Kerala High Court Monthly Digest - April 2023 [Citations 167-208]

S.163A MV Act | Accident Can Be Said To Have Arisen 'Out Of Use Of Vehicle' That Was Stationary: Kerala High Court

Case Title: Sukumaran v. R.C. Ibrahim & Ors.

Citation: 2023 LiveLaw (Ker) 168

The Kerala High Court recently held that an accident could be said to have arisen 'out of the use of' a vehicle that had been stationary at the relevant time, in order to prove a claim under Section 163A of the Motor Vehicles Act, 1988 (hereinafter, 'MV Act, 1988').

Although the Single Judge Bench of Justice Sophy Thomas dismissed the appeal against the order of the Motor Accidents Claims Tribunal, Irinjalakuda, finding that the appellant does not fall within the ambit of the low income group under Section 163A of the MV Act with maximum annual income up to Rs.40,000/- , the Court relied upon precedents to observe that under the said provision, the appellant would not have to plead or establish any wrongful act or negligence or default of the owner of the vehicle or any other person.

Cognizance Taken By Police For Offence U/S 195A IPC Bad In Law, Only Court Can Consider Matters Relating To False Evidence: Kerala High Court

Case Title: Suni @ Sunil V State of Kerala

Citation: 2023 LiveLaw (Ker) 169

The Kerala High Court held that the police is not competent to register an offence under Section 195A (threatening any person to give false evidence) of the Indian Penal Code and that only a court is competent to consider an offence in relation to false evidence.

A single bench of Justice A. Badharudeen observed that

“When the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195 A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed.”

Can’t Use Municipality-Owned Shopping Complex’s Parking Space For Dharna Or Public Meeting Without Official Permission: Kerala High Court

Case Title: Priyesh B Kartha V. The Deputy Superintendent Of Police

Citation: 2023 LiveLaw (Ker) 170

The Kerala High Court recently held that the open space designated for parking vehicles of customers and shop licensees in front of a shopping complex, even when it is owned by the municipality, could not be considered a public space for the purpose of freely conducting public gatherings, without the permission of the municipality.

A single bench of Justice N Nagaresh observed:

“Though every citizen has a right to access to the Shops in the building, the open space is intended for parking of the vehicles of the customers only. Therefore, such spaces can have a status of semi-public space only. No organisation or group of citizens can claim a right to organise Dharna or public meeting in such places, without the permission of the Municipality.”

Casual Approach Of Courts In Dealing With Attacks On Health Personnel Also Contributes To Tendency Of Resorting To Such Violence: Kerala High Court

Cause Title: Dr. P K Asokan V State of Kerala

Citation: 2023 LiveLaw (Ker) 171

The Kerala High Court recently set aside the bail granted by a sessions court to two persons who allegedly a attacked a doctor after a woman gave birth to a still-born child at the hospital.

A single bench of Justice Bechu Kurian Thomas expressing concern about the continued attacks on doctors observed:

“Doctors continue to face threats, when a mishap occurs to a patient. Even for the slightest provocation, health personnel are attacked. Despite legislation prevailing in the State of Kerala and the repeated court orders to treat attacks on health personnel as a serious crime, violence against them recur. The casual approach adopted by the courts while dealing with instances of attacks on health personnel also contribute to the tendency to resort to such violence.”

Kerala High Court Dismisses Plea To Suspend State's Top Officials For 'Undue Influence', Says Aimless Allegations Without Supporting Material

Case Title: Asif Azad v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 172

The Kerala High Court came down heavily upon the practice of filing writ petitions without any basis and thereby 'threatening the system into ridicule'.

Justice Bechu Kurian Thomas while dismissing a plea alleging State's Top officials of influencing others to destroy petitioner's life, imposed a cost of Rs.25,000/- payable to the Kerala Legal Services Authority.

"Access to justice, though a fundamental right, cannot be extended to a right to prefer misconceived and frivolous petitions. The nature of reliefs claimed for and the nebulous pleadings are indicative of absence of any particular right of the petitioner having been infringed," the Court observed while dismissing the petition.

'TRAI Regulations In Public Interest, No Arbitrariness Made Out': Kerala High Court Dismisses AIDCF's Plea Challenging New Tariff Order

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

Citation: 2023 LiveLaw (Ker) 173

The Kerala High Court dismissed the plea filed by All Indian Digital Cable Federation (AIDCF) challenging the Telecom Regulatory Authority of India's (TRAI) new Tariff Order, under which broadcasters had increased channel prices for cable TV operators for inclusion in bouquet from INR 12 to INR 19 per channel.

AIDCF, which is an apex body with several multi system operators (MSOs), that provide cable services to consumers, had moved an application seeking urgent hearing following the issuance of disconnection notices by the Indian Broadcasting and Digital Foundation (IBF) on failure to sign new interconnection agreements with revised prices.

The Single Judge Bench of Justice Shaji P. Chaly found that AIDCF had failed to establish any illegality, arbitrariness, unbridled exercise of power, mala fides or any other legal infirmities with respect to the New Tariff Order and the 2022 Regulations of TRAI that justified the interference of the Court. It also noted that the impugned Regulations were issued by TRAI for protecting public interest and regulating and controlling the telecommunication services for public good.

Purposeful Attempts By Jail Authorities To Create Impression That Convict Is Not Well-Behaved And Deny Leave/Parole Is Illegal: Kerala High Court

Case Title: Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 174

The Kerala High Court held that any purposeful attempt made to create an impression that a convict is not a well-behaved person in turn to deny leave to him is illegal.

Justice Bechu Kurian Thomas, while allowing a petition seeking ordinary leave for a convict, observed that

“There has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal…an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself”.

S.151 CrPC | Arrest Without Warrant In Absence Of Knowledge Of Design To Commit Cognizable Offence Violates Article 21: Kerala High Court

Case Title: Anand Mahadevan V State Of Kerala

Citation: 2023 LiveLaw (Ker) 175

The Kerala High Court has reiterated that the police cannot arrest a person under Section 151 of the Code of Criminal Procedure (arrest to prevent the commission of cognizable offences), without the knowledge of the existence of a design to commit a cognizable offence and a belief that the commission of the offence can only be prevented by the arrest of the person.

A single bench of Justice Bechu Kurian Thomas observed that since extraordinary powers of arresting without a warrant has been granted to the police in case of knowledge of a design to commit a cognizable offence, strict interpretation of section 151 was important to avoid any misuse of such powers:

“The object of Section 151 of the Code is one of preventive justice and before invoking the said provision, it must be evident that there is imminent danger. Unless the arrest under Section 151 of the Code is based upon a bonafide belief of the existence of a design to commit a cognizable offence and without arresting the person, the threat of commission of offence cannot be averted, only then can the Police Officer be clothed with the power to arrest under Section 151 of Code. The corollary of the above is that, without the knowledge of a design and without an imminent threat to commit a cognizable offence, a Police Officer cannot arrest, that too without a warrant from the Magistrate in exercise of the power under Section 151 of the Code.”

Kerala High Court Vacates Stay On NGT Order After Communication From SC Registry That It Has Already Been Affirmed By Apex Court

Case Title: State of Kerala V Shefy Joseph

Citation: 2023 (Ker) LiveLaw 176

The Kerala High Court recently vacated its interim order staying NGT's direction to M/s.Cochin Granites to pay environmental compensation for its illegal and unauthorised mining activities.

A challenge to the said order of the National Green Tribunal had been earlier dismissed by the Supreme Court. Subsequently, a review petition was filed which was also dismissed by the Apex Court. However, the order came to be stayed by the Kerala High Court in a plea filed by the State.

The Supreme Court had directed its Registry to communicate its orders to the Registrar General of the High Court, who placed it before a single bench of Justice Viju Abraham for consideration. Vacating the interim order in light of the orders of the Apex Court, the court held:

“..the Apex Court has dismissed the appeal and review petition challenging the order of the National Green Tribunal. In view of the fact that the order impugned in these writ petitions has been challenged unsuccessfully by filing an appeal and a review petition before the Hon’ble Apex Court, I am of the opinion that the interim order granted in both the writ petitions i.e., W.P(C) No.13221 of 2022 and W.P(C) No.17340 of 2022 on 15.06.2022 and subsequently extended, is not liable to be extended further and the request for extending the interim order in both the writ petitions is accordingly declined.”

Kerala High Court Orders Capture, Radio-Collaring & Relocation Of Rogue Elephant 'Arikomban' To Parambikulam Tiger Reserve

Case Title: In Re Bruno v. Union of India & Ors.

Citation: 2023 (Ker) LiveLaw 177

The Kerala High Court ordered that the rogue elephant, 'Arikomban', which had been wreaking havoc in human settlements in Chinnakkanal and Santhanpara Panchayaths in the Idukki District, ought to be captured, radio-collared and relocated to the Muthuvarachal/Orukomban within the Parambikulam Tiger Reserve.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. issued the above order after perusing the report filed by the Committee of Experts that had been constituted by it to advise the Court on matters pertaining to Human-Elephant conflict situations arising in the State.

"Having considered the report of the Committee and having heard the counsel appearing for the various parties in this writ petition including parties who sought to get themselves impleaded in the writ petition as also the learned Additional Advocate General appearing for the State of Kerala, we are of the opinion that the Committee has considered all the relevant aspects and has come to the conclusion that the best possible way to deal with the present situation is only to capture, radio-collar and translocate the animal to the Parambikulam Tiger Reserve. We are convinced that this is the best option, despite the submission of the learned Additional Advocate General that it is for the Chief Wildlife Warden to take a final decision as to whether the elephant has to be translocated or kept in captivity," the Court observed in its Order.

Kerala High Closes Suo Moto PIL Against Child Labour, Beggary; Directs Social Justice Dept To Monitor Govt Initiatives

Case Title: Suo Motu V The Secretary To Government

Citation: 2023 LiveLaw (Ker) 178

The Kerala High Court recently directed the Kerala State Legal Services Authority (KELSA) to review the steps taken by it to protect and rehabilitate children engaged in begging and child labour, as well as the steps taken to combat drug abuse among children.

The court also directed the Secretary to the Government of the Social Justice Department to monitor and review the initiatives taken by the Government in this regard.

A division bench of Justice S Manikumar and Justice Murali Purushothaman passed the order while closing a public interest litigation aimed at reducing the number of children involved in child labour, begging, and trafficking in the state.

Permitting Indian Citizen To Take Child Abroad Does Not Foreclose Right Of Other Spouse To Get Custody: Kerala High Court

Case Title: XXX v. YYY

Citation: 2023 LiveLaw (Ker) 179

The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country. It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.

It observed, "If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".

S. 27A Kerala Wetland Act | Conversion Fees Exempted For Property Less Than 25 Cents Purchased Even After 2017 Cut-Off: High Court

Case Title: Sumesh U. & Anr. v. The Revenue Divisional Officer, Palakkad & Ors. and Saresh Sanker & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 180

The Kerala High Court recently declared that the fees prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 with respect to conversion of a property purchased after December 2017, cannot be insisted if the property measures less than 25 cents.

Bench of Justice Anu Sivaraman rejected the contention that 'any property' purchased after December, 2017 would lose the exemption even when the said property was less then 25 cents, even prior to the transaction. It observed, "A reading of the provisions of the Act, the Rules, the Schedule as well as Ext.R3(a) Government Order would make it amply clear that the exemption would be lost only in case there is a transaction after 30.12.2017 by which, a property having a larger extent is fragmented to make the individual parcels of land of an extent of less than 25 cents."

Family Court Can't Dispose Application For Time Bound Adjudication Merely Saying 'Case Will Be Disposed At Earliest', Must Fix Time Frame: Kerala HC

Case Title: XXX v XXX

Citation: 2023 LiveLaw (Ker) 181

The Kerala High Court on Monday held that when an application is filed seeking time bound disposal of a matter, the family court cannot dispose such an application passing an order that the case “will be disposed of at the earliest”.

A division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar observed

“… if the applicant has stated any justifiable or valid reason for early hearing or time bound disposal, the Family Court has to pass an order in that interlocutory application ordering early hearing or time-bound disposal of that case or cases, specifying the time limit in that order."

Right To Be Forgotten | Kerala High Court Refuses To Expunge Remarks Suggesting Google To Use AI Tools To Remove Identifiers From Judgments Online

Case Title: Google Inc. v. XXXX & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 182

The Kerala High Court recently refused to expunge remarks from its Right to be Forgotten judgment, whereby it was opined that Google is not 'content blind' and it cannot shirk liability to remove judgments and content disclosing personal details of parties.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen dismissed the petition filed by the search engine platform, seeking review of its judgment rendered last year in Vysakh K.G. v. Union of India & Anr. and other connected cases [2022 LiveLaw (Ker) 665].

'Calculated Attempt To Exonerate Influential Accused': Kerala High Court Cancels Further Investigation In Misappropriation Case Against Vellappally Natesan

Case Title: Surendra Babu v. State of Kerala & Ors. and Vellappally Natesan v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 183

The Kerala High Court paved for trial to proceed against SNDP Yogam General Secretary Vellappally Natesan, in a case alleging misappropriation of funds.

The Single Judge Bench of Justice Ziyad Rahman A.A. set aside the permission granted by a Magistrate Court in Kollam to conduct further investigation. It noted that the request for further investigation was made by a former member of the investigation team, that too after his retirement. Stating that bonafides in making such a request is highly suspicious, the Court was prima facie satisfied that,

"...there is a calculated attempt to exonerate the accused, a very influential person, without even a trial".

The Court thus directed the CJM to conduct trial based on the final report already produced, as expeditiously as possible.

'No Usurpation In Office, Eligible For Post': Kerala High Court Upholds Appointment Of Prof Venkateshwarlu As Central University VC

Case Title: Dr. Naveen Prakash Nautiyal V Union Of India

Citation: 2023 LiveLaw (Ker) 184

The Kerala High Court dismissed a batch of petitions that challenged the appointment of Prof. H Venkateshwarlu as the Vice Chancellor of the Central University of Kerala.

A division bench of Chief Justice S Manikumar and Justice Murali Purushothaman held that the selection and appointment of the VC was as per the provisions of the Central Universities Act, 2009 and the statutes thereunder: “The 3rd respondent has been appointed as Vice Chancellor, by the Visitor, the competent authority, as per the statutory provisions and is holding office with legal authority and there is no usurpation in office by the 3rd respondent. He has the necessary qualification and eligibility for the post. This Court will not sit in judgment over the wisdom of the Visitor in the choice of the person to be appointed as the Vice-Chancellor.”

Kerala Gold Smuggling Case: High Court Dismisses Plea Seeking Probe Into Alleged Involvement Of CM Pinarayi Vijayan, Other Officials

Case Title: Aji Krishnan V Union of India

Citation: 2023 LiveLaw (Ker) 185

The Kerala High Court dismissed a petition seeking a time bound investigation by Customs and the Enforcement Directorate into the alleged role of Chief Minister Pinarayi Vijayan, former speaker P Sreeramakrishnan and other high ranking officials of the Chief Minister’s office on allegations of money laundering and gold smuggling using diplomatic channels

A single bench of Justice Bechu Kurian Thomas dismissed the petition observing that apprehensions of the petitioner that proper investigation was not being conducted in the gold smuggling case was baseless: “The Customs as well as the Enforcement Directorate, have conducted or are conducting proper investigations. There are also no reasons to assume that if the involvement of any person is revealed in the investigation, they will not be proceeded against. For, the dictum “Be you ever so high, the law is above you” applies with equal vigour to all, irrespective of status or position.”

'Appalled By Insensitivity Towards Plight Of Animal' Kerala High Court Refuses To Interfere With Translocation Of Tusker ‘Arikkomban’

Case Title: K Babu V Union Of India

Citation: 2023 LiveLaw (Ker) 186

The Kerala High Court refused to interfere with its earlier direction to translocate the wild tusker ‘Arikomban’ to Parambikulam Tiger Reserve despite the review petition filed by MLA K Babu citing apprehensions of residents near the proposed site of translocation about the elephant entering human settlements.

The court on 5th April had directed to tranquilise and translocate the elephant along with a radio collar to Parambikulam Tiger Reserve on the advice of an expert committee due to concerns raised by the residents of Anayirangal region about the elephant entering areas of human settlement and causing damage.

A division bench of Justice A.K.Jayasankaran Nambiar and Justice Gopinath P while refusing to allow the review petition observed: “We are also appalled by the total insensitivity demonstrated to the plight of the animal in question, which has been directed to be translocated from its original habitat to a new one only because there is every likelihood that the availability of plentiful natural food and water resources there would deter it from foraging in human settlements. The fact that the elephant will be radio-collared and its movements monitored by the forest/wildlife officials ought to have sufficed to allay the apprehensions of the petitioner, as the ‘surprise’ element of any conflict situation is effectively removed through the monitoring mechanism instituted and now in place.”

EPF Pension | Kerala High Court Directs EPFO To Allow Opting Of Higher Pension Without Insisting On Submission Of Option Form Under Para 26(6) Of The Scheme

Case Title: Saheer S V Union Of India

Citation: 2023 LiveLaw (Ker) 187

The Kerala High Court directed the Employees Provident Fund Organization to modify its online system to allow employees/pensioners to comply with the directives of the Supreme Court for opting for higher pension without having to provide copies of the option under paragraph 26(6) of the Employees Provident Fund Scheme, 1952.

A single bench of Justice Ziyad Rahman while granting the interim order observed: “the Employees Provident Fund Organization and the authorities under the same are directed to make adequate provisions in their online facility to enable the employees/pensioners to furnish the options in tune with the directions of the Honourable Supreme Court, without the production of the copies of option under paragraph 26(6) of the Scheme, 1952 and the details thereof, for the time being”.

Kerala High Court Sets Aside Sessions Court Order Dropping Culpable Homicide Charges Against IAS Officer Sreeram Venkataraman

Case Title: State of Kerala v. Sreeram Venkitaraman and Wafa Najim @ Wafa Firoz v. State of Kerala

Citation: 2023 LiveLaw (Ker) 188

The Kerala High Court set aside a Sessions Court order dropping culpable homicide charges against IAS Officer Sreeram Venkitaraman in the infamous road rage case.

The order was however upheld to the extent it discharged Venkittaraman under Sections 184 and 185 of the Motor Vehicles Act, that relates to dangerous driving and drunken driving, and Section 3(2) of the Prevention of Damage to Public Property.

Justice Bechu Kurian Thomas observed, "Driving vehicles after consuming alcohol can lead to temporary or partial impairment of cognitive faculties. This disability can lead to error in judgment relating to distance calculation, distinguishing objects, speed control and even other factors that are essential for safe driving. Blurred vision and reaction to sudden stimuli are also known consequences of alcohol consumption. Thus, when a motor vehicle is driven after consuming alcohol, road accidents become a predictable consequence. In such a scenario, attributing knowledge to the driver of the vehicle that death can be likely consequence of drunken driving is legally tenable".

Movie Inspired By A Person's Life Doesn't Mean It Is Completely Their Life Story: Kerala High Court Dismisses PIL Against Film 'Kurup'

Case Title: Sebin Thomas v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 189

The Kerala High Court dismissed an Advocate's PIL against release of Malayalam movie 'Kurup' which is based on the biography of a proclaimed offender named Sukumara Kurup. The petitioner had sought protection of right to privacy of ‘proclaimed offenders’, under Article 21 of the Constitution of India.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman observed that although the story does get inspiration from the life story of a proclaimed offender, it did not however indicate that the story was the complete life story of that person, nor that publication of the same would affect his right to privacy.

LIFE Mission Case: Kerala High Court Dismisses M Sivasankar's Bail Plea

Case Title: M. Sivasankar v. Union of India & Anr.

Citation: 2023 LiveLaw (Ker) 190

The Kerala High Court dismissed the bail application filed by M Sivasankar, former Principal Secretary to the Chief Minister of Kerala, in the money laundering case related to alleged corruption in the LIFE (Livelihood, Inclusion and Financial Empowerment) Mission project, a housing project of the Kerala Government for the homeless.

Justice A. Badharudeen observed that although the petitioner could not be regarded as a person who would flee from trial,

"...However, his propensity to tamper with the evidence and to influence witnesses could be foreseeable, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala".

No Allegation Of Any "Demand": Kerala High Court Quashes Proceedings Against Ex-MLA KM Shaji In Plus Two Bribery Case

Case Title: K M Shaji V State of Kerala

Citation: 2023 LiveLaw (Ker) 191

The Kerala High Court quashed the proceedings initiated by the Vigilance and Anti Corruption Bureau against Indian Union Muslim League (IUML) leader and former MLA K M Shaji, in connection with the plus two bribery case.

A single bench of Justice Kauser Edappagath quashed the FIR as it was of the view that no prima facie case was made out against Shaji:

“I conclude that the allegations made in Annexure A FIR and the evidence collected in support of the same, even if believed in toto, do not prima facie disclose a cognizable offence or make out a case against the applicant. Hence, no purpose will be served in proceeding with the matter further. Accordingly, all further proceedings against the petitioner pursuant to Annexure A FIR are hereby quashed.”

Kerala High Court Refuses Bail To Two Andhra Pradesh Natives Accused Under UAPA For Spreading Maoist Ideology

Case Title: Chaithanya V Union of India

Citation: 2023 LiveLaw (Ker) 192

The Kerala High Court refused to set aside the order of a Special NIA court denying bail to two Andhra Pradesh natives for their alleged involvement in the terrorist organization CPI(Maoists).

The accused persons are alleged to have been involved in radicalizing youth and persuading them to join the terrorist organisation. The AP natives are said to have been recruiting members to Dalams, the armed wing of the CPI (Maoist), in Wayanad area. They have also been accused of providing them with training, with the aim of posing a threat to the unity, integrity, and sovereignty of India.

A Division Bench of Justice Alexander Thomas and Justice C S Sudha denied bail to the accused persons noting that the offences alleged against them are of a ‘grave and serious’ nature: “Since there are materials to show that A-5 & A-6 have been actively involved in the above terrorist organization and that too, located in various States, there is serious likelihood of both of them absconding or fleeing away from the long arm of the law, in case they are released on bail”.

Lok Ayukta Cannot Investigate Matters Relating To Selection Of Candidates By Political Parties: Kerala High Court

Case Title: Pannyan Raveendran v. Shamnad A. & Anr.

Citation: 2023 LiveLaw (Ker) 193

The Kerala High Court recently held that the Kerala Lok Ayukta cannot investigate into matters relating to selection of candidates by political parties for contesting election.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman while considering a petition filed by the State Secretary of Communist Party of India (CPI), Pannyan Raveendran, challenging the order of the Kerala Lok Ayukta finding such a complaint to be maintainable, and observed that,

"A political party has the discretion to choose a candidate of its choice subject to the requirement of providing necessary information regarding criminal antecedents etc; of the candidate so that the voter can exercise his right to franchise in an effective manner".

How Prefix “Professor” Induced Voters? Kerala High Court Dismisses Plea Against Election Of Education Minster R Bindu For Alleged Misrepresentation

Case Title: Thomas J Unniyadan v R Bindu

Citation: 2023 LiveLaw (Ker) 194

The Kerala High Court dismissed a petition challenging the election of Education Minister R Bindu from Irinjalakuda Constituency in the General Election held in 2021 to the Kerala Legislative Assembly.

The petition was filed seeking a declaration that her election was void on the ground that she misrepresented herself as “Professor R Bindu”, even though she was not a designated Professor, in order to induce voters. The petition also alleged that she indulged in other corrupt practices in contravention of the provisions of the Representation of People Act, 1951.

A single bench of Justice Sophy Thomas observed: “showing the name of the 1st respondent as ‘Prof.R.Bindu’ in Annexures-E to G notice, pamphlet etc., and doing election campaign also in that name will not amount to corrupt practice as envisaged under Section 123(2) of the RP Act, as the Returning Officer corrected her name as Prof.R.Bindu in the list of contesting candidates and Ballot paper, as per the Proviso to Rule 8(2) of the Conduct of Election Rules, 1961, on being satisfied as to the genuineness of her request in Annexure-C, as she was popularly known as Prof.R.Bindu.”

Every Unmarried Daughter Has Right To Get Reasonable Marriage Expenses From Her Father Irrespective Of Religion: Kerala High Court

Case Title: XXX & Anr. v. YYY

Citation: 2023 LiveLaw (Ker) 195

The Kerala High Court recently considered the question as to whether there is a provision entitling a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom, and answered the same in the affirmative.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar perused the provisions of the Hindu Adoptions and Maintenance Act, 1956, as well as the Muslim position on the aspect as revealed in Ismayil v. Fathima & Anr. (2011), and observed that,

"The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one’s religion".

Kerala High Court Directs State To Comply With Previous Directions To Prevent Unlawful Protests In Public Spaces

Case Title: The Trivandrum Chamber of Commerce and Industry & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 196

The Kerala High Court recently directed the State machinery to comply with the directions issued by the Apex court as well as the High Court time and again regarding the controlling of unlawful protests, campaigns, and other such assembly of people being staged at public spaces meant for public use.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman was considering a public interest litigation seeking the issuance of further directions to the competent State and Police authorities to remove unlawful assemblies of people around the Raj Bhavan and State Secretariat areas, Thiruvananthapuram, and thus formulate guidelines with respect to the earmarking of certain public areas in the State for the purpose of holding mass assemblies.

Building Owner Can Decide If Parking Fees Is To Be Levied From Customers Utilizing Its Shopping Facility: Kerala High Court In Plea Against Lulu Mal

Case Title: Bosco Louis V State of Kerala, Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd

Citation: 2023 LiveLaw (Ker) 197

The Kerala High Court recently held that it is up to the building owner to determine whether or not to charge customers for parking their vehicles while using the shopping facility and services offered in the building.

However, the court also held that for operating multilevel parking facilities around the commercial establishment that operate as stand-alone buildings used for parking, a licence under Section 475 of Kerala Municipality Act is required.

A single bench of Justice V G Arun was hearing two writ petitions challenging the collection of parking fees from vehicles parked in the parking area of Lulu Shopping Mall at Edappally in Kochi. The petitions sought for a refund of the money collected and also for a direction to refrain the mall from collecting any parking fee. The court held that:

“collection of fees from the vehicles parking in the 1083 parking slots in the basement of Lulu Mall is legal, but collection of fees from vehicles parking in the multilevel parking facility, without obtaining a licence under Section 475 of the Kerala Municipality Act, is illegal. If the company intends to utilise the multilevel parking facility near the shopping mall and collect parking fees from persons using the facility, that can be done only under a licence issued in terms of Section 475 of the Act.”

Granting Anticipatory Bail To Persons Who Flee Country Being Aware Of FIR Registered Against Them Is Not Proper: Kerala High Court

Case Title: Anu Mathew V State of Kerala

Citation: 2023 LiveLaw (Ker) 198

The Kerala High Court recently held that it may not be appropriate to grant anticipatory bail in circumstances where the accused fled the country being fully aware of a non-bailable offence registered against him/her.

The court also observed that while considering a bail application filed by an accused who is abroad, courts must consider imposing the condition that the accused shall be available for interrogation by a Police Officer, as and when required and that the accused shall not leave India without the previous permission of the Court.

A division bench of Justice Alexander Thomas and Justice C S Sudha observed:

“if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad,” the court observed.

Courts Can Entertain Plea For Anticipatory Bail Even If Accused Is Abroad At The Time Of Filing The Application: Kerala High Court

Case Title: Anu Mathew V State of Kerala

Citation: 2023 LiveLaw (Ker) 198

The Kerala High Court recently held that anticipatory bail application is maintainable even if the accused is in a foreign country at the time of filing the application.

In view of the reference made by a single bench of the Court, the division bench comprising of Justice Alexander Thomas and Justice C S Sudha was considering the question of whether a person who is outside India can file an application for anticipatory bail.

The reference was made by a single bench of Justice P.V Kunhikrishnan as it differed from the law laid down by the single bench of Justice Bechu Kurian Thomas in the case of Vijay Babu v. State of Kerala [2022 (4) KLT 24] where it was held that a person who is outside India can file an anticipatory bail application, as long as before the final hearing, the accused is in India. The single bench while making the reference had opined that when the Court in Shafi S.M. v. State of Kerala and Anther [2020 (4) KHC 510] had already held that an application under Section 438 Cr.P.C. cannot be filed by an accused sitting in a foreign country, then the single bench in Vijay Babu’s case ought not to have decided the matter without referring the same to the Division Bench.

The division bench took the view that a pre-arrest bail can be entertained in a case where the accused is in a foreign country at the time of filing of the application under Sec.438 Cr.PC. The Court referred to the decisions in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565] and to Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. [(2020) 5 SCC 1] to observe that the Supreme Court has consistently stated that courts should be cautious about imposing unnecessary limitations on the scope of Section 438 as denial of bail amounts to deprivation of personal liberty.

Appointment Of Headmaster Invoking Minority Status Of Institute Can Only Be Accepted If Specified Through Form 27 Of Kerala Education Rules: High Court

Case Title: Xavier T.J v State Of Kerala

Citation: 2023 LiveLaw (Ker) 199

The Kerala High Court recently held that the when a Headmaster is appointed bypassing seniority, such appointment can only be accepted if it is indicated in the appointment order that the appointment is being made by invoking the minority status of the institute.

A single bench of Justice P V Kunhikrishnan observed that when a Manager of an educational institute appoints a headmaster by overlooking seniority in exercise of its minority rights, this should be made clear in the appointment order under Form 27 of KER (Kerala Education Rules) by striking out paragraph 3 of the form that states there is no other candidate qualified and eligible for promotion to the said post.

Correctness Of Allegations In FIR To Be Tested During Trial; Not By High Court While Exercising Jurisdiction U/S 482 CrPC: Kerala High Court

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

Citation: 2023 LiveLaw (Ker) 200

The Kerala High Court recently reiterated the view that the High Court, while exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se.

The Single Judge Bench of Justice K. Babu relied upon a catena of Apex Court decisions such as State of West Bengal v. Swapan Kumar Guha (1982), State of Kerala v. O.C. Kuttan (1999), M/S Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra & Ors. (2021), and Minakshi Bala v. Sudhir Kumar & Ors., to observe that, the High Court has no jurisdiction to examine the correctness or otherwise of the allegations raised in such documents.

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

Case Title: XXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 201

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 202

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 203

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

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

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

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

Citation: 2023 LiveLaw (Ker) 204

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

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 205

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 206

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

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

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

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

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

Citation: 2023 LiveLaw (Ker) 207

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

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

Justice Bechu Kurian Thomas observed,

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

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

Case Title: Fasil V State of Kerala

Citation: 2023 LiveLaw (Ker) 208

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

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

A single bench of Justice A. Badharudeen observed that

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

Other Significant Developments This Month

Former HC Chief Justice Thottathil B. Radhakrishnan Passes Away

Former Chief Justice of the High Courts of Calcutta, Andhra Pradesh, Telangana, and Chhattisgarh, and Judge of the Kerala High Court, Justice Thottathil Bhaskaran Nair Radhakrishnan, passed away.

He served as Judge of the Kerala High Court for 12 years, and had been the acting Chief Justice twice.

He breathed his last at a private hospital in Kochi.

Kerala Court Convicts 14 In Madhu Lynching Case, Acquits Two

The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad convicted 14 of the 16 persons accused in the Madhu Lynching Case.

The accused persons had been charged for tying up and brutally beating a tribal youth to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018.

Asianet News Files Plea Before Kerala High Court Alleging Police Harassment

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

Malayalam News Channel, Asianet News, has filed a plea before the Kerala High Court alleging harassment by the Police for having launched a campaign against drug abuse in the State, particularly amongst children, and the publication of an interview with one such victim of drug abuse.

It is the case of the petitioners that despite the aforementioned news item having been published with due care and caution, without disclosing the identity of the victim or her relatives, the channel was continuously receiving notices under Sections 160(1) and 90 of Cr.P.C. directing them to produce their recordings and original video tapes of the news that was telecasted several months ago.

Madhu Lynching Case| Kerala Court Sentences 13 Convicts To 7 Years Imprisonment

The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad pronounced the quantum of sentence in the Madhu lynching case.

The case pertains to the brutal lynching of a mentally challenged tribal youth, Madhu, to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018.

The Special Court Judge K.M. Retheesh Kumar had earlier pronounced the order convicting 14 of the 16 accused persons.

The accused had been charged with offences punishable under Sections 143, 147, 148, 323, 324, 326, 294(b), 342, 352, 364, 367, 368, and 302 r/w 149 of the Indian Penal Code (IPC) and Sections 3(1) (d), (r) (s) and 3(2) (v) of the Scheduled Caste and SC/ST(PoA) Act. The accused were found guilty of culpable homicide not amounting to murder.

The Court sentenced 13 of the 14 accused persons to rigorous imprisonment for a period of 7 years. The first accused has to pay a fine of Rs. 1,05,000/- while the remaining 12 accused have been imposed with a fine of Rs. 1,18,000/-.

The 16th accused person in the case, Muneer, was only found guilty of the offence under Section 352 of IPC, and sentence to undergo simple imprisonment for three months and to pay a fine of Rs. 500/-. However, since Muneer was already found to have completed the jail term during the remand period, the Court directed that he would be released from prison on remitting the fine.

Madhu Lynching | 'Moral Policing Can Never Be Encouraged, Let This Be The Last Mob Lynching Case' : Kerala Court

The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad convicted 14 of the 16 persons accused in the Madhu Lynching Case. The case pertains to death of a mentally challenged tribal youth, Madhu, who was lynched in February 2018, on suspicion of theft of rice, spices from shops in the Mukkali area in Palakkad, Kerala. The Court sentenced 13 of the 14 convicted persons to rigorous imprisonment for a period of 7 years for the offence under Section 304 Part II (Punishment for culpable homicide not amounting to murder) read with Section 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code.

The Special Court Judge K.M. Retheesh Kumar while convicting 14 of the 16 persons accused in the lynching case observed:

“This is the first mob lynching case in Gods Own Country. Let it be last such case.”

Even though the counsel for the accused had requested for some leniency while awarding the sentence contending that several of the accused persons were sole bread winners of their family and that they had no criminal antecedents. The court observed that:

“This court is bound to respect the life of Madhu just like the life of any other citizen in this country. Our constitution guarantees equal right to life for each and every citizen in India irrespective of their social status. Hence, the court cannot award a flee bite sentence in this case for the reason that the person who died in the incident is not a big shot.”

In A First, Kerala High Court Publishes Privacy Notice; Sets Up Grievance Redressal Mechanism For Data Privacy Of Litigants

The Kerala High Court has issued a data privacy notice, specifying the guidelines that the High Court and the courts under its supervisory control will adhere to when collecting or holding personal data of individuals. The court on the judicial side had earlier directed its Registry to publish privacy notice on the website in both English and vernacular languages.

While the court has made the privacy notice available in English and Malayalam on its official website, it has also issued an official memorandum to all the Principal District Judges to take necessary steps to publish the same on the official website of their respective judicial district immediately.

Rape Takes Away Victim's Sense Of Self-Worth, Lingers Across Lifetime: Kerala Court Sentences 26-Yr Old To 20 Yrs Rigorous Imprisonment

Case Title: State v. Shilpi

A Kerala Court sentenced a 26 year old man to undergo 20 years rigorous imprisonment for committing rape and impregnating a 17 year old minor. It also imposed a fine of Rs.86,000/-.

The Fast Track Special Court (POCSO), Thiruvananthapuram Judge Aaj Sudarsan passed the order, stating no other situation could be more ‘emotionally charged’ than a rape victim becoming pregnant.

“Rape is an evil act. It is a crime of violence as also clearly seen in the facts and circumstances of the case at hand, which is deeply personal and unwanted violation of a human being, a brutal exertion of power and control over another person,” the Court observed, while adding that pregnancy from rape could compound and prolong the victim’s anguish.

Kerala High Court Set To Inaugurate Various IT Initiatives

Kerala High Court will inaugurate various IT initiatives including the Vigilance Court Case Management System (VCMS) and the Family Court Case Management Module on April 10 at the High Court Auditorium. The court is also set to launch an Online RTI Portal.

While Chief Minister Pinarayi Vijayan will inaugurate the Vigilance Court Case Management System, the Family Court Case Management Module and other IT initiatives will be inaugurated by Chief Justice S. Manikumar.

Kerala High Court Asks Centre To Submit Data On Number Of Persons Suffering From Breast Cancer

Case Title: X v. Union of India & Ors.

The Kerala High Court recently directed the Union of India to collect data regarding persons suffering from different types of Breast Cancer from the Indian Council of Medical Research, New Delhi.

Justice Shaji P. Chaly was dealing with the petition wherein it had taken suo motu cognizance of the unaffordability of patented life-saving medicines, in light of the death of the erstwhile petitioner who had espoused this cause and had not not been able to afford the Ribociclib drug for treatment of her breast cancer.

"Since it is an innocuous prayer sought for by the Amicus Curiae in the larger public interest, there will be a direction to the Ministry of Health and Family Welfare to collect the details from the sixth respondent and submit a report before this Court within one month," the court said.

Legislator Moves Kerala High Court Against Translocation Of Rogue Elephant 'Arikomban' To Parambikulam Tiger Reserve

Case Title: K. Babu v. Union of India & Ors.

A review petition has been filed in the Kerala High Court by the Nenmara MLA K. Babu, against the order of the High Court dated April 5, 2023, directing the relocation of wild tusker 'Arikomban' to Muthuvarachal/Orukomban within the limits of Parambikulam Tiger Reserve.

The elephant had allegedly been foraging into the Chinnakanal area in the Idukki District, and causing damage to the property in the human settlement areas. Vide its order dated March 25, 2023, the Court had directed the Forest and Wildlife Department to refrain from capturing the tusker.

NJAC Dissent Never Suggested Handing Over Selection Of Judges To The Executive, I Know The Dangers Of It : Justice Chelameswar

Justice J Chelameswar, former Supreme Court Judge, said that in his dissenting judgment in the NJAC (National Judicial Appointments Commission) case, he never suggested the handing over of the selection of judges to the executive.

“I know the dangers of it more than anyone else”, the former Apex Court Judge said in this regard. He was speaking on the topic "Is Collegium Alien To The Constitution?' at a seminar organised by the Kerala High Court Unit of the Bharatiya Abhibhashaka Parishad on Tuesday at the Kerala HC auditorium.

Explaining his dissenting opinion in the landmark NJAC judgement he said, “Nowadays, on TV and in media it is propounded that Chelameswar said hand over the reins to the executive. That was not the issue before me, the question was whether the Parliament had the necessary constitutional power to make such an amendment and if this amendment is made, whether that would be consistent with the basic structure of the constitution. I held yes for both questions. All that I said in that judgment was this.”

'A True Democrat': Kerala High Court Holds Full Court Reference Ahead Of Chief Justice S Manikumar's Retirement

A full court reference was held at the Kerala High Court in honour of Chief Justice S Manikumar who is retiring on 24th April.

Speaking at the event Chief Justice Manikumar who was formerly a judge of the Madras High Court said "the warmth with which I was received, the affection shown by members of the Bar, the registry, the people of Kerala and my beloved brothers and sisters of this court, made me realise the bond between Kerala and Tamil Nadu". He thanked the judges of the court and the court staff for helping him discharge his duties.

Kantara Plagiarism Row: Kerala High Court Stays District Court's Order Restraining Hombale Films From Using 'Varaharoopam' Song

Case Title: Hombale Films v. Mathrubhumi Printing and Publishing Co. Ltd.

The Kerala High Court stayed the order passed by a local Court restraining the makers of the Kannada movie 'Kantara' from exhibiting the song 'Varaha Roopam' in theatres and streaming platforms.

The Additional District Court at Kozhikode had directed that the respondent, Hombale Films, and their representatives and others would be "restrained from distributing, exhibiting in theatres, releasing on Over The Top platforms, streaming, downloading, and/or in any manner communicate to the public in and/or through their services; the cinematograph film 'Kantara', with the synchronized song 'Varaha Roopam' without inserting due acknowledgment of the authorship of the composer - 'Thaikkudam Bridge' and the ownership of the plaintiff/petitioner," vide its order. It passed the order in a suit filed by Mathrubhumi Printing and Publishing Co. Ltd which is the copyright holder of the "Navarasam" song of Thaikkudam Bridge.

Challenging the order, Hombale Films appealed to the High Court. Justice Kauser Edappagath while issuing notice on the appeal directed that the impugned order would be stayed until the next date of hearing. The Court has posted the case for objection and hearing on April 28, 2023.

Kerala High Court Directs Alternative Sites Identified By State For Translocation Of 'Arikomban' Be Submitted To Expert Committee In Sealed Cover

Case Title: In Re Bruno v. Union of India & Ors.

The Kerala High Court directed that any alternative site that may be suggested by the State Government for translocation of the rogue elephant 'Arikomban' ought to be submitted in a sealed cover to the Expert Committee constituted by the Court vide its Order dated March 29, 2023.

The elephant had allegedly been foraging into the Chinnakanal area, and causing damage to the property in the human settlement areas. Vide its Order dated April 13, 2023, the Court had decided not to interfere with the translocation of ‘Arikkomban’ to Parambikulam, but had however maintained that if the State was able to find a suitable alternative to translocate the pachyderm within a week, it could shift the animal to the new location under the directions of its earlier order.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. directed the members of the Expert Committee to examine the feasibility and ensure that the details of the alternate site are kept confidential, until further orders of the Court.

"If the Committee approves the alternate site suggested, then the capture and shifting of the animal in terms of the earlier orders issued by us, to the said alternate site, need not await further orders from this Court," the Court added.

Supreme Court Collegium Recommends Justice S.V. Bhatti As Next Chief Justice Of Kerala High Court

The Supreme Court Collegium has recommended Justice S.V. Bhatti as the next Chief Justice of the Kerala High Court.

The present Chief Justice S. Manikumar is set to retire on April 24, 2023. In view of the same, the collegium recommended Justice Bhatti as the next Chief Justice of the High Court.

Justice Bhatti is senior-most Judge from the Andhra Pradesh High Court, who is presently functioning, on transfer as the senior-most judge of the Kerala High Court.

Kerala High Court Appreciates Car Financier Who Transferred Insurance Money Received Towards Loss Of Vehicle To Accident Victims

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

The Kerala High Court recently recorded its appreciation for a financier, M/S Sundaram Finance, for transferring the entire amount received by it in insurance against a financed vehicle that was destroyed in a gruesome incident, to the hapless victims- one of them also being a rape survivor.

The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen commended the financier for rising above their business and commercial interests and for showing how humanity prevailed above all.

"In a commercialised world, where business interests are often projected, there are silver lines of hope like one now exhibited," the Court observed.

Plea In Kerala High Court Challenges "Unilateral" Freezing Of Bank Accounts Over Complaint On National Cyber Crime Reporting Portal

Case Title: Moideen P. & Ors. v. Union of India & Ors.

A plea has been moved in the Kerala High Court challenging the "unilateral" freezing of bank accounts on the ground of complaints being registered on National Cyber Crime Reporting Portal (NCCRP), a portal maintained by the Central Government to register cyber crimes.

The Single Judge Bench of Justice Viju Abraham directed the State Police Chief to submit a report in this regard, and issued notice to the respondents.

Centre Notifies Appointment Of Justice S.V. Bhatti As Acting Chief Justice Of Kerala High Court

The Central Government has notified the appointment of Justice S.V. Bhatti as the Acting Chief Justice of Kerala High Court with effect from April 24, 2023, informed Union Law Minister Kiren Rijiju through Twitter.

The present Chief Justice of Kerala High Court S. Manikumar, is set to retire on the aforementioned date.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kerala Court Sentences Clinical Psychologist For Sexual Abuse Of Minor Patient

Case Title: State v. Dr. Gireesh K.

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

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

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

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