Kerala High Court Half Yearly Digest: January To June 2023 [Citations 1 - 301]

Suo Motu v. State of Kerala and Ors. 2023 LiveLaw (Ker) 13

M/S PVS Memorial Hospital & Ors. v. Dr. Satheesh Iype & Anr. 2023 LiveLaw (Ker) 14

Dimple Lamba @ Dolly v. State of Kerala 2023 LiveLaw (Ker) 15

State of Kerala and Ors. v. Raveendran Pillai S and Anr. 2023 LiveLaw (Ker) 16

The Tahsildar (RR) & Ors. v. Nizamudeen S. & Ors. and other connected cases. 2023 LiveLaw (Ker) 17

Tintu K. & Anr. v. Union of India & Ors. 2023 LiveLaw (Ker) 18

Nibu Kasim & Ors. v. Union of India & Ors. and M/S Go Green Bags v. Union of India & Ors. 2023 LiveLaw (Ker) 19

Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko 2023 LiveLaw (Ker) 20

Sasi Pathirakunnath Versus Assistant State Tax Officer 2023 LiveLaw (Ker) 21

Union Bank of India v. The Deputy Chief Engineer and Ors. 2023 LiveLaw(Ker) 22

Akshay Raj v. Ministry of Law and Justice & Ors. and other connected matters 2023 LiveLaw(Ker) 50

The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors. 2023 LiveLaw(Ker) 51

Muhammed Rashid @ Rashid v. Girivasan E.K. & Ors. 2023 LiveLaw(Ker) 52

P.K. Sajeev & Ors. v. Eldho P. Mathew & Ors. 2023 LiveLaw (Ker) 53

Prakashan and Ors. v. State of Kerala 2023 LiveLaw (Ker) 54

The President, Vennoor Services Cooperative Bank v. State of Kerala & Ors. 2023 LiveLaw (Ker) 55

Suresh Kumar V State of Kerala 2023 LiveLaw (Ker) 56

S. Sivadas v. State of Kerala and other connected matters 2023 LiveLaw (Ker) 57

Sithara Indane Gas V Union of India 2023 LiveLaw (Ker) 58

K. Abdul Hameed v. Kerala State Human Rights Commission & Ors. 2023 LiveLaw (Ker) 59

xxx v. yyy 2023 LiveLaw (Ker) 60

Dr. Balachandran v. State of Kerala and other connected matters 2023 LiveLaw (Ker) 61

Dr. Anupama K.P. v. University of Calicut & Ors. 2023 LiveLaw (Ker) 62

Sudheesh Babu v. State of Kerala 2023 LiveLaw (Ker) 63

Kerala Public Service Commission v. The State Commissionerate for Persons with Disabilities & Anr. 2023 LiveLaw (Ker) 64

Kerala State Insurance Department v. Joy Wilson M.V. & Ors. 2023 LiveLaw (Ker) 65

Shabna Abdulla v. Union of India & Others 2023 LiveLaw (Ker) 66

George M. Mathews @ George V. Muhammed Haneefa Rawther 2023 LiveLaw (Ker) 67

Mrs. Sasikala Menon V. State of Kerala and Another 2023 LiveLaw (Ker) 68

M/S Peniel Cashew Company V M/S.Ahcom Sarl 2023 LiveLaw (Ker) 69

B v. H 2023 LiveLaw (Ker) 70

Tomy Joseph v. The Joint Registrar of Cooperative Societies (General), Idukki & Anr. 2023 LiveLaw (Ker) 71

M.M. Abdul Azeez & Ors. v. State of Kerala 2023 LiveLaw (Ker) 72

Vijay Kirgandur & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 73

The Town Planner, District Town Planning Officer V Joseph Jacob & Others. 2023 LiveLaw (Ker) 74

Hameedali K.P. v. Chief Executive Officer & Ors. 2023 LiveLaw (Ker) 75

Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency 2023 LiveLaw (Ker) 76

Siji V State of Kerala 2023 LiveLaw (Ker) 77

Rajaneesh Kumar R. & Ors. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 78

Femeena E. v. State of Kerala 2023 LiveLaw (Ker) 79

State of Kerala rep. by Additional Chief Secretary & Ors. v. Dr. Louis J. Kattady & Ors. 2023 LiveLaw (Ker) 80

Thaikkudam Bridge v. Hombale Films & Ors. 2023 LiveLaw (Ker) 81

Manu Dev V XXX and Another 2023 LiveLaw (Ker) 82

XXX v XXX 2023 LiveLaw (Ker) 83

Aleyamma Kuruvilla v. Mahatma Gandhi University 2023 LiveLaw (Ker) 84

Major Vellayani Devi Temple Advisory Committee & Anr. v. State of Kerala & Ors. and Sreeraj Krishnan Potti M.S. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 85

R v. R 2023 LiveLaw (Ker) 86

Kalukutty v. P.M. John & Anr. 2023 LiveLaw (Ker) 87

Shanil v. State of Kerala & Anr. and other connected matters 2023 LiveLaw (Ker) 88

Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors. 2023 LiveLaw (Ker) 89

State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor, 2023 LiveLaw (Ker) 90

Anilkumar & Anr. v. State of Kerala, 2023 LiveLaw (Ker) 91

Gireesh V Antony, 2023 LiveLaw (Ker) 92

Southern Railway V M R Ramakrishnan, 2023 LiveLaw (Ker) 93

C.V. Balan & Ors. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 94

The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr, 2023 LiveLaw (Ker) 95

Sunil N.S. v. State of Kerala 2023 LiveLaw (Ker) 96

V. Mohanlal v. State of Kerala & Ors. 2023 LiveLaw (Ker) 97

Thachanalil Shyju V State of Kerala, 2023 LiveLaw (Ker) 98

Anantha Narayanan & Others V Malabar Devaswom Board & Others, 2023 LiveLaw (Ker) 99

Arun P Wilson and Others V State of Kerala and Others, 2023 LiveLaw (Ker) 100

K.J. Abraham v. The District Geologist2023 LiveLaw (Ker) 101

Yasin Sunu V State of Kerala,2023 LiveLaw (Ker) 102

Lalithambika & Ors. v. Grievance Redressal Committee & Ors.2023 LiveLaw (Ker) 103

Jamshid P.V. v. State of Kerala, 2023 LiveLaw (Ker) 104

Sam Joseph V State of Kerala and Others, 2023 LiveLaw (Ker) 105

K C Antony V State of Kerala and Others 2023 LiveLaw (Ker) 106

Pradeep and Others V State of Kerala and Others, 2023 LiveLaw (Ker) 107

R. Helan Thilakom v. State of Kerala & Ors. 2023 LiveLaw (Ker) 108

A. Saudamini v. Union of India & Ors, 2023 LiveLaw (Ker) 109

Vimal K. Mohanan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 110

The Kerala High Court observed that the imposition of age restriction under the Assisted Reproductive Technology (Regulations) Act, 2021 without a transitional provision, is irrational and arbitrary. Thereby, the Court issued the direction that the petitioners who were undergoing ART services as of the date on which the ART Act came into effect (25.01.2022) shall be permitted to continue their treatment.

The Court has also directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Central Government about the need for a re-look at the upper age limit prescribed in Section 21(g) of the Act.

The Court issued the aforesaid directions while disposing of a batch of Writ Petitions filed challenging the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulations) Act, 2021 which prohibits the application of ART services to persons above the prescribed age limit.

Persons Extracting Groundwater For Consumer Supply Are Bound To Obtain Statutory Registration: Kerala High Court

Case Title: Sali M.N. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 2

The Kerala High Court has held that persons engaged in the business of extracting groundwater and supplying it to consumers through tanker lorries are 'users of ground water' as defined under Section 2(1)(h) of the Kerala Ground Water (Control and Regulation) Act, 2002 and are bound to obtain registration under Section 9 of the Act, irrespective of whether the areas where they operate are notified areas or not.

Kerala Service Rules] Leave Vacancy Without Allowance Granted To Regular Incumbent Not Appointment Against 'Substantive Vacancy': High Court

Case Title: State of Kerala rep. by Secretary to the Government & Ors. v. Dr. Sushama S. & Anr.

Citation: 2023 LiveLaw (Ker) 12

The Kerala High Court held the appointment of a teacher against the vacancy that arose by reason of the leave without allowance granted to a regular incumbent, cannot be regarded as an appointment made against a substantive vacancy.

The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha further held that the service rendered by such person in the leave vacancy preceding their absorption without break in the regular establishment would also not qualify for pensionary benefits.

"...in the absence of an order by the Government suspending the lien of the teacher in whose leave vacancy the petitioner was initially appointed, the said teacher was retaining a lien on that post. If that be so, the initial appointment of the petitioner cannot be said to be an appointment made against a substantive vacancy", it was observed.

Sabarimala Pilgrims Can't Carry Posters Of Film Starts, Politicians; Right To Worship Subject To Tradition : Kerala High Court

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

Citation: 2023 LiveLaw (Ker) 13

The Kerala High Court observed that no pilgrim can be permitted entry to Sabarimala Sannidhanam carrying posters and huge photographs of celebrities, politicians etc.

The Court, therefore, directed the Travancore Devaswom Board (TDB) to take necessary steps to ensure that every worshipper of Lord Ayyappa exercises his right of worship at Sabarimala Sannidhanam, in an accustomed manner and subject to the practice and tradition in Sabarimala.

Division Bench consisting of Justice Anil K Narendran and Justice P. G. Ajithkumar observed that,

"According to Oxford Dictionary 'worshipper' is a person who shows reverence and adoration for deity. Right to worship is a civil right, of course in an accustomed manner and subject to the practice and tradition in each temple".

'Moratorium U/S 14(1) IBC Applies Only To Corporate Debtor; Non-Corporate Debtors U/S 141 NI Act Continue To Be Statutorily Liable': Kerala HC

Case Title: M/S PVS Memorial Hospital & Ors. v. Dr. Satheesh Iype & Anr.

Citation: 2023 LiveLaw (Ker) 14

The Kerala High Court held that the moratorium provision enshrined in Section 14 (1) of the Insolvency and Bankruptcy Code would only apply to corporate debtors, and the non-corporate debtors under Section 141 of the Negotiable Instruments Act would continue to be statutorily liable under Chapter XVII of the Act.

As regards the application of the principles of vicarious liability under criminal law as has been provided under Section 141 of the NI Act is concerned, the Single Judge bench of Justice A. Badharudeen observed that, the same could not be fastened due to civil liability.

"Vicarious liability under sub-Section (1) to S.141 of the NI Act can be pinned when the person is in overall control of the day-to-day business of the company or firm. Vicarious liability under sub-section (2) to S.141 of the NI Act can arise because of the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officer of the company", it was observed.

Kerala High Court Grants Bail To Dimple Lamba Who Allegedly Facilitated Rape Of 19-Year-Old Model In Kochi

Case Title: Dimple Lamba @ Dolly v. State of Kerala

Citation: 2023 LiveLaw (Ker) 15

The Kerala High Court granted bail to Dimple Lamba alias Dolly, who allegedly facilitated the gang rape of a 19 year old model in a moving car in Ernakulam.

Justice Bechu Kurian Thomas passed the above order.

"The victim had specifically stated, at the initial stage itself, that the petitioner had an active role in the crime committed. The sequence of events as pointed out by the learned Public Prosecutor also indicates prima facie, the possibility of an active role played by the petitioner. However, taking note of her young age, and the period of detention already undergone including the stage of investigation, I am of the view that no further purpose would be served by continuing the petitioner in detention. Moreover she is a woman falling within the beneficial provision of the first Proviso to Section 437 of Cr.P.C.", it was observed.

Kerala Service Rules | No Claim To Pension When An Employee Is Appointed For A Limited Period, Say Against Leave Vacancy: High Court

Case Title: State of Kerala and Ors. v. Raveendran Pillai S and Anr.

Citation: 2023 LiveLaw (Ker) 16

The Kerala High Court observed that according to Rule 4 and Rule 14E(a) of Kerala Service Rules no claim to pension is admissible when an employee is appointed for a limited period and that the period of regular full time service of a pensioner in an aided school alone shall be reckoned as qualifying service for pension.

Division Bench consisting of Justice P. B. Suresh Kumar and Justice C. S. Sudha observed that,

“The appointments of the petitioner in the leave vacancies can be regarded only as appointments for a limited time and in light of Rule 4 of Part III KSR, no claim to pension is admissible for the services rendered by the petitioner in the said vacancies, especially in light of the clarification made in Rule 14E(a) that only regular full time aided school service shall be reckoned for pension”.

Sale Of Property Under SARFAESI Will Not Extinguish Prior Existing Charge For Dues Under State Tax Laws : Kerala High Court

Case Title: The Tahsildar (RR) & Ors. v. Nizamudeen S. & Ors. and other connected cases.

Citation: 2023 LiveLaw (Ker) 17

The Kerala High Court held that the statutory charge created under the provisions of the Kerala General Sales Tax Act, 1963 and the Kerala Value Added Tax Act, 2003, prior to any mortgage made, against the dealers would remain intact, even if the property is sold by the Bank, by the rights conferred under Section 26E of the SARFAESI Act, 2002, and Section 31B of the Recovery of Debts and Bankruptcy Act 1993 read with the Rules to it, until such encumbrances are cleared as per the provisions of the said enactments and the rules.

The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, passed the above orders in a batch of writ appeals filed by the State challenging the Single Bench order which held that a secured creditor under Section 26E of the SARFAESI Act and Section 31B of the RDB Act obtains priority over the right claimed by the Revenue, both in proceeding against the properties in question, or in recovering the secured debt.

While allowing the writ appeals, the Division Bench observed: "To put it otherwise, if and when any amounts have fallen due as per the provisions of the KGST Act, 1963 and the KVAT Act, 2003 and the proceedings start, consequent to which a charge is created on the properties of the assessee and the said charge created would continue to run with the property even if the Banks / financial institutions conduct the sale to recover the amounts due under the mortgage".

It noted that, "....if the mortgage is created after the amounts have fallen due as per the provisions of the KGST Act, 1963 and the KVAT Act, 2003 and accordingly, proceedings are initiated, such a mortgage can only be termed as subject to a statutory charge as per Sections 26B and 38 of Act 1963 and the Act 2003 respectively".

Contractual Employees Cannot Be Terminated Without Issuance Of Notice: Kerala High Court

Case Title: Tintu K. & Anr. v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 18

The Kerala High Court held that contractual employees cannot be terminated on the ground of 'unsatisfactory performance' of service without the issuance of notice or finding to that effect.

Setting aside an order passed by Mananthavady Municipality by which the service of petitioners at Ayush NHM Homeopathic Dispensary was discontinued, Justice Anu Sivaraman said that the primary reason for termination of services of the contract was that their services had been found to be unsatisfactory.

"If that be so, even though the petitioners are contractual employees, they were entitled to a notice with regard to the unsatisfactory nature of their service and their services could have been terminated only on a finding being rendered on the same," the court said.

The court further noted that even in case the contention of the respondents is that the petitioners were not appointed after a full process of selection was carried out, it is not in dispute that they have been continuing in service on contract basis from 2010 and 2016 onwards.

Plastic Ban : Kerala High Court Lifts Ban On Non-Woven Bags Of 60 GSM & Above

Case Title: Nibu Kasim & Ors. v. Union of India & Ors. and M/S Go Green Bags v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 19

The Kerala High Court held that the inclusion of non-woven bags of 60GSM and above in the list of banned single use plastic items by Government Orders without regard to the GSM standards, and in violation of the provisions of the Plastic Waste Management Rules, 2016 as arbitrary and illegal.

Justice N. Nagaresh, passed the order in two writ petitions filed before it challenging the ban on the non-woven bags brought into effect by virtue of certain Government Orders by the State of Kerala and the Kerala State Pollution Control Board.

The Court in this case noted that while Section 23 of the Environment Protection Act, 1986 provided that the Central Government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central Government cannot be delegated.

"When, in exercise of the rule making powers under Section 25, the Central Government has prescribed minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State Government cannot prescribe a different standard which would negate the rules framed by the Central Government. If any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate", it observed in this regard.

Court Retains Power To Execute Its Maintenance Order Against Person Residing Outside Its Jurisdiction: Kerala High Court

Case Title: Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko

Citation: 2023 LiveLaw (Ker) 20

The Kerala High Court held that even though an order of maintenance may be enforceable at the place where the person - against whom it is made - resides, the court which passed the order also retains the power to execute it outside the jurisdiction where such person is residing.

The Single Judge Bench of Justice A. Badharudeen considered the legal question as to whether a court which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure (CrPC) is competent to execute the order against a person, who has been residing in a place outside its jurisdiction.

"...it is necessary in the interests of justice to visualise the plight of poor wife and children or the parents, as the case may be, if a view taken to the effect that each and every execution proceedings to enforce order of maintenance obtained by the wife, children and parents at the place where the person against whom the order was made. If such a proposition is declared, a clever husband or son or daughter, as the case may be, could very well shift their residence, outside the jurisdiction of the court where the order of maintenance sought to be executed, so as to defeat the enforcement of the order. No doubt, it may be easy for them to shift their residence periodically, to defeat the enforcement of the maintenance order," the court observed.

Presence Of Gold In Pocket Without The Appropriate Documentation Raises Suspicions Of Tax Evasion: Kerala High Court

Case Title: Sasi Pathirakunnath Versus Assistant State Tax Officer

Citation: 2023 LiveLaw(Ker) 21

The Kerala High Court has held that the presence of gold in your pocket without the appropriate documentation raises suspicions of tax evasion.

The bench of Justice Gopinath P. has observed that there is no satisfactory explanation for the fact that there was a discrepancy in the number of documents produced by the petitioner in the evening before the department and the quantity of gold actually recovered from the petitioner.

Claim Of Electricity Board Not Barred By Limitation Where Unauthorised Usage Is Continuous: Kerala High Court

Case Title: Union Bank of India v. The Deputy Chief Engineer and Ors.

Citation: 2023 LiveLaw (Ker) 22

The Kerala High Court observed that Electricity Board's claim for additional amount on the basis of alleged unauthorised usage of electricity is not barred by law of limitation when the violation is a continuous and recurring one.

The Court observed that this is in addition to the factors provided under Section 126 (5) of the Electricity Act 2003.

Justice Shaji P Chaly observed that, "the limitation under the Limitation Act does not hit the claim of the Board as contented by the petitioner, because the instant violation is a continuous and recurring one, renewing the dues every day, till the unauthorized load is dismantled."

Pension Of High Court Judge Who Has Been Re-appointed After Retirement As Ombudsman Cannot Be Deducted From Salary: Kerala HC

Case Title: Justice K.K. Denesan (Retd. Judge) v. Senior Accounts Officer & Ors.

Citation: 2023 LiveLaw (Ker) 23

The Kerala High Court considered the question as to whether the pension of a High Court judge, who has been reappointed as an Ombudsman after retirement, could be deducted from his salary, and answered the same in the negative.

Justice Anu Sivaraman, observed in this regard,"the provisions of the Act (Panchayat Raj Act) and the Rules (Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999) are quite clear in as much as the provision specifically provides that a person appointed as Ombudsman would be entitled to salary and allowances equivalent to that of a High Court Judge. The Act or the Rules, admittedly, do not provide for any deduction of pension".

Complainant U/S 138 NI Act Must Specifically Assert That Power Of Attorney Holder Has Knowledge Of Impugned Transaction: Kerala High Court

Case Title: Razak Mether v. State of Kerala and Anr.

Citation: 2023 LiveLaw (Ker) 24

The Kerala High Court observed that a complaint filed under Section 138 of the Negotiable Instruments Act through power of attorney holder is perfectly legal and competent. However, the power of attorney holder can depose and verify on oath before the Court in order to prove the contents of a complaint, only when he has witnessed the transaction as an agent of the payee/ holder in due course or possess due knowledge regarding the said transactions.

Justice A. Badharudeen further observed that the complainant has to make specific assertions as to the knowledge of the power of attorney in the said transaction explicitly in the complaint.

It is true that as per the ratio in A.C Narayanan first case (A.C.Narayanan v. State of Maharashtra &anr), the complaint filed under Section 138 of the Negotiable Instruments Act through power of attorney holder is perfectly legal and competent. But the power of attorney holder could depose and verify on oath before the court in order to prove the contents of the complaint, only when the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions and also it is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder, who has no knowledge regarding the transactions. If the above stipulations are not satisfied, the power of attorney could not depose and verify on oath before the court."

High Court Quashes Proceedings Under Kerala Prevention Of Damage To Private Property Act Based On Settlement Between Parties

Case Title: Ajeesh Nath P.S. & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 25

The Kerala High Court quashed the proceedings under Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019 based on the settlement arrived at between the parties.

The bench of Justice Kauser Edappagath passed the order. It observed,

"The Apex Court in Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)], Narinder Singh & Ors. v. State of Punjab & Ors. [(2014) 6 SCC 466] and in State of Madhya Pradesh v. Laxmi Narayan & Ors. [(2019) 5 SCC 688] has held that the High Court by invoking S.482 of Cr.P.C can quash criminal proceedings in relation to non compoundable offence where the parties have settled the matter between themselves notwithstanding the bar under S.320 of Cr.P.C. if it is warranted in the given facts and circumstances of the case or to ensure the ends of justice or to prevent abuse of process of any Court".

Administrative And Quasi-Judicial Authorities Must Mention At Least Brief Reasons In Their Orders: Kerala High Court

Case Title: Ambili S. Pilla v. Vinod Kumar Pilla and Anr.

Citation: 2023 LiveLaw (Ker) 26

The Kerala High Court reiterated the importance of reasoned orders by authorities performing judicial or quasi-judicial functions and observed that it is an essential requirement of the rule of law that some reasons at least in brief must be disclosed in the order.

The Division Bench consisting of Justice Anil K. Narendran and Justice P. G. Ajithkumar observed,

The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. it would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority.

[Promissory Estoppel] Govt Subsidy Cannot Be Withdrawn With Retrospective Effect Particularly When Other Party Takes Steps: Kerala High Court

Case Title: Vasu Coco Resorts Private Limited v. State of Kerala and Ors.

Citation: 2023 LiveLaw (Ker) 27

The Kerala High Court recently observed that action of taking away the benefits of concession/ subsidy promised by the government can only be done prospectively.

Justice Amit Rawal observed that, "Principle of promissory estoppel arises while extending the promise if steps have been taken where the benefit cannot be taken away after expiry of number of years. There is no bar for the Government to stop the concession or benefit of subsidy prospectively for the units which have already raised to construction with a project considering the factor of subsidy. In case such subsidy is not paid to such persons, the affected parties would be liable to pay the charges along with interest for no rhyme and reasons."

Electricity Dept Has No Business To Check Property Ownership Of Consumer: Kerala High Court

Case Title: Rasheeda v. Kerala State Electricity Board Ltd. & Ors.

Citation: 2023 LiveLaw (Ker) 28

The Kerala High Court recently held that where a civil dispute is pending before the Civil Court, the Electricity Department ought to be circumspect in entertaining a complaint, unless there is gross violation of provisions of the Act.

Justice Amit Rawal passed the above order in a petition that was filed challenging the communication issued by the Electricity Board to the petitioner, asking her to show ownership of the property in question.

"Electricity department has no business to check the veracity of the ownership. Once the matter is pending before the civil court, Electricity Department should be circumspect in entertaining the complaint until and unless there is gross violation of provisions of the Act", the Court observed.

Kerala High Court Seeks Report On Action Taken Against Devaswom Guard Who Misbehaved With Pilgrims At Sabarimala

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

Citation: 2023 LiveLaw (Ker) 29

The Kerala High Court said that action must be taken against the Devaswom guard who recently misbehaved with the devotees at Sabarimala.

The division bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar after perusing the report filed by the Special Commissioner, Sabarimala on the incident and viewing a video recording, observed that:

…the body language and the facial expression of the Devaswom guard, while shoving the pilgrims in front of Sreekovil of Sabarimala Sannidhanam has to be deprecated in the strongest words. For such misbehaviour towards pilgrims, the Devaswom guard has to be proceeded against, in accordance with law.

Sree Narayana Trust Office Bearers Involved In Criminal Offence Relating To Trust Barred From Holding Office Till Disposal Of Case: Kerala High Court

Case Title: Advocate Cherunniyoor V. Jayaprakash v. Sree Narayana Trust & Ors.

Citation: 2023 LiveLaw (Ker) 30

The Kerala High Court approved the modification of the scheme of Sree Narayana Trust. The Scheme was framed pursuant to a judgement of the court in a 1972 case and clause 34 permits any member of the Board of Trustees to approach high court for appropriate modification.

While the clause 34A of the Scheme permits members of the Board of Trustees to move civil court against office bearers of Trust or the executive committee for violation of Trust scheme or on breach of trust, the new modification states that "if an office bearer of a Trust is involved in a criminal offence of breach of trust or in an offence relating to the property of a Trust and, his continuation in the office is having conflict with the interest of the Trust, or is detrimental to the interest of the Trust, the office bearer shall abstain to hold the office till he is discharged or acquitted in such case."

'Consensual Relationship, Promise To Marry Was Not False': Kerala High Court Quashes Rape Case

Case Title: Emmanvel Peter v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 31

The Kerala High Court quashed rape case against a 31-year-old man, observing that he and the complainant were in a consensual relationship and his promise to marry her was not with an intention to deceive her.

Justice Kauser Edappagath reiterated that in an allegation of rape on false promise of marriage, the courts have to carefully examine whether the accused actually wanted to marry the victim or had malafide motives and had made a false promise to this effect.

The Court took note of the Apex Court decisions in Deepak Gulati v. State of Haryana (2013) and Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (2019) and said it has been observed that if an accused had not made the promise with the sole intention to seduce the victim to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or clandestine motives, it would be a clear case of rape.

Plaintiff Cannot Seek Return Of Plaint & Refund Of Court Fees After Dismissal Of Suit: Kerala High Court

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

Citation: 2023 LiveLaw (Ker) 32

The Kerala High Court held that the court fee could not be refunded after a suit had been decided on merits, particularly when the petitioner had filed the application for return of the plaint and court fee, without challenging the decree therein.

Justice C.S. Dias observed in this context that the judgment in the civil suit had been delivered after a full-fledged trial and a complete adjudicatory process.

Munsiff Magistrate Trainee Not A Judicial Officer, Not Barred For Appointment As District Judge After Seeking Permission: Kerala High Court

Case Title: Mr. Unnikrishnan V.V. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 33

The Kerala High Court held that where a person had not been a judicial officer either on the date of submission of application for appointment as the District Judge, or on the date of his appointment as such, and he had only been a Munsiff-Magistrate trainee, the same would not be a bar for his appointment to the post of District Judge.

Justice Anu Sivaraman passed the above order in a petition challenging the appointment of A.V. Telles (3rd respondent), on the ground that he had been undergoing Munsiff-Magistrate training at the Kerala Judicial Academy, and observed,

"a reading of the provisions of the Kerala Judicial Service Rules would make it amply clear that the initial induction in the post of Munsiff-Magistrate is as pre-induction trainees and that Ext.P6 is an order deputing the incumbents whose names are contained in Ext.P5 list for the pre-induction training. Since the Special Rules specifically provide for a pre-induction training and a later appointment as Munsiff-Magistrate after completion of the period of training, the contention of the petitioner that the 3rd respondent stood appointed as Munsiff-Magistrate and was therefore a judicial officer cannot be accepted" the Court said.

COVID First Line Treatment Centre Can Be Termed As Hospital For The Purpose Of Claiming Insurance: Kerala High Court

Case Title: Star Health Insurance And Allied Insurance Company Ltd v. Avinash T and Anr.

Citation: 2023 LiveLaw (Ker) 34

The Kerala High Court recently observed that COVID First Line Treatment Centre can be termed as a Hospital for the purpose of insurance claims.

Justice V G Arun said that as per the COVID-19 advisory for patient admission to CFLTCs issued by the Government, the Centre identified as COVID Health Care Centre should treat all mild and moderate symptomatic persons under surveillance and should be utilised for treating positive cases when need arises.

CFLTCs are Primary Level Health Care Centres set up for providing care to less serious cases and referral of serious cases to COVID hospitals, so as to avoid crowding in COVID Hospitals and avoid wastage of resources.

Kerala High Court Directs Law College To Consider Granting Admission To 5-Year LLB Course To Candidate With 3-Year Diploma After Class X

Case Title: Meharban M.H. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 35

The Kerala High Court recently directed the Principal of the Sree Narayana Law College, Poothotta to consider the claim of a candidate who had been denied admission to the 5 year LL.B. Course on the ground that her qualification of three year diploma/polytechnic was not equivalent to the one prescribed by the Bar Council of India for admission.

Justice Devan Ramachandran took note of the Circular issued by the BCI granting equivalency to the qualification of three year Diploma/Polytechnic course viz-a-viz the Plus Two certificate course for admission to the 5 year integrated LL.B. course, and observed that:

"Taking note of the afore submissions and since there does not appear to be any dispute as regards the qualification of the petitioner, I allow this writ petition and direct the 5th respondent – Principal of the College, to consider her claim for admission to the available vacancy, subject to any directives that may be issued with respect to it by the 3rd respondent – Commissioner for Entrance Examinations; and to complete proceedings as expeditiously as is possible, but not later than one week from the date of receipt of a copy of this judgment".

Judicial Officers' Pension | Special Pay Part Of Pay, Should Be Reckoned To Calculate Pension : Kerala High Court

Case Title: Kerala Judicial Officers' Association & Anr. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 36

The Kerala High Court held that the special pay granted to judicial officers is a part of their pay and that it is to be reckoned for the purpose of calculation of pension.

The Single Judge Bench of Justice Anu Sivaraman was considering a batch of petitions filed by judicial officers who are either working or have retired from service as District and Sessions Judges, seeking refixation of pension payable to the petitioners and members of the Kerala Judicial Officers Association by reckoning special pay which is paid to them as part of their emoluments.

"Boys, even from a very young age, often grow up with certain sexist stereotypes - reinforced by peer and other social influences. Showing a girl/woman respect and honour is not old fashioned; on the contrary, is a virtue for all times. Sexism is not acceptable or “cool”. One exhibits strength when he respects a girl/woman. Respectfullness is an imperative that needs to be inculcated very young. How one treats a woman gives an insight to his upbringing and personality."

ISRO Espionage Case : Kerala High Court Allows Anticipatory Bail Applications Filed By RB Sreekumar & Other Accused

Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters

Citation: 2023 LiveLaw(Ker) 38

The Kerala High Court allowed anticipatory bail applications of former Police and Intelligence Bureau officers, including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews, in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case.

A bench of Justice K. Babu passed the order. The Court directed that the accused must appear before the CBI for interrogation on January 27 between 10 AM and 11 AM. In the event of their arrest, they shall be released on bail on executing bonds for Rs 1 lakhs each with two solvent sureties each for the like sum. They cannot leave India without the permission of jurisdictional court.

'No Prima Facie Case Of Conspiracy Or Involvement Of Foreign Powers In Nambi Narayanan's Arrest': Kerala HC In ISRO Espionage Case

Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters

Citation: 2023 LiveLaw(Ker) 38

The Kerala High Court, while allowing the anticipatory bail applications of former Police and Intelligence Bureau officers-including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews- in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case, observed that prosecution has failed to prima facie establish any element of conspiracy to hold that a foreign power had a hand in persuading the petitioners in the registration of the two crimes against Narayanan.

Justice K. Babu, after perusing the Case Diary and DK Jain Committee Report, observed that he was unable to find any credible material to prima facie find any elements of conspiracy as contended by the Additional Solicitor General.

"I am of the view that the prosecution has so far not prima facie established any element of conspiracy as projected by the learned Additional Solicitor General...have carefully examined the Case Diary and the Justice D.K.Jain Committee Report. I am unable to find any credible material to prima facie find any elements of such conspiracy. There is absolutely no indication or credible material to prima facie hold that a foreign power had a hand in persuading the petitioners/accused in the registration of the two crimes referred to above."

Section 113 (3) Motor Vehicles Act | Owners Also Liable When Vehicle Driven With Excess Weight: Kerala High Court

Case Title: Fasaludheen A. & Anr. v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 39

The Kerala High Court observed that owners of the vehicles are also liable to be prosecuted under Section 113(3) of the Motor Vehicles Act, 1988 in case they have permitted the vehicle to be driven with excess weight.

Hearing a batch of petitions challenging the proceedings initiated under Sections 113(3)(b) r/w. Section 194(1) of the Motor Vehicles Act, the court said the complaints raise specific allegations against the registered owners of the vehicles that they had permitted the vehicle to be driven with excess weight.

Justice Ziyad Rahman A.A. took note of the 'presumption' stipulated under Section 113(4) that when the driver or person in charge of the vehicle being driven in contravention to the stipulations of the provision is not the owner, the Court may "presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer".

NDPS Act | Vehicle Piloting Another Vehicle Carrying Contraband Is Not Vehicle Used As Conveyance; Cannot Be Confiscated: Kerala High Court

Case Title: Firozalavi T.V. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 40

The Kerala High Court considered the question as to whether a vehicle piloting or accompanying another vehicle, which is transporting Narcotic Drug and Psychotropic Substances could be held as vehicle used as conveyance in carrying the contraband so as to confiscate the same under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), and answered the same in the negative.

The Single Judge Bench of Justice A. Badharudeen observed that to hold that the vehicle accompanying or piloting another vehicle carrying the contraband, also as a vehicle carrying the contraband, and to treat the same also as conveyance is beyond the statutory intent of Section 60(3) of NDPS Act.

Kerala High Court Directs State To Revise Minimum Wages Of Nurses In Private Sector

Case Title: Kerala State United Nurses Association v. State of Kerala

Citation: 2023 LiveLaw (Ker) 41

The Kerala High Court has directed the State government to revise the minimum wage of nurses working in the private sector in the State.

The Single Judge Bench of Justice Amit Rawal has directed that the said exercise ought to be undertaken within a period of 3 months. The Court has added that the said decision has to be taken after hearing the submissions of the hospital Management and the nurses.

Kerala High Court Suspends Conviction Of Lakshadweep MP Mohammed Faizal In Attempt To Murder Case

Case Title: Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep

Citation: 2023 LiveLaw(Ker) 42

The Kerala High Court suspended the conviction and sentence of Lakshadweep MP Mohammed Faizal and three others in a case of attempt to murder.

Lakshadweep MP Mohammed Faizal had moved an appeal challenging the decision of the Court of Session, Kavaratti to convict and sentence him and three others to 10 years in jail in a case of attempt to murder.

Indulging In Similar/Other Criminal Activities Reason For Bail Cancellation When Such Condition Imposed In Bail Order: Kerala HC Reiterates

Case Title: Jeby James v. State of Kerala

Citation: 2023 LiveLaw (Ker) 43

The Kerala High Court reiterated that indulging in similar or other criminal activities would be a reason for cancellation of the bail, particularly, when there is such a condition imposed in the initial bail order.

The Single Judge Bench of Justice A. Badharudeen, while dismissing a petition seeking the bail cancellation order passed by the court below to be set aside, observed,

"Since the law is settled that indulging in similar or other criminal activities is a reason for cancellation of the bail, particularly, when a condition imposed in the initial bail order is to that effect, involvement of the accused in a similar offence by itself is a reason to cancel the bail granted, cancellation of bail on the said finding is to be justified".

Can't Browbeat Judges To Get Things Done Your Way: Kerala High Court To Woman On Allegations Of Bias Against Family Court In Divorce Case

Case Title: RB. v. AB.

Citation: 2023 LiveLaw (Ker) 44

The Kerala High Court recently dismissed a woman's petition seeking transfer of a divorce case on the ground of alleged bias and favouritism by the Family Court Judge. The divorce case has been filed by her husband.

Justice C.S. Dias said the petitioner, a woman lawyer, has made a "scathing attack" on the Family Court Judge by questioning his integrity, honesty and impartiality, on the sole reason that he had passed a string of orders against her.

'Mentally Retarded Persons' Also Eligible For Tax Exemption For Motor Cars Purchased Since April 1, 1998: Kerala High Court

Case Title: Clint Johnson v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 45

The Kerala High Court ruled that 'mentally retarded persons' are also entitled to tax exemption in purchase of motor cars, on par with the physically handicapped persons under the notification issued by the state government in 1998 under Section 22 of the Kerala Motor Vehicles Taxation Act, 1976.

Justice P.V. Kunhikrishnan said when both the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rights of Persons With Disabilities Act, 2016 state that the person with disability includes 'mentally retarded persons' also, their exclusion from tax exemption and restricting the benefit to the physically handicapped persons - blinds, deaf and orthopedically handicapped persons, is discriminatory and is liable to be interfered by the court.

S.125 CrPC | Major Unmarried Daughter Not Entitled To Maintenance From Father Merely On Ground That She Is Unable To Maintain Herself: Kerala HC

Case Title: Gireesh Kumar N v. Rajani K V and Anr.

Citation: 2023 LiveLaw (Ker) 46

The Kerala High Court reiterated that an unmarried daughter who attained majority cannot claim maintenance from her father under Section 125(1) CrPC, merely on the ground that she does not have means for her sustenance.

The Court observed that an unmarried daughter unable to maintain herself by reason of any physical, mental abnormality or injury is entitled to claiming maintenance under Section 125(1) CrPC, however, pleadings and evidence in this regard are mandatory.

SC/ST Act | Bail Order Passed Without Notice To Victim A Nullity, Liable To Be Recalled: Kerala HC

Case Title: Babu T. v. Byju Sebastian and Ors.

Citation: 2023 LiveLaw(Ker) 47

The Kerala High Court recently recalled an order which granted bail after taking note of the fact that the order was passed without notice to the victim.

The Court allowed an application filed by the victim seeking recall of the bail order passed without hearing him.

The Court observed that a notice to the victim is mandatory as contemplated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and if such a notice is not provided while passing a Bail Order, then it is liable to be recalled.

Compromise Decree Cannot Be Passed Where Parties Enter Into Agreement Without Specifying How The Suit Is To Be Decided: Kerala High Court

Case Title: Dr. Drisya D.T. & Ors. v. Dr. Kiran & Ors.

Citation: 2023 LiveLaw (Ker) 48

The Kerala High Court recently held that where the parties agreed to settle a suit on the basis of an agreement entered into between themselves, without saying how the suit is to be decided or what the terms of the compromise are, no decree can be passed by the Court in such suit.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar passed the above order while dismissing the judgment rendered by the Family Court which held that all the pending cases between the parties were settled in terms of the compromise. It was noted by the Division Bench that the compromise agreement in Clause 5 merely pertained to the settlement of the case relating to setting aside of a gift deed.

"On the basis of an agreement by which the parties agreed to settle a suit, without saying how is the suit to be decided and what are the terms of compromise, no decree can be passed. If the suit is to be withdrawn also, there shall be a stipulation to that effect. Clause (5) or any other clause in Annexure A1 does not enable this Court or the Family Court, Thiruvananthapuram to dispose of any of the cases mentioned above except, O.P.No.780 of 2021. Therefore, the apprehension of the appellant that Annexures A1 and A2 would be interpreted to mean that all the aforesaid pending cases have been settled is genuine. In view of that Annexure A2 judgment is wrong", it was observed.

[Special Marriage Act] Youngsters Largely Employed Abroad, 30 Days Mandatory Residence & Subsequent Waiting Period May Need Relook: Kerala HC

Citation: 2023 LiveLaw (Ker) 88

The Kerala High Court held that jurisdictional courts, such as the Special Court and Magistrate Court, are vested with the power to grant interim custody of vehicles seized in connection with offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS) under Section 457 CrPC, irrespective of the procedure for disposal stipulated in Section 52A of the Act.

Justice V.G. Arun arrived at the above finding while noting that the Apex Court had, in Sainaba v State of Kerala & Anr. (2022), reversed the finding in Shajahan v. Inspector of Excise (2019), that Magistrates were denuded of the power to grant interim custody under Section 451 CrPC.

"...the appeal (in Sainaba) was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted"

State Human Rights Commission Vested With Jurisdiction To Order Compensation For Human Rights Violations

Case Title: Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors.

Citation: 2023 LiveLaw (Ker) 89

The Kerala High Court held that the State Human Rights Commission has jurisdiction to direct payment of compensation for human right violations.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman passed the order in a case where a street vendor had been evicted by the Kottayam Municipality in a discriminatory manner, and without issuance of notice.

"The right of the 3rd respondent to carry on vending on street guaranteed by the Constitution is subject to the restrictions imposed by the Kerala Municipality Act, 1994. However, we find that the power of removal of encroachers vested in the Secretary under the Municipality Act is not exercised judicially and reasonably. The 3rd respondent's right to livelihood has been deprived otherwise than in accordance with a just and fair procedure established by law. Consequently, it follows that the Municipality has infringed the fundamental rights of the 3rd respondent under Article 21 of the Constitution", the Court observed.

Ciza Thomas' Appointment As VC In-Charge Of KTU Is Temporary, State Can Recommend Other Names To Replace Her

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

Citation: 2023 LiveLaw (Ker) 90

The Kerala High Court upheld a single bench order which refused to interfere with appointment of Professor (Dr.) Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, however emphasised that her appointment under Section 13(7) of the A.P.J. Abdul Kalam Technological University Act, 2015 is for a period not exceeding six months in the aggregate till the regular Vice-Chancellor assumes office.

S.243 CrPC | Trial Court Bound To Issue Process To Witness Proposed By Accused Unless It Is Attempt To Defeat Ends Of Justice

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

Citation: 2023 LiveLaw (Ker) 91

The Kerala High Court set aside the order of a Trial Court that rejected the prayer for summoning a witness cited by the accused, where there was nothing to indicate that the accused had attempted to defeat the ends of justice through seeking the examination of such proposed witness.

"Unless it is established that the application to summon a witness is made for vexation or delay or for defeating the ends of justice, the trial Court has no discretion in the issuance of process to compel the attendance of any witness cited by the accused. The trial Court is bound to issue process to the witness proposed by the accused in a case where there is nothing to show that the attempt of the accused is to defeat the ends of justice", the Single Judge Bench of Justice K.Babu observed while setting aside the impugned order of the Judicial First Class Magistrate Court, Kalamassery.

Rent Decreed By Civil Court Is Liable To Be Included While Computing Admitted Arrears Under Rent Control Proceedings

Case Title: Gireesh V Antony

Citation: 2023 LiveLaw (Ker) 92

The Kerala High Court held that the arrears of rent decreed by a civil court, is liable to be included while computing the admitted arrears of rent under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965.

A Division Bench consisting of Justice P B Suresh Kumar and Justice Sophy Thomas observed that the object of Section 12 of the Act was to make sure that the tenant does not avail of the pendency of the petition for eviction for evading regular payment of rent which, even by the tenant’s own admission, is due to the landlord.

Court Within Territorial Jurisdiction Of Seat Or Place Of Arbitration Alone Can Entertain Application U/S 34 Arbitration Act

Case Title: Southern Railway V M R Ramakrishnan

Citation: 2023 LiveLaw (Ker) 93

The Kerala High Court held that the Court situated within the territorial jurisdiction of the seat or place of arbitration alone will have the jurisdiction to entertain an application filed under Section 34 of the Arbitration and Conciliation Act, 1996.

A single bench of Justice K Babu observed that the term “subject-matter of arbitration” in the definition of “court” in Section 2(1)(e) of the Act, refers to the Court having supervisory control over the arbitration proceedings. This would mean the Court where the seat or place of arbitration is will have jurisdiction to entertain a challenge to the arbitral award under Section 34 of the Act.

[Prevention Of Corruption Act] Private Complaint Against Public Servant Can't Be Forwarded For Investigation Without Sanction

Case Title: C.V. Balan & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 94

The Kerala High Court reiterated that the requirement of sanction under section 19 of the Prevention of Corruption Act is a prerequisite for presenting private complaint against a public servant alleging the commission of an offence specified in sections 7, 11, 13 and 15 of the Act, for investigation.

The Single Judge Bench of Justice Kauser Edappagath, held that in the absence of such sanction, no such complaint could be forwarded for the conduct of an investigation under Section 156(3) of the Cr.P.C.

State Human Rights Commission Cannot Entertain Service Matters

Case Title: The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr.

Citation: 2023 LiveLaw (Ker) 95

The Kerala High Court reiterated that the Kerala State Human Rights Commission has no jurisdiction to entertain service matters.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman relied upon the decisions in Malabar Cements Ltd. (M/s.) v. K. Baburajan & Ors. (2019), and District Tourism Promotion Council, represented by its Secretary v. State of Kerala represented by the Secretary & Ors. (2021), both of which had held that, in terms of Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, the Commission may dismiss in limine a complaint, if the issue pertains to service matters.

Kerala High Court Allows Pulsar Suni To Remain Physically Present In Trial Court To Witness Proceedings In Actor Assault Case

Case Title: Sunil N.S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 96

The Kerala High Court allowed Sunil N.S., also known as 'Pulsar Suni', who is the main accused in the 2017 Actor Assault Case, to remain physically present before the trial court to witness the proceedings.

Justice K. Babu allowed the petition and observed that the same ensures fair trial.

"Fair trial is the main object of criminal procedure, and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused, the victim, and of society. Fundamentally, a fair trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced," the court observed.

Ivory Case Against Mohanlal : Kerala High Court Asks Magistrate To Decide Afresh State's Plea To Withdraw

Case Title: V. Mohanlal v. State of Kerala & Ors. and other connected cases

Citation: 2023 LiveLaw (Ker) 97

The Kerala High Court dismissed the plea filed by actor Mohanlal seeking to quash the JFCM Court, Perumbavoor order which dismissed the plea to withdraw the prosecution case against him pertaining to illegal possession of ivory.

However, the Court has allowed the revision petition filed by the State Government against the order of the Magistrate Court, and remanded the matter for fresh consideration.

Finding merit in the submission made by the counsels for the intervenors that the law ought to be equal for all, without any discrimination, the Single Judge Bench of Justice A. Badharudeen observed:

"...it has to be held that Law must be uniform to all, irrespective of their status as peasant, poor, middle class or higher class. Going by the settled principles as discussed in detail herein above, I don't think that the trial court addressed this question following the above principles and the trial court ventured the legality of the declaration as the sole basis, while dismissing the petition, which is the subject matter of dispute before the Division Bench of this Court".

Additional Document Can Be Produced After Prosecution Evidence Is Complete If It Is Vital And Omission Was Bonafide Mistake

Case Title: Thachanalil Shyju V State of Kerala

Citation: 2023 LiveLaw (Ker) 98

The Kerala High Court held that an additional document can be produced after prosecution evidence is complete if the omission of such document was a bonafide mistake and the document is purported to be vital.

A single bench of Justice Bechu Kurian Thomas was considering a challenge to an order of the Additional Sessions Court that permitted the prosecution to produce an FIR to show the motive of the accused, after the prosecution had completed its evidence. The accused who is being tried for offences under Section 302 and 307 of the Indian Penal Code, opposed the production of the additional document. The court however, observed that

“…there is no embargo on the production of additional documents during a trial if they are essential for arriving at a proper decision. If the requirements of justice command the production of such a document, the trial judge can permit such production, based on principles of fair play and good sense. No fetter can be placed on the right of the party to produce such a document.”

'Active Politicians Can't Be Temple Trustees' : Kerala High Court Holds CPI(M), DYFI Members As Disqualified

Case Title: Anantha Narayanan & Others V Malabar Devaswom Board & Others

Citation: 2023 LiveLaw (Ker) 99

The Kerala High Court held that a person actively involved in politics, whether or not holding an official post, is not eligible to be appointed as a non-hereditary trustee in temples under the Malabar Devaswom Board.

A division bench comprising of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing a plea challenging the appointment of certain persons as non-hereditary trustees in Pookkottukalikavu Temple pursuant to the notification of the Malabar Devaswom Board which stated that active politicians or persons holding official posts in any political party were ineligible for appointment to the post.

Kerala High Court Directs State To Make Immediate Permanent Appointments In Government Law Colleges, Says Faculty Strength Not Being Met

Case Title: Arun P Wilson and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 100

The Kerala High Court directed the state government to take immediate steps to create posts and make permanent appointments in Government Law Colleges across the state in order to satisfy the requirements of faculty strength for the academic year 2023- 2024 in accordance with the Rules of Legal Education, 2008 framed by Bar the Council of India and the Advocates Act, 1961.

A single bench of Justice Shaji P Chaly was hearing a plea filed by students pursuing their LLB degrees from various Government Law Colleges within the state. The students had approached the court to not permit the Government Law Colleges in the state to commence their courses without having sufficient permanent faculties as prescribed by the Bar Council of India in the 2008 Rules.

Issuance Of Show Cause Notice Mandatory Under Rule 24 Of Kerala Minerals Rules, 2015

Case Title: K.J. Abraham v. The District Geologist

Citation: 2023 LiveLaw (Ker) 101

The Kerala High Court held that a show-cause notice is mandatory under Rule 24 of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, before taking any action in cases relating to breach of conditions, prescribed in the license, by a dealer.

Justice N. Nagaresh also said that the reply of such person ought to be considered in such cases.

Trial Court Not Bound To Conduct Enquiry U/S 329 CrPC Merely On Counsel's Submission That Accused Is Of Unsound Mind

Case Title: Yasin Sunu V State of Kerala

Citation: 2023 LiveLaw (Ker) 102

The Kerala High Court held that a trial court is not bound to conduct a detailed enquiry into whether an accused is of unsound mind simply based on a submission made by the counsel for the accused.

A single bench of Justice K Babu observed,

“If there is something in the demeanour of the accused or in the facts of the case, which raise doubt in the mind of the Court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the Court to try the said fact before proceeding with the trial into the charge.”

Joint Locker Hirer Not Liable To Secure Letter Of Administration To Operate Locker Upon Death Of One Of Hirers

Case Title: Lalithambika & Ors. v. Grievance Redressal Committee & Ors.

Citation: 2023 LiveLaw (Ker) 103

The Kerala High Court held that a joint owner of a locker is entitled, as of right, to operate the locker, independent of the other owner, and thus, would not have to secure any letters of administration or probate under Section 29 of the Administrators-General Act, 1963, pursuant to the death of the other owner.

Perusing Section 218 of the Indian Succession Act, 1925, that stipulates as 'to whom administration may be granted, where the deceased is a Hindu, Muhammadan, Budhist, Sikh, Jain or exempted person’, the Single Judge Bench of Justice Shaji P. Chaly observed:

"In my considered opinion, Section 218 of the Indian Succession Act, 1925 stipulates the manner in which administration of estate is to be granted by a court of law, in cases where a person has died intestate. This is a case where the first petitioner, who is the joint owner of a locker hired from the Bank, was prevented by the Bank from operating the locker. To put it otherwise, in my considered view, Section 218 of the Act, 1925 has no application, since the petitioner is the joint owner, who is entitled, as of right, to operate the same, even according to the Bank, independent of the other joint hirer of the locker. There is also no requirement to secure any letters of administration under Section 29 of the Administrators-General Act, 1963. There is also no case for the respondent Bank that there is any litigation instituted by anyone in the matter of assets left by the deceased Sasidharan Pillai".

Granting Anticipatory Bail In Cases Of Attacks Against Doctors Would Lead To 'Dangerous Situation'

Case Title: Jamshid P.V. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 104

The Kerala High Court refused to grant anticipatory bail to a person who had attacked a doctor who examined his wife, alleging that the Doctor had misbehaved towards her.

The Single Judge Bench of Justice A. Badharudeen was of the view that granting anticipatory bail in such a case would lead to a 'dangerous situation', whereby doctors, who are duty bound to treat patients as part of their oath, would not get protection and the the proper maintenance of health of the public at large would also be in peril.

Kerala High Court Dismisses PIL Claiming Compensation For Transgender Persons Arrested For Waving Black Flag At CM Pinarayi Vijayan

Case Title: Sam Joseph V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 105

The Kerala High Court dismissed a Public Interest Litigation that was filed for compensation for two transgender persons who were booked for obstructing the motorcade of Chief Minister Pinarayi Vijayan by waving black flags as a mark of protest, while he was attending an event in Ernakulam.

The PIL filed sought for an inquiry into the “professional misconduct of the officers” involved in the incident and for compensation for the transgender persons who were detained.

A bench of Chief Justice S Manikumar & Justice Murali Purushothaman while dismissing the PIL observed that the petitioner failed to make out a case for the prayers sought for.

State Instrumentalities Must Deal With Citizens Fairly: Kerala High Court Orders Release Of Amount Withheld In Excess Of Quantified Loss In Road Project

Case Title: K C Antony V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 106

The Kerala High Court held that the Government cannot retain any amount in excess of the loss already quantified by it with regard to the amount due to a contractor on the premise of breach of contract.“The State and its instrumentalities are expected to deal with the citizens in a fair manner in all circumstances.”, the court observed in this regard.

The division bench comprising of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen was considering an appeal filed by a contractor, for recovery of claims and release of security deposit for work done for the Kerala State Construction Corporation in relation to a road project. The contract was awarded to the appellant but was subsequently terminated at the risk and cost of the appellant and another contractor was engaged for completion of the work.

Leniency Cannot Be Shown When Officers Of State Are Accused Of Heinous Crimes

Case Title: Pradeep and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 107

The Kerala High Court while refusing bail to two army personnel held that when the accused is an officer of the State, "leniency is not the sanction of law, instead rigidity is the rule of law" .

A single bench of Justice A.Badharudeen was hearing an anticipatory bail application where initially the offences registered against the petitioners were bailable, but subsequently the non-bailable offence of Section 307 (Attempt to Murder) of the Indian Penal Code, was added.

Music Important For Child Development, Govt Must Consider Regular Music Teachers’ Post In Schools Irrespective Of Student Strength

Case Title: R. Helan Thilakom v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 108

The Kerala High Court recommended the Government to consider sanctioning regular Music teachers’ post in all schools, at least in primary section, irrespective of the student’s strength or number of periods.

The Court made the above recommendation, while considering the case of a Music teacher, who was forced to fight throughout her service to get a full-time post of, after completing five years in the part time post.

Pension Liability For Services Rendered In North-East Frontier Agency Prior To It Becoming State Of Arunachal Pradesh Is On Centre: Kerala High Court

The Kerala High Court held that when a person who had died in harness while being deployed in North Eastern Frontier Agency, now Arunachal Pradesh, which was directly under the administration of the Government of India at the time, the family pension liability would only be upon the Central Government and not on the Government of the State of Arunachal Pradesh.

"In the case of the petitioner’s father, his service was rendered and utilised when the Arunachal Pradesh (previously NEFA) was directly under the administration of the Government of India. Therefore, the service of late Sankaran Nair is relatable to Union purpose. The pension liability therefore cannot be fastened on the Government of the State of Arunachal Pradesh. The liability is entirely on the Union Government", the Single Judge Bench of Justice N. Nagaresh observed.

Is Accused Entitled To Default Bail If Charge Sheet Found Defective & Returned For Curing Defects After Statutory Period? Kerala High Court Answers

Case Title: Vimal K. Mohanan & Anr. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 110

The Kerala High Court recently considered whether in cases where final report is filed within the statutory time limit of investigation, accused person’s entitlement for bail under Section 167(2) CrPC would subsist, if the charge sheet is found defective, and returned for curing the defects after the statutory time limit is over.

Single Judge Bench of Justice V.G. Arun observed,

"when faced with the Public Prosecutor's application seeking extension, or that of the accused demanding statutory bail, the court's consideration should be whether the final report was filed after completing the investigation. If the final report is found to have been filed after completing the investigation in all respects, minor defects in the report, by itself, will not confer the accused with any right to be enlarged on default bail. On the other hand, if the final report is filed without completing the investigation, in order to stultify the mandate of Section 167(2) and later returned to the investigating officer for completing the investigation, that would definitely entitle the accused to demand that he be released on default bail, if the final report, after completing the investigation and curing the defects, is not re-submitted in court before the 180th day".

Test Identification Parade Only Rule Of Prudence, Its Absence Does Not Necessarily Vitiate Identification Of Accused In Court: Kerala High Court

Case Title: Sabu @ Eetty Sabu v State of Kerala

Citation: 2023 LiveLaw (Ker) 111

The Kerala High Court held that the absence of a test identification parade, does not necessarily invalidate identification of an accused in court.

A single bench of Justice Bechu Kurian Thomas held that: “The object of a test identification parade is to test and ascertain the trustworthiness of the evidence regarding the identification of the accused. Test identification parade is only a rule of prudence. It is intended to be a measure of corroboration of the identification of the accused by the witnesses in court, especially when the accused are strangers. However, if the ocular evidence and the identification of the accused by the witnesses in court are impressive, nothing restricts the court from relying upon the said identification, as recognising the accused in court is the substantive evidence, while test identification parade is not an evidence of that character”

State Cannot Evade Responsibility To Pay A Contractor In The Guise Of Limitation Period: Kerala High Court

Case Title: Vishnu and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 112

The Kerala High held that the state cannot avoid its obligation to compensate a contractor for dues owed to him by invoking the ground of limitation.

A single bench of Justice Shaji P Chaly observed that

“Above all, in a welfare State, the State has the duty and obligation to protect the interests of its citizens, rather than finding ways and means to defeat their interests and means of livelihood. The scheme of part III of the Constitution of India dealing with ‘fundamental rights’ speaks eloquently of the responsibilities of the State to safeguard the well-being and prosperity of the citizens without fail. Therefore, when a citizen was engaged by the Government to carry out one of its activities, it had every duty to reward the person as agreed upon in the contract, even without asking for it.”

Hold Elections, Re-Constitute Senate Before June 30: Kerala High Court To Calicut University VC

Case Title: Dr. Shiby M. Thomas v. The Hon'ble Chancellor, University of Calicut & Ors.

Citation: 2023 LiveLaw (Ker) 113

The Kerala High Court directed that the Senate of the Calicut University be reconstituted after conducting the elections before June 30, 2023.

Justice Sathish Ninan passed the order in a plea filed by Dr. Shiby M. Thomas, a member of the Senate of the Calicut University that is set to complete its term of four years on March 6, 2023, alleging that the Vice Chancellor had failed to take steps for the conduct of election and re-constitution of the Senate, on time.

"In terms of Statute 13, after the publication of the electoral roll there has to be not less than 30 days before the election is notified under Statute 34. Having due consideration of the procedural formalities involved, it is ordered that, the elections shall be conducted, and the Senate re-constituted before 30th of June, 2023," the court declared.

Kerala High Court Denies Anticipatory Bail To President, Secretary & Staff Member Of BSNL Engineers Co-op Society Accused Of Misappropriating Crores

Case Title: Rajeev A R V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 114

The Kerala High Court denied pre-arrest bail to the President, Secretary and staff member of BSNL Engineers Co-operative Society who have been accused of misappropriating crores from the fixed deposits of the society.

The accused persons have been booked for misappropriating over 44 crores from the Society between 1st June 2019 and 16th June 2020. A single bench of Justice A. Badharudeen observed that while considering anticipatory bail applications for economic offences involving huge sums of money, extra care must be taken to ensure that granting such bail would not hamper the investigation.

“In this connection, it has to be observed that when persons apprehending arrest in non-bailable offences approach the Courts by resorting to Section 438 of Cr.P.C, the Courts having power to grant the relief of pre-arrest bail, not as a matter of right, but purely, as a matter of discretion, should evaluate the materials available prima facie to see the culpability of the accused and the consequence of granting pre-arrest bail. If grant of pre-arrest bail is akin to hampering the investigation where arrest and custodial interrogation are necessary, the Courts shall not exercise the discretion in favour of the persons who seek the discretionary relief. When misappropriation of huge amount of money is involved, the care must be more, in order to ensure that effective investigation shall not either be stalled or disturbed by granting pre-arrest bail".

There Would Be Reduced Instances Of Violence If Access To Liquor Is Prohibited Around Areas Of Religious Festivals: Kerala High Court

Case Title: Hotel Hillway Park V State of Kerala & Others and connected cases

Citation: 2023 LiveLaw (Ker) 115

The Kerala High Court observed that when the sale of liquor is prohibited for a few days with the object of maintaining peace, preserving public order and for public good, commercial interests takes a back seat, even if it means experiencing a disruption in sales.

A division bench comprising Justice K Vinod Chandran and Justice C. Jayachandran was hearing a batch of appeals and writ petitions filed challenging the order of the lower court that refused to stay the orders by two District Collectors that prohibited FL3 licensees and licensed toddy shops from selling liquor for a few days around three different locations where religious festivals were being held.

On addressing the concerns of the appellant about the huge losses they have to incur due to such bans, the court said: “We quite understand that the licensees have made substantial investments to carry on liquor vending, both foreign liquor and toddy. The disruption of sales for one or two days especially with the object of maintaining peace, for public good and preservation of public order, relegates commercial considerations to the back seat”.

[Kerala Education Rules] Acharya Certificate Issued By Hindi Prachar Sabha Can Be Treated As Collegiate Training Such As B.Ed: High Court

Case Title: Geethakumary J. v. The District Educational Officer & Ors.

Citation: 2023 LiveLaw (Ker) 116

The Kerala High Court held that the the Acharya certificate issued by the Kerala Hindi Prachar Sabha can be treated as a collegiate training such as B.T, L.T or B.Ed as provided under Explanation I to Rule 44A of Chapter XIV(A) of Kerala Education Rules (KER).

Justice P.V. Kunhikrishnan passed the above order while considering a case relating to promotion of a High School Assistant to the post of Headmaster following 13 years of graduate service.

"For deciding the same, this Court has to read Rule (2) of Chapter XXXI of KER read with Explanation (1) to Rule 44A of Chapter XIV(A) of KER. There the graduate service is explained to the effect that the graduate service should be after acquisition of collegiate training such as B.T, L.T or B.Ed. Rule 44A Chapter of XIV(A) also states the minimum qualification for appointment as Headmaster. Since the explanation clearly says that after acquisition of collegiate training such as B.T, L.T or B.Ed, the candidate should be in graduate service as defined in that explanation. Hence it is clear that the qualification of B.T, L.T or B.Ed alone are not included but such other qualifications are also included," the Court observed.

Mere Registration Of Subsequent Case Against Accused By Itself Cannot Result In Automatic Cancellation Of Bail In Earlier Case: Kerala High Court

Case Title: Renjith v. State of Kerala

Citation: 2023 LiveLaw (Ker) 117

The Kerala High Court held that the bail granted in one crime cannot be cancelled merely because the accused has been subsequently booked in another case.

Justice Bechu Kurian Thomas observed that a bail that had once been granted ought not to be cancelled on the mere asking, but that there ought to be cogent and overwhelming circumstances existing to cancel the bail.

"The mere registration of a subsequent crime against the accused by itself cannot result in an automatic cancellation of bail. Registration of a subsequent crime is only an indication of an allegation or a complaint of the accused having been involved in a subsequent crime. The presumption of innocence available to the accused in the second crime, the right to liberty as a fundamental right under Article 21 of the Constitution of India which envelopes every provision of the Code of Criminal Procedure are factors which cannot be forgotten by the Court when called upon to cancel the bail. The possibility of false accusations being alleged with oblique motives also cannot be ignored. The nature of the subsequent offence and the persons against whom the offence is alleged to have been committed, the stage of the case wherein cancellation is sought are also factors that require appreciation. Apart from the above, while arriving at the conclusion to cancel the bail, the Court must also consider whether the accused had misused the liberty granted in such a manner that it has a tendency to interfere with the due course of the administration of justice. Thus, every case presents a unique situation and close scrutiny ought to be indulged in to identify whether overwhelming circumstances are indeed present in the subsequent crime which necessitates the cancellation of bail earlier granted," the Court observed.

Lokayukta Empowered To Decide Contract Cases Having Commercial Relations If Complainant Alleges Harassment: Kerala High Court

Case Title: The Regional Cancer Centre Employees Co-Operative Society Ltd V Pushpa and Others

Citation: 2023 LiveLaw (Ker) 118

The Kerala High Court dismissed the pleas filed by Regional Cancer Centre (RCC) Employees Co-operative Society challenging the order of the Lokayukta that had ruled in favour of certain low paid Class-IV employees working as cleaners at the RCC.

The complainants before the Lokayukta, who were employees of RCC had stood as sureties to one of the employees for a loan of Rs.3 lakh. When the loanee defaulted in repayment of the loan, the Society started to recover the money from the monthly salary of the complainants that stood as sureties. This was challenged by the complainants before the Lokayukta.

A division bench comprising of Chief Justice S.Manikumar and Justice Murali Purushothaman was hearing the pleas filed by the RCC Co-operative Society against the order of the Lokayukta.

Case Title: K.Sasi v. State of Kerala rep. by Chief Secretary to the Govt & Ors.

Citation: 2023 LiveLaw (Ker) 119

The Kerala High Court held that merely because there is a typographical error in showing the designation of the person accused in the sanction order to prosecute such person under Section 19(1)(b) of the Prevention of Corruption Act (P.C. Act), it cannot be said that the sanction order is bad.

Justice Kauser Edappagath passed the above order and observed,

"For the simple reason that there is a typographical error in showing the designation of the petitioner, it cannot be said that the sanction issued is bad. The question whether the sanctioning authority has applied his mind or not, is something which cannot be agitated in a writ petition".

Kerala High Court Refuses Bail To Pulsar Suni In 2017 Actor Assault Case

Case Title: Sunil N.S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 120

The Kerala High Court dismissed the bail application of Sunil N.S., also known as 'Pulsar Suni', the main accused in the 2017 Actor Assault Case.

Justice P.V. Kunhikrishnan while dismissing the bail application, observed,

"The prosecution case is very serious. The prosecution case is that, the victim was taken in a car and she was sexually harassed brutally by the petitioner/accused and others turning a deaf ear to her begging to release her. A conspiracy is also alleged. Whether the victim is a cine artist or not is not at all a factor. The prosecution case is that a lady was brutally attacked. The truth has to come out after the trial. Simply because the petitioner/accused is in jail for six years, it cannot be a ground to release him in such a serious case. The prosecution and the Court are taking every possible effort to conclude the trial as expeditiously as possible. The Apex Court is also supervising the trial and is granting time to the Trial Court to complete the trial. The Trial Court now says that the sessions case itself can be disposed of within six months. I believe that in such a situation this Court need not entertain this bail application. Whether the prosecution succeed in this case or the defence succeed in this case is not a criteria in these types of cases. When there is serious allegation against an accused affecting the conscience of the society, this Court cannot allow bail application solely on the ground of personal liberty".

Witness Examination Through Virtual Mode Does Not Affect The Rights Of Accused

Case Title: Gopal C V Central Bureau of Investigation

Citation: 2023 LiveLaw (Ker) 121

The Kerala High Court held that the examination of a witness during trial may be conducted through video linkage mode as per the provisions of the Electronic Video Linkage Rules for Courts (Kerala), 2021 and that the same would not affect the rights of the accused.

A single bench of Justice A Badharudeen noted that under Rule 8(25) Electronic Video Linkage Rules for Courts (Kerala), 2021 witness examination via video conferencing is to be treated as compliance of the provisions of the Code of Criminal Procedure 1973, Code of Civil Procedure, 1908, Criminal Rules of Practice, Kerala and Civil Rules of Practice, Kerala. It is also applicable to any other law requiring personal appearance of parties in Subordinate Courts or Tribunals in relation to any enquiry, trial or any other proceedings, the court noted.

[Koodathayi Murder] Kerala High Court Refuses To Interfere With Sessions Court Order Dismissing Discharge Petition Of Jolly Joseph

Case Title: Jollyamma Joseph @ Jolly V State of Kerala

Citation: 2023 LiveLaw (Ker) 122

The Kerala High Court refused to interfere with the trial court proceedings against Jolly Joseph in connection with the murder of her first husband, Roy Thomas. Jolly had filed a revision petition challenging the order of the sessions court which had dismissed her discharge petition.

Jolly Joseph is the prime accused in the infamous Koodathayi murders and has been accused of murdering six of her family members over a span of 17 years primarily using cyanide. She has been charged with killing members of her family including her first husband Roy Thomas with the motive to take control of the family property.

[Motor Accident] Kerala High Court Adopts Notional Income Of Deceased Child As ₹30,000; Enhances Compensation Under 'Loss Of Dependency'

Case Title: Bijumon & Ors v. The New India Assurance Co.

Citation: 2023 LiveLaw (Ker) 123

The Kerala High Court enhanced the compensation awarded by a Motor Accident Tribunal under the head of 'Loss of Dependancy' to the parents and sibling of a deceased child, who had been a victim of a motor accident.

Justice Devan Ramachandran, relying on various precedents, adopted Rs.30,000/- as the notional income of the deceased child in the present case, and thereby partly allowed the appeal, and enhanced the compensation under the aforementioned head of 'Loss of Dependancy'.

'Someone’s Liberty Is At Stake': Kerala High Court Advises Caution While Considering Bail In POCSO Case Against Parent Litigating Child's Custody

Case Title: XXXXXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 124

The Kerala High Court held that while considering bail applications related to offences under the POCSO Act that involve allegations of child abuse by a parent, courts should approach the matter with great care, especially when there is litigation between parents over the custody of the child.

A single bench of Justice Ziyad Rahman while allowing a bail application filed by a father who was accused of sexually assaulting his 10 year old son cautioned that :

“In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone’s personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India”

Police Bound To Grant Protection To Asianet News Channel If Protests Against It Turn Violent : Kerala High Court

Case Title: Asianet News v. The State Police Chief & Ors.

Citation: 2023 LiveLaw (Ker) 125

The Kerala High Court directed that the units of Malayalam news channel Asianet News should be granted effective police protection if protests against the channel turn violent. The channel is facing protests over allegations that in November 2022 it aired a staged interview in which a minor girl was made to say that she was a victim of drug abuse and sexual exploitation.

The channel had approached the High Court alleging that a group of nearly 30 activists of the Students Federation of India (SFI), the students wing of the ruling party, violently and forcefully trespassed into its office at Kochi and intimidated the staff on March 3, 2023.

Jurisdiction To Execute An Arbitral Award Is With District Court, Not Commercial Court

Case Title: M/S. Beta Exim Logistics (P) Ltd. V M/S. Central Railside Warehouse Co., Ltd.

Citation: 2023 LiveLaw (Ker) 126

The Kerala High Court held that the District Court has the jurisdiction to execute an arbitral award and the commercial court has not been conferred such jurisdiction under the Commercial Courts Act, 2015.

A single bench of Justice C S Dias evaluated the scheme of the Commercial Courts Act, 2015 to answer whether a commercial court was given jurisdiction to entertain an execution petition filed in connection with an arbitration award:

“Going by the scheme of the C.C. Act, the express exclusion of suits and applications reserved for judgment from the purview of transfer and the conscious omission of the provisions relating to execution proceedings under the Code of Civil Procedure in the schedule to the C.C. Act, urges me to agree and endorse the ratio decidendi in Shaji Augustine (supra), that applications mentioned in Section 15 of the C.C. Act do not include execution applications.”

Nomination Of A Candidate For Elections Cannot Be Rejected Due To Immaterial Defects: Kerala High Court Reiterates

Case Tile: Vadekkevila Sasi V Cochin University Of Science & Technology and Others

Citation: 2023 LiveLaw (Ker) 127

The Kerala High Court reiterated that the nomination of a candidate for elections cannot be rejected on trivial grounds and that if there is substantial compliance, the nomination paper ought to be accepted.

A single bench of Justice Viju Abraham was considering the plea of an aspiring candidate who had filed for nomination for election to the Senate and Academic Council of the Cochin University. The petitioner wished to contest the election from the constituency of “Presidents of all the registered Trade Unions in the State”. Two members to the Cochin University Senate are usually selected by registered Trade Unions in the state, from among themselves.

Kerala High Court Grants Bail To POCSO Accused, Doubts Fabrication Of Prosecution Case

Case Title: XXX v. State of Kerala

Citation: 2023 LiveLaw (Ker) 128

The Kerala High Court granted bail to a person accused of offence under the Protection of Children from Sexual Offences Act (POCSO Act), on doubting the veracity of the prosecution version.

Justice Kauser Edappagath took note that the victim in the case had given a complaint to the police for the first time after more than five years after the alleged incident.

"There is absolutely no allegation of rape alleged to have been taken place in the year 2017. It appears that on the next day, a crime was registered against the victim on the complaint of the applicant for the offence punishable under Section 326 of Indian Penal Code as Crime No. 2148/2022".

[Kerala Land Reforms Act] Mutation In Favour Of Third Party Has No Bearing On Proceedings Against Predecessor-In-Interest Over Excess Land: High Court

Case Title: Zehub Technopark Pvt. Ltd. v. Village Officer & Anr.

Citation: 2023 LiveLaw (Ker) 129

The Kerala High Court recently directed the mutation of land covered by two sale deeds in favour of the person who purchased the land, notwithstanding the fact that the predecessor-in-interest was allegedly holding the land in excess of the ceiling limit under Kerala Land Reforms Act. The Court further permitted the payment of basic land tax by the petitioner company in its name.

The Single Judge Bench of Justice Gopinath P. observed,

"Even in respect of cases where proceedings have been initiated, in respect of excess land, part of which has been sold to third parties, this Court has directed that subject to the finalisation of the proceedings and without in any manner affecting such proceedings, mutation can be effected and the land tax can be accepted from such third parties".

Kerala High Court Quashes Criminal Proceedings Against Transport Minister Antony Raju In Evidence Tampering Case On Technical Grounds

Case Title: Adv. Antony Raju v. State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 130

Citing technical reasons, the Kerala High Court quashed the trial court proceedings against Transport Minister of Kerala, Antony Raju in connection with the evidence tampering case against the Minister pending before Judicial First Class Magistrate Court, Nedumangad, in Thiruvananthapuram.

However, the single bench of Justice Ziyad Rahman clarified that this would not preclude the competent authority or the court concerned from taking up the matter and pursuing the prosecution in compliance with the procedure contemplated under Section 195(1)(b) of the Code of Criminal Procedure.

Commercial Court Shall Not Allow Written Statement To Be Taken On Record After Lapse Of 120 Days From Service: Kerala High Court

Case Title: Anil MP V Capital Finserv Ltd

Citation: 2023 LiveLaw (Ker) 131

The Kerala High Court recently held that the Commercial Court shall not allow a written statement filed in a suit to be take on record if 120 days has passed since the date of service of summons.

A single bench of Justice C S Dias observed that under Section 16 of Commercial Courts Act, 2015, the Code of Civil Procedure,1908 will stand amended while being applied to commercial disputes as set out in the Schedule to the Commercial Courts Act. As a result, Orders V and VIII of the CPC have been amended by the Schedule. As per the amended provision, a defendant has to file the written statement within 120 days of the service of summons. If the defendant fails to do so, the right to file a written statement in the suit stands forfeited and the court will refuse to accept the written statement on record at a later stage.

Kerala High Court Issues Additional Directions For Efficient Implementation Of Reservation For Differently Abled In Aided School Appointments

Case Title: Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters.

Citation: 2023 LiveLaw (Ker) 132

The Kerala High Court modified the order of a single bench that directed the State to give effect to its 2018 decision regarding reservation for employment in favour of persons with disabilities in aided educational institutions and also to take immediate steps to address the backlog in the appointments in the arising vacancies.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas said:

1. The State's Educational Officers must provisionally approve appointments made for vacancies set aside for individuals with disabilities that arose between18.11.2018 and 08.11.2023, as long as the appointments are in order. These vacancies should be treated as temporary, and the approval will only be valid until the incumbents who are regularly appointed take charge. The officers should also ensure that the pay and allowances due to these individuals are disbursed. 2. If, despite following the detailed procedure prescribed by the government, regular appointments cannot be made for the vacancies mentioned in direction (1), the vacancies can be treated as substantive, and the approvals already granted can be made permanent. 3. Even if regular appointments are made for the vacancies mentioned in direction (1), the concerned teacher should be absorbed into the next immediate vacancy in the same school or any school under the same management, provided they are qualified for such appointment. The teachers should be treated as claimants under Rule 51A of Chapter XIVA of the Kerala Education Rules. 4. The Managers of all aided schools can hire individuals on a daily wage basis to fill vacancies that arose after November 8th, 2021, until they fully comply with the directions contained in the judgment of the single bench and the judgment in appeal.

Three Grounds For Grant Of Bail In Susantha Ghosh Case By Apex Court Not Exhaustive; Kerala High Court Enumerates Other Factors

Case Title: George Kurian @ Pappan v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 133

The Kerala High Court recently held that the three factors laid down in Susanta Ghosh v. State of West Bengal (2012) by the Apex Court while considering grant of bail to an accused, namely, chances of tampering with the evidence; chances of interfering with the investigation; and chances of absconding, are not exhaustive.

The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same.

Kerala High Court Refuses To Defer Trial In Ranjith Sreenivasan Murder Case, Says Supplementary Chargesheet Against Conspirators Can Be Filed Later

Case Title: Haris and Others V State of Kerala and Another

Citation: 2023 LiveLaw (Ker) 134

The Kerala High Court recently refused to defer the trial of 15 persons who are accused of murdering BJP leader Ranjith Sreenivasan on account of political rivalry. The accused are said to be the Socialist Democratic Party of India/Popular Front of India (SDPI/PFI) workers. The accused persons allegedly had gathered in an unlawful assembly and committed Sreenivasan's murder with deadly weapons like hatchets and hammers in December 2021.

The investigation officer last year submitted the final report against accused 1 to 15 who allegedly committed the murder. Accused Nos.16 to 35, the petitioners who approached the high court, allegedly participated in the larger conspiracy which led to the murder. However the investigation officer reserved the liberty to submit an additional chargesheet after completing the investigation against them.

The plea filed by Accused 16 to 35 challenging the “split-chargesheet” filed by the investigation officer was dismissed by a single bench of Justice K Babu.

Schools Not Required To Obtain From State “Formal Prior Recognition Letter” Every 5 Yrs To Continue Affiliation: CBSE To Kerala High Court

Case Title: The Village International School & Anr v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 135

The Central Board of Secondary Education (CBSE) recently informed the Kerala High Court that the 'Formal Prior Recognition Letter' issued by the State Government to schools under the Right of Children to Free and Compulsory Education Rules ('RTE Rules'), Kerala, is not confined to any particular period, and that no further such recognition letter would be necessary for extending the affiliation to the Board every five years.

It was further informed by the Standing Counsel of CBSE S. Nirmal that as per the latest Handbook issued by the CBSE, Schools also had the option to produce a 'System Generated Self Certification/System Generated DEO Certificate' with respect to the aspects mentioned in Appendix-III of the Affiliation Bye-Laws and that the CBSE would act upon the same while processing the application for continuation of affiliation.

The Single Judge Bench of Justice Devan Ramachandran, thus observed in this regard that the said stand of the CBSE, "renders the position ineluctably clear that, the schools now have the option of approaching them for continuing their self affiliation based on their own certification or a System Generated Certification; and it is only if the same is found to be insufficient and they being so informed by the CBSE, would they then require to apply for and obtain the certificate as per Appendix - III of the “Affiliation Bye-Laws”, from the Educational Authority".

Trespasser Having No Jural Relationship With State Can't Insist On Procedure For Eviction Under Public Premises Act: Kerala High Court

Case Title: Harris T.K. v. Greater Cochin Development Authority & Anr.

Citation: 2023 LiveLaw (Ker) 136

The Kerala High Court recently held that a rank trespasser has no recognition under law as far as illegal occupation of a public premise is concerned, and that the Court cannot accord such person with some sort of protection regarding the illegal use of the premise.

The Court in this case was dealing with a rank trespasser who was an occupant of a room in Greater Cochin Development Authority (GCDA), and had trespassed into the common area. He had no case that the said area had been let out to him or even that he had been permitted to use it. However, he claimed that he could not be removed except under the procedure established by law, as contemplated by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter, 'Act, 1971').

Elucidating that the Act,1971 is an enactment for eviction of unauthorized occupants of public premises, the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen went on to observe that the same postulates that the occupant but for termination, is deemed to have a relationship of that between the public authority and the occupant.

"For example, if he is an occupant of a room in GCDA by way of lease or licence, if his jural relationship comes to an end by invoking the provisions of the contract or the provisions of law, he can only be evicted by invoking the Public Premises (Eviction of Unauthorised Occupants) Act, 1971," the Bench explained in the appeal before it.

Police Officer Is Gazetted Officer For Search Of A Person U/S 50 NDPS Act Unless He Is Part Of Investigating Team: Kerala High Court

Case Title: Nithin V State of Kerala

Citation: 2023 LiveLaw (Ker) 137

The Kerala High Court recently held that any police officer being a gazetted officer would be competent to conduct a search under Section 50 (conditions under which search of persons shall be conducted) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The only exception to this would be a police officer part of the detecting or investigating team, as such an officer could not be considered an independent officer for the purposes of the search.

The court also clarified that ensuring the presence of the gazetted officer at the place of search, instead of taking the accused to the gazetted officer would not be considered non-compliance of Section 50 of the NDPS Act.

A single bench of Justice A Badharudeen was considering the bail application of a man who was arrested for possession of 0.9 grams of MDMA intended for sale which is punishable under the NDPS Act.

When Loan Has Been Repaid, Bank Can't Withhold Title Documents Merely Because Borrower Transferred Mortgaged Property : Kerala High Court

Case Title: Vinu Madhavan V State Bank Of India

Citation: 2023 LiveLaw (Ker) 138

The Kerala High Court held that a bank could not retain the security documents related to a mortgaged property if the loan amount has been paid in full by the borrower, merely because during term of the mortgage, it was alienated to a third party by the borrower.

A single bench of Justice Shaji P Chaly held that : “merely because the property was transferred by the petitioner during the subsistence of the mortgage, however the interest of the Bank is protected by closing the loan account, the Bank is not entitled to withhold the security documents on the ground that the petitioner has transferred the property during the subsistence of the mortgage.”

IOs, Public Prosecutors Can’t Casually Seek Extension Of Time For Completing Probe In NDPS Cases, Requisite Training Be Imparted: Kerala High Court

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

Citation: 2023 LiveLaw (Ker) 139

Observing that investigating officers and public prosecutors in many cases are showing laxity in properly framing and submitting petitions under Section 36A (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Kerala High Court has asked the Director General of Prosecution and Director General of Police to take appropriate action for imparting requisite training and refresher courses to the officers.

"The necessity of clearly setting out the twin requirements for seeking extension of detention of accused beyond 180 days cannot be overlooked or dealt with in a casual manner under any circumstance. This is an aspect that should engage the attention of the Director General of Prosecution and the Director General of Police," Justice V. G. Arun said.

Senior Citizen Offsprings Of 94-Yr-Old Who Died In Road Accident Entitled To Compensation For 'Loss Of Parental Consortium': Kerala High Court

Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors.

Citation: 2023 LiveLaw (Ker) 140

The Kerala High Court recently considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'.

Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed,

"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children".

Kerala High Court Quashes Governor's Order Suspending KTU Syndicate Resolutions

Case Title: I.B. Satheesh M.L.A. v. The Chancellor, APJ Abdul Kalam Technological University & Ors.

Citation: 2023 LiveLaw (Ker) 141

The Kerala High Court quashed the order of the Chancellor of the APJ Abdul Kalam Technological University, Arif Mohammed Khan, who is also the Governor of the State, suspending the resolutions issued by the Syndicate and Board of Governors of the University.

Justice Sathish Ninan passed the above order noting that the proviso to Section 10(3) of the APJ Abdul Kalam Technological University Act, 2015 (hereinafter, 'Act, 2015') contemplates the opportunity to show cause before the issuance of any such order suspending or modifying any resolution of any authority.

"When the power is traced under a statutory provision, compliance in terms thereof is the mandate. Where the law prescribes a thing to be done in a particular manner and following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure," the Court observed.

Kerala High Court Grants Parole To 'Ripper Jayanandan' For Attending Daughter's Wedding

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

Citation: 2023 LiveLaw (Ker) 142

The Kerala High Court granted parole for a period of fifteen days to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the wedding of his daughter. In the petition filed by the wife of the convict, their daughter, Advocate Keerthi Jayanandan had appeared as the counsel.

Justice Bechu Kurian Thomas, while allowing the petition, observed,

"... this Court cannot be oblivious to the glorious right to liberty enshrined in Article 21 of the Constitution of India. The liberty of every individual and the right to life guaranteed under the aforesaid constitutional provision has been interpreted to include the right to live with human dignity. Though a convict, petitioner’s husband also enjoys the facets of right to life and liberty within the limits of law. Normally the opportunity to participate in the wedding of a daughter has to be treated as part of that liberty. When the statute permits the grant of emergency parole, there is no reason why such a facet of his liberty ought to be denied to him despite him being a convict".

Kerala High Court Asks Centre To Consider Allowing Vehicles To Pass Without Paying Toll During Busy Hours

Case Title: Nithin Ramakrishnan V Union Of India

Citation: 2023 LiveLaw (Ker) 143

The Kerala High Court asked the Centre to consider allowing vehicles to pass through toll booths without paying toll during busy hours of traffic when the queue of vehicles is long.

A division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen asked the Union Government to consider giving retrospective effect to the Policy Circular dated 24.5.2021 of the NHAI Policy Guidelines/ Management of Plaza, 2021 which provides for lifting of the boom barrier to allow free flow of traffic anytime the queue of vehicles in any lanes becomes longer than 100 meters. This free flow of traffic without collecting toll amount will be allowed till the queue comes within 100 meters, according to the circular.

Kerala High Court Refuses To Interfere With Trial Court's Order For In-Camera Proceedings In Koodathayi Murder Case

Case Title: Jollyamma Joseph @ Jolly V State of Kerala

Citation: 2023 LiveLaw (Ker) 144

The Kerala High Court refused to interfere with the order of the trial court that directed proceedings to be held in-camera in the trial for the murder of Roy Thomas, where his wife Jolly Joseph is the prime accused.

A single bench of Justice Bechu Kurian Thomas said,

"Unless the applicant is able to show that prejudice has been caused on account of the order directing in-camera proceedings to be held, this Court ought not, in exercise of the inherent jurisdiction, interfere with the satisfaction exercised by the trial Judge".

False Promise Of Marriage: Kerala High Court Refuses To Quash Rape Case, Says Accused Obtained Consent Only For Sexual Relations

xxx v. State of Kerala

Citation: 2023 LiveLaw (Ker) 145

The Kerala High Court recently refused to quash the criminal proceedings that had been initiated against a person for allegedly raping a woman under the false promise of marriage, on the ground that the facts prima facie established that he had never intended to marry her.

Justice K. Babu perused Section 90 of the Indian Penal Code which refers to the expression 'consent', and noted that for the purposes of Section 375, consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.

‘Practising Christian, Not A Scheduled Caste Member’: Kerala High Court Annuls CPM MLA A Raja's Election From Reserved Constituency

Case Title: D. Kumar v. A. Raja

Citation: 2023 LiveLaw (Ker) 146

The Kerala High Court declared CPM candidate A. Raja's 2021 election from the Devikulam Assembly constituency as void.

Justice P. Somarajan said Raja is not a member of 'Hindu Parayan' within the State of Kerala and thus not qualified to be chosen to fill the Devikulam Assembly constituency that had been reserved for Scheduled Caste among Hindus.

[Kerala Wetland Act] Property Cannot Be Termed 'Paddy Land' For Sole Reason That It Is Lying Fallow: High Court

Case Title: Sudheesh.U V The Revenue Divisional Officer Palakkad

Citation: 2023 LiveLaw (Ker) 147

The Kerala High Court recently reiterated that a property cannot be termed as paddy land under the Kerala Conservation of Paddy Land and Wetland Act, 2008 for the sole reason that property is lying as fallow. The court observed that the Revenue Divisional Officer must also be satisfied that the land is suitable for paddy cultivation apart from it being fallow, for it to fall under the category of paddy land under the 2008 Act.

A single bench of Justice Viju Abraham observed that: “Going by the definition in Section 2(xii) of “paddy land” in the Act, 2008, to bring in a land within the definition of paddy land, it should be suitable for paddy cultivation, but uncultivated and left fallow. Just for the reason that the property is left fallow, the land cannot be brought within the definition of paddy land but the Revenue Divisional Officer should be satisfied that the land is suitable for paddy cultivation and left fallow and therefore only on satisfaction of the said twin conditions that a land could be treated as paddy land coming under the definition of Section 2(xii) of the Act, 2008.”

Media Or Govt Agencies Have No Right To Peep Into Private Lives Of Citizens Without Any Valid Reason: Kerala High Court Slams Online Media Channels

Case Title: Sumesh G.S @ Sumesh Marcopolo V State Of Kerala

Citation: 2023 LiveLaw (Ker) 148

The Kerala High Court recently came down heavily on certain online media channels for broadcasting private moments of a woman and said it is disheartening to note that some online news channels "are in the habit of publishing sleaze more than news."

A single bench of Justice VG Arun while criticising the recent media trend of publishing private content of individuals in the name of news said: “In my opinion, publication of another person's private moments for public viewing is, by itself, an offensive act, even if there is no law preventing such action. No person, whether it be the media or Governmental agencies, have the right to peep into the private lives of the citizens of this country, without there being a valid reason.”

Preventive Detention Order Can Be Passed Against Person Already In Judicial Custody On Subjective Satisfaction Of Detaining Authority: Kerala High Court

Case Title: Megha Oshin v State of Kerala

Citation: 2023 LiveLaw (Ker) 149

The Kerala High Court recently held that an order of preventive detention can be passed against a person already in judicial custody if the detaining authority is satisfied of its necessity.

A division bench comprising of Justice Alexander Thomas and Justice C.S. Sudha held that based on parameters such as the immediate possibility of release of the detenu from judicial custody and if released on bail, the likelihood to continue to indulge in prejudicial activities must be considered by the detaining authority while passing an order of preventive detention when the person is already in judicial custody.

Prescribing Qualifications In Addition To UGC's Minimum Qualification For Teaching Posts To ‘Uplift Education Quality’ Constitutional: Kerala High Court

Case Title: Dr. Usha V. Parameswaran and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 150

The Kerala High Court recently upheld the constitutional validity of Section 45A of the Kerala University of Fisheries and Ocean Studies Act, 2010 (KUFOS Act) on the ground that the qualifications for teaching posts prescribed in addition to the UGC Regulations is for uplifting the quality of education.

A single bench of Justice Sathish Ninan was considering a plea challenging the constitutional validity of Section 45A of the KUFOS Act on the ground that it was repugnant to the qualifications prescribed by the University Grants Commission (UGC) Regulations. The petitioners also challenged the employment notification issued by the Kerala University Of Fisheries And Ocean Studies for filling up posts prescribing the above qualifications.

Enacting Movie Scene Doesn't Mean Actors Actually Consumed MDMA: Kerala High Court Quashes NDPS Case Against Makers Of 'Nalla Samayam'

Case Title: Omar Abdul Vahab & Anr. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 151

The Kerala High Court recently quashed the criminal proceedings that had been initiated against the Director and Producer of the Malayalam movie 'Nalla Samayam' on the allegation that trailer of the movie depicted a scene wherein one of the characters lauded MDMA to give energy and happiness to users.

Justice V.G. Arun observed that Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) which stipulates punishment for consumption of narcotic drug or psychotropic substance would not apply, since mere enactment of scenes in a movie could not lead to the assumption that the actors had actually done what they had enacted.

"I am certain that Section 27 will not apply, since enactment of scenes in a movie cannot lead to the assumption that the actors had actually done what they had enacted. If that reasoning is adopted, actors in villainous roles stand the risk of being tried and convicted for murder, arson and rape," the Court observed.

Application For Condonation Of Delay Not Required When Victim Appeals Against Acquittal, Affidavit Explaining Delay Sufficient: Kerala High Court

Case Title: T Peethambaran V State of Kerala

Citation: 2023 LiveLaw (Ker) 152

The Kerala High Court held that when a victim belatedly files an appeal against a judgement of acquittal, it is not essential to file an application for condonation of delay and that an affidavit explaining the delay would suffice.

The court also held that it is not necessary for the appellate court to pass a specific order in relation to the delay.

A single bench of Justice Bechu Kurian Thomas observed, “A delay condonation petition is not required to be filed by a victim who prefers an appeal even after a delay of more than 90 days. The only requirement is to file an affidavit explaining the delay. If the Appellate Court is satisfied with the explanations offered, the court is entitled to proceed to consider admission of the appeal.”

Article 243ZE | Kerala High Court Directs State To Constitute Metropolitan Planning Committee For Kochi Without Further Delay

Case Title: Adv. Richard Rajesh Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 153

The Kerala High Court recently directed the State Government to complete the process of constituting the Metropolitan Planning Committee (MPC) for Kochi as mandated under Article 243ZE of the Constitution without further delay.

A division bench comprising Chief Justice S Manikumar and Justice Murali Purushothaman while considering a Public Interest Litigation (PIL) filed by natives of Kochi City, recorded the submission of the Additional Chief Secretary that the setting up of the Metropolitan Planning Committee was already in motion. The court also directed the State to take immediate steps to form the Kochi Metropolitan Development Authority, to ensure proper urban planning for the Kochi Metropolitan area:

“Having given due consideration to the material on record, in particular, the averments that steps have been taken to constitute a Metropolitan Planning Committee for the Metropolitan area of Kochi, as mandated under Article 243ZE, taking note of the length of time, i.e. nearly 2 decades, we direct the Chief Secretary, Secretariat, Thiruvananthapuram, the Additional Chief Secretary to the Government, Local Self Government Department, Thiruvananthapuram, and the Principal Director, Local Self Government Department, respondents 1, 3 and 4 respectively, to finalize the preparation of the process already undertaken and as explained in the foregoing paragraphs of the counter affidavit filed by the 3rd respondent, and constitute the Metropolitan Planning Committee for Kochi, as mandated under Article 243 ZE, and also to take immediate steps for the formation of Kochi Metropolitan Development Authority, for the purpose of implementing, coordinating and supervising the orderly development of Kochi Metropolitan area, within four months from the date of receipt of a copy of this judgment.”

No Criminal Action Merely On Allegation Of Wrong Order Passed By Public Servant: Kerala HC Quashes Corruption Case Against Deputy Collector, Others

Case Title: P.T. Jose & Ors. v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 154

The Kerala High Court has made it clear that criminal proceeding cannot be initiated against a public servant merely on the ground that a wrong or incorrect order was passed by him/her.

Stating thus, it quashed the FIR and proceedings initiated against Taluk Land Board Chairman, Deputy Collector (LR) and Tahsildar of Thrissur, other Board members under the Prevention of Corruption Act.

Justice Kauser Edappagath found the prosecution case unsustainable, no allegation of any illegal gratification was made. It observed, "If a public servant acting as a quasi-judicial authority under a statute passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order."

Kerala High Court Dismisses Public Service Commission's Plea Against KAT Order Permitting Transgender Person To Apply

Case Title: Kerala Public Service Commission V. Arjun Geetha & Others

Citation: 2023 LiveLaw (Ker) 155

The Kerala High Court recently dismissed the plea of the Kerala Public Service Commission (KPSC) challenging the interim order of the Kerala Administrative Tribunal that had permitted a transman by the name of Arjun Geetha, to apply for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion.

A division bench comprising Justice S V Bhatti and Justice Basant Balaji considering the plea of the Public Service Commission stated, “we are compelled to observe that the State Government/2nd respondent examine protection granted to the transgender persons by the Act, and the needful is done without subjecting them to avoidable litigation”.

Doctrine Of Pleasure Subject To Rule Of Law: Kerala High Court Quashes Governor's Order Removing 15 Senate Members From Kerala University

Case Title: Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors

Citation: 2023 LiveLaw (Ker) 156

The Kerala High Court quashed the order of Governor Arif Mohammed Khan, Chancellor of the University of Kerala, withdrawing the nomination of 15 members of the University Senate.

A single bench of Justice Sathish Ninan held that the order of the Chancellor withdrawing the nominations of the members invoking the doctrine of pleasure was unsustainable in law and arbitrary:

“it is evident that the order is not based on any reason, but, was rather founded on prejudice. It was an unreasoned act, without regard to the facts and circumstances”, the court observed.

Deputationist Has No Indefeasible Right To Continue In Borrowing Department, Repatriation Permissible If Work Not Satisfactory: Kerala High Court

Case Title: Ajin K.A. & Ors. v. The Joint Deputy Director & Ors.

Citation: 2023 LiveLaw (Ker) 157

The Kerala High Court dismissed the petition filed by Civil Police Officers who had been deputed to the Bureau of Immigration, seeking to continue on deputation till the expiry of their period.

Reiterating that deputationists do not have a right to claim that they should be permitted to complete the entire tenure in the borrowing department, the Single Judge Bench of Justice N. Nagaresh, went on to state that the concept of repatriation was also inherent in deputation as long as the deputationist has not been permanently absorbed in the borrowing Department.

"A deputationist does not have indefeasible right to continue in the borrowing Department. Repatriation can be resorted to on the grounds of unsuitability or unsatisfactory work. As long as the repatriation of the petitioners does not amount to reversion or imposition of penalty and as long as the decision is not vitiated by bias, the petitioners cannot have any legal grievance in the matter," the Court observed.

No Data Regarding Exact Population: Kerala High Court Holds Notifications Declaring Lakshadweep's Gram Panchayat Constituencies Ultra Vires

Case Title: N M Basil V The Regional Sports Centre

Citation: 2023 LiveLaw (Ker) 246

The Kerala High Court recently held that interim orders passed under the Kerala Buildings (Lease and Rent Control) Act, 1965 are appealable under Section 18 of the Act only if it affects the rights and liabilities of the concerned party.

A division bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen while dismissing a petition filed challenging the order of the Rent Control Appellate Authority, that dismissed an appeal against interim orders of the Rent Control Court, held that ad interim orders which do not ‘affect or touch upon the substantial rights or liabilities of the parties’ are not appealable under Section 18 of the Act.

Unexplained Delay In Issuing Detention Order After Last Prejudicial Activity Of Detenu Is Ground For Quashing: Kerala High Court

Case Title: Rasiya P.M. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 247

The Kerala High Court held that a detention order issued against a person can be quashed on the basis of unexplained delay in issuing the order of detention after the last prejudicial activity of the detenu, as per the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter, 'KAAPA').

The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha observed,

"It is trite that there has to be a live link between the prejudicial activity and the order of detention and if the said link is snapped, the order of detention would be bad. In other words, an unexplained delay in issuing the order of detention after the last prejudicial activity would certainly vitiate the order of detention, for the delay would snap the live link between the prejudicial activity and the detention order".

However, the Court observed that if there is a satisfactory explanation for the delay, the same would not affect the order, and added that the question of satisfactory explanation of delay would have to be ascertained on the basis of the facts of each case. The Bench further added that the Statute as such contemplates detention only for a period of six months in order to achieve its purpose.

Delegation Of Quasi-Judicial Functions By SEBI To Its Members Is Permissible: Kerala High Court