Kerala High Court Weekly Round-Up: July 8 – July 14, 2024

The Authorised Officer v The Additional Chief Judicial Magistrate and Others, 2024 LiveLaw (Ker) 418

Vijayakumari v Jayakumar, 2024 LiveLaw (Ker) 419

Mathew Philip v State of Kerala and Others, 2024 LiveLaw (Ker) 420

Ammanoor Parameswaran Chakyar v State of Kerala, 2024 LiveLaw (Ker) 421

Jesmon Joy Karippery v State of Kerala, 2024 LiveLaw (Ker) 422

XX v State of Kerala, 2024 LiveLaw (Ker) 423

Lijin v State of Kerala, 2024 LiveLaw (Ker) 424

M. A. Sathar and Others v Thiruvananthapuram Citizens Protection Forum and Others, 2024 LiveLaw (Ker) 425

Anu George v The National Agricultural Education Accreditation Board, 2024 LiveLaw (Ker) 426

Joy Varghese v State of Kerala, 2024 LiveLaw (Ker) 427

Prasad P. V. v State of Kerala and Another, 2024 LiveLaw (Ker) 428

X v State of Kerala, 2024 LiveLaw (Ker) 429

Sindhu v State of Kerala and Others, 2024 LiveLaw (Ker) 430

Arun S v State of Kerala, 2024 LiveLaw (Ker) 431

XXXX v State of Kerala, 2024 LiveLaw (Ker) 432

Suresh and Others v State of Kerala, 2024 LiveLaw (Ker) 433

Omana Somanadhan v Deepu Soman and Others, 2024 LiveLaw (Ker) 434

Sri. Johnson Koomullil Thomas Versus The Income Tax Officer, 2024 LiveLaw (Ker) 435

Aaron Construction Co. Versus Union Of India, 2024 LiveLaw (Ker) 436

Judgments/ Orders This Week

[SARFAESI Act] Nature Of Secured Asset Continues To Remain Same Even After Being Purchased By Secured Creditor: Kerala High Court

Case Title: The Authorised Officer v The Additional Chief Judicial Magistrate and Others

Citation: 2024 LiveLaw (Ker) 418

The Kerala High Court held that a 'secured asset' continues its nature of 'secured asset' even after it is bought by the secured creditor. The Secured creditor can move under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), the Court said.

Justice N. Nagaresh observed that in Balakrishna Rama Tarle Dead through LRs and another v Phoenix ARC Privated Limted and Others (2022), the Supreme Court had said that secured creditors can take possession of secured assets post-confirmation of sale also. High Court held that this would mean that the character of the property as a 'secured asset' will continue for the purpose of the SARFAESI Act.

Penalty U/S 31 DV Act Though Confined To 'Protection Orders', Can Be Imposed Where Such Order Is In Addition To Residence Order: Kerala HC

Case Title: Vijayakumari v Jayakumar

Citation: 2024 LiveLaw (Ker) 419

The Kerala High Court has held that the penalty for breach of a 'Protection Order' passed under Domestic Violence Act is applicable even if such order also recognizes the woman's right to a 'Shared Household'.

Section 18 of the DV Act pertains to protection orders and Section 19 pertains to residence orders. Ordinarily, an order falling within the category of a residence order does not qualify for being proceeded against under Section 31 of the DV Act. Section 31 prescribes imprisonment of upto one year or fine of upto twenty thousand rupees or both. Bench also said that absence of statutory penalty for breach of residence order is an anomaly, which the law makers must look into.

In the present case, the Court stated the order issued by the Magistrate intended it to be treated as an order of protection specifically to protect her from dispossession from a shared household and not merely as a residence order.

Kerala High Court Lays Down Guidelines Fixing Time Limit For Statutory Authorities To Pass Orders In Matters Where Hearing Is Concluded

Case Title: Mathew Philip v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 420

The Kerala High Court formulated guidelines related to passing orders by statutory authorities in matters where hearing is already concluded. The Court directed that orders should be passed within 30 days after the hearing is concluded in appeals, revisions and other statutory proceedings. If the order is passed after one month, the order should mention the reason for the delay. Further, if no order is passed for three months, the authority should rehear the parties. If no orders are passed in 6 months, the orders can be set aside for that reason alone. This is to be followed until the State Government comes out with a rule/ guideline regarding this.

Temple Dance Forms Of 'Kootu', 'Koodiyattam' Are Religious Ritual Ceremony, Performance Cannot Be Altered Without Tantris Consent: Kerala HC

Case Title: Ammanoor Parameswaran Chakyar v State of Kerala

Citation: 2024 LiveLaw (Ker) 421

The Kerala High Court held that temple dance art forms 'Koothu' and 'Koodiyattam' are religious and ritual ceremonies and whether they can be performed by other Hindu artists apart from members of a certain family are matters to be decided by the Tantris of the Temple. The Court stated that Devaswom Managing Committee cannot make performance alteration decisions without the consent of the Tantris.

The Court was considering whether the decision of the temple management committee that temple dance form 'Koothu' and 'Koodiyattam' performed at the Koothambalam (temple theatre) in the Koodalmanikyam Temple in Irinjalakuda could be permitted to be performed by other Hindu artists apart from members of Ammannoor Family without the consent of the Tantris of the temple.

Onerous Conditions Not Necessary When Accused Seeks To Renew Passport Without Permission To Go Abroad: Kerala High Court

Case Title: Jesmon Joy Karippery v State of Kerala

Citation: 2024 LiveLaw (Ker) 422

The Kerala High Court has held that onerous conditions are not necessary to be imposed when an accused in a pending criminal case approaches the Court merely for renewal/re-issuance of passport, without seeking permission to go abroad.

POCSO Act Often Misused To Settle Personal Scores, Even In Matrimonial Disputes False Accusations Made To Deny Custody To Father: Kerala HC

Case Title: XX v State of Kerala

Citation: 2024 LiveLaw (Ker) 423

The Kerala High Court has cautioned the Police officers as well as Courts to be vigilant against people with ill motivations who misuse the provisions of Prevention of Children from Sexual Offences Act (PoCSO Act) to settle personal scores.

The Court said that the Act has harsh provisions and severe punishments, and it is misused by some people to implicate innocent persons.

The Court said that the Act is misused in cases where there is rivalry in between somebody connected with minor(s). Even in matrimonial disputes, it said, minor children are used for alleging POCSO offences so the father of the child would not get custody.

"Bench Hunting" Shakes Faith In Justice System: Kerala High Court Dismisses Third Bail Plea Of NDPS Accused

Case Title: Lijin v State of Kerala

Citation: 2024 LiveLaw (Ker) 424

The Kerala High Court has reiterated that bench hunting by filing different bail applications before different Courts has no legal sanctity and would result in anarchy and shake the faith in the justice delivery system.

The petitioner is the third accused in an offence involving possession of contraband in commercial quantity under the NDPS Act. His first bail application was dismissed by the High Court and the second bail application was dismissed by the Sessions Court.

The Court relying upon Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Another (1987), Jayaraj A. v. State of Kerala (2009) and Bipin Sunny v. State of Kerala (2023) stated that the subordinate Court should not have entertained the second bail application moved by the accused after his first bail application was dismissed by the High Court. It was stated subsequent bail applications pointing out a change of circumstance have to be filed before the High Court and not before the Sessions Court to maintain judicial discipline unless otherwise permitted by the Superior Court.

Relief Not Prayed For By Plaintiff Can't Be Granted Particularly When Defendant Didn't Get Opportunity To Resist It: Kerala High Court

Case Title: M. A. Sathar and Others v Thiruvananthapuram Citizens Protection Forum and Others

Citation: 2024 LiveLaw (Ker) 425

The Kerala High Court has held that a Court cannot give a relief which was not prayed by the plaintiff especially when the defendant did not have an opportunity to raise pleadings in the matter.

[Doctrine Of Impossibility] Law Doesn't Permit Denial Of An Individual's Rights For Failure To Perform An Impossible Task: Kerala HC

Case Title: Anu George v The National Agricultural Education Accreditation Board

Citation: 2024 LiveLaw (Ker) 426

The Kerala High Court has held that denial of opportunity to seek public employment forever to a particular class of students because they were unable to obtain an equivalency certificate due to being compelled to complete an impossible task is violative of Article 14 of the Constitution.

In this case, petitioners were denied an equivalency certificate by the Kerala Agricultural University to apply for PSC exams stating that their University did not have ICAR accreditation during their period of study.

Justice Ziyad Rahman A.A. relying upon the 'Doctrine of Impossibility' stated that students cannot be compelled to perform an impossible task. In this case, petitioners were the first batch of students from their University and practically their University could only apply for ICAR accreditation after the successful completion of the course by the first batch of students.

No Material To Show Involvement Of Any Transnational Racket In Forced Gender Change Operations: Kerala High Court Declines CBI Inquiry

Case Title: Joy Varghese v State of Kerala

Citation: 2024 LiveLaw (Ker) 427

The Kerala High Court has dismissed the plea moved by a father seeking CBI investigation alleging that his minor son's photographs were illegally used for raising funds for hormone replacement therapy.

Justice Bechu Kurian Thomas observed that allegations of involvement of transnational racket or gang in doing forced gender change operations were vague and baseless.

Court Should Not Go Into 'Correctness' Of Prosecution Materials In A Petition To Quash Criminal Proceedings: Kerala High Court

Case Title: Prasad P. V. v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 428

Kerala High Court has held that while Court is exercising its power to quash proceedings, the Court cannot examine the correctness or genuineness of the complaint. It observed that the Court should not embark upon an enquiry into the reliability or genuineness of the allegations.

The Court held that to quash the proceedings, the accused should be able to show that the allegations against him do not constitute the offence alleged.

Woman's Partner In Live-In Relationship Cannot Be Prosecuted For Offence Of Cruelty U/S 498A IPC: Kerala High Court

Case Title: X v State of Kerala

Citation: 2024 LiveLaw (Ker) 429

The Kerala High Court has held that a woman's partner who is not legally married cannot be prosecuted under Section 498A of the IPC for the offence of cruelty. The Court clarified that husband means married man, woman's partner in marriage and does encompass a woman's partner without legal marriage for prosecution under Section 498A of the IPC.

Justice A. Badharudeen thus quashed the proceedings against the petitioner who was the live-in partner of the complainant woman.

[KAAPA] Period Of Detention Can Only Be Fixed By Govt Upon Getting Advisory Board's Report, Can't Be Fixed By Magistrate: Kerala High Court

Case Title: Sindhu v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 430

The Kerala High Court declared that under the provisions of the Kerala Anti–Social Activities (Prevention) Act, 2007 (KAAPA), the District Magistrate does not have the power to fix the period of detention. Only the Government can fix the period, that too, after receiving the report of the Advisory Board.

Sexual Gestures' Of Accused Must Be Discernible From FIR, Final Report Or Other Material: Kerala High Court

Case Title: Arun S v State of Kerala

Citation: 2024 LiveLaw (Ker) 431

The Kerala High Court has quashed the proceedings initiated against a man for allegedly making 'sexual gestures' degrading women's dignity, since disclosure of sexual gestures or acts was not discernible from the FIR, Final Report or other materials.

Imposing Unaffordable Costs Is Akin To Denying Relief: Kerala High Court Reduces Hefty Cost Imposed On Parties For Recalling Witnesses

Case Title: XXXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 432

The Kerala High Court held that onerous, heavy and unaffordable costs imposed upon the accused for recalling witnesses would violate their rights to recall witnesses to defend their case and establish their innocence.

Kerala High Court Denies Anticipatory Bail To Accused For Allegedly Assaulting HIV Patient In Care-Home

Case Title: Suresh and Others v State of Kerala

Citation: 2024 LiveLaw (Ker) 433

Kerala High Court denies anticipatory bail to the accused who allegedly tied an HIV patient in their care home to the window and beat her with a wooden log. She suffered multiple fractures. The complaint was given by the victim herself.

The Investigating Officer submitted before the Court that it is learnt that the petitioners treat their inmates in a very inhuman manner. He stated that custodial interrogation and recovery is necessary for full investigation.

Justice C. S. Dias observed that the prima facie materials establish petitioner's involvement in the crime. The Court refused to grant them anticipatory bail saying that custodial interrogation is necessary and recovery is to be done.

Domestic Violence Act | Order Of 'Alternate Residence' Can Be Made Instead Of 'Shared Residence' If Interest Of Both Parties Served: Kerala HC

Case Title: Omana Somanadhan v Deepu Soman and Others

Citation: 2024 LiveLaw (Ker) 434

The Kerala High Court has held that if an order of residence will completely negate and annihilate the rights of the respondent, the court can order for alternate residence if it will protect the rights of both parties.

Decision By Income Tax Officer Who Did Not Hear The Case; Kerala High Court Quashes The Order

Case Title: Sri. Johnson Koomullil Thomas Versus The Income Tax Officer

Citation: 2024 LiveLaw (Ker) 435

The Kerala High Court has held that if the income tax officer who hears the case does not render the decision, it would amount to a violation of the principles of natural justice.

The bench of Justice Murali Purushothaman has observed that the doctrine 'he who heard must decide or he who decides must hear' applies to statutory authorities. Section 148A of the Income Tax Act provides for the opportunity to be heard by the assessee.

Assessment Based On Best Judgement Basis, Non-Filing Of Returns After Receipt Of Order, Fatal For Assessee: Kerala High Court

Case Title: Aaron Construction Co. Versus Union Of India

Citation: 2024 LiveLaw (Ker) 436

The Kerala High Court has held that the non-filing of returns even after receipt of the assessment order is fatal for the assessee.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that it may be true that the respondents did not issue a formal notice as required under Section 62(1) of the Income Tax Act before completing the assessment on a best judgment basis under the said provision, but the fact remains that the appellant could have obtained a nullification of said assessment order if he had filed the return at least within thirty days of the receipt of the assessment order.

Other Important Developments This Week

Can Counsel Not Designated As Senior Make Submissions Before Court Without Vakalatnama: Kerala High Court To Decide

Case Title: Shirley Albert v The District Collector

Case No: WP(C) 26324 of 2022

Kerala High Court sought the help of lawyers to decide on whether counsel who is not a designated Senior can make submissions and argue the case before the Court without a vakalatnama. The Division Bench of Justices A. Muhamed Mustaque and S. Manu said that any lawyer willing to assist the court in this matter can make submissions in this regard.

Upon hearing the submissions, the Court said the rule needed to be interpreted. The Court is set to decide the extent to which a lawyer without vakalat can be allowed to plead.

Kerala High Court Initiates Suo Moto Proceedings To Prevent Unauthorized Use Of National And State Emblems, Govt Boards On Motor Vehicles

Case Title: Suo Moto v State of Kerala

Case Number: SSCR Nos.29, 30 & 36 of 2023

The Kerala High Court yesterday directed the Registry to initiate suo moto proceedings after obtaining orders from the Acting Chief Justice to consider the issue of unauthorized use of national and state emblems as well as government boards on vehicles.

The Court passed the above order after finding that despite its directions, the Enforcement Officers in the Motor Vehicles Department and the Police were unable to prevent use of motor vehicles with unauthorized name boards, flashlights etc.

Previously, the Court had directed Police and Enforcement Officers of the Motor Vehicles Department shall take action against persons who use unauthorized name boards and emblems on vehicles contrary to Rule 92 A of the Kerala Motor Vehicles Rules, 1989.

The bench observed that in Avishek Goenka v. Union of India (2012), it has been laid down that no motor vehicle including government vehicles were not permitted to use lights which are not specifically provided for in the Central Motor Vehicles Rules.

Plea In Kerala High Court Seeks Inquiry Against Calicut University Vice Chancellor Over Alleged Misappropriation Of Funds

Case Title: Dr. Rasheed Ahamed P. V University of Calicut

Case Number: WP(C) 24966/ 2024

A plea has been moved before the Kerala High Court by the elected member to the Senate of the Calicut University alleging misappropriation of funds by the University's Vice-Chancellor. The allegation was regarding the misappropriation of crores of money by the Vice Chancellor for the purchase and installation of Automatic Storage and Retrieval System (ASRS) which are automated racks used for storing and maintaining answer sheets in the University.

Kerala High Court Expresses Disinclination To Permit Differently Abled To Take Driving License Test

Case Title: Rudranath A S v State of Kerala

Case Number: WPC No. 23297/ 2024

The Kerala High Court today expressed its disinclination to allow the plea moved by a 22-year-old, 40 per cent physically disabled citizen to take a driving license test.

Justice Dinesh Kumar Singh stated "he cannot put the lives of the general public at risk".

Supreme Court Collegium Recommends Appointment Of Justice Nitin Jamdar Of Bombay HC As Kerala HC Chief Justice

he Supreme Court Collegium has recommended the appointment of Justice Nitin Jamdar Of Bombay High Court as the Chief Justice of the Kerala High Court.

Kerala High Court Directs State To Formulate Comprehensive SOP For Collection Of DNA Samples Of Children Surrendered For Adoption

Case Title: Suo Motu v State of Kerala

Case Number: Crl. M. C. 5136/ 2023

Kerala High Court has ordered the State government to form a comprehensive SOP regarding collection of DNA samples of children, before declaring them legally free for adoption.

The Amicus curiae, Adv. A. Parvathi Menon submitted that there is no SOP followed by the State Adoption Resource Agency (SARA) concerning this.

The matter is related to the privacy of adopted children. The case was taken suo moto by the Court based on the report of Victim Rights Centre under the Kerala State Legal Service Authority. It was submitted that various courts ordered for collection of blood samples of children born to rape victims and given in adoption. The report claimed that such acts would violate the privacy of the children and the confidentiality of adoption.

Woman Moves Kerala High Court To Remove Her Morphed Videos From Internet

Case Title: XX v Union of India and Others

Case No: WP(Crl.) 763/ 2024

A woman from Kozhikode has approached the Kerala High Court seeking directions to remove her alleged morphed videos from the internet.

Justice A. Badharudeen has issued notices to all intermediaries including Google, Meta and Yahoo on the petition seeking to make the video unavailable on search.

The woman was a Panchayat Vice-President and alleges that some people, out of political rivalry, made a ploy to leak her morphed videos. She has resigned from the position reportedly due to the pressure of her political opponents after the videos were leaked.

Union Minister Suresh Gopi Approaches Kerala High Court Seeking Discharge In Luxury Cars Tax Evasion Case; Hearing On July 19

Case Title: Suresh Gopi v State of Kerala and Another

Case No: Crl. Rev. Pet. 706 & 708 of 2024 (Filing No.)

Union Minister and film actor Suresh Gopi has approached the Kerala High Court challenging the order of Special MP/MLA Court dismissing his discharge application in the infamous luxury cars tax evasion case.

Single bench of Justice CS Dias has posted the matter for hearing on 19th July.

The actor had bought two luxury cars from Audi dealers in Ernakulam in 2010 and 2016. It is alleged that the vehicles were fraudulently registered in Puducherry despite the actor being a permanent resident of Kerala, purportedly to evade tax. The State government claims a cumulative loss of Rs 18 lakh.

Judge's Job Entails Long Work Hours, Call Of Duty Trumps Personal Exingencies: Justice P. Somarajan Bids Farewell To Kerala High Court

he High Court of Kerala held a full-bench reference on Friday on the occasion of the retirement of Justice P. Somarajan. Acting Chief Justice A. Muhamed Mustaque, Advocate General Shri. Gopalakrishna Kurup and Kerala High Advocate Association President Adv. Yeshwanth Shenoy remembered the service rendered by Justice Somarajan.