Kerala High Court Weekly Round-Up: December 09 - December 15, 2024
Tellmy Jolly
16 Dec 2024 12:00 PM IST
Nominal Index [Citations: 2023 LiveLaw (Ker) 782-801]
Manoj George v State of Kerala, 2024 LiveLaw (Ker) 782
Manohari R v The Deputy Tahsildar (Revenue Recovery), 2024 LiveLaw (Ker) 783
DBS Bank India Ltd v The State of Kerala and Others, 2024 LiveLaw (Ker) 784
M Shammy Kumar v State of Kerala & Connected Matter, 2024 LiveLaw (Ker) 785
Nishad Padinjare Peediyekkal V Hyderiyya Masjid Mahall Committee, 2024 LiveLaw (Ker) 786
State Bank of India v Sham PS & Other Cases, 2024 LiveLaw (Ker) 787
Abraham Mathai v State of Kerala, 2024 LiveLaw (Ker) 788
Maya M. T. and Others v Nadukkandy P. C. Ashraf, 2024 LiveLaw (Ker) 789
Riyas A @ Riyas Aboobakkar @ Abu Dujana v Union of India, 2024 LiveLaw (Ker) 790
M Shibu v State of Kerala & Connected Case, 2024 LiveLaw (Ker) 791
Joy v C K Manoj, 2024 LiveLaw (Ker) 792
XXX and Another v XXX and Others, 2024 LiveLaw (Ker) 793
M K Nasar v Union of India, 2024 LiveLaw (Ker) 794
Mahesh C. and Another v State of Kerala, 2024 LiveLaw (Ker) 795
xxx v xxx, 2024 LiveLaw (Ker) 796
Sumith v Sebastian and Another, 2024 LiveLaw (Ker) 797
State of Kerala v Haridasan, 2024 LiveLaw (Ker) 798
Sree Narayana Guru Memorial Educational & Cultural Trust v. The Assistant Provident Fund Commissioner, 2024 LiveLaw (Ker) 799
xxx v State and Another, 2024 LiveLaw (Ker) 800
Balachandra Menon v State of Kerala, 2024 Live Law (Ker) 801
Judgments/Orders This Week
Mere Giving Of Hand Loans On One Or Two Occasions Is Not 'Money Lending Business': Kerala High Court
Case Title: Manoj George v State of Kerala
Citation: 2024 LiveLaw (Ker) 782
The Kerala High Court has ruled that the mere giving of hand loans on one or two occasions cannot be considered as engaging in money lending business, since that would discourage people from offering emergency hand loans due to fear of penal consequences under the Kerala Money-Lenders Act and Kerala Prohibition of Charging Exorbitant Interest Act.
In the facts of the case, the petitioners were accused of running money lending business and threatening the complainants for repayment.
Justice A. Badharudeen noted that there is no evidence to even prima facie suggest that petitioners run a money-lending business. It stated that unless prosecution proves that petitioners have given loans to large numbers of persons on exorbitant interest, no offences can be made out.
Case Title: Manohari R v The Deputy Tahsildar (Revenue Recovery)
Citation: 2024 LiveLaw (Ker) 783
The Kerala stated that there is distinction between entertainability and maintainability of a writ petition filed under Article 226 of the Constitution. The Court explained that the jurisdiction of a writ court is not generally invoked when there is an alternative remedy available, and in such cases, the Court may decline to entertain the petition. The Court stated that having an alternative remedy cannot be used as a ground to hold that the writ petition was not maintainable.
Here, writ appeal has been filed challenging the dismissal of a writ petition as not maintainable.
The division bench of Chief Justice Nitin Jamdar and Justice S Manu observed thus: “Even if alternate remedy is available to the Petitioner, that cannot be a ground to hold the writ petition under Article 226 of the Constitution of India against an administrative authority as “not maintainable”. The powers under Article 226 of the Constitution of India can be exercised even if there exists an alternate remedy, however, it is in restricted circumstances, within well defined parameters. As a matter of settled judicial practice, the jurisdiction under Article 226 of the Constitution of India is not exercised if there is an alternative efficacious remedy available and in such circumstances, the writ court may decline to “entertain” the writ petition. There is, therefore, a difference between maintainability and entertainability of a writ petition.”
Case Title: DBS Bank India Ltd v The State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 784
Elaborating on Zero FIR, the Kerala High Court said that the provision has been introduced in the BNSS to primarily ensure that victims can file complaints regardless of jurisdiction.
The court also said that under Section 173 BNSS police cannot refuse to register an FIR merely because a part of the offence has happened outside the limit of the local jurisdictional police station.
Justice Kauser Edappagath in his order said:
“The implementation of Section 173 of BNSS marks a significant shift in how the police handles information relating to the commission of a cognizable offence. Now, Zero FIR has been given statutory recognition by incorporating it in Section 173 of BNSS, which deals with registration of FIR in cognizable cases. Zero FIR has been introduced with the primary purpose of ensuring that the victims can file complaints regardless of jurisdiction.”
Case Title: M Shammy Kumar v State of Kerala & Connected Matter
Citation: 2024 LiveLaw (Ker) 785
The Kerala High Court has upheld the life sentence given to the husband under Section 302 of the IPC for the murder of his wife by hanging. The Court upheld the conviction by ruling out the possibility of suicide since the body of the deceased was found hanging in a nude state in a lodge room which was locked from the outside.
The Division Bench of Justice P.B. Suresh Kumar and Justice C.Pratheep Kumar relied upon the evidence of the police surgeon to state that normally Indian women hide their nudity when they commit suicide. The Court observed that the fact the deceased was found in a nude clearly indicates homicide, as opposed to suicide.
Kerala High Court Extends Waqf Board's Term Until Election Process Initiated By State Concludes
Case Title: Nishad Padinjare Peediyekkal V Hyderiyya Masjid Mahall Committee
Citation: 2024 LiveLaw (Ker) 786
The Kerala High Court recently extended the term of the state Wakf Board–whose term was set to expire on December 14–until the election initiated by the state government for the constitution of the board is concluded.
The Division Bench of Justice Amit Rawal and Justice Easwaran S ordered thus: “we further issue a direction that the term of the elected body of the Board which is going to expire on 14.12.2024 shall continue till the election process initiated by the respondent/State is over. It is made clear that till such time, the Board shall continue to discharge the duties and deal with the pending matters, in accordance with law.”
Case Title: State Bank of India v Sham PS & Other Cases
Citation: 2024 LiveLaw (Ker) 787
The Kerala High Court has held that borrowers who breach the terms and conditions of the One Time Settlement (OTS) Scheme, cannot be permitted to seek directions from the Court to compel the bank to honour its obligations under the OTS Scheme.
The present appeals were filed by the State Bank of India, aggrieved by the orders in the writ petitions where benefits under the OTS Schemes were given to the respondents despite making lapses in discharging their obligations under the Scheme.
The Division Bench of Chief Justice Nitin Jamdar and Justice S Manu found that borrowers in all these appeals have failed to discharge their obligations under the OTS Scheme.
Case Title: Abraham Mathai v State of Kerala
Citation: 2024 LiveLaw (Ker) 788
The Kerala High Court has held that oral complaints given by an employee alleging sexual harassment to various authorities cannot be a substitute for a written complaint for carrying an inquiry under Section 11 of the Prevention of Sexual Harassment at Workplace Act.
In the facts of the case, the local level committee constituted under Section 6 of the Act initiated the inquiry based on an anonymous complaint.
Justice P.G. Ajithkumar clarified that while a written complaint is not mandatory under the law if the complainant is unable to submit one, it is still essential for a complaint to be made as per the provisions of the POSH Act for initiating an inquiry under Section 11 of the Act.
Case Title: Maya M. T. and Others v Nadukkandy P. C. Ashraf
Citation: 2024 LiveLaw (Ker) 789
The Kerala High Court has observed that for the Rent Control Court to assess the genuineness of the claim of permanent tenancy or denial of title, the pleading must be clear, specific, unequivocal and explicit.
“The Pleading regarding the denial of title or the claim for permanent tenancy must be clear, specific, and unequivocal, without which the Rent Control Court cannot assess whether the said contention was raised in good faith or was merely a pretext for eviction.”
The Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed that there is a statutory duty on the court to examine the genuineness of the claim before making a crucial decision.
Case Title: Riyas A @ Riyas Aboobakkar @ Abu Dujana v Union of India
Citation: 2024 LiveLaw (Ker) 790
The Kerala High Court has upheld the conviction imposed upon Riyas Aboobakkar by the Special Court constituted under the NIA Act. His conviction under Sections 38 (offence relating to membership of a terrorist organisation) and 39 ( offence relating to support given to a terrorist organisation) of the UAPA, read with Section 120B of the IPC was upheld by the High Court.
The Division Bench of Justice Raja Vijayaraghavan V and Justice Jobin Sebastian found that Riyas Aboobakkar propagated ISIS ideology and advocated war against non-Muslims. The Court modified the punishment imposed upon the appellant and reduced his imprisonment to 8 years of Rigorous Imprisonment instead of 10 years of Rigorous Imprisonment under Sections 38 and 39 of the UAPA, by considering various factors.
Case Number: M Shibu v State of Kerala & Connected Case
Citation: 2024 LiveLaw (Ker) 791
The Kerala High Court has said that it is well-established that the High Court can under Article 226 of the Constitution consider the legality of orders passed by Tribunals, adding that it has ample powers to issue directions even when such reliefs are not specifically sought in the plea before the Tribunal.
In the facts of the case, OP (KAT)'s are filed by the employee as well as the State challenging the order of the Kerala Administrative Tribunal, which ordered that disciplinary proceedings against the employee can be finalised in two months. The disciplinary proceedings were initiated against the employee since a criminal case was registered against him. However, the High Court ordered that the disciplinary authority could wait for the conclusion of the criminal trial before complying with the order of the Tribunal to finalize the disciplinary proceedings.
Referring to the Supreme Court's decision in L.Chandra Kumar v. Union of India (1997) a Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar said:
“Therefore, this court has ample powers under Article 226 of the Constitution to issue the direction as above, even if it is not specifically sought in the petition filed before the Tribunal, if it is found necessary.”
Case Title: Joy v C K Manoj
Citation: 2024 LiveLaw (Ker) 792
Dismissing a contempt plea, the Kerala High Court observed that it would be too far fetched to hold that contempt of court proceedings can be initiated on the ground that a particular authority failed to follow a binding precedent.
The court was hearing a contempt plea alleging that despite series of judgments of the High Court, the respondent Sub Registrar Thrissur refused to register a document and insisted on the production of prior documents.
Justice Gopinath P. in his order said: “Having heard the learned counsel appearing for the petitioner and the learned Government Pleader, I am of the view that no proceedings can be initiated against the respondent under the provisions of the Contempt of Courts Act on the ground that he refused to follow a precedent, which according to the petitioner decides the matter in favour of the petitioner. While it is true that the law laid down by this Court must be followed by every authority, I am afraid that it is too far-fetched to hold that a Contempt Court proceedings can be initiated under the provisions of the Contempt of Courts Act, 1971 on the ground that a particular authority failed to follow a binding precedent.”
Case Title: XXX and Another v XXX and Others
Citation: 2024 LiveLaw (Ker) 793
The Kerala High Court while reversing a decision of the Family Court granting compensation to the husband for his wife's alleged adulterous behaviour observed that India like many other jurisdictions does not recognize adultery as a ground for claiming damages.
The Division Bench of Justice Devan Ramachandran and Justice M. B. Snehalatha observed that Indian law does not recognize marriage as a “relationship that creates enforceable propriety rights over spouse's behaviour.”
Case Title: M K Nasar v Union of India
Citation: 2024 LiveLaw (Ker) 794
The Kerala High Court on Thursday (December 12) suspended the sentence of M K Nasar (third accused) who was convicted to life imprisonment by the Special Court of Trial of NIA Cases for chopping the hands of Professor T J Joseph.
The matter arose in 2010 when a question in an exam set by Professor Joseph, the former Head of the Malayalam Department of Newman College, Thodupuzha, contained a passage that was alleged to have insulted Prophet Mohammed. Subsequently, on July 4, 2010, a group of armed men attacked Prof. Joseph and his family as they were going to church, and chopped off his right hand for setting the question paper.
The Division Bench of Justice Raja Vijayaraghavan V and Justice P. V. Balakrishnan observed that the accused had undergone incarceration for more than 9 years now. The Court found that the accused surrendered on November 6, 2015, but the trial did not begin until June 23, 2021, and the judgment was delivered only in July 12, 2023.
Kerala High Court Issues Guidelines To Ensure Minors Are Not Mistakenly Tried As Adults
Case Title: Mahesh C. and Another v State of Kerala
Citation: 2024 LiveLaw (Ker) 795
The Kerala High Court, while handling a case in which two juveniles were tried and punished as adults, issued a set of directives to investigating agencies and the district judiciary to prevent such occurrences in the future.
The Division Bench of Justice Raja Vijayaraghavan V. and Justice G. Girish said that they cannot consider this as police's fault as there is no dereliction of duty because there is no express provision requiring the authorities to cross-check the minority of the offenders brought before them. The Court also observed that Supreme Court in Jitendra Singh @ Baboo Singh and Anr. V State of UP (2013) has put the responsibility more on judiciary by saying that Magistrate shall order an inquiry if he has a doubt that the accused produced before him is a juvenile.
The Court highlighted the legislative gap, noting that no procedure has been established by the legislature to determine whether an arrestee is a juvenile.
Case Title: xxx v xxx
Citation: 2024 LiveLaw (Ker) 796
The Kerala High Court in a recent judgment observed that that a woman's choice of dress should not be subject to moral policing or judgment, especially by the courts.
The Court cautioned that the Judge's personal opinions should not be incorporated into judgments. The Division Bench comprising of Justice Devan Ramachandran and Justice M. B. Snehalatha reminded that the Constitution grants everyone equal rights irrespective of gender.
Case Title: Sumith v Sebastian and Another
Citation: 2024 LiveLaw (Ker) 797
The Kerala High Court has held that merely because a person is an advocate, he is not automatically prohibited from being summoned as a witness.
Justice Kauser Edappagath held that prohibition under Section 126 of Indian Evidence Act will apply only to confidential communication made to the advocate by his client.
Case Title: State of Kerala v Haridasan
Citation: 2024 LiveLaw (Ker) 798
The Kerala High Court has held that an officer would be entitled to full pay and allowances if there were no reasons for keeping him under suspension till the conclusion of disciplinary proceedings.
The Division Bench of Justice A.Muhamed Mustaque and Justice P. Krishna Kumar observed that disciplinary authority must apply their mind and exercise their discretion in deciding whether the employee's suspension should remain in place until the conclusion of the disciplinary proceedings.
Reports Forming The Basis For Determining EPF Dues Must Be Shared With Parties: Kerala High Court
Case Name: Sree Narayana Guru Memorial Educational & Cultural Trust v. The Assistant Provident Fund Commissioner
Citation: 2024 LiveLaw (Ker) 799
Kerala High Court: A single bench of Justice N. Nagresh overturned the orders of the Central Government Industrial Tribunal-cum-Labour Court (CGIT) in two writ petitions filed by Sree Narayana Guru Memorial Educational & Cultural Trust. These orders demanded the Trust pay alleged EPF dues. The court ruled that repeated factual errors, procedural issues, and the lack of a fair hearing made the orders invalid. Authorities were directed to issue new orders within four months.
[POCSO Act] Quashing Of Serious Offence To Efface Evidence Already Recorded Cannot Be Done Even At Instance Of Survivor: Kerala High Court
Case Title: xxx v State and Another
Citation: 2024 LiveLaw (Ker) 800
The Kerala High Court dismissed a petition filed by the victim of a POCSO offence to quash the proceedings saying that serious offences are involved and the trial had reached at the end stage. The Court noted that that the accused is alleged of committing serious offences like aggravated penetrative sexual assault against the minor.
The accused was the father of the victim. He is accused to have committed the offences from the period of April 2013 to 21.02.2016. The prosecution alleges commission of offence under Sections 4 r/w 3, 6 r/w 5(n)(l), 8 r/w 7 of Protection of Children from Sexual Offences Act (POCSO). It is also alleged that he threatened to kill the victim if she reveals the matter to anyone.
Case Title: Balachandra Menon v State of Kerala
Citation: 2024 Live Law (Ker) 801
The Kerala High Court today granted anticipatory bail to Malayalam actor Balachandra Menon in a sexual assault case filed against him with 17 years delay, after publication of the Justice Hema Committee Report.
The single bench of Justice P V Kunhikrishnan while granting the relief observed that men also have the right to dignity, not just women. While dictating the order in open Court, the Judge observed,
“It is an admitted fact that the alleged incident happened in 2007. It is an admitted fact that the victim filed the complaint after 17 years of the alleged incident. It is also admitted that the petitioner is a known cine artist, he is also known as a film actor, director, and scriptwriter. He directed about 40 films and obtained two national awards. The nation awarded him by giving a Padma Shri. Based on a statement of a lady, that too after 17 years, this case has been registered…It is true that investigation is going on but everybody must remember that the right and dignity is not only to a woman but to men also. This is a fit case to grant bail to petitioner in the interest of justice."
Other Significant Developments This Week
Case Title: N Prakash v M V Govindan Master
Case Number: Con Case (C) No. 3252/2024
A contempt case has been filed against CP(I)M State Secretary M V Govindan in the Kerala High Court for allegedly blocking the roads by constructing a stage for holding Palayam area conference of the party on December 5.
The contempt case has been filed alleging that the MV Govindan has violated the directions of the Court dated June 23, 2010 in WP(C) No. 19253 of 2010, where a Division Bench had directed the Government agencies including PWD, Police, Revenue and Local authorities against granting any permission to hold meetings on public roads and road margins.
Case Title: N Prakash v M V Govindan Master
Case Number: Con Case (C) No. 3252/2024
The Kerala High Court has sought personal appearance of concerned Circle Inspector of Police on Thursday (12 December), to explain the facts and circumstances in the contempt petition against CPI(M) State Secretary M V Govindan for allegedly blocking public roads for holding Palayam area conference.
The party conference was held on December 05, which allegedly blocked the road in front of the Vanchiyoor Court complex and Vanchivoor police station.
The Division Bench of Justice Anil K.Narendran and Justice Muralee Krishna S. orally said that it would consider whether the issue has to be taken in a larger perspective.
Case Title: Joseph Benny and Others v Union of India and Others
Case No: WP(C) 20086 of 2024
The Kerala High Court on Tuesday (10th December) orally remarked that it could give interim protection from dispossession to the residents of disputed Waqf land at Kochi's Munambam.
The development comes in a petition filed by persons claiming that their predecessors had bought the disputed land in Munambam from Farook College. The property was enlisted in the Waqf registry in 2019, saying that the property was given to the college in 1950 as Waqf. Since 2020, the residents of this area were not able to get RoR or mutation of properties from Kuzhuppily Village Office.
Observing that it is "essentially a property dispute" involving disputed facts, a Division Bench of Justice Amit Rawal and Justice K. V. Jayakumar orally observed it can grant a stay of dispossession till the Petitioners file a civil suit or obtain an interim stay from a civil court. The Court however did not pass any orders.
Case Title: Suo Motu v State of Kerala
Case Number: DBP 126/ 2024
The Kerala High Court in Tuesday's (December 10) hearing orally observed that devotees go to the temple to see the face of God and not the face of Ministers.
The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. was considering a complaint regarding a flex board congratulating Travancore Devaswom Board and LDF Government for granting permission to conduct annadanam for Sabarimala pilgrims, which was installed in the kizhakkenada of Turavur Mahakshetram.
Case Title: Suo Motu v State of Kerala
Case No: SSCR 79 of 2024
The Police Controller, Sannidhanam in its report submitted before the Kerala High Court that the police have not extended any undue privileges or assistance to celebrities in Sabarimala.
The Special Commissioner. Sabarimala had informed the court that there was an obstruction in the smooth movement of the queue near the sanctum of Sabarimala due to the darshan of movie actor Dileep. The Court had asked Police Special Officer, Sannidhanam to file a report on the said incident. Reportedly, the actor stayed in the front row of Sanctum for some time creating difficulty for other pilgrims.
The police said that Dileep entered the first row in front of Sopanam in a direction opposite to the flow of pilgrims just before the Harivarasanam and blocked the first row during the entire Harivarasanam.
Case Title: In Re Captive Elephants v Union of India Connected Cases
Case Number: WP(C) 31520/2024 & Connected Cases
The Kerala High Court has issued notice to an officer of the Cochin Devaswom Board (Shri Raghu Raman) under the Contempt of Courts Act, for allegedly breaching its guidelines regulating the parading of Elephants during Temple festivals.
The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. observed that admittedly, violations occurred on December 02 while parading Elephants at the Thripunithura Sree Poornathrayeesa Temple festival from November 29 to December 06.
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 today told the State government that it must inform the Central government of the expenses incurred from the State's Disaster Response Fund (SDRF) for seeking additional funds for immediate assistance in connection with the deadly Wayanad landslides.
A division bench of Justice A.K.Jayasankaran Nambiar and Justice Easwaran S. orally stated that the State government has to submit an executive summary showing past commitments and anticipated expenses for the future along with utilization certificates, issued by a certifying authority.
Case Title: N Prakash v M V Govindan Master
Case Number: Con Case (C) No. 3252/2024
The Kerala High Court has sought instructions from the State Police Chief regarding the construction of a stage for the CPI(M) party's area conference and consequent obstruction of roads in front of the District Court complex and police station in Vanchiyoor on December 05, 2024.
The Division bench of Justice Anil K.Narendran and Justice Muralee Krishna S was hearing the contempt petition filed against against CPI(M) State Secretary M V Govindan for leading the party area conference by allegedly blocking public roads.
ADM Naveen Babu Death: Kerala High Court Reserves Order On Wife's Plea Seeking CBI Probe
Case Name: Manjusha K v CBI & Others
Case Number: WP (Crl) 1297/2024
The Kerala High Court on Thursday (December 12) reserved its orders in the plea moved by ADM Naveen Babu's wife seeking a CBI investigation into her husband's death.
ADM Naveen Babu's wife alleged that CPM Member and former Kannur district Panchayath President PP Divya is responsible for the death of her husband and raised suspicions of homicidal hanging for CBI probe.
Justice Kauser Edappagath heard the arguments and reserved for orders today.
Case Title: Asha Lawrence v State of Kerala and Others
Case No: WA 1857/ 2024
The Kerala High Court on Thursday (12th December) reserved its verdict in an appeal filed by the daughter of deceased CPI(M) veteran MM Lawrence against the Single Bench decision on the donation of his body to Ernakulam Medical College.
The court after hearing the parties reserved orders and said it will pronounce the verdict on December 18.
