial interest of the parties rather than to dispose the cases in a numerical quantity. The court should be very sensitive in dealing with the cases of litigants, especially, many of the cases are remained non represented due to laches or negligence on the part of the counsel".

Prosecution Can Be Allowed To Produce Evidence In Addition To Materials Submitted With Final Report If They're Necessary For Fair Trial: Kerala HC

Case Title: Hussain v. State of Kerala and another

Citation: 2022 LiveLaw (Ker) 619

The Kerala High Court has observed that the Court may permit the prosecution to tender such evidence which appears to be essential to decide the case in a just manner, even after the commencement of the trial.

Justice A. Badharudeen observed that: "It is true that the prosecution is duty bound to place all the evidence to be tendered along with the final report and copies thereof shall be furnished to the accused, as mandated under Section 208 Cr.P.C, in a Sessions trial".

However, in an appropriate case where the evidence sought to be tendered by the prosecution is absolutely necessary to decide the case fairly and the Court is of the opinion that the said evidence is essential for the just decision of the Court, the Court observed that:

...the said evidence also can be permitted to be tendered and there is no hard and fast rule that the prosecution is totally debarred from adducing evidence in excess of the materials, what have been filed along with the final report.

'Suspicion, However Grave, Cannot Take Place Of Proof': Kerala HC Acquits Accused Charged With Abetment Of Suicide

Case Title: Memana Baby v. State of Kerala

Citation: 2022 LiveLaw (Ker) 620

The Kerala High Court recently held that in order to constitute an offence under Section 306 of the IPC the prosecution must establish firstly that a suicide has been committed, and secondly that the person who is said to have abetted the commission of suicide, has played an active role in the same with such a mens rea.

The Single Judge Bench of Justice P.G. Ajithkumar observed that even if circumstantial evidence is being relied upon to prove the same in the absence of direct evidence, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. The bench reiterated the settled position of law that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused.

Accordingly, the Court found in the instant case that although the death of the deceased herein was an unnatural death,

"...those are not reasons for finding a person guilty, unless the prosecution is able to prove beyond doubt that he is responsible for the death. It is the settled law that suspicion, however, grave it may be; cannot take the place of proof".

Kerala High Court Dismisses State Government's Plea Against Chancellor Appointing Ciza Thomas As VC In-Charge Of KTU

Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor

Citation: 2022 LiveLaw (Ker) 621

The Kerala High Court on Tuesday dismissed the petition filed by the State Government against the order of the Chancellor appointing Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.

Justice Devan Ramachandran observed that there was no doubt that Thomas was fully qualified going by the UGC Regulations, since it permits experience in both teaching and research, and since she was working as the Senior Joint Director in Directorate of Technical Education, the choice was justified.

Kerala High Court Expresses Concerns About Students Amidst Disputes Between State Govt & Chancellor; Urges To Iron Out Differences

Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor

Citation: 2022 LiveLaw (Ker) 621

The Kerala High Court on Tuesday reminded that Constitutional functionaries such as the State Government and the Governor ought not to contest litigations with the view to obtain a win, but to ensure that the law is complied with and that the Constitutional imperatives are supported and achieved, and in any case, the students are not made to suffer as a result of the same.

The Court made the above observation while dismissing the petition filed by the State Government challenging the order of the Chancellor appointing Ciza Thomas (3rd respondent herein) as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University, and holding her to be fully qualified in occupying the said position.

'Abject Failure' : Kerala High Court Criticises CBI Probe Of Death Of Malabar Cements Whistleblower; Asks Director To Form New Team For Further Investigation

Case Title: Nandakumar T.P v. Central Bureau of Investigation and Sanal Kumar v. State

Citation: 2022 LiveLaw(Ker) 622

The Kerala High Court on Wednesday directed the Director of Central Bureau of Investigation to take up the investigation into the death of Malabar Cements whistleblower V. Saseendran and his two minor sons with due seriousness and to constitute a new investigating team under the supervision of a senior and competent officer.

Justice P. Somarajan pulled up the investigating agency for filing the supplementary report by way of an eye wash without addressing the relevant issues involved in the crime.

Hence, in the given circumstances, I am of the view that one of the most reputed investigating agencies in India - CBI, should be more vigilant while acting on investigation pertaining to the very serious offences and it shall not be an eye wash. The entire investigation taints and tarnishes the well deserved reputation of the CBI as a premier investigating agency.

Thereby, the Court directed that: Necessarily, the Director of Central Bureau of Investigation shall take up the matter with due alacrity to the gravity and seriousness so as to constitute a new investigation team under the supervision of a senior and competent officer, who has necessary expertise in the field and is not gullible.

Sharon Murder Case : Kerala High Court Dismisses Bail Application Of Greeshma's Mother

Case Title: Sindhu and anr. v. State of Kerala

Citation: 2022 LiveLaw(Ker) 623

The Kerala High Court, on Wednesday, dismissed the petition seeking Bail moved by Greeshma's mother Sindhu, who is one of the accused booked for the murder of Sharon Raj.

Justice Viju Abraham passed the order.

The investigation is only in the initial stage, and the petitioners were arrested only on 01.11.2022...Further, role if any of the petitioners, who are the mother and uncle of the 1st accused, could be revealed only in the course of the investigation. The learned public prosecutor raised apprehensions that if the petitioners are released on bail at this stage, there is every chance for them to destroy the evidence and also to influence the witnesses. Considering the seriousness of the allegation and taking into consideration the fact that the investigation is only in the initial stage, I am not inclined to grant bail to the petitioners at this stage.

Kerala HC Dismisses Plea Filed By Lawyer Challenging Action Of Governor Arif Mohammed Khan Withholding Bills Passed By State Legislature

Case Title: Adv. P.V. Jeevesh v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 624

The Kerala High Court on Wednesday dismissed the plea filed by a lawyer challenging the action of the Governor of Kerala withholding bills passed by the State legislature indefinitely, and without adopting any of the courses envisaged under Article 200 of the Constitution.

The Court obseved that it cannot Court cannot fix a time limit for the Governor to give assent to bills.

The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, passed the above order.

No Fundamental Right To Ply Auto Rickshaws In Cochin International Airport Premises Without Specific Permissions: High Court

Case Title: Ratheesh P.K. & Anr v. Cochin International Airport Ltd & Ors.

Citation: 2022 LiveLaw (Ker) 625

The Kerala High Court recently held that auto rickshaw drivers cannot claim any fundamental right to ply their vehicles within the premises of the Cochin International Airport Ltd (CIAL), without specific permissions.

The Single Judge Bench of Justice Anu Sivaraman observed that,

"Any right of the petitioners to ply their vehicles or to exercise their right of occupation is obviously not an absolute right to enter into any premises regardless of any restrictions whatsoever. All such rights, can, obviously be exercised only subject to such reasonable restrictions".

Register FIR Within An Hour Of Receiving Information About Any Attack On Doctors: Kerala High Court To Police

Case Title: Kerala Private Hospitals Association v. Advocate Sabu P. Joseph

Citation: 2022 LiveLaw (Ker) 626

The Kerala High Court on Thursday directed the Police to register the FIR and take cognizance of the offence of attack against the doctors and other healthcare professionals within an hour of receiving the information.

The court issued the direction after taking into consideration the increasing instances of attacks against doctors and healthcare Professionals.

The Division bench of Justice Devan Ramachandran and Justice Kauser Edappagath while Suo Motu impleading the State Police Chief in a case, in the order said:

"...as a first step, in addition to the earlier directions, we are of the firm view that every incident of attack on a Doctor or a Healthcare Professional, including any other staff of the Hospital - be that Security or other - will have to be taken cognizance of by the Station House Officer of the concerned Police Station not later than one hour from the time on which it is reported to him.

When Drug Was Recovered On Driver's Body Search, It Can't Be Held That Vehicle Was Used For Conveying Contraband : Kerala High Court

Case Title: Wilson C.C. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 627

The Kerala High Court Monday considered the legal question that whether in a case of recovery of contraband on driver's body search, it would be fair to hold that the vehicle also had been used for the purpose of conveying the contraband.

Justice A. Badharudeen said when contraband is recovered on search of a person, who is driving the vehicle alone, after compliance of Section 50 of NDPS Act, it would not be safe to hold that vehicle also was used for transporting the drug so as to make the vehicle a subject matter of confiscation.

'Cannot Be Equated With Regular Recruitment Process': Kerala HC Dismisses PILs Challenging Special Rules For Appointment Of Ministers' Personal Staff

Case Title: Anti-Corruption Peoples Movement and Ors. v. State of Kerala and Ors and Connected Cases

Citation: 2022 LiveLaw(Ker) 628

The Kerala High Court on Thursday dismissed a batch of PILs challenging the validity of the appointment of personal staff to the office of the Chief Minister, Ministers, leader of the opposition, and the Chief Whip by the Special Rules of 1959.

Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed:

to attain good governance and good practices in civil, cultural, economic, political, justice, social right, accountability, etc., the Government in power has to modulate its activities and discharge its functions, taking into account its political theories, election manifesto, and perceptions. For that, it must have a good and loyal team to its satisfaction producing results that meet the needs of the community at large, and to provide timely instructions and guidance from the political and social angle... In that view of the matter, we are of the undoubted and considered opinion that the petitioners have not made out a case of arbitrariness or unfairness, so as to secure the reliefs as are sought in the writ petitions.

[Mines & Minerals Regulation Act] Non-Constitution Of Special Courts Cannot Affect Seizure & Confiscation Proceedings: Kerala High Court

Case Title: Rahul P.U. v. The Geologist and Other Connected Cases

Citation: 2022 LiveLaw (Ker) 629

The Kerala High Court on Wednesday held that non-constitution of Special Courts under Section 30B of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) cannot affect seizure and confiscation proceedings under the Act.

Justice N. Nagaresh, in this regard, relied upon the decision in Pradeep S. Wodeyar v. State of Karnataka which held that the Special Court does not have, in the absence of a specific provision in the MMDR Act, the power to take cognizance of an offence under the Act without the case being committed to it by the Magistrate under Section 209 CrPC.

Kerala High Court Upholds MLA Eldhose Kunnappilly's Anticipatory Bail In Rape Case

Case Title: State Of Kerala v. Eldhose Kunnapilly and XXXXX v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 630

The Kerala High Court on Friday dismissed the petitions seeking cancellation of Congress MLA Eldhose Kunnappilly's anticipatory bail in the case accusing him of rape and attempt to murder of a woman.

Justice Kauser Edappagath observed that:

The cancellation of bail is directly linked with the personal liberty which is one of the cherished constitutional freedoms guaranteed under Article 21 of the Constitution of India and hence it must not be lightly resorted to.

Wrong VAT Rate Can Be Rectified: Kerala High Court

Case Title: M/s Crescent Construction Versus Deputy Commissioner of State Tax

Citation: 2022 LiveLaw (Ker) 631

The Kerala High Court has held that the mistake of applying the wrong value-added tax (VAT) rate can be rectified.

The single bench of Justice Gopinath P. has observed that, as per Section 66 of the KVAT Act, once it is brought to the notice of the officer that there is a mistake in applying the correct rate of tax, it is within the power conferred on the officer to rectify the mistake.

State Govt Well Equipped To Decide Legality Of Panchayat Decisions, S.191 Kerala Panchayat Raj Act Is An Efficacious Alternate Remedy: High Court

Case Title: Dr V. V. Haridas MD v. State of Kerala and ors. and Kinder Women's Hospital and fertility centre v. State of Kerala and ors.

Citation: 2022 LiveLaw (Ker) 632

The Kerala High Court on Tuesday, while dismissing two Writ Petitions, observed that Section 191 of Kerala Panchayat Raj Act, 1994 is an efficacious, alternate statutory remedy against any resolutions or decisions taken by the panchayat.

Section 191 of the KPR Act deals with the power of cancellation and suspension of resolutions etc. and the Court observed that as per the provision, the Government is well-equipped to decide the legality of any resolution passed or decision taken by the Panchayat.

Justice Murali Purushothaman rejected the contention that approaching the government under the provision is futile because the decision impugned is taken by government functionaries and observed, "The power conferred on the Government under Section 191 of the K P R Act is quasi-judicial and any administrative decision of the functionaries of the Government cannot preclude the Government from exercising its quasi-judicial functions".

Arbitration Barred In Respect Of Matters Within Exclusive Jurisdiction Of TDSAT Under TRAI Act: Kerala High Court

Case Title: A. Salim v. M/S Asianet Satellite Communication Ltd.

Citation: 2022 LiveLaw (Ker) 633

The Kerala High Court recently held that arbitration under the Arbitration and Conciliation Act, 1996 is barred in respect of matters which are within the exclusive jurisdiction of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) under the Telecom Regulatory Authority of India Act, 1997 (TRAI Act).

Justice N. Nagaresh observed that TRAI Act is a special law and would prevail over the Arbitration Act, which is a general law.

"The Telecom Regulatory Authority of India Act, 1997 being a later statute and having been specially enacted for the Telecom Sector, will certainly prevail over the Arbitration and Conciliation Act, 1996. The Telecom Regulatory Authority of India Act, 1997 was enacted in the year 1997 and the Arbitration and Conciliation Act was enacted in the year 1996. When the Telecom Regulatory Authority of India Act, 1997 was enacted, the Parliament was aware of the remedy of arbitration available under the Arbitration and Conciliation Act, 1996. Even then, the Parliament chose not to exclude the Arbitration and Conciliation Act, 1996 from the ambit of the Act, 1997", it observed.

Kerala High Court Rejects Objections Against Maintainability Of Election Petition Against Muslim League MLA

Case Title: Najeeb Kanthapuram v. K.P. Mohammed Musthafa @ K.P.M. Musthafa & Ors.

Citation: 2022 LiveLaw (Ker) 634

Rejecting Perinthalmanna MLA Najeeb Kanthapuram's objections against an election petition pending against him, the Kerala High Court recently said the case will go for trial for a decision on the rejection of 348 ballot papers in the matter.

Justice A. Badharudeen in the ruling considered the question whether it is necessary to plead all essential facts in detail and if deviation or lack of pleadings would lead to summary rejection of the plaint. The counter argument before the court was that the importance of pleadings and its meticulous evaluation would apply only in such cases where the election is challenged on the ground of any corrupt practice.

The court said when corrupt practice is alleged to set aside the election of a returned candidate, the very minute details of the allegation are required to be specifically pleaded as provided under Section 83(1)(b) of the R.P Act and any sort of omission is a reason to reject the Election Petition. "However, when the election of a returned candidate is put under challenge specifically for the ground (iv) of S.100(1)(d), for any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, then also the Election Petition shall contain a concise statement of the material facts on which the petitioner relies as mandated under Section 83(1)(a) of the R.P Act with sufficient pleading highlighting the non-compliance with the provisions of the Constitution or of the R.P Act or of any rules or orders under the R.P Act," the court added.

DV Act | Breach Of 'Monetary Relief' Order Can't Be Prosecuted Under Section 31, Penalty Attracted Only For Violation Of Protection Orders: Kerala HC

Case Title: Suneesh v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 635

The Kerala High Court on Monday reiterated that the penalty provided under Section 31 of the Protection of Women from Domestic Violence Act would attract only for the breach of the protection orders passed under Section 18 of the Act and in case of violation of any other order passed under the 2005 enactment, the provisions of CrPC can be resorted to.

The breach of a protection order passed under Section 18 is an offence under Section 31 and can lead to imprisonment of one year. Justice A. Badharudeen in the decision dated December 5 considered the question that whether failure to comply with the order passed under Section 20 (monetary reliefs) would also attract penal proceedings under Section 31. The court said while incorporating provisions under Section 31 to impose penalty for breach of 'protection order', the legislature never intended to impose penalty for violation of 'residence orders' or 'monetary reliefs' under the Act.

"Based on this principle, this Court in Velayudhan Nair v. Karthiayani's case held that Section 31 of the D.V Act would apply only on violation of the interim order or final protection order passed under Section 18 of the D.V Act and it was held further that in case of violation of any order passed other than an order passed under Section 18 of the D.V Act, the provisions of the Cr.P.C can be resorted to," said Justice Badharudeen.

Court In Whose Limits Retired Employee Draws Pension Has Jurisdiction To Hear Plea For Dues, Employer's Convenience Not Relevant: Kerala HC

Case Title: M. S. Anil and Anr. v. M/S Hil (India) Ltd and Ors.

Citation: 2022 LiveLaw (Ker) 636

The Kerala High Court on Monday reiterated that the convenience of the retired employee must be given preference in petitions filed for claiming terminal benefits admittedly due to them. The aforesaid petitions can be moved before the Court having territorial jurisdiction over the place where he belongs to and was receiving pension at.

Justice Anu Sivaraman observed, "To now require the petitioners who are service pensioners to approach the High Courts at Delhi and Bombay for receiving amounts which are admittedly due to them, according to me, is a complete misconception and would amount to denial of the petitioners' valuable rights".

[Kerala Marriage Registration Rules] Only Husband Or Wife Can Seek Correction Of Entries In Register Of Marriages, Not Any Third Party: High Court

Case Title: Anvar Sadath Ibrahimkutty and Anr. v. The Chief Registrar General of Marriage and Ors.

Citation: 2022 LiveLaw (Ker) 637

The Kerala High Court recently held that authorities can entertain an application under Rule 13 of Kerala Registration of Marriages Rules 2008 for correction or cancellation of entries in the Register of Marriages (Common) only at the instance of the parties to the marriage.

Justice P. V. Kunhikrishnan observed that a third person who is not a party to the marriage cannot file an application for correction or cancellation of entries in the Register of Marriages (Common).

"From a plain reading of Rule 13 of Rule 2008, it clear that the 'application of the parties' referred to in Rule 13(1) means the parties to the marriage. Parties to the marriage means the spouses, that is husband and wife. A third person who is not a party to the marriage cannot file an application for correction or cancellation of entries".

'Commencement Of Probe Into Non-Cognizable Offences Without Magistrate's Order Renders Entire Investigation Faulty': Kerala High Court

Case Title: Haneefa and Ors. v. State of Kerala and Anr.

Citation: 2022 LiveLaw (Ker) 638

The Kerala High Court on Wednesday quashed trial court proceedings in a criminal case accusing two men and a woman of creating a "parallel telephone exchange", after ruling that the police could not have initiated a probe in the case, alleging commission of non-cognizable offences, without obtaining an order from the Magistrate.

"Incorporation of a cognizable offence at the time of filing of the final report cannot be utilized as a method or as a device to circumvent the mandate of S.155(2) Cr.P.C. by the officer in charge of the police station or any investigating officer." said the court.

Justice Bechu Kurian Thomas said Section 155(2) of Cr.P.C prohibits not only an investigation but even the commencement of an investigation by the police without orders from the Magistrate concerned in cases where only non-cognizable offences are alleged.

Brothel Customer Can Be Prosecuted U/S 7 Of Immoral Traffic (Prevention) Act: Kerala High Court

Case Title: Mathew v. State of Kerala

Citation: 2022 LiveLaw (Ker) 639

The Kerala High Court on Wednesday observed that a 'customer' in a brothel can be proceeded against criminally under Section 7 of the Immoral Traffic (Prevention) Act, 1956 if the conditions specified in the provision are satisfied.

Section 7 of the Act makes prostitution in certain specific areas punishable and the Court in this instant case observed that the words 'person with whom such prostitution is carried on' as appearing in section 7(1) of the Act will include a 'customer'.

Justice Bechu Kurian Thomas observed, "In the absence of the customer falling within the penal umbrella of the statute, the objects of the enactment can never be achieved. Thus, in my considered opinion, the words 'person with whom such prostitution is carried on' as appearing in section 7(1) of the Act will include a 'customer'".

Breaking: [Christian Divorce] Kerala High Court Strikes Down 10A Of Divorce Act, 1869, One Year Waiting Period For Filing Divorce Petition By Mutual Consent Declared Unconstitutional

Case Title: Anup Disalva & Anr. v. Union of India

Citation: 2022 LiveLaw (Ker) 640

The Kerala High Court on Friday held that the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 is violative of the fundamental rights and struck it down.

The Division Bench comprising Justice A. Muhamed Mustque and Justice Shoba Annamma Eapen, noted that the Legislature had imposed such a period in its wisdom, in order to act as a safeguard against impulsive decisions that may be taken by parties to separate and rid themselves of the marriage. "This period will insulate possible peril that may ensue for the parties as a follow-up of the decision for mutual separation. In the Indian social context, though marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships. The legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent".

However, the Court was quick to note that in the instant case, it was posed with the question as to whether, in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation, the provisions could stand the test of constitutional scrutiny. "We would not have thought of interfering with a minimum period as it carries a laudable object behind it. But we are constrained to note that no remedy is provided by statute in exceptional and depraved conditions for a spouse to approach the Courts to get rid of the minimum period. The legislature in their wisdom felt that some provisions are to be made to relax the rigour of the minimum period to entertain a petition within the waiting period of separation in other statutes. This essentially ensures that efficacious judicial remedy is provided in cases of exceptional hardships to the parties. The denial of such a remedy to Christians bothers us", it observed.

Breaking: Centre Should Seriously Consider Having A Uniform Marriage Code; Family Courts Have Become Another Battleground: Kerala High Court

Case Title: Anup Disalva & Anr. v. Union of India

Citation: 2022 LiveLaw (Ker) 640

The Kerala High Court on Friday said that the Union Government should seriously consider having a uniform marriage code in India in order to promote the common welfare and good of spouses in matrimonial disputes.

The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said the law at present differentiates parties on the basis of their religion, when it comes to matrimonial relationships.

"In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion. The State's concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good," said the court.

'No Case For Interference Under Article 226': Kerala High Court Dismisses Plea Seeking Former Minister Saji Cheriyan's Disqualification As MLA

Case Title: Biju P. Cheruman @ Aadi Margi Maha Chandala Baba v. Election Commission of India and Ors. and Vayalar Rajeevan v. Saji Cherian MLA and Ors.

Citation: 2022 LiveLaw(Ker) 641

The Kerala High Court on Thursday dismissed the petitions seeking a writ of quo warranto against Chengannur MLA Saji Cherian over his alleged "derogatory remarks against the constitution".

The division bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that it is not for the court to go to the contentions, decipher the truth of it, and grant the reliefs sought by the petitioners under Article 226 of the Constitution of India, when there is a clear procedure prescribed in the law.

"Whether the 1st respondent has violated the Oath of office, on the basis of the subject matter, is a matter which could be identified or deciphered only by a fact finding body, taking into account the attendant circumstances. So also, Article 173 of the constitution of India deals with the qualifications of a person to become a member of a Legislative Assembly, which has nothing to do with the case projected by the petitioners. Therefore, we are of the view that, if at all the allegations have any intrinsic relationship with the disqualifications deliberated above, there is a straightforward remedy specified under the Constitution of India."

Kerala HC Dismisses Petition Challenging Lok Ayukta's Probe Into Allegations Of Embezzlement In Procurement Of PPE Kits By KMSCL, State Govt

Case Title: Dr. Dileep Kumar S.R. v. Veena S. Nair & Ors. and Other Connected Cases

Citation: 2022 LiveLaw (Ker) 642

The Kerala High Court on Thursday dismissed the petition challenging the proceedings initiated by the Lok Ayukta on a complaint alleging corruption in the purchase of PPE kits and other surgical equipment during the COVID-19 Pandemic.

The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, while dismissing the petition, observed that, "On a perusal of the complaint, we are of the clear opinion that the complainant/1st respondent herein has not challenged the manner in which contract was provided, by invoking Section 50 of the [Disaster Management] Act, 2005; the allegations made in the complainant is with respect to the alleged corruption or maladministration that has taken place in the purchase of materials by making exorbitant and huge amount to the products than the maximum retail price".

Kerala High Court Upholds Order Declaring Cochin International Airport Ltd A 'Public Authority' Under RTI Act

Case Title: Cochin International Airport Ltd. v. The State Information Commission & Anr. and other connected cases

Citation: 2022 LiveLaw (Ker) 643

The Kerala High Court last week ruled that Cochin International Airport Ltd (CIAL) is a public authority under the Right to Information Act, 2005 (RTI Act), while upholding a decision of the State Information Commission.

Justice Amit Rawal observed that the aims and object of the Cochin International Airport (CIAL), read with provisions of Article 95 and 125 of the Articles of Association, lead to an irresistible conclusion that Kerala Government has a "deep and pervasive control" over the company. The court noted that as per the provisions of the company's Articles of Association, the Managing Director - who is an IAS Officer, has the management and supervision of the business of the Company with powers to do all acts, matters and things deem necessary for carrying out the business of the Company.

"The Board de facto is controlled by the Chief Minister and three other ministers of the Cabinet and the senior IAS officer of the State. The Government order of 15.6.2016, also is a testimony to the fact that the Managing Director of the CIAL would be drawing a salary from the Government of Kerala in the capacity of the Additional Chief Secretary in the Government," it added.

Inquiry U/S 340 CrPC Mandatory, Failure Renders Entire Proceedings Conducted Thereafter Non-Est: Kerala High Court

Case Title: Sajeevan v. State of Kerala

Citation: 2022 LiveLaw (Ker) 644

[Professor Appointment] Teaching Experience Can Only Be One That Is Gained After Acquiring Essential PG Qualification: Kerala High Court

The Court further noted that Rule 8(2) stipulates that for soft drinks and ready-to-serve fruit beverages that the retail sale price shall be indicated either on the crown cap or on the bottle or on both, if the bottle is one which can be refilled. "There is nothing in Rule 8(2) which indicates the clause to be restrictive in character. Rule 8(2) can be regarded only as an addition to and not as a restriction or exception to Rule 8(1). In other words, Rule 8(2) is only an enabling provision, enabling the manufacturer to have the option to specify those required details printed in the places mentioned in the sub-rule also".

Kerala School Kalolsavams: High Court Directs Govt To Ensure No Mishaps Happen At Kalolsavams In Future; Advises Parents To Allow Children Accept Failure

Case Title: Devna Sumesh v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 669

The Kerala High Court on Tuesday dismissed a batch of petitions filed by aggrieved participants of Kerala School Kalolsavam's Revenue District Level School Kalolsavam.

The Single Judge Bench of Justice Murali Purushothaman said the court caanot not sit in appeal over the award of marks by the panel of judges in a proceedings under Article 226 of the Constitution, as regards the grievance relating to assessment of performance of candidates and evaluation of marks.

The Court relied upon the Rhomy Chandra Mohan v. General Convenor, Balakalotsavam and Yuvajanotsavam (1992), and Sweety v. State of Kerala (1994), in this regard. "With regard to complaints of poor stage arrangements including technical glitches, poor audio system, lack of space for performance, and whether these factors had affected the performance of the contestants, are again matters which cannot be considered in a writ petition under Article 226 of the Constitution. Of course, these matters can be looked into by the appeal committees. The judges against whom allegations of extraneous considerations have been made are not parties to the writ petitions and the allegations are not supported by proof. In most cases, the contestants whose selection has been called in question are not made parties to the writ petitions. qualification of the judges in the panel and their expertise in the particular item of competition are also not matters which this Court can determine," the court said.

Kerala High Court Interprets Meaning Of 'Month' For Ascertaining Limitation Period Of Claim Petitions Under MV Act

Case Title: Vimala Jose v. Aboobacker & Ors.

Citation: 2022 LiveLaw (Ker) 670

The Kerala High Court recently interpreted the meaning of the word 'Month' for the purposes of ascertaining the limitation period of six months as stipulated under the Motor Vehicles Amendment Act, 2019.

Justice Amit Rawal observed that, "Sub-section (35) of Section 3 of the General Clauses Act, 1987 applicable to the State of Kerala would mean a month reckoned according to the British calendar, the same reads as ... : “month” shall mean a month reckoned according to the British calendar"".

The Court thus determined that the period of 6 months for filing claim petition under the Act, 2019 would have to be calculated from the date of the accident. "By taking the definition of a month as the period to be counted for the purpose of limitation, filing of the claim petition within a period of six months has to be calculated from the date of accident".

CBFC Chairman Has No Power To Refer Film To Second Revising Committee; Action Illegal, Violative Of Cinematograph Act: Kerala High Court

Case Title: Ali Akbar @ Ramasimhan v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 671

The Kerala High Court recently held that Central Board of Film Certification (CBFC) Chairman's decision to refer the film 'Puzha Muthal Puzha Vare' to a second Revising Committee is illegal and in violation of the Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 1983.

Justice N. Nagaresh said Rule 24(12) specifically mandates that where the Chairman disagrees with the decision of the majority of the Revising Committee, the Board shall itself examine the film or cause the film to be examined again by another Revising Committee and that the decision of the Board or the second Revising Committee, as the case may be, shall be final.

Other Digests:

Kerala High Court Annual Digest: Part I [Citations 1-222]

Kerala High Court Annual Digest Part II [Citations 223 - 444]