Kerala High Court Monthly Digest- October 2024 [Citations: 608-686]

N. Bhasurangan v The Assistant Director & Akhiljith J. B. v The Assistant Director, 2024 LiveLaw (Ker) 609

E. Sreedharan v State of Kerala and Others,  2024 LiveLaw (Ker) 610

Naveed Raza v State of Kerala and Another, 2024 LiveLaw (Ker) 611

Vineesh v Raji Radhakrishnan, 2024 LiveLaw (Ker) 612

Anil v State of Kerala, 2024 LiveLaw (Ker) 613

The West Chalakudy Service Co-Operative Bank Ltd V The Special Sale Officer, 2024 LiveLaw (Ker) 614

C R Sudhan v State of Kerala, 2024 LiveLaw (Ker) 615

HLL Biotech Limited versus The Commissioner of Income Tax, 2024 Live Law (Ker) 616

Shastra Sharman Namboothiripad and Others v State of Kerala, 2024 LiveLaw (Ker) 617

Santhosh K S v State of Kerala & Connected Cases, 2024 LiveLaw (Ker) 618

Suo Motu Proceedings Initiated by High Court v State of Kerala and Others, 2024 LiveLaw (Ker) 619

Abdul Noushad @ Noushad Ahsani v State of Kerala, 2024 LiveLaw (Ker) 620

Navas P K v State of Kerala, 2024 Live Law (Ker) 621

Kerala Public Service Commission v Johnraj P & Others, 2024 LiveLaw (Ker) 622

Fr. Jose Mathai Myladath v State of Kerala, 2024 LiveLaw (Ker) 623

M/s R. K. Ventures v The District Superintendent of Police and Others, 2024 LiveLaw (Ker) 624

Anson I. J. and Others v State of Kerala and Others, 2024 LiveLaw (Ker) 625

Mrs. Fareeda Sukha Rafiq v Union of India, 2024 LiveLaw (Ker) 626

M/s. T. P. Metals & Roofings v Assistant Tax Officer and Others, 2024 LiveLaw (Ker) 627

Thottungal Padmanabha Das Sujith v. The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/Income Tax Officer, Assistant, 2024 LiveLaw (Ker) 628

Dr P K Baby v State of Kerala, 2024 LiveLaw (Ker) 629

Adv Dheeraj Ravi v State Police Chief, 2024 LiveLaw (Ker) 630

Smt. Celin Thomas v. The Income Tax Officer, 2024 LiveLaw (Ker) 631

Ayyappan Pillai v. The State Tax Officer, 2024 LiveLaw (Ker) 632

P.K. Jayan Vs State Of Kerala, 2024 LiveLaw (Ker) 633

Ali @Aliyar v State of Kerala, 2024 LiveLaw (Ker) 653

Sindhu Sivadas v State of Kerala and Another, 2024 LiveLaw (Ker) 654

Sharun v State of Kerala and Others & Connected cases, 2024 LiveLaw (Ker) 655

Vinil v State of Kerala , 2024 LiveLaw (Ker) 656

Abhirami Girish v State of Kerala and Another, 2024 LiveLaw (Ker) 657

Surendra Kumar v State of Kerala, 2024 LiveLaw (Ker) 658

State of Kerala V Aysha & Connected Cases, 2024 LiveLaw (Ker) 659

The Kerala Public Service and Another v Sabeena K. S. and Another, 2024 LiveLaw (Ker) 660

Illiyas v State of Kerala, 2024 LiveLaw (Ker) 661

Sri Narayanankutty K v Cochin Devaswom Board, 2024 LiveLaw (Ker) 662

Vijayamma v State of Kerala , 2024 LiveLaw (Ker) 663

Asha Lawrence v State of Kerala & Others, 2024 LiveLaw (Ker) 664

Monson M. C. @ Monson Mavunkal v State of Kerala and Others, 2024 LiveLaw (Ker) 665

Romi K J @Romy v State of Kerala, 2024 LiveLaw (Ker) 634

K.T. Saidalavi v. The State Tax Officer, 2024 LiveLaw (Ker) 635

Transformers And Electricals Kerala Ltd. v. The Commissioner Of Central Tax And Central Excise Central Revenue Building, 2024 LiveLaw (Ker) 636

Fisal Khan v State of Kerala, 2024 LiveLaw (Ker) 637

State of Kerala v Ismail and Others, 2024 LiveLaw (Ker) 638

Angel Mary J N v State of Kerala & Others, 2024 LiveLaw (Ker) 639

Muhammad Iliyas v State of Kerala, 2024 LiveLaw (Ker) 640

Jillet K T & Another v State of Kerala & Others, 2024 LiveLaw (Ker) 641

Ashok Kumar v Hassainar, 2024 LiveLaw (Ker) 642

Fr. K. K. Mathews, Son of Kuriakose v Rev. Fr. C. K. Issac Cor Episcopa and Connected cases, 2024 LiveLaw (Ker) 643

XXX v State of Kerala, 2024 LiveLaw (Ker) 644

Sojith v State of Kerala and Another, 2024 LiveLaw (Ker) 645

Muhammed Haroon v State of Kerala, 2024 LiveLaw (Ker) 646

Hamjith v State of Kerala, 2024 LiveLaw (Ker) 647

O. P. Ashraf v The State of Kerala and Others, 2024 LiveLaw (Ker) 648

XXX v State of Kerala, 2024 LiveLaw (Ker) 649

Kumar S v. Union of India, 2024 LiveLaw (Ker) 650

Krishna Agencies v. The Superintendent, Central Tax & Central Excise,

Kayamkulam Range, 2024 Live Law (Ker) 651

Dr Jacob Mani v State of Kerala, 2024 LiveLaw (Ker) 652

Suo Motu v Yeshwanth Shenoy, 2024 LiveLaw (Ker) 666

Laila Beegam A.R. v. State of Kerala, 2024 Live Law (Ker) 667

Secretary, Trichur Tennis Trust v The Assistant Engineer, 2024 LiveLaw (Ker) 668

N. V. Chandran and Others v Karikode Naduvilethadam Bhagavathi Mariamman Temple and Another, 2024 LiveLaw (Ker) 669

Rahul P. Gopal and Others v State of Kerala and Others, 2024 LiveLaw (Ker) 670

XXX v State of Kerala and Others, 2024 LiveLaw (Ker) 671

Leby Sajeendran v State of Kerala, 2024 LiveLaw (Ker) 672

Palakkad District Co-operative Bank Managing Committee v. Raghavan, 2024 LiveLaw (Ker) 673

Farhan v s v State of Kerala, 2024 LiveLaw (Ker) 674

KPSC v. Lasitha A.K., 2024 LiveLaw (Ker) 675

K. Vijayadharan Pillai @ K. V. Pillai & Others v Union of India & Others, 2024 LiveLaw (Ker) 676

S. Mohammed Nowfal v State of Kerala, 2024 LiveLaw (Ker) 677

Unnikrishna Pillai P. V. v HDFC Bank Ltd. and Others, 2024 LiveLaw (Ker) 678

Wahabuddin V State Of Kerala & Other Cases, 2024 Livelaw (Ker) 679

Celinamol Mathew v State of Kerala, 2024 LiveLaw (Ker) 680

Mohan Poovampally Gopal v. Principal Commissioner of Income Tax, 2024 LiveLaw (Ker) 681

Elsy Joy v. The Deputy Commissioner Of State Tax, 2024 LiveLaw (Ker) 682

Noushad Flourish v Akhila, 2024 LiveLaw (Ker) 683

Kottila Veetil Krishnakumar v State of Kerala,  2024 LiveLaw (Ker) 684

M/s Sance Laboratories Private Limited v Union of India and Others & Connected Cases,  2024 LiveLaw (Ker) 685

Muhammed Ashraf K. A. v The Sub Inspector of Police and Others,  2024 LiveLaw (Ker) 686

Judgments/Orders This Month

Law Doesn't Give Exception From DNA Profiling On Ground That Accused And Victim Are Siblings: Kerala High Court

Case Title: XXX v State of Kerala & Connected Matter

Citation: 2024 LiveLaw (Ker) 608

The Kerala High Court has stated that neither the CrPC nor the Bharatiya Nagarik Suraksha Sanhita (BNSS) gives exception from DNA profiling on the ground that the accused and victims are siblings.

The accused and victim here are siblings, and the accused is alleged to have committed offences punishable under Sections 376, 376(3) (punishment for rape) of the IPC, Section 5j(ii) (aggravated penetrative sexual assault) and Section 6(1) (punishment for aggravated penetrative sexual assault) of the POCSO Act.

Justice A. Badharudeen dismissed the criminal miscellaneous cases filed by the accused and the victim challenging the seizure of blood samples collected for DNA profiling.

Kerala High Court Denies Bail To Ousted CPI Leader, Son In Alleged Money Laundering Case Linked To Kandala Bank

Case Title: N. Bhasurangan v The Assistant Director & Akhiljith J. B. v The Assistant Director

Citation: 2024 LiveLaw (Ker) 609

The Kerala High Court denied bail to former CPI leader N. Bhasurangan and his son in an alleged money laundering case, accused of allegedly indulging in several financial irregularities in the management of the Kandala Service Co-operative Bank.

A single judge bench of Justice C. S. Dias after considering the strict conditions imposed under Section 45 of the Prevention of Money Laundering Act (PMLA) to grant bail found that there is a prima facie case to deny bail to both of them.

"On a careful analysis of the facts and circumstances of the cases, the incriminating materials placed on record against the petitioners, the law on the point, and on considering that there are reasonable grounds to hold that the petitioners have committed the above offence and that they are likely to commit the offences if they are enlarged on bail, I am of the definite view that the petitioners are not entitled to be released on bail at this stage," the court said.

Court Doesn't Have Technical Expertise: Kerala HC Closes 'Metro Man' Sreedharan's Plea To Change Alignment Of Thiruvanaya–Thavanoor Bridge

Case Title: E. Sreedharan v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 610

The Kerala High Court disposed of the petition of E. Sreedharan to re-align the Thiruvanavaq – Thavanoor Bridge observing that it does not have the required technical expertise in this matter and directed the State to consider the suggestions by E. Sreedharan and implement them if it is feasible.

The Division Bench led by Chief Justice Nitin Jamdar and Justice S. Manu was considering the petition filed by E. Sreedharan to consider realigning the Thiruvanaya-Thavanur Bridge across the Bharathapuzha River. He submitted that the proposed bridge divides the Holy Trinity between the Vishnu Temple at Thiruvanaya in Malappuram district on the north bank of Bharathapuzha river from the temples dedicated to Lord Brahma and Lord Vishnu at Thavanur on the south bank of the river He submitted that proposed bridge would thus affect 'religious sanctity' and hurt religious sentiments of Hindu devotees.

Attempt To Suicide To A Large Extent Is No Longer An Offence Due To The Enactment Of Mental Healthcare Act, 2017: Kerala High Court

Case Title: Naveed Raza v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 611

The Kerala High Court has observed that since the enactment of the Mental Healthcare Act (MH Act), attempting suicide, to a larger extent is not an offence.

Justice Bechu Kurian Thomas observed: “Decriminalizing attempts to commit suicide has been under consideration for the last several decades. Though section 309 IPC remained in the statute book, with the enactment of the MH Act in 2017, attempts to commit suicide became, to a large extent, no longer an offence.”

Usage Of 'Deaf And Dumb' Is Ethically And Technically Inaccurate, Instead Use 'Deaf', 'Hard Of Hearing': Kerala High Court

Case Title: Vineesh v Raji Radhakrishnan

Citation: 2024 LiveLaw (Ker) 612

The Kerala High Court stated that the term 'Deaf and Dumb' is ethically and technically inaccurate and is now recognized as offensive. It also observed that the term 'Hearing Impaired' is no longer used since impaired means hindered or damaged.

The present observations were made in an original petition in which the respondent is a hard-of-hearing person, and the original petition described her as deaf and dumb. The Court was considering whether conducting an inquiry under Order XXXII, Rule 15 of the CPC to seek representation through a Next Friend was mandatory.

The Division Bench of Justice Devan Ramachandran and Justice M B Snehalatha observed that the most accepted terms are 'deaf' and 'hard-of-hearing”.

Criminal Appeals Once Admitted Cannot Be Dismissed For Non-Representation/ Non-Prosecution: Kerala High Court

Case Title: Anil v State of Kerala

Citation: 2024 LiveLaw (Ker) 613

The Kerala High Court held that if a Criminal Appeal is not summarily dismissed under Section 384 of the Code of Criminal Procedure (Cr.P.C), then it cannot be dismissed for non-representation or non-prosecution.

Justice A. Badharudeen observed: “Thus the legal position emerges is that when an appeal is not summarily dismissed under Section 384 of Cr.P.C and the appellate court admits the appeal, the same cannot be dismissed for non-representation or non – prosecution without adverting to the to the merits of the appeal”

[Rule 83 Co-Operative Societies Rules] Registrar Can Set Aside Sale Of Property On Grounds Other Than Those Raised By Decree Holder: Kerala HC

Case Title: The West Chalakudy Service Co-Operative Bank Ltd V The Special Sale Officer

Citation: 2024 LiveLaw (Ker) 614

The Kerala High Court observed that the decree-holder or any person whose interests are affected by the sale of a property to a credit-availing facility should approach the Registrar to set aside the sale on the grounds of material irregularity, mistake or fraud as per Rule 83 of the Kerala Co-operative Societies Rules. The Court further held that the Registrar has the authority to set aside the sale on grounds other than those alleged by recording his reasons in writing.

The Court stated that when the sale is not challenged within 30 days from the date of sale of the property, the sale stands confirmed and the Registrar is duty-bound to issue a certificate of sale.

Analysing Rules 81 to 83 of the Kerala Co-operative Societies Rules, Justice N Nagaresh held thus, “When any immovable property is sold under the Kerala Co-operative Societies Rules, the sale shall be subject to the prior encumbrances on the property, if any. Within 30 days from the date of sale of immovable property, the decree holder or any person entitled to share in a rateable distribution of the assets or whose interests are affected by the sale, may apply to the Registrar to set aside the sale on the ground of material irregularity or mistake or fraud in publishing or conducting the he sale. However, the Registrar has power to set aside a sale on grounds other than those alleged in any application.”

Post Retirement Re-Entry Of Toddy Tappers In Welfare Fund Scheme Allowed Due To Scarcity Of Skilled And Experienced Persons: Kerala HC

Case Title: C R Sudhan v State of Kerala

Citation: 2024 LiveLaw (Ker) 615

The Kerala High Court has said that the scarcity of experienced and skilled toddy tappers in the State led to a crisis in the toddy industry, which became a reason for inserting Clause 33A in the Kerala Toddy Workers Welfare Fund Scheme, allowing them to re-enter the Scheme after retirement.

Clause 33A, inserted by way of Kerala Toddy Workers Welfare Fund (Amendment) Scheme 2021, permits the re-entry of toddy tappers to the welfare fund scheme who retired before superannuation due to prolonged illness on the production of medical certificates. The clause however does not mention that re-entry is permitted for toddy workers after retirement.

A single judge bench of Justice N Nagaresh held that it cannot be stated that permitting re-entry to toddy tappers is violative of Article 14 since there is a scarcity of experienced and skilled toddy tappers in the State. The Court further stated that toddy tapping is a hazardous activity as compared to transportation, storage or sale of toddy and thus held that toddy workers cannot claim parity with toddy tappers.

Interest Earned On Funds Granted By Government, Kept In Bank Till Its Utilization Is Capital Receipt: Kerala HC

Case Title: HLL Biotech Limited versus The Commissioner of Income Tax

Citation: 2024 Live Law (Ker) 616

The Kerala High Court held that the 'interest income' on the short-term deposits of the funds infused by the Government, which are sanctioned for purpose of setting up of business, are in nature of 'capital receipt' and not 'revenue receipt'.

The Division Bench of Justice Sathish Ninan and Justice Johnson John observed that “if the funds invested are not surplus funds as such, and the funds and interest accrued thereon are inextricably linked to them setting up of the business, then the ' interest income' from such funds would be in the nature of capital receipts”.

Kerala High Court Criticizes Magistrate For Taking Cognizance Against Unauthorised Use Of Elephant Under 'Non-Existing Provision'

Case Title: Shastra Sharman Namboothiripad and Others v State of Kerala

Citation: 2024 LiveLaw (Ker) 617

While hearing a matter on use of elephants in a festival without permission, the Kerala High Court said that taking cognizance of an offence is not a mechanical process but a "solemn function", adding that the court taking cognizance is not a rubber stamp of the investigating agency. A single judge bench of Justice P. V. Kunhikrishnan noted that this shows that the Magistrate "mechanically recorded the provisions" contained in the chargesheet without even verifying it.

"Leads To Unending Process": Kerala High Court Flags Attempts By Accused To Delay Trial In Cheque Dishonour Cases

Case Title: Santhosh K S v State of Kerala & Connected Cases

Citation: 2024 LiveLaw (Ker) 618

The Kerala High Court has cautioned against the delaying tactics used by the accused to prolong the proceedings under Section 138 of the Negotiable Instruments Act such as seeking forensic examination of the cheque and seeking expert opinions by summoning and examining private handwriting experts.

Failure To Mention That Person Seeking Anticipatory Bail Is Abroad At Time Of Making Application Is "Suppression Of Materials Fact": Kerala HC

Case Title: Suo Motu Proceedings Initiated by High Court v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 619

The Kerala High Court has held that a person apprehending arrest should mention whether he is in India or abroad, while filing an anticipatory bail plea. The direction was given by the Division Bench comprising Justice Anil K. Narendran and Justice P. G. Ajithkumar .

'Can't Impose One's Religious Belief On Another': Kerala High Court Refuses To Quash Case Against Man For Criticizing Muslim Girl's Handshake

Case Title: Abdul Noushad @ Noushad Ahsani v State of Kerala

Citation: 2024 LiveLaw (Ker) 620

The Kerala High Court has refused to quash proceedings initiated against a man under Section 153 of the IPC (giving provocation with intent to cause riot) and Section 119 (a) (punishment for atrocities against women) of the Kerala Police Act, who made allegations against a Muslim girl that she committed adultery and violated Shariat Law by shaking hands with the former Finance Minister of the State.

Justice P.V.Kunhikrishnan stated that the Constitution guarantees every citizen the right to follow religious practices in their own way and it is their personal choice. The Court stated that there are no compulsions in religion, especially in Islam. The Court further stated that one person cannot impose or compel another person to follow religious practices.

Kerala High Court Quashes Criminal Case Against State President Of Muslim Students Federation For 'Insulting Women'

Case Title: Navas P K v State of Kerala

Citation: 2024 Live Law (Ker) 621

The  Kerala High Court has quashed criminal proceedings against the Muslim Students Federation (MSF) State President, Navas P K for allegedly making derogatory remarks against former leaders of Haritha which is the girl's wing of the MSF.

Justice A. Badharudeen quashed the FIR, Final Report and further proceedings against Navas pending before the Judicial First Class Magistrate -IV of Kozhikode noting that the matter has been amicably settled between the parties.

Forest Driver Recruitment: Kerala HC Declines Fresh Test In Vehicle 'Suitable' For 6Ft. Tall Applicant, Says No Denial Of Employment Opportunity

Case Title: Kerala Public Service Commission v Johnraj P & Others

Citation: 2024 LiveLaw (Ker) 622

The Kerala High Court has set aside the order of the Administrative Tribunal directing the Kerala Public Service Commission to conduct a fresh driving test in a vehicle suitable for a 6 feet tall applicant, and to consider him in the selection process for the post of Forest Driver in the Forest Department.

The Division Bench of Justice A.Muhamed Mustaque And Justice Murali Purushothaman observed that there is no denial of opportunity since candidates with same height as that of the applicant cleared the driving test using the same vehicle.

Kerala HC Declines To Quash Case Against Priest Who Allegedly Engaged In Sexual Intercourse On Pretext Of Marriage By Offering To Leave Priesthood

Case Title: Fr. Jose Mathai Myladath v State of Kerala

Citation: 2024 LiveLaw (Ker) 623

The Kerala High Court had declined to quash proceedings against a priest who allegedly committed sexual intercourse with a lady by giving her promise to marriage, by making her believe that he would give up his priesthood.

Justice A. Badharudeen held that prime facie allegations are made out and proceedings cannot be closed against the accused. Additionally, the Court stated that filing a petition to quash the case and its subsequent withdrawal were no grounds to close the proceedings against the accused.

If Registered Persons In Headload Workers Scheme Applicable Area Have Desired Skills, Only They Can Load/Unload Delicate Articles: Kerala HC

Case Title: M/s R. K. Ventures v The District Superintendent of Police and Others

Citation: 2024 LiveLaw (Ker) 624

The Kerala High Court has recently held that if registered head load workers working in an area covered by the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, have the required skills and experience in handling delicate/sophisticated articles, then they are to be engaged for loading and unloading work. 

A single judge bench of Justice V. G. Arun came to this conclusion after adopting a "purposive interpretation" of the Kerala Headload Workers Act and Kerala Headload Workers (Regulation of Employment and Welfare) Scheme.

Referring To A Woman As Prostitute In Front Of Others Not Offence Of 'Insulting Modesty' U/S 509 IPC, May Be Another Offence: Kerala HC

Case Title: Anson I. J. and Others v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 625

The Kerala High Court has held that referring to a woman as prostitute in front of others is not insulting the modesty of woman as defined under Section 509 of Indian Penal Code (IPC).

Justice A. Badharudeen noted that to constitute an offence of violating the modesty of a woman, first part of Section 509 requires that any words uttered with the intention of insulting the modesty of woman should be made with the intention that it is heard by such a woman. The Court said that the alleged act would not come under this definition.

Kerala HC Frowns Upon 'Restrictive Interpretation' Of PPF Scheme By Combing Parent And Child's Account To Calculate Yearly Limit On Deposit

Case Title: Mrs. Fareeda Sukha Rafiq v Union of India

Citation: 2024 LiveLaw (Ker) 626

The Kerala High Court has observed that beneficial schemes like the Public Provident Fund (PPF) encourage adults or guardians to open accounts on behalf of minors. The Court thus stated that the PPF scheme cannot be restrictively interpreted and contributions from parents and children made into separate accounts should not be calculated collectively to determine the deposit limit. 

In this case, the petitioner approached the High Court seeking a direction to the Post Office to re-credit the amount which was forfeited from her and her children's account by clubbing the amounts combined in all three PPF accounts. The Post Office forfeited the amount stating that total deposit from the three accounts exceeded the statutory limits under the Public Provident Fund Scheme.

Justice Harisankar V Menon ordered the respondent post office to re-credit the amount forfeited from the accounts of the petitioners. 

S.129 CGST/SGST Act | Penalty Only For Violations With Intent To Evade Tax Or Repeated Violations; Not For Minor Discrepancies : Kerala High Court

Case Title: M/s. T. P. Metals & Roofings v Assistant Tax Officer and Others

Citation: 2024 LiveLaw (Ker) 627

The Kerala High Court held that tax/ penalty under Section 129(1)(a) or 129(1)(b) of the CGST/ SCGST can be imposed only for violations which may lead to evasion of tax or which was done with the intention to evade or in case of repeated violations. Justice P. Gopinath said that in cases of minor discrepancies, the authorities can impose penalties after considering Sections 122 and 126 of the Acts.

“Only Three Days Were Given To Assessee To Respond To Show Cause Notice”: Kerala High Court Sets Aside Reassessment Order

Case Title: Thottungal Padmanabha Das Sujith v. The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/Income Tax Officer, Assistant

Citation: 2024 LiveLaw (Ker) 628

The  Kerala High Court set aside an order in reassessment proceedings that was issued without providing the assessee an opportunity to respond to the show cause notice.

The Bench of Justice Gopinath P. observed that the show cause notice only gave the assessee three days' to respond

Physical Contact During Resistance Is Not 'Unwelcome, Explicit Sexual Overture': Kerala HC Quashes FIR Against Teacher U/S 354, 354A(1) IPC

Case Title: Dr P K Baby v State of Kerala

Citation: 2024 LiveLaw (Ker) 629

While quashing an FIR against a man booked under IPC Sections 354 and 354A(1) who allegedly had an altercation with a woman, the Kerala High Court observed that physical contact as part of resistance cannot be termed as an unwelcome and explicit sexual overtures.

A single judge bench of Justice A. Badharudeen observed that the petitioner was trying to implement restrictions to maintain discipline during the Youth Festival strictly and it cannot be held that he had any intent to outrage the modesty or sexually harass the de facto complainant.

Kerala High Court Orders Crime Branch Investigation Into Theft At Residence Of Former Kollam Bar Association President

Case Title: Adv Dheeraj Ravi v State Police Chief

Citation: 2024 LiveLaw (Ker) 630

The Kerala High Court has ordered a crime branch investigation into the theft conducted at the residence of the former President of the Bar Association of Kollam

Reassessment Proceedings Can't Be Initiated Against Deceased Assessee: Kerala High Court Directs Fresh Proceedings Against Legal Heir

Case Title: Smt. Celin Thomas v. The Income Tax Officer

Citation: 2024 LiveLaw (Ker) 631

Kerala High Court ruled that reassessment proceedings cannot be initiated against a deceased taxpayer (assessee). Justice Gopinath P. directed the competent authority to initiate fresh proceedings by issuance of notice under Section 148A(b) of the Income Tax Act, 1961 and concluding the proceedings against representative assessee (the petitioner) and to any other legal heir of late assessee.

Section 74 Of CGST Act Can Be Invoked If Assessee Fails To Report Actual Sales To Evade Tax: Kerala High Court

Case Title: Ayyappan Pillai v. The State Tax Officer

Citation: 2024 LiveLaw (Ker) 632

The  Kerala High Court stated that provisions of section 74 of CGST Act can be invoked if assessee fails to report actual sales to evade tax. The Bench of Justice Gopinath P. observed that it is for the assessee to get his claim adjudicated by the statutory authorities under the CGST / SGST Acts.

Decision To Treat Employees Quitting Service Due To Disability Differently From Those Retiring On Superannuation Is A Policy Matter: Kerala High Court

Case Title: P.K. Jayan Vs State Of Kerala

Citation: 2024 LiveLaw (Ker) 633

A single Bench of Kerala High Court  comprising  Justice N. Nagaresh dismissed a writ petition filed by P.K. Jayan, a goods auto driver, seeking enhancement of his disability pension under the Kerala Motor Transport Workers Welfare Fund Board Scheme. The court ruled that the petitioner was only entitled to the disability pension as per the Scheme's provisions, not the higher superannuation pension he sought.

Kerala HC Grants Pre-Arrest Bail To Husband Accused Of Abetting Wife's Suicide, Cites SC Judgment On Different 'Suicidable Patterns

Case Title: Romi K J @Romy v State of Kerala

Citation: 2024 LiveLaw (Ker) 634

The Kerala High Court recently granted pre-arrest bail to a man, accused of abetting the suicide of his wife, after noting that there was no prima facie evidence suggesting the commission of the offence and that the deceased had never complained of any physical or mental harassment by the husband prior to her death.

In doing so the court further observed that the matter requires an investigation and is "ultimately" to be decided at the time of trial.

A single judge bench of Justice C S Dias further held that there is "no prima facie" evidence to prove that the husband had physically or mentally harassed the deceased wife, abetting her suicide.

Issuance Of Summons U/S 70 Of CGST Act Doesn't Initiate Proceedings U/S 6(2)(B) Of CGST Act: Kerala High Court

Case Title: K.T. Saidalavi v. The State Tax Officer

Citation: 2024 LiveLaw (Ker) 635

The Kerala High Court held that the initiation of an enquiry or the issuance of summons under Section 70 of the CGST Act cannot be deemed to be initiation of proceedings for the purpose of Section 6(2)(b) of the CGST Act.

The Bench of Justice Gopinath P. observed that “The term 'initiation of any proceedings' is no doubt a reference to the issuance of a notice under the provisions of the CGST/SGST Acts and the initiation of an enquiry or the issuance of summons under Section 70 of the CGST/SGST Acts cannot be deemed to be initiation of proceedings for the purpose of Section 6(2)(b) of the CGST/SGST Acts.”

Assessee Can't Claim ITC For Transportation If Costs Aren't Included In Assessable Value Of Goods For Payment Of Central Excise Duty: Kerala HC

Case Title: Transformers And Electricals Kerala Ltd. v. The Commissioner Of Central Tax And Central Excise Central Revenue Building

Citation: 2024 LiveLaw (Ker) 636

The Kerala High Court stated that assessee cannot claim input tax credit for transportation services if transportation costs are not included in assessable value of goods for payment of central excise duty.

The Division Bench of Justices A.K. Jayasankaran Nambiar and Syam Kumar V.M. observed that “………the assessee did not include the transportation costs in the assessable value of the goods for the purposes of payment of Central Excise duty. Under such circumstances, the assessee cannot claim in input tax credit in respect of the transportation services availed by it for the purposes of transporting the goods from the place of removal to the buyer's premises.”

Having Sexual Intercourse, Being Naked In Front Of Minor Amounts To Sexual Harassment U/S 11 Of POCSO Act: Kerala High Court

Case Title: Fisal Khan v State of Kerala

Citation: 2024 LiveLaw (Ker) 637

The Kerala High Court has stated that having sexual intercourse, after getting naked, in front of a minor child would amount to sexual harassment of a child defined under Section 11, and punishable under Section 12 of the POCSO Act.

Justice A. Badharudeen stated that exhibiting any part of the body with the intention that it would be seen by a child would amount to sexual harassment.

“To be more explicit, when a person exhibits naked body to a child, the same is an act intending to commit sexual harassment upon a child and therefore, the offence punishable under Section 11(i) read with 12 of the POCSO Act would attract. In this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same. Thus, prima facie, the allegation as to commission of offence punishable under Section 11(i) read with 12 of the POCSO Act, as against the petitioner in this case is made out.”

Nadapuram Shibin Murder Case | Kerala High Court Awards Life Sentence To Seven Alleged Muslim League Workers For Murder Of DYFI Activist

Case Title: State of Kerala v Ismail and Others

Citation: 2024 LiveLaw (Ker) 638

The Kerala High Court has sentenced 7 persons allegedly affiliated with the Indian Union Muslim League namely Ismail, Muneer, Sidhique, Muhammed Anees, Shuhaib, Jasim, Samad to rigorous life imprisonment for the murder of DYFI activist Shibin.

The court observed that the court is not imposing harsh punishment as the murder occurred after a quarrel with the murdered victim and others. One of the accused, Ismail is absconding. However, the Court imposed a sentence upon him invoking the provision of Section 392 of Bharatiya Nagarik Suraksha Sanhita. One of the accused, Aslam had expired and thus the charges against him abated.

Kerala High Court Upholds Probation Requirement For Transfer Recruitment In Nursing Officer Posts; Distinguishes It From Previous Precedents

Case Name: Angel Mary J N v State of Kerala & Others

Citation: 2024 LiveLaw (Ker) 639

A division Bench of Kerala High Court consisting of Justice Anil K. Narendran and Justice P.G. Ajithkumar dismissed a series of petitions filed by nursing officers challenging the Kerala Administrative Tribunal's ruling. The petitions questioned the Kerala Public Service Commission's (KPSC) rejection of their applications for transfer appointments, which were turned down on account of their probationary status. The Court upheld the KPSC's decision, affirming that only those declared probationers or full-time members could apply for transfer appointments under the Kerala State and Subordinate Service Rules (KS&SSR), 1958.

Thus, the High Court found that the Kerala Public Service Commission had acted appropriately in rejecting the applications of the petitioners, given their failure to complete probation. The Kerala Administrative Tribunal's order was affirmed, and the petitions were dismissed. The Court concluded that both the one-year service requirement and probation completion were necessary for recruitment by transfer under the KS&SSR.

Criminal Courts Can Frame Charges By Excluding Offences In Final Report Or Including Offences Not Mentioned In Final Report: Kerala HC

Case Title: Muhammad Iliyas v State of Kerala

Citation: 2024 LiveLaw (Ker) 640

The Kerala High Court stated that the criminal courts can frame charges based on the prosecution records, excluding the offences in the Final Report and even including offences not mentioned in the final report as per Section 228 and Section 240 of the CrPC.

Section 228 pertains to framing of charges in Session cases and Section 240 deals with framing of charges for trial of warrant cases.

Justice A. Badharudeen was considering a revision petition of the accused, a school van driver accused of sexually assaulting a minor child. He had approached the Court to set aside the charges framed by the Special Court for offences which were not incorporated by the police in the Final Report.

Kerala HC Directs State To Notify Hospital Based Authorization Committees For Expeditious Decision On Organ Donation Applications

Case Title: Jillet K T & Another v State of Kerala & Others

Citation: 2024 LiveLaw (Ker) 641

The Kerala High Court has directed the State Government to notify the constitution of Hospital Based Authorization Committees to conduct an inquiry into the joint applications submitted by the donor and recipient who are not near relatives, and when the organ donation is being made out of love and affection.

The Court further stated that the State Government has to ensure that qualified persons must be included in the Authorization Committees.

Justice V G Arun was considering a writ petition filed by a recipient and an organ donor whose joint application submitted under Section 9 of the Transplantation of Human Organs and Tissues Act, 2012 was rejected by the District level Authorization Committee, due to suspicions of commercial dealings, as they were strangers and not close relatives.

S.402 CrPC Pertains To High Court's Power To Transfer Revision Cases, Not Applicable When Appeal Is Pending Before Sessions Court: Kerala High Court

Case Title: Ashok Kumar v Hassainar

Citation: 2024 LiveLaw (Ker) 642

The Kerala High Court the power to transfer revision cases. It ruled that the provision is not applicable in cases where revision is pending before the High Court but appeal is pending before the Sessions Court.

Justice K Babu thus invoked its inherent powers under Section 482 to transfer the revision pending before it to the Sessions Court where the convict had preferred an appeal, to avoid conflict of jurisdiction.

Church Feud: Kerala High Court Dismisses Appeal Against Order Directing District Collectors To Take Over Specified Churches

Case Title: Fr. K. K. Mathews, Son of Kuriakose v Rev. Fr. C. K. Issac Cor Episcopa and Connected cases

Citation: 2024 LiveLaw (Ker) 643

The Kerala High Court has dismissed the appeals filed challenging a single bench order directing the Collectors of Ernakulam and Palakkad districts to take over possession of six churches involved in the Orthodox – Jacobite faction feud.

The Division Bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar, pronouncing their order in open court said, 'the appeals are dismissed'. Detailed Judgment is awaited.

[POCSO] Principal, Teacher Not Guilty Of Failure To Report Crime When Student's Complaint Was Sent To Police The Very Next Day: Kerala High Court

Case Title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 644

The Kerala High Court has quashed the final report against a school principal and teacher for failing to report a sexual offence complaint received from a minor student on the same day. The Court stated that it cannot be justified to say that there was a wilful omission since the complaint was lodged with the police and FIR was registered on the next day itself.

Justice A. Badharudeen stated that it was harsh to hold that the principal and teacher were liable since they reported the crime to the police on the next day.

NDPS Act | Framing Of Charges By Court Without Jurisdiction Will Not Affect Evidence Recorded By Special Court: Kerala High Court

Case Title: Sojith v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 645

The Kerala High Court held that the framing of a charge by a Sessions Court having no jurisdiction to try the case does not affect the evidence recorded by a Special Court constituted under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

The Single Bench of Justice K. Babu noted that as per Section 464 of Code of Criminal Procedure a finding or sentence of a valid court would not be deemed invalid merely because no charge was framed or there was any error in the charge unless the Court is of the opinion that there is a failure of justice due to it. The Court observed that according to this provision, even if the trial court did not frame fresh charge, there would have been no invalidity.

"Alleged PFI Membership Insufficient To Attract Culpability": Kerala High Court Grants Bail To Accused In RSS Worker Sanjith's Murder

Case Title: Muhammed Haroon v State of Kerala

Citation: 2024 LiveLaw (Ker) 646

The Kerala High Court has granted bail to Muhammed Haroon, the sixth accused in the murder of RSS worker Sanjith.

Allowing the bail application of Haroon, Justice Ziyad Rahman A.A. held thus, “As far as the petitioner in this case is concerned, he has been in custody since 23.01.2022 and thus, more than two years and nine months have elapsed. Moreover, the petitioner was never involved in any other offences in the past. Even though there is an allegation that he was an active member of PFI, a banned organisation, it was contended by the petitioner that, as on the date of commission of the crime, it was not banned. The said contention is not denied by the prosecution. Therefore, the fact that he was a member of such an organisation, by itself, would not attract any culpability, warranting incarceration, and it is for the prosecution to establish the role of the petitioner, in the trial.”

[NDPS Act] Person Cannot Be Prosecuted For Allegedly Smoking 'Beedi' Containing 'Ganja' Without Forensically Examining 'Beedi': Kerala High Court

Case Title: Hamjith v State of Kerala

Citation: 2024 LiveLaw (Ker) 647

The Kerala High Court has quashed the proceedings initiated against a man for allegedly smoking a beedi filled with ganja on finding that the beedi was not subjected to forensic examination.

Justice Bechu Kurian Thomas stated that the beedi that was allegedly said to be smoked by the petitioner was not subjected to forensic examination. The Court stated thus:

“In the absence of any forensic examination of the beedi, the prosecution against the petitioner for the offence under Section 27(b) of the Act, is without any legal basis.”

Ingredients Of Copyright Infringement Not Made Out: Kerala High Court Sets Aside Conviction Of Man Allegedly Selling Fake Cassettes On Footpath

Case Title: O. P. Ashraf v The State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 648

The Kerala High Court, noting that the prosecution could not establish the ingredients of copyright infringement under Section 51(a) of the Copyright Act, set aside the conviction of a man for allegedly selling fake audio cassettes on the footpath in Kannur.

The police had seized 38 cassettes from the revision petitioner. He was convicted under Sections 51(a) and 52A r/w 63 of the Copyright Act by the Magistrate Court, upheld by the Sessions Court.

Section 51 relates to copyrights infringement. Justice K. Babu noted that the prosecution has not verified the contents of the cassettes seized. They did not ascertain who the copyright holder was or whether the copyright holder has retained any exclusive right or whether any license has been granted.

“Shocking Failure To Take Action”: Kerala High Court Questions Delay In Probing 2022 Rape Allegations Against Ponnani Police Officers

Case Title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 649

The Kerala High Court has questioned the delay in ordering an investigation into the rape allegations made by a woman in 2022 against four higher police officials in Ponnani in Malappuram district.

The Court was hearing a plea of a woman seeking to register an FIR under Section 173(1) of the BNSS against four higher police officials for raping and sexually assaulting her. She had approached the High Court stating that Magistrate, instead of directing to order investigation, called for a report from a superior officer by relying upon Section 175 (4) of the BNSS.

Justice A. Badharudeen questioned the delay in investigation and directed the Magistrate to pass orders for investigation within a period of ten days

Kerala High Court Upholds Denial Of Temporary Status And Regularisation For Contingent Employees

Case Title: Kumar S v. Union of India

Citation: 2024 LiveLaw (Ker) 650

Recently, a Division Bench of Kerala High Court, comprising of Justice Anil K. Narendran and Justice P.G. Ajithkumar, considered a petition against the order passed by the Central Administrative Tribunal. The judgement pertained to status and regularisation of employment.

The Bench noted that even according to the petitioner, he was engaged by the Department for the last 15 years on a daily wage basis, and not engaged continuously but for specified days in each month. The claim of the petitioner can be considered only in the light of such nature of his employment.

Further pointing that, in Umadevi, the Apex Court directed the Central and State Governments and the instrumentalities under it to regularise temporary employees, who have put in a minimum of 10-year service as a one-time measure and persons employed against sanctioned posts, but on a temporary basis continuously.

Lastly, the Bench reiterated that there's no reason to find fault with the view taken by the Tribunal and dismissed the original petition.

Rectification Order Not Sustainable If It Fails To Provide Reasons Justifying Exercise Of Rectification Power: Kerala High Court

Case Title: Krishna Agencies v. The Superintendent, Central Tax & Central Excise, Kayamkulam Range

Citation: 2024 Live Law (Ker) 651

The Kerala High Court stated that rectification order is not sustainable if does not provide any reason justifying exercise of power of rectification.

The Bench of Justice Gopinath P. observed that “….personal hearing notice does not indicate that any reason justifying the exercise of power of rectification was pointed out to the assessee. Therefore, the assessee is right in contending that the rectification order cannot be sustained in law.”

[S.413 BNSS] Person Cannot Be Treated As Victim To Prefer An Appeal When Damage Or Loss Suffered Is Not Direct Consequence Of Crime: Kerala High Court

Case Title: Dr Jacob Mani v State of Kerala

Citation: 2024 LiveLaw (Ker) 652

The Kerala High Court stated that a victim under the proviso to Section 413 of BNSS is a person who suffered damages or loss as a direct consequence of the crime.

Section 413 of BNSS corresponds to Section 372 of CrPC, where the proviso laid down the right of a victim to appeal against an order of acquittal, or an order convicting the accused for a lesser offence, or imposing inadequate compensation. Section 2 (y) of the BNSS defines victim as someone who has suffered loss or injury due to the actions or omissions of the accused.

Justice C Jayachandran quashed the appeal preferred by the appellant who claims to be a victim. The Court observed that the loss or damage claimed to have been suffered is too remote a cause while considering the allegations made by the appellant.

Life Convict Subsequently Sentenced To Life Or Fixed Term Shall Serve Sentences Concurrently, Separate Declaration Not Required: Kerala HC

Case Title: Ali @Aliyar v State of Kerala 

Citation: 2024 LiveLaw (Ker) 653

The Kerala High Court held that when an individual is convicted to life imprisonment, any subsequent sentences imposed in other cases, whether for life or a fixed term, will be served concurrently and not consecutively, even if the Court does not explicitly state this.

Justice Bechu Kurian Thomas was hearing a petition relating to Section 427 CrPC which deals with situations under which sentences should be served consecutively or concurrently.

School Insisting On Students To Wear Uniform Is Not 'Cruelty Against Child' U/S 75 Juvenile Justice Act: Kerala High Court

Case Title: Sindhu Sivadas v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 654

The Kerala High Court has held that the School Principal compelling students to wear uniform while in school is not an offence of cruelty to child under Section 75 of the Juvenile Justice (Care and Protection of Children) Act.

Justice A. Badharudeen said that such insistence is to maintain the discipline of school and cannot be held as an act which would cause unnecessary mental or physical harm. The Court also cautioned that if such acts are considered to be an offence, it can affect the discipline of the school.

POCSO Accused Can Get Unredacted Prosecution Records, Balance To Be Struck Between Their 'Right To Defend' And Minor's Privacy: Kerala HC

Case Title: Sharun v State of Kerala and Others & Conncected cases

Citation: 2024 LiveLaw (Ker) 655

The Kerala High Court has recently observed that an accused in a POCSO case is entitled to get unmasked copies of the prosecution records to effectively defend his case, while emphasizing that in such matters a balance has to be struck by courts between the "privacy of the victims" and the accused's right to defend themselves. The order was made by a single Bench of Justice A. Badharudeen.

'Stone' Would Come Within Purview Of Weapon Likely To Cause Death Depending On Nature, Size Or Sharpness And Manner Of Use: Kerala High Court

Case Title: Vinil v State of Kerala 

Citation: 2024 LiveLaw (Ker) 656

The Kerala High Court ruled that stone would also come within the purview of weapon of offence likely to cause death to attract an offence under Section 324 of the IPC depending upon its nature, size, sharpness and the manner in which it was used for causing injury. The order was made by a single Bench of Justice A. Badharudeen.

Instead Of Denying Police Clearance Certificate, Details Of Offences Involving Job Seeker Can Be Given To Employer: Kerala High Court

Case Title: Abhirami Girish v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 657

The Kerala High Court has held that instead of rejecting an application for police clearance certificate, the police can issue a certificate detailing the crime in which the applicant is involved.

Justice A. Badharudeen noted that in many cases, for employment and assignment, the concerned employer or authority asks for a Non – Involvement in Offences Certificate (Police Clearance Certificate). In such situations, if the person was involved in any crime, the police can issue a certificate detailing the crimes in which he was involved. Then, it is up to the employer to take a decision based on the certificate.

Husband Pledging Wife's Gold Without Her Consent Is Criminal Breach Of Trust U/S 406 Of IPC: Kerala High Court

Case Title: Surendra Kumar v State of Kerala

Citation: 2024 LiveLaw (Ker) 658

The Kerala High Court has refused to intervene in the conviction of a husband who was found guilty of criminal breach of trust under Section 406 of Indian Penal Code (IPC) for pledging his wife's gold, without her consent. 

Single bench of Justice A. Badharudeen held that all the elements of the offence are made out.

Kerala High Court Orders Enhanced Compensation For Lands Acquired For Construction Of Brahmapuram Waste Treatment Plant Phase II

Case Title: State of Kerala V Aysha & Connected Cases

Citation: 2024 LiveLaw (Ker) 659

The Kerala High Court has enhanced the compensation amount for land acquired by the state government for the construction of Brahmapuram Solid Waste and Treatment Plant Phase II.

The Division Bench of Justice Amit Rawal and Justice Easwaran S has fixed a uniform rate of rupees 10 lakhs per are as enhanced compensation.

Right To Accessibility Of Disabled Persons Extends To Digital Platforms Too: Kerala HC Bats For Service Centres To Fill Online PSC Applications

Case Title: The Kerala Public Service and Another v Sabeena K. S. and Another

Citation: 2024 LiveLaw (Ker) 660

The Kerala High Court has observed that right to accessibility of persons with disability (in this case a visually challenged person) is not limited to buildings and services but extends to digital platforms too. Thus, compelling them to rely on third parties to fill up their online job application limits their "autonomy".

The Division Bench of Justice AM Mustaque and Justice PM Manoj has called upon the State and the Public Services Commission to establish service centres, providing services to persons with disabilities including the visually challenged, allowing them to submit applications online without barriers.

'Facts Call For Lenient Approach': Kerala High Court Reduces Sentence Of Rape Convict Admittedly In Relationship With Minor Girl

Case Title: Illiyas v State of Kerala

Citation: 2024 LiveLaw (Ker) 661

Displaying a "lenient approach" the Kerala High Court recently reduced the seven year sentence of a rape convict to one year, after noting that the convict and the minor girl were admittedly in a relationship and the latter had "voluntarily accompanied" him to Ooty where the alleged incident took place. 

The Single Bench of Justice C. S. Sudha however said that as the girl was under 16 years of age at the time of the alleged incident, her consent was not valid adding that it was not justifying the actions of the convict.

Kerala HC Directs Cochin Devaswom Board To Decide Whether Videography With Mobile Phones Is Permissible In Temples Under Their Management

Case Title: Sri Narayanankutty K v Cochin Devaswom Board

Citation: 2024 LiveLaw (Ker) 662

The Kerala High Court has directed the Cochin Devaswom Board to decide whether videography on mobile phones is permissible in Temples under their management.

The Division Bench of Justice Anil K Narendran and Justice P G Ajithkumar noted that a report regarding the usage of mobile phones filed by Chief Vigilance Officer is pending consideration before the Cochin Devaswom Board.

Depression Not 'Legal Insanity' U/S 84 IPC If Ability To Distinguish Right From Wrong Not Impaired: Kerala HC Upholds Murder Conviction

Case Title: Vijayamma v State of Kerala 

Citation: 2024 LiveLaw (Ker) 663

The Kerala High Court recently denied the plea of 'legal insanity' raised by a woman sentenced to life for murdering her twelve-year-old nephew, holding that depression would not come under purview of Section 84 IPC unless there is material to show that it significantly impaired the ability to distinguish right from wrong. The order was made by the Division Bench of the Court comprising of Justice Raja Vijayaraghavan V and Justice G. Girish

Kerala High Court Dismisses Daughter's Plea Challenging Donation Of CPI(M) Leader MM Lawrence's Body

Case Title: Asha Lawrence v State of Kerala & Others

Citation: 2024 LiveLaw (Ker) 664

The Kerala High Court has dismissed the petition moved by Asha Lawrence, daughter of veteran CPI(M) leader MM Lawrence, challenging the decision of Ernakulam Government Medical College Principal to donate her father's body to the medical college.

Justice V G Arun, pronouncing the verdict in open Court today said, "For the aforementioned reasons, the writ petition is dismissed."

No Double Jeopardy: Kerala High Court Refuses To Quash Rape Case Against Alleged Fraudster Monson Mavunkal

Case Title: Monson M. C. @ Monson Mavunkal v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 665

The Kerala High Court on Wednesday (October 23) refused to quash a rape case lodged against alleged fraudster Monson Mavunkal, for allegedly sexually assaulting a girl over a span of about 21 months.

Justice A. Badharudeen noted that as per Section 223(c) of CrPC, the accused can be tried for offences of the same kind committed within a period of 12 months. The Court noted there is more than 12 months gap between these alleged incidents.

Failure To Place "Information" Of Contempt In Judge's Papers Or With Notice Issued To Contemnor Is An "Incurable Defect": Kerala High Court

Case Title: Suo Motu v Yeshwanth Shenoy

Citation: 2024 LiveLaw (Ker) 666

The Kerala High Court has made it clear that in case of contempt of court, rules prescribed by the High Court should be strictly followed and any deviation therefrom is fatal to the proceedings.

The Division Bench comprising Justice Devan Ramachandran and Justice M. B. Snehalatha noted that once the defect is noticed in the proceedings, any attempt to continue with it can be viewed as one – sided.

Teachers Above 50 Years Entitled To Test Exemption For Headmistress Promotion Under KER Rule 45B(4); Kerala HC

Case Title: Laila Beegam A.R. v. State of Kerala

Citation: 2024 Live Law (Ker) 667

Kerala High Court: A Single Judge Bench of Justice Harisankar V. Menon ruled that teachers above 50 years of age are entitled to exemption from the Accounts Test (Lower) under Rule 45B(4) of Kerala Education Rules for promotion to Headmistress position. The Court held that Leave Without Allowance taken after probation cannot affect seniority calculations, and distinguished between Rule 45B(4) applicable to primary/upper primary schools and Rule 44A(1) for high schools. The Court ordered promotion of the senior candidate who qualified for age-based test exemption over a junior candidate who had passed the test

If Period Of Unauthorised Use Of Electricity Can't Be Ascertained, Charges Will Be Assessed For 12 Months Preceding Inspection: Kerala HC

Case Title: Secretary, Trichur Tennis Trust v The Assistant Engineer

Citation: 2024 LiveLaw (Ker) 668

The Kerala High Court has ruled that as per Section 126 (5) of the Electricity Act, 2003, when the period of unauthorized use of electricity cannot be ascertained, the electricity bill assessment shall be made for twelve months immediately preceding the date of inspection when such unauthorized use came to be discovered.

The Division Bench of Chief Justice Nitin Jamdar and Justice S Manu referred to Section 126 (5) of the Electricity Act of 2003

When Appeal Against Decree In A Suit Decided By Common Judgment Is Disposed, Principle Of Res Judicata Applies To Other Decrees: Kerala HC

Case Title: N. V. Chandran and Others v Karikode Naduvilethadam Bhagavathi Mariamman Temple and Another

Citation: 2024 LiveLaw (Ker) 669

The Kerala High Court has held that when two or more suits have been disposed of by a common judgement, a party for one of the suits cannot prefer an appeal against the common judgment if appeal in any other suit decided in that common judgment is already disposed. 

Justice M. A. Abdul Hakhim held that such subsequent appeals are barred by the principle of res judicata contained in Section 11 of Civil Procedure Code.

Kerala High Court Quashes FIR In Pantheerankavu Domestic Violence Case After Settlement Between Parties

Case Title: Rahul P. Gopal and Others v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 670

The Kerala High Court has allowed the petition moved by Rahul P. Gopal and his family in the Pantheerankavu domestic violence case to quash the FIR lodged against them.

Justice A. Badharudeen granted relief after noting that the complainant/ wife had settled the matter with her husband and the couple was now residing together.

CWC's Order Cannot Be Based On Personal Moral Values, Must Protect Child's Interests: Kerala HC Gives Custody Of Infant To Breastfeeding Mother

Case Title: XXX v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 671

The Kerala High Court quashed an order of Child Welfare Committee (CWC) giving the custody of a one-year child to the father observing that the Committee did not even consider that the child was being breastfed by the mother. Justice V. G. Arun gave the custody of the child to the mother.

The Court noted that the order of CWC violated the right of the mother to breastfeed the baby and right of the baby to be breastfed which is protected under the right to life under Article 21 of the Constitution. The Court further said that breastfeeding is implicitly supported by the Constitution as the Constitution imposes a duty on the State to raise the level of nutrition.

Mental Health Act 2017 Is A Beneficial Legislation, Can Be Applied Retrospectively To Extend Benefits To All: Kerala High Court

Case Title: Leby Sajeendran v State of Kerala

Citation: 2024 LiveLaw (Ker) 672

The Kerala High Court has observed that the Mental Health Act, 2017, which came into effect from July 07, 2018, is beneficial legislation and can be applied retrospectively.

Justice C S Sudha held that the Mental Health Act, 2017 being a beneficial piece of legislation should be applied retrospectively, and its advantages must be extended to all class of persons for whose benefit it was enacted. Consequently, the Court quashed the final report against the petitioner by extending the benefit of Section 115 of the Mental Health Care Act which decriminalizes the attempt to commit suicide.

Criminal Acquittal Does Not Invalidate Disciplinary Proceedings Conducted Under Different Evidentiary Standards: Kerala HC

Case Title: Palakkad District Co-operative Bank Managing Committee v. Raghavan

Citation: 2024 LiveLaw (Ker) 673

A single judge bench consisting Justice Harisankar V. Menon quashed an arbitration award reinstating a terminated bank employee, holding that acquittal in criminal proceedings does not automatically invalidate findings of a domestic enquiry conducted under different standards of proof. The court emphasized that disciplinary proceedings operate independently of criminal trials, being based on preponderance of probabilities rather than proof beyond reasonable doubt. The court found the arbitration court's reliance solely on criminal acquittal while ignoring domestic enquiry findings to be arbitrary.

Criminal Courts Of District Judiciary Cannot Recall Their Orders: Kerala High Court

Case Title: Farhan v s v State of Kerala

Citation: 2024 LiveLaw (Ker) 674

The Kerala High Court has ruled that criminal courts of the district judiciary including Sessions Courts, the Magistrate Courts and even the Special Courts lack inherent powers to recall their earlier orders. As such, the Court quashed an order issued by the Special Court recalling its earlier order on its own.

Justice Bechu Kurian Thomas held that criminal courts of the District Judiciary have no inherent power to exercise any power of review, modification or even to recall their earlier orders.

Non-Joining Duty Vacancies Must Follow Original Roster System, Cannot Be Diverted To By-Transfer Category: Kerala HC

Case Title: KPSC v. Lasitha A.K.

Citation: 2024 LiveLaw (Ker) 675

A Division Bench of Justices A. Muhamed Mustaque and P.M. Manoj set aside the Kerala Administrative Tribunal's orders directing Non-Joining Duty (NJD) vacancies in Non-Vocational Teacher (English) posts to be filled from the by-transfer category. The Court held that NJD vacancies arising after the expiration of the direct recruitment list must be renotified and filled according to the roster system for general category appointments. The Court emphasized that NJD vacancies are inherently tied to the general category recruitment process and cannot be transferred to a different recruitment list, as this would disrupt the roster-based system ensuring fair distribution of posts.

Financial Constraints Cannot Override Constitutional Right To Equal Pension Benefits: Kerala HC

Case Title: K. Vijayadharan Pillai @ K. V. Pillai & Others v Union of India & Others

Citation: 2024 LiveLaw (Ker) 676

A Single Judge Bench of Justice Harisankar V. Menon ruled that pre-2006 Assam Rifles retirees are entitled to revised pension benefits on par with post-2006 retirees. The court rejected the Union of India's financial constraints argument, holding that monetary considerations cannot justify violation of fundamental rights. Following Supreme Court precedents, the court found the 2006 cut-off date arbitrary and violative of Article 14, as pension is a continuing right that cannot be differentiated based solely on retirement date.

Dual Prosecution Under IPC And EPF Act For PF Defaults Valid; Serves Distinct Objectives: Kerala HC

Case Title: S. Mohammed Nowfal v State of Kerala

Case Citation: 2024 LiveLaw (Ker) 677

 Single Judge Bench of Justice K. Babu upheld the trial court's refusal to discharge S. Mohammed Nowfal, proprietor of Tasty Nuts Factory. The Court held that prosecution under Section 406 IPC for criminal breach of trust involving PF defaults does not require prior sanction under Section 14-AC of the EPF Act. The Court emphasized that the 1973 addition of Explanation 1 to Section 405 IPC created a distinct offence for employer PF defaults, operating independently of EPF Act procedures. The Court clarified that such dual prosecution does not violate Article 20(2)'s double jeopardy protection, as the statutes serve different objectives with separate legal frameworks.

Failure To Consider Counsel's Medical Condition And Passing Ex-Parte Order Violates Natural Justice Warrants Setting Aside Appellate Authority's Order: Kerala HC

Case Title: Unnikrishna Pillai P. V. v HDFC Bank Ltd. and Others

Citation: 2024 LiveLaw (Ker) 678

A Single Judge Bench of Justice N. Nagaresh set aside the Appellate Authority's ex-parte order in a gratuity dispute between HDFC Bank and its former Vice President. The court found that the Authority's failure to grant reasonable adjournments despite valid medical certificates violated principles of natural justice. 

Scope of Judicial Review In Technical Matters Related To Infrastructure Projects, Land Acquisition Is Limited: Kerala HC Reiterates

Case Title: Wahabuddin V State Of Kerala & Other Cases

Citation: 2024 Livelaw (Ker) 679

Dismissing an appeal against an order rejecting the challenge to a land acquisition for construction of a Railway Over Bridge (ROB) at Edava in Thiruvananthapuram District, the Kerala High Court reiterated that the scope of judicial review in such technical matters like infrastructure projects and land acquisition is limited.

In doing so the court underscored that a balance has to be maintained between public interest and private interest in such cases.

Referring to various decisions of the Supreme Court and high court on the subject a division bench of Chief Justice Nitin Jamdar and Justice S Manu said:

“Scope of judicial review in the case of technical matters related to infrastructure projects like alignment is extremely limited. Same is the case with acquisition of land also. We are conscious of the fact that delay in acquisition of land as well as implementation of projects involving huge expenditure would lead to multiplication of the of the financial burden, apart from delaying the enjoyment of benefits envisioned to be made available to the public with the implementation. It needs no mention that the cost of construction escalates with passage of time. A project contemplated at one point of time, when implemented several years later, would cause huge loss to the public exchequer".

Kerala High Court Calls For Protection Of Nurses From Malicious Medical Negligence Cases, Says They Deserve Moral Support

Case Title: Celinamol Mathew v State of Kerala

Citation: 2024 LiveLaw (Ker) 680

The Kerala High Court ruled that private complaints against nurses alleging medical negligence should not be entertained unless the complainant gives prima facie evidence in the form of expert opinion to support their case of negligence.

The Court observed that nurses must be able to work without fear of malicious and frivolous prosecution alleging medical negligence. It emphasized that nurses must receive care, protection and also moral support from society while doing their duty.

The Apex Court in Jacob Mathew v. State of Punjab & Another (2005) had laid down guidelines governing the prosecution of doctors for the offence of criminal negligence, punishable under Section 304A of IPC.

Justice P.V.Kunhikrishnan thus urged the state government to issue a circular within three months to protect nurses from malicious prosecutions in tune with the Apex Court judgment in Jacob Mathew (supra).

Condonation Of Delay Application Should Focus On Sufficient Reason, Not Merits Of Claim U/S 119(2)(B) Of Income Tax Act: Kerala High Court

Case Title: Mohan Poovampally Gopal v. Principal Commissioner of Income Tax

Citation: 2024 LiveLaw (Ker) 681

The Kerala High Court stated that an application for condonation of delay should focus on whether there was sufficient reason to condone the delay under Section 119(2)(B) of the Income Tax Act, rather than on the merits of the assessee's claim.

Section 119(2)(B) of the Income Tax Act, 1961 empowers CBDT to direct income tax authorities to allow any claim for exemption, deduction, refund and any other relief under the income tax act even after the expiry of the time limit to make such claim.

The Bench of Justice Gopinath P. observed that “………the Principal Commissioner of Income Tax had considered the merits of the claims raised by the assessee instead of assessing whether there was sufficient reason to condone the delay or extend time as per the provisions in Section 119(2)(b) of the Income Tax Act, 1961………..”

Assessment Order Passed Before Expiry Of Time To File Reply Is Liable To Be Set Aside: Kerala High Court

Case Title: Elsy Joy v. The Deputy Commissioner Of State Tax

Citation: 2024 LiveLaw (Ker) 682

The Kerala High Court stated that any assessment order issued before the time allowed for filing a reply has no legal validity and can be overturned.

The Bench of Justice Gopinath P. observed that “…….the assessee had filed an appeal against the order is no ground to refuse relief to the assessee as the original order was clearly issued in violation of principles of natural justice…….”

Judicial Officer Cannot Be Browbeaten For Convenience Of A Party: Kerala High Court Dismisses Transfer Petition Alleging Bias, Imposes ₹15K Cost

Case Title: Noushad Flourish v Akhila

Citation: 2024 LiveLaw (Ker) 683

The Kerala High Court has dismissed a transfer petition which was filed alleging bias of judicial officer with a cost of fifteen thousand rupees, finding that the petition was meritless and was used as a ploy to delay the court proceedings.

In the facts of the case, the petitioner husband approached the High Court seeking the transfer of matrimonial dispute cases, alleging the Presiding Officer's bias.

Justice Bechu Kurian Thomas found that the petitioner had filed two transfer petitions earlier, alleging identical allegations of bias against different Presiding Officers. Court said, “The similarity of allegations raised against two different Presiding Officers who dealt with petitioner's cases is a clear indication of petitioner's calumny. The various allegations raised by the petitioner against the Presiding Officer are without any merit. Such vituperative denigration of a judicial officer by a litigant has to be dealt with sternly and cannot be tolerated under any circumstances whatsoever.”

Tax Planning Is Permissible But Evasion Is Impermissible: Kerala HC On Husband Transferring Portion Of Residential Building To Wife To Evade Luxury Tax

Case Title: Kottila Veetil Krishnakumar v State of Kerala

Citation: 2024 LiveLaw (Ker) 684

The Kerala High Court has dismissed the petition moved by a husband who transferred a portion of his residential building to his wife's name to secure an exemption from payment of luxury tax under Section 5A of the Kerala Building Tax Act, 1975

It is to be noted that as per Section 5A of the Kerala Building Tax Act, 1975, a luxury tax is charged on a residential building if its plinth area exceeds 278.7 square meters.

Justice Gopinath P. observed that the attempt of the husband was to evade tax which is impermissible in law.

Kerala High Court Strikes Down Rule 96(10) of CGST Rules Retrospectively, Finds Them Ultra Vires To CGST Act

Case Title: M/s Sance Laboratories Private Limited v Union of India and Others & Connected Cases

Citation: 2024 LiveLaw (Ker) 685

The Kerala High Court struck down Rule 96(10) of the Central Goods and Service Tax Rules holding that it was ultra vires to the Section 16 of the Integrated Goods and Service Tax Act and was manifestly arbitrary.

Justice P. Gopinath noted that Section 16 has not imposed any restriction in availing refund of taxes paid on input goods and input services or claiming refund of IGST after payment of IGST on the exports. The Court, therefore held that the restriction imposed under Rule 96(10) on claiming refund is ultravires to the Act.

Public Prosecutor Cannot Just Act As Per Instructions Of Govt, Must Apply Mind Before Withdrawing Case: Kerala High Court

Case Title: Muhammed Ashraf K. A. v The Sub Inspector of Police and Others

Citation: 2024 LiveLaw (Ker) 686

The Kerala High Court held that the Public Prosecutor has to apply his mind independently on the material before him and decide whether to withdraw a case even if the Government has ordered for withdrawal. The Single Bench of Justice K. Babu observed that the Public Prosecutor should independently decide that such a case is fit for withdrawal even if there is a direction from the Government.

The High Court said that the Public Prosecutor while making an application for withdrawal under Section 321 of Cr.P.C. should make a statement that he had in good faith and is satisfied after considering all relevant materials that the withdrawal from prosecution is in public interest and it will not stifle or thwart the process of law or cause injustice.