Kerala High Court Weekly Round-Up: April 24 To April 30, 2023

Nominal Index [Citation: 2023 LiveLaw (Ker) 201-208]

XXX V State of Kerala, 2023 LiveLaw (Ker) 201

Dr. Shyly S. Raju v. State of Kerala & Ors.,2023 LiveLaw (Ker) 202

M/S. Nileshwar Rangekallu Chethu Vyavasaya Thozhilali Sahakarana Sangham Versus The Commissioner Of Income Tax, 2023 LiveLaw (Ker) 203

Dhisha v. State of Kerala & Ors., 2023 LiveLaw (Ker) 204

 Nishad H. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 205

Jijendran C.M. v. State of Kerala, 2023 LiveLaw (Ker) 206

Indo-Asian News Channel Pvt. Ltd. & Anr. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 207

Fasil V State of Kerala, 2023 LiveLaw (Ker) 208

Judgments/Order This Week

If Unmarried Muslim Daughter Is Not Entitled To Maintenance U/S 125 CrPC, Family Court Can Consider Claim Under Muslim Personal Law: Kerala High Court

Case Title: XXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 201

The Kerala High Court recently held that if a claim for maintenance under Section 125 of the CrPC made by an unmarried muslim daughter, who has attained majority, is not valid, the same claim can be made under Muslim Personal Law and the Family Court can consider it to prevent multiplicity of proceedings.

A division bench of Justice Alexander Thomas and Justice Ziyad Rahman observed that:

“We would hold that, for a major unmarried Muslim daughter, who is not suffering from any physical or mental abnormality or injury, as envisaged in clause (c) of sub-section 1 of Sec.125 of the Cr.P.C., a claim made before the Family Court under Sec.125 of the Cr.P.C., will not be maintainable. However, in case the claimant appears to be otherwise eligible for maintenance, in terms of Muslim Personal Law, then the Family Court need not drive the litigant to file a fresh claim and with the wholesome objective of avoidance of multiplicity of proceedings in maintenance claims, the Family Court can entertain the maintenance plea, under Muslim Personal Law.”

Eligibility Criteria In Prospectus Can Be Amended When There Is Discrimination Between Similarly Situated Candidates: Kerala High Court

Case Title: Dr. Shyly S. Raju v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 202

The Kerala High Court recently considered the question as to whether pursuant to the publication of the final list of candidates in the service quota for Medical Officers, for admission to the Post Graduate Ayurveda courses 2022, one of the eligibility criteria mentioned in the prospectus could be changed.

While the Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen took note of the precedents in Jayakumar E.K. v. Director of Education & Ors. (2003), Anushka Rengunthwar v. Union of India (2023), and other cases, to quip that a new claim could not be admitted in the prospectus before the last date of submitting applications for admission, since the prospectus settles the criteria and gives a level playing field for candidates, it however went on to observe,

"Amendment to the prospectus stands totally in a different perspective when there is a hostile discrimination between or among different classes standing on the same footing. If the prospectus fixes an eligibility criteria which offends Article 14, it cannot be said it will hold good for everyone to participate in the same manner as provided under the prospectus without amendment. The right to challenge cannot be taken away merely because there is a timeline fixed in the prospectus".

Claim Of Deduction Under Section 80P Is Conditional On Filing A Return Within The Due Date: Kerala High Court

Case Title: M/S. Nileshwar Rangekallu Chethu Vyavasaya Thozhilali Sahakarana Sangham Versus The Commissioner Of Income Tax

Citation: 2023 LiveLaw (Ker) 203

The Kerala High Court has held that the pre-condition for claiming the deduction under Section 80P of the IT Act has now been made more stringent by reducing the time available to an assessee for making the claim.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. has observed that the claim for deduction under Section 80P is conditional on filing a return within the due date prescribed under Section 139(1) of the Income Tax Act.

Is There Need To Continue Granting Community-Based Licenses For Cremation, Burial Grounds? Kerala High Court Asks State To Examine

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

Citation: 2023 LiveLaw (Ker) 204

The Kerala High Court recently asked the State to examine whether there was any need to continue granting separate licenses for burial or burning grounds for different communities, and whether such an action would violate Articles 14 and 21 of the Indian Constitution.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman was considering a petition alleging denial of access to cremation in a public graveyard to members of the Chakkiliyan Community of Puthur Grama Panchayat of Palakkad District.

The Bench perused various provisions of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, dealing with providing burial and burning grounds by Panchayat, and observed that the State Government could permit burial grounds on the basis of communities apart from the public burial or burning grounds, and issue license.

"Without going deeper into the provisions, which permits that licenses can be given to communities, to have separate burial or burning grounds, when the State of Kerala is stated to be God’s own Country, this Court can only observe as to whether, what is enshrined in the Constitution of India and the decisions cited supra, are being followed in letter and spirit or not. Let the Legislature and the Executive, maintain right to dignity and fair treatment under Article 21 of the Constitution of India, not only to a living person, but also to the mortal remains of a person," it was observed.

No Bail In Attempt To Murder Case On Settlement If Witnesses Support Prosecution Case: Kerala High Court

Case Title: Nishad H. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 205

The Kerala High Court recently held that mere settlement of an attempt to murder case between the parties by itself could not be a ground for granting bail to an accused.

The Single Judge Bench of Justice A. Badharudeen observed that the grant of bail shall be subject to the merits of the matter, including the antecedents of the petitioner.

"Going by the available materials, the allegations are very serious and the same are supported by medical evidence and statements of the other witnesses. Merely because the injured persons submitted that they have settled the matter, that by itself is not a reason to grant bail to the accused in a crime involving offence punishable under Section 307 of IPC, since the other witnesses if depose at the time of evidence in support of the prosecution, conviction and sentence are possible," the Court observed.

Quantity Of Contraband Can Be Considered For Dilution Of Rigour Of S.37 NDPS Act After Satisfying Other Parameters For Bail: Kerala High Court

Case Title: Jijendran C.M. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 206

The Kerala High Court recently observed that quantity of the contraband seized from an accused can also be regarded as a parameter in addition to other factors, for diluting the rigour under Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) for the purposes of grant of bail.

As per Section 37 of the NDPS Act, the Court can grant bail to the accused only if it is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail

Justice A. Badharudeen noted that the other parameters that ought to be satisfied in this regard included firstly, accused not having any criminal antecedents; secondly, the accused being in custody for a long time, at least more than a year; and lastly, the impossibility of trial within a reasonable time, i.e. at least within a period of six months, after completion of his custody for a period of more than one year, as had been laid down by several Apex Court decisions.

Kerala High Court Dismisses Reporter TV's Plea Against Direction To Produce Allegedly Contemptuous News Items Broadcasted On 2017 Actor Assault Case

Case Title: Indo-Asian News Channel Pvt. Ltd. & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 207

The Kerala High Court dismissed a petition filed on behalf of Reporter TV challenging the order of a Sessions Court directing the news channel to produce the news items, including discussions and interviews, broadcasted by it from December 25, 2021 to October 21, 2022, in connection with the 2017 Actor Assault case.

The direction was issued in a petition seeking reference to the High Court for initiating contempt proceedings against the petitioners for allegedly broadcasting details of the trial. The 2017 case pertains to the alleged abduction and sexual assault of an actor in a moving car in the year 2017.

Justice Bechu Kurian Thomas observed,

"The purpose of the statute directing trial of certain categories of cases to be held in camera has a salutary objective. No person, including the press, can report what transpires inside the court or discuss or publish the statement of witnesses or even disclose the evidence in cases that are being tried in camera. When allegations are raised about publishing details of a trial of an in camera proceedings, it is essential, in public interest, as well for the court, to ascertain details of the matter published or telecasted".

Contraband Of Just Above Intermediate Quantity But Not Sizable Is An Additional Factor For Diluting Rigour Of Section 37 NDPS Act: Kerala High Court

Case Title: Fasil V State of Kerala

Citation: 2023 LiveLaw (Ker) 208

The Kerala High Court recently said that the quantity of the contraband seized being just above the intermediary quantity can be one of the grounds to dilute the rigour of Section 37 while granting bail in a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

The court held that apart from the parameters already laid down by the Apex Court including lack of criminal antecedents, time already spent in custody and the time left for commencement of trial, an additional factor to be considered would be the quantity of contraband seized.

A single bench of Justice A. Badharudeen observed that

“Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”

Other Significant Developments This Week

'Every Malayali Has Emotional Attachment To Sadya': Kerala Consumer Court Orders ₹40K Compensation Over Restaurant's Failed Delivery On Thiruvonam

Case Title: Bindya V Suthan v M/s Maze Restaurant

A consumer court in Kerala recently directed a restaurant to pay Rs. 40,000/- as compensation for failure to deliver Onam Sadya on Thiruvonam day.

The case of the complainant was that she had invited guests and ordered sadya for 5 persons to be delivered to her house on Thiruvonam day from a multi cuisine eatery by the name of Maze Restaurant. However, on the day of Onam, the restaurant failed to deliver the sadya, leaving the complainant and her guests without any food.

The Ernakulam District Consumer Disputes Redressal Commission directed the restaurant to refund the amount of Rs. 1295/- paid by the complainant. The court also awarded an additional compensation of Rs. 40,000/- for the deficiency in service which has caused “mental agony and physical hardship” to the complaint. An amount of Rs. 5,000/- was also directed to be paid by the restaurant for cost of proceedings.

The order was passed by the consumer court presided by President DB Bindu and members V Ramachandran and Sreevidhia T N.

“ Every Malayali has an emotional attachment to Thiruvona Sadya. Having invited guests for ‘sadya’ and waiting for a long time and not getting the “Special Onam Sadya” ordered is very frustrating. The opposite party is liable to compensate the complainant for deficiency in rendering service and also for immense physical harassment and mental agony.” The court said in its order.

Kerala High Court Moves Towards Complete Automaton Of Online Certified Copy Application Process

The Kerala High Court has automated the entire process of online certified copy application.

As per the existing system, Advocates, parties in person, and members of the public may apply for a certified copy using the dashboard provided. All applications would be available in the certified copying section copyist dashboard. Once the copyist has verified the application, it would then be made available in the office superintendent dashboard. The office superintendent could then click a digital sign, and the system would deliver the application via email and dashboard.

Thus, in a bid to automate the entire process, the IT team of the Kerala High Court developed an application with a digital signer gateway of Capricorn, wherein the approved judgment and interim order repositories would be digitally signed by the system. This negates any requirement of a physical or digital signature from the copying section office superintendent. The system would then deliver the orders to the concerned courts and advocates. The process makes all the copying section work to be done by the machine from an already approved digital repository.

'How Can Criminal Liability Be Attributed?': Kerala High Court Asks In Plea Against Forest Officials Over Sloth Bear's Death In Well

The Walking Eye Foundation for Animal Advocacy has filed a plea before the Kerala High Court seeking to fix responsibility and initiate administrative action against the Forest department officials and Veterinarian over death of a sloth bear which had fallen into a well on April 20, 2023. The plea accused the officials of not taking proper action in the matter.

The incident relates to a Sloth Bear falling into a well on a private land in Vellanadu Grama Panchayat, on the wee hours of April 20, 2023, which had attracted significant media attention.

When the matter was taken up by the Division Bench comprising Justice Bechu Kurian Thomas and Justice C. Jayachandran today, the Court questioned whether every lapse on the part of officials would entail criminal responsibility.

"At this stage, we can all say it was a mistake. At that moment, how do you attribute a criminal liability to this? Merely because the ideal situation did not happen, when the officials took measures in good faith to save the bear as well as the people, and not to create panic or terror amongst the people, how do you say that (there is an offence)?" the Court asked.

Kerala Court Sentences Clinical Psychologist For Sexual Abuse Of Minor Patient

Case Title: State v. Dr. Gireesh K.

A Kerala Court has convicted a Clinical Psychologist to 7 years rigorous imprisonment for the sexual assault of a 13 year old boy who used to consult him in the counselling centre run by him.

This is the second such case under the Protection of Children from Sexual Offences (POCSO) Act against the accused, Dr. Gireesh K., in which he has been convicted. Last year, the Court had sentenced Gireesh to six years' rigorous imprisonment along with a fine of Rs. 1 Lakh for the abuse of another minor boy during a counselling session.

The Fast Track Special Court (POCSO), Thiruvananthapuram Judge Aaj Sudarsan recalled the words of an American Psychologist that Psychology is about bringing out the best in people and building strength of character but this is a case of, it added,

"A Clinical Psychologist who has remorselessly assaulted his patient, a boy for sexual gratification reminding of the old proverb ‘What can be done when fences eat crops’".