Kerala High Court Weekly Round-Up: October 21 – October 27, 2024

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

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

Judgments/ Orders This Week

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. 

Other Important Developments This Week

No Restriction On Physically Disabled Devotees In Temple Nalambalam But 'Wheelchair Darshan' Require Thanthris' Opinion: Amicus Tells Kerala HC

Case title: Suo Moto v State of Kerala

Case number: DBP NO. 25 OF 2024

The Kerala High Court has been informed that there is no statutory restriction on physically disabled devotees entering the Temple or its premises but permitting wheelchairs inside temple's Nalambalam will have to be viewed separately, since it would depend upon the decision of each Thanthri of the Temple, and an omnibus decision cannot be taken without ascertaining their views.

The Division Bench of Justice Anil K. Narendran and Justice P G Ajithkumar is  set to consider the feasibility of allowing wheelchairs inside the Nalambalam of Temples under the Travancore, Cochin, Malabar and Guruvayoor Devaswoms for facilitating physically disabled devotees to have darshan inside the Temples in Kerala.

Forest Tribunal Unlike High Court Has No 'Inherent Power' Of Review: Kerala High Court 5-Judge Bench

Case Title: Moidunni and Another v The State of Kerala and Others

Case No: MFA(Forest) No. 1 of 2015

A five judge bench of the Kerala High Court has held that the Tribunal constituted under the Kerala Private Forests (Vesting and Assignment) Act has no inherent power of review and this authority has to be traced to the provisions permitting the review.

In doing so the Bench comprising of Justices A. Muhamed Mustaque, Gopinath P., P. G. Ajithkumar, Shobha Annamma Eapen and S. Manu said that Tribunal's power of review under Section 8B (3) cannot be enlarged on grounds other than those mentioned in Section 8B(1) of the Act.

Model Code Of Conduct Amid Wayanad Bypoll Must Not Affect Rehabilitation Work, Election Campaigners Must Follow 'Green Protocol': Kerala HC

Case Title: In Re: Prevention And Management Of Natural Disasters In Kerala V State Of Kerala

Case Number: WP(C) 28509/ 2024 & Connected Cases

The Kerala High Court has ordered that implementing the Model Code of Conduct ahead of the 2024 Lok Sabha Bypoll in Wayanad should not affect the ongoing rehabilitation and relief efforts in the area affected by landslides.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. hearing the suo moto case initiated after landslides, has further directed the Election Commission to ensure that 'green protocol' is adhered to during the election campaigning in Wayanad, by considering the entire area as ecologically sensitive. The Green Protocol mandates that election campaigning materials such as boards, banners etc. be made using nature-friendly bio-degradable materials to ensure that plastic waste is not generated.

Kerala High Court To Frame Guidelines For Prohibiting Cruelty To Elephants Paraded For Temple Festivals And Functions

Case Number: WP(C) 31520/ 2024 & Connected Cases 

Case Title: In Re Captive Elephants V Union Of India & Connected Cases

The Kerala High Court is set to frame guidelines to prohibit cruelty to elephants paraded for festivals and other functions.

The Division Bench of Justice A.K.Jayasankaran Nambiar and Justice Gopinath P. orally directed all the stakeholders like elephant owners, NGO's, temple committee and others to submit their suggestions before the Court to frame guidelines before the next festival season.

Kerala High Court Stays Proceedings Against Actor Edavela Babu In Sexual Harassment Case

Case Title: A. Babu Chandran @ Edavela Babu v State of Kerala

Case Number: Crl.M.C. 8877 of 2024

The Kerala High Court on Thursday granted an interim stay on further proceedings in a sexual harassment case against Malayalam movie actor and former General Secretary of Association of Malayalam Movie Artists (AMMA) Edavela Babu.

The order was passed by Justice A. Badharudeen in a case filed by the petitioner to quash the FIR lodged at the Nadakkavu Police Station under Sections 354A(1)(ii) (demand or request of sexual favours), 354A(1)(iv) (making sexually colored remarks) and 509 (acts, words or gestures intended to insult a women's modesty) of Indian Penal Code.