Kerala High Court Weekly Round-Up: July 22 – July 28, 2024

Case Title: Saheer E.P. v National Investigating Agency, 2024 LiveLaw (Ker) 459

xxx v State of Kerala, 2024 LiveLaw (Ker) 460

Aboobakkar @ Abu v State of Kerala, 2024 LiveLaw (Ker) 461

Saritha K. P. v State of Kerala and Others, 2024 LiveLaw (Ker) 462

State of Kerala v Thomas Chacko @Shibu and Connected Matter, 2024 LiveLaw (Ker) 463

T J Varghese v Kerala State Human Rights Commissioner, 2024 LiveLaw (Ker) 464

State of Kerala v Nishad, 2024 LiveLaw (Ker) 465

Musthafa V. M. v Prajesh and Others, 2024 LiveLaw (Ker) 466

PCIT Versus Arun Majeed, 2024 LiveLaw (Ker) 467

Mythree Associates Versus Commercial Tax Officer, 2024 LiveLaw (Ker) 468

Indian Medical Association Versus UOI, 2024 LiveLaw (Ker) 469

The Appellate Authority v The State Information Commission, 2024 LiveLaw (Ker) 470

Lohith S v State of Kerala, 2024 LiveLaw (Ker) 471

Sahesh Rafeeque v Nural Inshira Binti Abdul Kareem, 2024 LiveLaw (Ker) 472

Allen Skariah Thomas @ Allen Thomas @ Cyril v The Chief Secretary, 2024 LiveLaw (Ker) 473

Hyder Ali v State of Kerala, 2024 LiveLaw (Ker) 474

Libin v State of Kerala, 2024 LiveLaw (Ker) 475

XXX V State of Kerala, 2024 LiveLaw (Ker) 476

Suo Motu v. Adv. Sojan Pavanios, 2024 LiveLaw (Ker) 477

State Of Kerala Versus Petrolink Data Services (P) Ltd., 2024 LiveLaw (Ker) 478

S. Vijayan Versus Commissioner Of State Goods And Service Taxes, 2024 LiveLaw (Ker) 479

Judgments/ Orders This Week

[UAPA] SC's Prabir Purkayastha Judgement Mandating Giving Reasons For Arrest To Accused In Writing Not Applicable Retrospectively: Kerala HC

Case Title: Saheer E.P. v National Investigating Agency

Citation: 2024 LiveLaw (Ker) 459

Kerala High Court held that the direction of the Supreme Court in Prabir Purkayastha v State (NCT of Delhi) (2024) which held that for an arrest under UAPA to be valid the arrestee should be furnished with grounds of arrest in writing, would only need to be applied prospectively. 

It was held that arrests made before the date of judgment cannot be considered invalid for the reason that the arrestee was not informed of the grounds of arrest in writing.

Kerala High Court Grants Bail To 23-Yr-Old Unmarried Woman Accused Of Murder For Throwing Her Infant From Building To Conceal Birth

Case Title: xxx v State of Kerala

Citation: 2024 LiveLaw (Ker) 460

The Kerala High Court has granted bail to a 23-year-old woman who had been in judicial custody for 80 days for allegedly throwing her infant child from her apartment building onto the road in an attempt to conceal the birth.

The Court took note of the fact that the petitioner, an unmarried lady gave birth to a stillborn infant without knowing its consequences. It also noted that the investigation was complete and she was in judicial custody for 80 days.

Accused Cannot Unilaterally Ask Victim Or Witnesses To Undergo Narco Analysis/ Lie Detection Test To Prove Defence Case: Kerala High Court

Case Title: Aboobakkar @ Abu v State of Kerala

Citation: 2024 LiveLaw (Ker) 461

The Kerala High Court has held that an accused cannot unilaterally demand the victim or witnesses to subject themselves to lie detection tests like Narco Analysis Test or Polygraph Test to prove defense case.

The petitioner, who is the first accused in a sexual assault case has approached the High Court for conducting lie detection test on the minor victim and her parents to prove his defense.

[KAAPA] Detention Order Can Be Quashed If Representation Of Detenu Is Not Considered In Timely Manner: Kerala HC

Case Title: Saritha K. P. v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 462

The Kerala High Court held that if the Government fails to consider the representation of a person put in preventive detention under the Kerala Anti-Social Activities Prevention Act (KAAPA) in a prompt manner, his right guaranteed under Article 22(5) is violated and due to this reason, the detention order can be quashed.

The detention order was passed on 11.04.2024 but the order and accompanying documents were forwarded to the government only on 21.06.2024. The Court held that this delay of more than 2 months and 11 days is enough to vitiate the order of detention.

Kerala High Court Commutes Death Sentence Of Man For Murdering 3 & 7 Yr-Old Nephews, Imposes 30-Yr Rigorous Imprisonment Sentence

Case Title: State of Kerala v Thomas Chacko @Shibu and Connected Matter

Citation: 2024 LiveLaw (Ker) 463

The Kerala High Court has commuted the death penalty imposed upon Thomas Chacko alias Shibu to 30 years of rigorous imprisonment without remission for murdering his nephews aged 3 and 7. The Court also imposed a fine of rupees 5 lakh upon the accused which shall be paid to the mother of the deceased children.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. observed that Constitutional Courts have the power to substitute the death penalty imposed by the Trial Court to imprisonment for a fixed term without remission in appropriate cases.

Human Rights Commission A Quasi-Judicial Body, Must Pass Reasoned Orders: Kerala High Court

Case Title: T J Varghese v Kerala State Human Rights Commissioner

Citation: 2024 LiveLaw (Ker) 464

The Kerala High Court has held that the Human Rights Commission being a Quasi-Judicial Body is bound to follow the principles of natural justice and must pass reasoned orders after considering the merits of the complaint.

Justice Syam Kumar V.M set aside an order issued by the Kerala State Human Rights Commission (SHRC) on finding that an unreasoned order was passed mechanically without application of mind and without hearing the parties on their respective pleadings.

Vehicle Attached Under BUDS Act Can Be Auctioned Before Trial, Priority Is To Distribute Proceeds Among Victims Of Offense: Kerala High Court

Case Title: State of Kerala v Nishad

Citation: 2024 LiveLaw (Ker) 465

The Kerala High Court held that to auction a vehicle attached under Banning of Unregulated Deposit Schemes Act (BUDS Act), the competent authorities need not wait till the end of the trial.

The Court held that the scheme of BUDS Act is to give priority to realise assets in the custody of accused and distribute the proceeds among the victim of the offence. The Act says that an application for confirmation of attachment and permission of sale is to be filed within 30 days from the date of provisional attachment. This shows that the sale should take place in a time bound manner.

For Person To Be Considered Victim, There Must Be Some Harm To Mind Or Reputation Which Can Be Perceived From Materials On Record: Kerala HC

Case Title: Musthafa V. M. v Prajesh and Others

Citation: 2024 LiveLaw (Ker) 466

The Kerala High Court held that for a person to be considered a victim, there should be some harm to the mind or reputation which is perceivable from the materials on record.

The Court made this observation while dismissing an appeal filed against the decision of Sessions Court whereby persons accused of conspiring to kill the appellant were acquitted. The Court said that there was no perceivable harm to his mind or reputation.

Gain From Selling Of Property Kept For Investment To Be Taxed Under 'Capital Gains': Kerala High Court

Case Title: PCIT Versus Arun Majeed

Citation: 2024 LiveLaw (Ker) 467

The Kerala High Court has held that when a property kept not for trade but for investment purposes is sold, the gain has to fall under the head 'capital gains' and such a transaction is only taxable under capital gain and not under adventure of trade.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that the burden is upon the Department to show that a transaction effected by the assessee is an adventure in the nature of trade. Merely because the assessee makes some profit in a particular transaction, it cannot be treated as an adventure in the nature of trade so long as the initial intention or reason for investing money was to hold the property and use it for a different purpose.

Denial Of Credit For Non-Registration Thiruvabhranam Commissioner Of Under KVAT Act Is Unjust: Kerala High Court

Case Title: Mythree Associates Versus Commercial Tax Officer

Citation: 2024 LiveLaw (Ker) 468

The Kerala High Court has held that the petitioner/assessee has paid tax at the prescribed rate on the materials procured by him from the Travancore Devaswom Board, and since this amount has already been paid over to the State Exchequer, any denial of credit to the assessee solely on the ground that the Travancore Devaswom Board/Truvabharanam Commissioner was not registered under the KVAT Act would be unjust.

Kerala High Court Dismisses Indian Medical Association's Petition Challenging GST Levy On Supply Of Goods And Services To Its Members

Case Title: Indian Medical Association Versus UOI

Citation: 2024 LiveLaw (Ker) 469

The Kerala High Court has dismissed the writ petition filed by the Indian Medical Association challenging the levy of GST on supply of goods and services to its members.

Section 7(1)(aa) explains that the person and its members or constituents shall be deemed to be two separate persons, and the supply of activities or transactions inter se shall be deemed to take place from one such person to another.

"Improper": Kerala High Court Pulls Up State Public Service Commission For Destroying Records During Pendency Of RTI Application

Case Title: The Appellate Authority v The State Information Commission

Citation: 2024 LiveLaw (Ker) 470

The Kerala High Court stated that the Kerala Public Service Commission (KPSC) has the power to destroy records in accordance with the Office Manual prescribing record preservation procedures and Rules made under the Kerala Destruction of Records Act. However, the Court deemed that it was improper for the KPSC to destroy records while an application under the Right to Information Act was pending.

Justice Easwaran S stated that the State Information Officer (SIO) can take action against the PSC if they destroy records during the pendency of the RTI application.

Person Can't Be "Tied Down" To Religion Of Birth: Kerala High Court Permits Change Of Religion In School Certificates

Case Title: Lohith S v State of Kerala

Citation: 2024 LiveLaw (Ker) 471

The Kerala High Court has allowed the plea moved by two youngsters seeking to change their religion in their school certificates since they have embraced a new religion.

It stated that even if there is a lack of a specific provision enabling change of religion in school certificates, the petitioners are entitled to correct their religion in their records on embracing a new religion.

MWPRD Act | Divorced Lady Must Reside Within Jurisdictional Limit Of Magistrate To Avail Benefit Of Act: Kerala HC Denies Relief To Malaysian Citizen

Case Title: Sahesh Rafeeque v Nural Inshira Binti Abdul Kareem

Citation: 2024 LiveLaw (Ker) 472

The Kerala High Court has quashed a complaint filed under the Muslim Women (Protection of Rights on Divorce) Act (MWPRD Act) by a woman with Malaysian citizenship.

Section 2(c) of MWPRD Act defines Magistrate as Magistrate of First Class exercising jurisdiction under Code of Criminal Procedure in the area where the divorced woman resides

Denying Ordinary Leave To Convicts Has Detrimental Effect, Reduces Chances Of Rehabilitation And Re-Socialization: Kerala High Court

Case Title: Allen Skariah Thomas @ Allen Thomas @ Cyril v The Chief Secretary

Citation: 2024 LiveLaw (Ker) 473

The Kerala High Court has held that denial of ordinary leave to convicts can be detrimental since it reduces their chances for better rehabilitation and re-socialization into society. The Court further stated that ordinary leave cannot be denied to convicts by relying upon vague police reports.

The petitioner, a convict undergoing life imprisonment for murdering his father has approached the High Court seeking for grant of ordinary prison leave after undergoing more than 6 years of imprisonment based on adverse police reports.

[POCSO] Not Safe To Fasten Liability On Cop Who Waited To Record Informant/Victim's Statement Due To Unavailability Of Female Officer: Kerala HC

Case Title: Hyder Ali v State of Kerala

Citation: 2024 LiveLaw (Ker) 474

The Kerala High Court has held that there is no scope to put criminal liability on a police officer for asking the victim and her mother to come the next day to give their statement regarding an offence under the Protection of Children Under Sexual Offences Act (POCSO Act) due to there not being any woman officer at the police station.

The court said that while a police officer is criminally liable under Section 21 of the Act if he does not record the offence when he receives information regarding it, in this case, there was no willful or deliberate omission. It also observed that the statement was recorded without much delay.

Judge Not Mouthpiece Of Prosecution But Also Cannot Make Roving Enquiry While Considering Discharge Application Of Accused: Kerala HC

Case Title: Libin v State of Kerala

Citation: 2024 LiveLaw (Ker) 475

The Kerala High Court has held that a judge should not act like a post office or a mouth piece of prosecution but it should also not make a roving enquiry and weigh the evidence akin to conducting a trial against the accused while considering a discharge application under Section 227 and 239 of CrPC.

Sexual Crimes Can't Be Settled On Compromise But 'Peaceful Family Life' A Humanitarian Ground If Accused & Victim Marry: Kerala High Court

Case Title: XXX V State of Kerala

Citation: 2024 LiveLaw (Ker) 476

The Kerala High Court has held that crimes that tarnish women's dignity and honour, such as rape, POCSO Act offences cannot be quashed on compromise or settlement. However, if the accused and victim have married and are living together peacefully, this may be a humanitarian ground to allow the quashing of the case.

Kottayam Bar Association Protest: Kerala High Court Orders 28 Lawyers To Offer Legal Aid Services For 6 Months

Case Title: Suo Motu v. Adv. Sojan Pavanios

Citation: 2024 LiveLaw (Ker) 477

The Kerala High Court has ordered 28 lawyers of the Kottayam Bar Association to offer legal aid services for a period of 6 months, on accepting their unconditional apology for purging the contempt charges against them.

The Court had initiated suo moto contempt proceedings against these lawyers for protesting and allegedly hurling abusive language against a female Chief Judicial Magistrate (CJM), in Kottayam.

Goods Transported For Own Use, No Intention To Evade Tax, Kerala High Court Deletes Penalty

Case Title: State Of Kerala Versus Petrolink Data Services (P) Ltd.

Citation: 2024 LiveLaw (Ker) 478

The Kerala High Court has held that the assessee, immediately after the goods were detained, produced the statutory declarations in Form 16 to demonstrate that the goods that were being transported were for the own use of the assessee.

Kerala High Court Allows Adjustment Refund Amount Towards Amount payable under Amnesty Scheme

Case Title: S. Vijayan Versus Commissioner Of State Goods And Service Taxes

Citation: 2024 LiveLaw (Ker) 479

The Kerala High Court has held that it is open to the department to consider an adjustment of the refund amount due to the appellant towards the amounts due from him by way of settlement under the Amnesty Scheme.

Other Important Developments This Week

"Adjustment Period Is Needed, We Are Also Learning": Kerala High Court In PIL Challenging Hindi Titles Of New Criminal Laws

Case Title: P. V. Jeevesh v Union of India and Others

Case Number: WP(C) 19240/ 2024

The Kerala High Court has asked the petitioner who challenged the Hindi titles for the new criminal laws whether the matter was justiciable. The case came for hearing before the bench of Acting Chief Justice A. M. Mustaque and Justice S. Manu.

The Court stated that an adjustment period would be required for any such changes and that even the judges were learning the names of the new acts albeit it a little confusing. It was stated that classes had been organised in the judicial academy which were being attended by the judges.

Migrant Workers: Kerala High Court Seeks Response From Govt About Their Living Conditions, Registration Process In State

Case Title: TGN Kumar v State of Kerala

Case Number: WP(C) NO. 25674 OF 2024

The Kerala High Court has sought response from the State Government about the registration process and living conditions of migrant workers in the State.

The development comes in a petition seeking consideration of representations submitted before the Secretary of the Labour Department, urging action to identify and register the ingress of migrant workers in the State.

Whether Tourism Department Vehicles Carrying Constitutional Dignitaries Use Backlit Boards Contrary To Rules? Kerala High Court Asks Govt

Case Title: Suo Moto v Union of India

Case Number: WP(C) NO. 25129 OF 2024

The Kerala High Court sought response from the Government on whether Tourism Department vehicles carrying constitutional dignitaries and authorities are fitted with backlit name boards and registration plates contrary to the Central Motor Vehicles Rules and flouting safety standards.

'Astonishing': Kerala High Court Orders Removal Of Large Scale Encroachments In And Around Ashtamudi Lake In Kollam

Case Title: Advocate Boris Paul v Union of India

Case Number: WP(C) NO. 18400 OF 2024

The Kerala High Court has directed the Kollam Sub Collector to initiate action to remove illegal encroachers from in and around Ashtamudi Lake within a period of six months.

The Division Bench comprising Acting Chief Justice Mr. A.Muhamed Mustaque and Justice S Manu directed the District Police Chief to assist the Sub Collector by deploying necessary police personnel for removing the illegal encroachers.

Kerala High Court Stays Publication Of Justice Hema Commission Report On Issues Faced By Women In Film Industry

Case Name: Sajimon Parayil v State of Kerala and Others

Case Number: WP(C) 26497/ 2024

The Kerala High Court has passed an interim order of stay for one week on an order of the State Information Commissioner directing to make Justice Hema Commission Report public. Tomorrow was the last date given by the Commission to publish the report. The Commission had said that it was in the larger public interest that the report be made public.

Kerala High Court Reserves Order In KIIFB And Dr Thomas Isaac's Plea Challenging ED Summons In Masala Bonds Case

Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director

Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024

The Kerala High Court has reserved orders in the writ petitions filed by Kerala Infrastructure Investment Fund Board (KIIFB) and Dr Thomas Isaac challenging the summons issued against them by the Enforcement Directorate in connection with the 'masala bonds' case.

Trivandrum Is Like A Dump Site, Plastic Waste Flowing Into Canals Is Embarrassing For Capital City: Kerala HC Calls For Enhanced Waste Management

Case Title: Suo Moto v State of Kerala

Case Number: WP (C) 7844/2023

The Kerala High Court expressed its vision of having a clean capital city in the State. The Court remarked that the plastic waste flowing into the canals including the Aamayizhanchan canal is an embarrassment for the capital city.

The Court conducted a special sitting after the death of a sanitation worker in the Aamayizhanchan canal. The Court had directed the Amicus Curiae to visit the canal and submit a report regarding the issue of plastic waste in the canal.