Kerala High Court Weekly Round-Up: April 08 – April 14, 2024

Maffiya MK v. Union of India and ors. 2024 LiveLaw (Ker) 231

Dr Athulya Asok v The State Police Chief 2024 LiveLaw (Ker) 232

Kerala CBSE School Management Association (Regd) v State of Kerala 2024 LiveLaw (Ker) 233

Shankara Narayanan P A v Kerala State Beverages (M And M) Corporation Ltd & Connected cases 2024 LiveLaw (Ker) 234

Jayaprakash T v Union Of India & Ors. 2024 LiveLaw (Ker) 235

N Prakash v State of Kerala 2024 LiveLaw (Ker) 236

Binnesh Babu@ Bineesh Babu v State of Kerala 2024 LiveLaw (Ker) 237

Shaji K v State of Kerala 2024 LiveLaw (Ker) 238

Adv. M. Swaraj V K. Babu 2024 LiveLaw (Ker) 239

Parthasarathi M v State of Kerala & Connected Cases 2024 LiveLaw (Ker) 240

Lukose. K.C. Versus Deputy Commissioner 2024 LiveLaw (Ker) 241

Prakash N v. GWLP School, Thevayoor South and ors. 2024 LiveLaw (Ker) 242

Kerala State Co-Operative Consumers' Federation Ltd V The Chief Election Commissioner 2024 LiveLaw (Ker) 243

Judgements/Orders This Week

Can't Infringe Detainees' Constitutional Rights: Kerala HC Releases Man Whose E-Mail Representation Went To Authority's Spam Folder, Frames Guidelines

Case Citation: 2024 LiveLaw (Ker) 231 

Case Title: Maffiya MK v. Union of India and ors.

The Kerala High Court has issued guidelines relating to the forwarding of representations of detainees. A division bench consisting of Justice A Muhamed Mustaque and Justice MA Abdul Hakhim clarified that the representations shall be forwarded by all jail superintendents in the following manner:

1. Jail superintendents shall forward e-mail copies both in the e-mail address of the detention authority as well as central government. The sponsoring authority immediate on detention order shall forward the relevant e-mail IDs of the concerned to the jail superintendent. Immediately on forwarding the e-mail copies physical copies also shall be forwarded all the authorities concerned.

2. The court directed that necessary instructions shall be issued by the DGP of the prison to all jail superintendent in the Jail. DGP shall direct that if any laches on the part of the jail superintendent in following the guidelines in the directions as above will entail in disciplinary actions against such officers.

The court was hearing a habeas corpus plea filed by the wife of the detenu challenging his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974.

Can't Compel Child To Live With Parent Unacceptable To Him: Kerala HC Allows Child To Stay With Deceased Father's Relatives In Mother's Habeas Plea

Citation: 2024 LiveLaw (Ker) 232

Case title: Dr Athulya Asok v The State Police Chief

The Kerala High Court held that a minor child cannot be compelled to live with a parent totally unacceptable to the child while considering a habeas corpus petition filed by the mother seeking custody.

The Division Bench comprising Justice Anil K Narendran and Justice G Girishwhile permitting the child to live with his deceased father's relatives stated thus:

“If it is found that, in a given case, if an order directing the custody of a child with a parent is likely to be detrimental to the interest of that child, especially when the child is of advanced age, and having considerable maturity in mind to decide his future course of action, it is not possible for this Court to pass an order compelling that child to live with such parent who is totally unacceptable to him.”

State Must Delicately Balance Academic Interest Of Child With Right To Recreation: Kerala HC Allows ICSE, CBSE Schools To Conduct Vacation Classes

Citation: 2024 LiveLaw (Ker) 233

Case title: Kerala CBSE School Management Association (Regd) v State of Kerala

The Kerala High Court has permitted schools following CBSE, and ICSE Boards (non-KER Schools) to conduct vacation classes between 7.30 AM and 10.30 AM. It further stated that schools following Kerala Education Rules (KER) are bound by the KER Calendar and cannot conduct vacation classes.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice M.A.Abdul Hakhim held thus:

Workers Paid Gratuity Under Abkari Workers Welfare Fund Act Can't Claim Benefit Under Payment Of Gratuity Act: Kerala High Court

Citation: 2024 LiveLaw (Ker) 234

Case title: Shankara Narayanan P A v Kerala State Beverages (M And M) Corporation Ltd & Connected cases

Justice Basant Balaji held that Abkari workers and regular Corporation workers come under different classes since Abkari workers do not come under the definition of 'employee' under the Gratuity Act. 

“As discussed earlier, when the Abkari workers form a separate class of workers, and the regular employees are separate ones, the Abkari workers who are getting gratuity from the Welfare Fund cannot claim gratuity under the Gratuity Act, over and above the amounts received under the KAWWF Act. If the argument of the petitioners is accepted, it will amount to double payment of gratuity, one under the Welfare Fund and the other under the Gratuity Act, which will be unlawful enrichment. Therefore, these Writ Petitions fail and are dismissed”, stated the Court. 

The Court was considering whether Abkari workers employed with the Kerala State Beverages (Manufacturing And Marketing) Corporation were entitled to gratuity under the Gratuity Act when they were paid gratuity and provident fund under the KAWWF Act.

CBI Takes Over Investigation Into Veterinary Student's Death, Kerala High Court Closes Father's Plea

Citation: 2024 LiveLaw (Ker) 235

Case title: Jayaprakash T v Union Of India & Ors.

Justice Bechu Kurian Thomas observed that the Union Government had issued a notification under section 5 of the Delhi Special Police Establishment Act entrusting the investigation with the CBI. 

“Since the central government has already issued the notification and the CBI has taken over the investigation, the reliefs sought for in this writ petition has become currently infructuous”, stated the Court while closing the plea. 

The Court also directed the state government and state police to provide all assistance to the CBI for conducting the investigation. 

The Special Prosecutor for CBI, Senior Advocate Dr K P Satheeshan submitted before the Court that the CBI took over the investigation and FIR was registered on April 05, 2024.

Kerala High Court Closes PIL Seeking Printing & Dispatching Of Registration Certificates, Driving Licenses Upon Being Told Process Had Resumed

Citation: 2024 LiveLaw (Ker) 236

Case title: N Prakash v State of Kerala

The Kerala High Court closed a public interest litigation filed seeking the issuance of hard copies of Registration Certificates and Driving Licences to applicants without delay relying upon a notification issued by the Transport Commissioner stating that printing and despatching of Registration Certificates and Driving Licences have been resumed.

“Today when the matter is called out, the learned Senior Government Pleader made available a communication dated 06.04.2024 issued by the Transport Commissioner, Motor Vehicles Department, by which it has been clarified that the printing work has resumed from 01.04.2024 and Registration Certificates as well as Driving Licences, which are printed, are being dispatched on the same day. The said communication is taken on record”, stated Chief Justice A J Desai and Justice V G Arun

Past Character Not Decisive For Public Employment: Kerala HC Urges State To Foster Development Of Less Fortunate Individuals By Not Condemning Them For Past Crimes

Citation: 2024 LiveLaw (Ker) 237

Case title: Binnesh Babu@ Bineesh Babu v State of Kerala

The Kerala High Court has stated that the government has the duty to act as a responsible welfare state to transform the lives of less fortunate citizens and turn them into responsible citizens rather than condemning or alienating them based on their unequal or diverse circumstances. It stated that their entry to public service should not be barred indefinitely based on mere involvement in some past crimes.

The petitioner, a person belonging to the Scheduled Caste (SC) community from the Below Poverty Line (BPL) category was denied advice to public service due to his involvement in nine criminal cases in the past.

Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen set aside the government order cancelling his advice to the post of Police Constable (Kerala Armed Police Battalion) and held thus: 

“The State must raise its role as a responsible welfare State to secure social citizenship, instead of acting solely as an authority wielding power to enforce its will. If this tiny man is lost, a generation is lost. Our power corridors are built in a negative frame to find fault with a person rather than to soothe fears or instill a sense of responsibility to transform him into a responsible citizen. We all need to be reminded that every individual's struggle is against their past, and those who realize their past mistakes and are prepared to move towards the future are the ones who truly enhance the beauty of the world. Past achievements not necessarily determine one's future as bright. One who learns from his past and fears distrust of everyone in the future is truly valuable. In the realm of public employment, the past is relevant but not decisive. If sinners are not allowed to reform, we all will become sinners.”

Kerala High Court Directs Home Secy To Take Action On Representation Seeking Enquiry By External Agency Over Liquor Party At MLA PV Anwer's Club

Citation: 2024 LiveLaw (Ker) 238

Case title: Shaji K v State of Kerala

The Kerala High Court has directed the Secretary of the Home Department to consider and take appropriate action on the representation submitted by Shaji K V, an RTI Activist and social worker.

The representation was filed seeking a proper enquiry by an external agency into allegations of liquor storage and sale contrary to the Abkari Act provisions in a building called, Joy Mathew Club in Aluva owned by MLA P V Anwer. It was alleged that no crime was registered against Anwer under the Abkari Act by the Excise Department due to his political influence. 

While disposing of the petition, Justice K Babu stated thus: “Having considered the submissions on both sides, respondent No.2(Secretary, Home Department) is directed to consider Ext.P3 (representation) and take appropriate decision within a period of four weeks from the date of production of a certified copy of this judgment. The petitioner is given the liberty to approach this Court in respect of the subject matter, if he is advised so.”

Kerala HC Dismisses Election Petition Moved By CPI(M) Candidate M Swaraj Challenging 2021 Election Of Congress Candidate K Babu From Tripunithura Constituency

Citation: 2024 LiveLaw (Ker) 239

Case title: Adv. M. Swaraj V K. Babu

Justice P.G. Ajithkumar dismissed the petition moved by Swaraj alleging that the election was vitiated by corrupt practices under the Representation of People Act for allegedly making appeals in the name of Lord Sabarimala Ayyappa.

Justice PG Ajithkumar highlighted that the critical nature of election petitions requires proof beyond reasonable doubt and as such, there is a heavy onus to prove the allegations which rests on the petitioner.

"Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is leveled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt” observed the court. 

The petitioner, CPI(M) candidate M Swaraj, alleged that voter slips containing religious symbols were distributed by the respondent on the 4th of April 2021 for the election that was to be conducted on the 6th of April 2021.

Strict Proof For Determining Age Not Required In Every Case Of Child Pornography: Kerala High Court Lays Down Guidelines

Citation: 2024 LiveLaw (Ker) 240

Case title: Parthasarathi M v State of Kerala & Connected Cases

Justice K Babu held that it was not required to give evidence regarding strict proof of age for every model in child porn and stated that the Court could proceed based on the appearance of the model. The Court further held that in required cases, the expert opinion of a paediatrician or an expert in the field could be used to ascertain the age of the model. 

“1. Child Pornography is punishable under Section 15 POCSO Act, Offence of Transmission or Publication of child pornography punishable under Section 67 -B Information Technology Act. These provisions to be interpreted emphasizing the viewpoint of the audience and society at large.

2. No need of strict proof of age regarding model in every case of child pornography. Relevance should be given if model appears as child.

3. Image of infant or toddler used, Court can take judicial notice and proceed by framing charges.

4. Age of child to be analysed on a case to case basis. If model appears like a child below 18 years, fact finder can conclude age without expert testimony. No need of strict proof regarding age.

5. If model appears closer to 18 years, expert opinion of paediatrician or an expert in the field to be used. If model depicts a boy or girl below 16 years, fact finder can decide based on his experience using his/her critical faculties in deciding the issue.

6. In cases of marginal nature, opinion of experts including paediatrician and forensic experts necessary to conclude on age.

7. When a party pleads special circumstances regarding age of model, the party who pleads it has the burden to prove the existence of special circumstances.

8. Prosecution need not always establish identity of model in child pornography. Insisting on identification of child and strict age proof is practically impossible to provide in all cases unlike other POCSO cases since it would defeat the intention of statute. The fact-finding on the age, being an integral part of the offence, the prosecution has to place the material before framing of charge.”

The Court was considering criminal miscellaneous cases where persons accused for offence committing child pornography had approached the Court seeking to quash the final report against them. The criminal revision petitions were filed challenging orders rejecting their applications seeking discharge. The petitioners in all these cases were allegedly accused of committing an offence under Section 15 (punishment for storage of pornographic material involving child) of the POCSO Act and Section 67 B (punishment for publishing or transmitting of material depicting children in sexually explicit act, etc in electronic form) of the Information Technology Act.

Counter Sales Permission Of Alcoholic Liquor Was Concession Given To Bar Attached Hotel Owners For Carrying On Business During Covid-19: Kerala High Court

Citation: 2024 LiveLaw (Ker) 241

Case Title: Lukose. K.C. Versus Deputy Commissioner

The Kerala High Court has held that the permission to effect over-the-counter sales of alcoholic liquor was a concession given to bar-attached hotel owners to permit them to carry on business and tide over the COVID lockdown period. The assessee cannot now contend that the tax on such transactions should not be levied on him because he did not originally have permission to effect such sales.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that the appellant, having opted to pay tax on a compound basis in lieu of the regular basis of assessment, cannot turn around and contend that the formula provided for payment of tax on a compound basis does not apply to him.

Govt Should Close Schools Without Playgrounds, Sports & Games Part Of Curriculum : Kerala High Court

Case Citation: 2024 LiveLaw (Ker) 242 

Case Title: Prakash N v. GWLP School, Thevayoor South and ors.

The Kerala High Court has directed the state government to formulate guidelines prescribing the extent of playground necessary in each category of schools and adjacent facilities as required. 

“Right to education is a fundamental right of the children. The education includes play and other extra curricular activities. If there is no suitable playgrounds for games and sports in schools containing sufficient clear space for that purpose as provided in the Kerala Education Rules (KER), the government should take stringent action including closure of those schools” observed Justice PV Kunhikrishnan. 

The court added that once the guidelines are issued, the educational authorities shall ensure compliance with these guidelines and also directed closure of schools that fail to comply despite being given sufficient time.

Kerala High Court Directs State Govt To Permit Consumerfed To Conduct Ramzan-Vishu Fairs, Says It Is Not To Be Used For Election Campaigning

Citation: 2024 LiveLaw (Ker) 243

Case title: Kerala State Co-Operative Consumers' Federation Ltd V The Chief Election Commissioner

Justice Devan Ramachandran observed that Consumerfed was authorized to conduct Ramzan-Vishu Fairs through Primary Co-operative Societies and stated that it need not wait for the state government to give financial grants since the Model Code of Conduct (MCC) was in force now. 

“In the afore circumstances, I allow this Writ Petition to the limited extent of directing the Government to permit the Registrar of Co-operative Societies to authorise the 'Fairs' proposed by the petitioner 'Consumerfed', through the Primary Co-operative Societies mentioned in Ext.P3; however, making sure that there would be no publicity attached to this, as being a Government sponsored programme, or to be in a manner that to cause benefit to any particular section of the political arena.” 

The Court also directed that the state government would not use the Consumerfed Fairs for election campaigning since this was not meant for propaganda or publicity.

Other Significant Developments This Week

Kerala High Court Allows Doctor Accused Of Abetting Girlfriend's Suicide To Rejoin PG Studies, Cites Irreversible Impact Of Missing Classes

Case Title: Dr. Ruwise EA v. The Principal 

Case Number: WP(C) No. 13744 of 2024 and WP(C) No. 5220 of 2024

The Kerala High Court has allowed a doctor accused of abetting his girlfriend's suicide to rejoin his post-graduate studies upon noting the 'irreversible damage' caused by preventing him from attending classes.

A single-judge bench consisting of Justice Ziyad Rahman AA has permitted the doctor accused of abetting his girlfriend's suicide by asking for an exorbitant dowry to rejoin post-graduate studies.

“The damages, if any caused, if the petitioner is prevented from attending the classes would be irreversible once it is found that the proceedings initiated against the petitioner, were not legally sustainable. Therefore, I am of the view that the balance of convenience is also in favour of the petitioner. In such circumstances, I am inclined to grant an interim order to the petitioner, permitting to join classes and at the same time, to ensure that, the punishment imposed against him is implemented in case the same is upheld by the court” stated the court.

[Masala Bonds Case] Not Proper To Compel Candidate To Answer ED Summons Immediately Before Lok Sabha Elections: Kerala High Court

Case title: Thomas Issac v Deputy Director, Kerala Infrastructure Investment Fund Board V Director

Case number: WPC 3719/2024 & WPC 1377/2024

The Kerala High Court has adjourned the masala bonds case hearings until the conclusion of the 2024 General Elections upon observing that Former Finance Minister Dr Thomas Isaac is a candidate contesting the elections from the Pathanamthitta constituency. The Court stated that it would not be appropriate to disturb Dr Isaac during the election-prone days by compelling him to answer the summons now.

The Court passed the above order in a plea filed by Dr Isaac challenging the summons issued against him by the Enforcement Directorate (ED) in connection with the masala bonds case.

Kerala High Court Exempts Advocates From Wearing Gowns Amid Summer Heat

The Kerala High Court has passed a resolution exempting advocates from wearing gown during the summer season.

The Full Court resolved to :

i) Permit the Advocates appearing in the Courts in the District Judiciary to wear a white shirt with band, by making the use of black coat and the Advocate's Gown optional.

ii) For the Advocates appearing in the High Court, wearing of Gown will be optional.

The resolution was passed considering a request by the Kerala High Court Advocates Association seeking to dispense with the wearing of gown considering "the sweltering Summer heat and the difficulties faced by the Advocate community across the State."

The direction will be in force till May 31, 2024.

Kerala High Court Admits Plea Seeking Framing Of Rules For Executing Orders Passed Under Domestic Violence Act

Case title: Meera Raju v Union of India 

Case number: WP(CRL.) NO. 376 OF 2024

The Kerala High Court has admitted a plea moved by a 24-year-old woman seeking directions from the Court to the legislature to incorporate provisions to ensure the execution of orders passed under the Protection of Women from Domestic Violence Act, 2005.

The plea was moved on behalf of the woman by the Victim Rights Centre attached to the High Court pointing out that there were no provisions in the Domestic Violence Act to ensure effective execution of orders passed under it. 

Justice A. Badharudeen admitted the plea and sought instructions from the Union government in this regard. The Deputy Solicitor General took notice for the Union and the Public Prosecutor took notice for the State.

[Actress Assault Case] Kerala High Court Directs Sessions Judge To Provide Copies Of Statements Of Persons Examined During Inquiry To Survivor

Case Title: XXX v. State of Kerala

Case Number: W.P. (Crl.) 445/ 2022

Justice K Babu reiterated that it never intended that the fact finding inquiry to be treated as confidential and observed that the survivor was entitled to copies of statements of persons examined. 

“Petitioner sought statements of persons examined during the inquiry to ascertain the veracity of the inquiry report. There is no reason to decline the reliefs sought. The Sessions judge is directed to henceforth issue copies of statements of persons who were examined in the inquiry,” stated the Court

The Court passed the above order on a plea filed by the survivor seeking a court-monitored investigation into the alleged leakage of visuals from the Memory Card, and the change in hash value of the memory card thereof, that was kept in court custody.

[Masala Bonds Case] Election Cannot Be A Reason To Postpone Investigation: ED Tells Kerala HC In Appeal To Summon Former Minister Thomas Isaac

Case title: Enforcement Directorate v Thomas Isaac

Case number: WA 571/2024

The Enforcement Directorate has moved an appeal before the Kerala High Court against the order of the single judge directing that former Finance Minister Thomas Isaac shall not be summoned for investigation until the conclusion of the 2024 General Elections since he is a contesting candidate from Pathanamthitta constituency. 

On April 09, the single bench of Justice T R Ravi adjourned the hearings in the masala bonds case stating that it was improper to disturb a candidate who is contesting for Parliamentary elections during the election time. The single judge had adjourned the hearing to May 22, that is upon reopening of Court after summer vacation. 

The Division Bench comprising Justice A. Muhamed Mustaque and Justice M A Abdul Hakhim said the matter could be heard soon after elections, that is in the last week of April or first week of May. “The elections is scheduled in Kerala on 26 April, 2024. Both the parties (ED and Dr Isaac) are agreeable to hear the matter immediately after the elections,” stated the Court.