Kerala High Court Weekly Round-Up: July 24 - July 30

Nominal Index [Citations: 2023 LiveLaw (Ker) 349-360]

Sumesh v. State of Kerala & Anr  2023 LiveLaw (Ker) 349

Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 350

Enose v. State of Kerala 2023 LiveLaw (Ker) 351

Kochu Mani & Anr v. State of Kerala 2023 LiveLaw (Ker) 352

Kallantavide Ramesan v State of Kerala 2023 LiveLaw (Ker) 353

Safir P. v. Commissioner of Customs (Preventive) 2023 LiveLaw (Ker) 354

Aster Medcity & Ors. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 355

Bipin Sunny v. State of Kerala & Ors. 2023 LiveLaw (Ker) 356

M/S Mariyas Soaps and Chemicals & Anr. v. M/S Wipro Enterprises Ltd. & Anr. 2023 LiveLaw (Ker) 357

Sinoj Thomas v. Balal Grama Pachayat & Anr. 2023 LiveLaw (Ker) 358

State of Kerala v. V.C Vinod and connected matters 2023 LiveLaw (Ker) 359

Raju v. State of Kerala 2023 LiveLaw (Ker) 360

Judgments/Orders This Week 

Magistrate Can Proceed With Trial If Final Report Finds Only Non-Cognizable Offence After Investigation: Kerala High Court

Case Title: Sumesh v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 349

The Kerala High Court recently held that if a Magistrate forwards a complaint involving both cognizable and non-cognizable offences to the police, and the police investigation reveals only a non-cognizable offence, the Magistrate is legally authorised to proceed with the trial for that offence.

Justice A. Badharudeen reiterated that if a case involves both cognizable and non-cognizable offences, the police can investigate and file a charge sheet for all the offences as per Section 155(4) of CrPC.

"...if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) [of Section 155] provides that even a noncognizable case shall, in that situation, be treated as cognizable."

"Since the law is settled in the facts of the given case, though the Magistrate forwarded a complaint involving offences cognizable and non-cognizable in nature to the police and the police files a report finding that non-cognizable offence was committed, the Magistrate is legally empowered to proceed with the trial."

Tanur Boat Accident: Kerala High Court Grants Bail To Chief Surveyor And Senior Port Conservator

Case Title: Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 350

The Kerala High Court granted bail to Chief Surveyor of the Kerala Maritime Board, Sebastian Joseph, and the Senior Port Conservator, Baypore, Prasad V.V., who had been arrested in connection with the tragic Tanur boat accident that claimed 22 lives, including 15 children in Malappuram district.

Justice Ziyad Rahman A.A. passed the order on noting that substantial progress had been made in the investigation and further incarceration of the petitioners was not required.

The petitioners had been arrested on June 11, 2023, and have been in judicial custody ever since.

"...now the petitioners have been in judicial custody since 11.6.2023, and as on the date, more than 40 days have elapsed since the date of their arrest. Even though the learned ADGP highlighted that there are high chances of the evidence being tampered with and the witnesses being influenced, if the petitioners are released on bail, I do not find any justifiable reason to accept the contention. It is reported that, both the petitioners are already under suspension, and therefore, I do not find any possibility of them tampering with the evidence. Moreover, it is evident from the report of the investigating officer that the records kept in the office of the petitioners in connection with the incident were already seized," the Court observed while allowing the bail applications.

Ingredients Of 'Criminal Breach Of Trust' & 'Misappropriation' Must To Establish Offence U/S 13(1)(c) Prevention Of Corruption Act: Kerala High Court

Case Title: Enose v. State of Kerala

Citation: 2023 LiveLaw (Ker) 351

The Kerala High Court recently upheld the conviction of a Lower Division Clerk (L.D. Clerk) working on deputation in the Directorate of Higher Secondary Education, Thiruvananthapuram, under the Prevention of Corruption Act, 1988, for embezzlement of certain amount and forgery of document in that regard.

Justice Kauser Edappagath observed that an amount of ₹74,789/- that had been entrusted with the appellant-accused was misappropriated by him.

"To attract the offence of criminal breach of trust, the prosecution has to prove that there was entrustment of property with the accused and he has dishonestly misappropriated the same for his personal use. Once the entrustment is established by the prosecution, the burden shifts to the accused to account for the property entrusted. It is settled that if the entrustment is proved and the explanation given by the accused is not satisfactory, then it can be presumed that the accused has committed the offence of criminal breach of trust and misappropriation. The modus operandi of the accused, how he committed the misappropriation etc. need not be proved by the prosecution. The fraudulent intention of the accused can be inferred from the attending circumstances. The same ingredients of criminal breach of trust and misappropriation have to be proved by the prosecution for establishing the offence under section 13(1)(c) of the PC Act as well," the Court explained while finding the accused guilty of the offence.

Corroborative Evidence Necessary To Prove Guilt Of Accused, Mere Recovery Statement Insufficient: Kerala High Court

Case Title: Kochu Mani & Anr v. State of Kerala

Citation: 2023 LiveLaw (Ker) 352

The Kerala High Court recently held that merely recovering the object does not establish guilt unless there are other materials connecting the accused to the commission of the offence.

Observing so, Justice Ziyad Rahman A held that the trial court's reliance on the disclosure statements without sufficient corroborative evidence was unjustifiable.

"...apart from the aforesaid disclosure statement, there is nothing to connect the accused persons with the commission of the offences, and since I have found that the disclosure statements are inadequate for holding the appellants guilty, the only irresistible conclusion possible is that the prosecution miserably failed in establishing the guilt of the accused."

Discrepancies In Witness Statements Can Be Fatal To Prosecution In Politically Charged Situations: Kerala High Court

Case Title: Kallantavide Ramesan v State of Kerala

Citation: 2023 LiveLaw (Ker) 353

The Kerala High Court recently observed that glaring discrepancies in the witness statements become significant in politically charged situations and that they cast doubt on the credibility of the prosecution case.

Justice Ziyad Rahman A added that a mere strong or probable suspicion, not supported by proper and positive evidence, is inadequate to prove the guilt of the accused as it fails to establish the truth beyond doubt.

"....as all of the independent witnesses including the victim belong to a particular political party, and the accused belong to the rival political party, the evidence has to be scrutinized with care and caution. In such circumstances, the discrepancies and contradictions as mentioned above have to be given much more emphasis...in the light of the principles laid down by the Hon’ble Supreme Court, it appears to be fatal to the prosecution case."

"...suspicion, however strong or probable it may be, is not sufficient to hold the accused guilty. The distance “may be true” to “must be true” has to be covered by the prosecution by adducing proper and positive evidence."

Vehicle Cannot Be Seized By Customs On Mere Apprehension That It May Be Used For Transporting Smuggled Goods: Kerala High Court

Case Title: Safir P. v. Commissioner of Customs (Preventive)

Citation: 2023 LiveLaw (Ker) 354

The Kerala High Court held that a vehicle cannot be seized by customs on an apprehension that it may be used as a means of transporting smuggled goods.

Justice Bechu Kurian Thomas observed that under Section 115 of the Customs Act, 1962, which provides for 'Confiscation of conveyances', the power of confiscation can only arise if the vehicle was actually used or is being used for smuggling goods and not for apprehended use or future use.

The Court was of the opinion that the words ‘used as a means of transport’ in section 115(2) of the Act can only be interpreted as ‘already used as a means of transport’ or as ‘presently being used as a means of transport’, and a possible 'future use' could not be brought within its purview.

"If a possible future use of a vehicle as a means of transport for smuggling goods confers a power of confiscation of such a vehicle, that power will be unbridled, absolute and unregulated. The discretion to seize or not to seize a vehicle for apprehended future use as a means of transport of smuggled goods will confer an unregulated discretion devoid of any clarity for its exercise. Such conferment of vast and unguided powers will even fall foul of Article 14 of the Constitution of India," the Court observed.

Kerala High Court Quashes Proceedings Against Aster Medcity, Doctors Accused Of Flouting Organ Transplantation Protocol

Case Title: Aster Medcity & Ors. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 355

The Kerala High Court quashed the criminal proceedings against Aster Medcity and nine doctors who had been accused of violating the provisions of the Transplantation of Human Organs and Tissues Act, 1994.

Justice Ziyad Rahman A.A. passed the order.

If Anticipatory Bail Is Denied By High Court, Successive Application Should Also Be Filed Before HC, Not Sessions Court: Kerala High Court

Case Title: Bipin Sunny v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 356

The Kerala High Court recently observed that if the High Court denies anticipatory bail to a person, the successive applications citing change in circumstances should also be filed before the High Court and not before the Sessions Court.

Justice A. Badharudeen deprecated the practice of filing of subsequent anticipatory bail applications before the Sessions Court, after dismissal of the anticipatory bail plea by the High Court, by suppressing such adverse order. The Court opined that the said practice could not be justified.

"Therefore, in order to keep judicial discipline in tact, in cases where the High Court rejected anticipatory bail plea, second or successive anticipatory bail applications, pointing out change in circumstances, have to be filed before the High Court and not before the Sessions Court," it held.

Registered Trademark Owner Can't Seek Prohibitory Injunction If Opposite Party's Mark Is Also Registered, May Sue For Passing Off: Kerala High Court

Case Title: M/S Mariyas Soaps and Chemicals & Anr. v. M/S Wipro Enterprises Ltd. & Anr.

Citation: 2023 LiveLaw (Ker) 357

The Kerala High Court recently set aside a District Court order restraining M/S Mariyas Soaps and Chemicals from using their registered trademark ‘Chandra’ for being prima facie similar to Wipro's soap range ‘Chandrika’.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed it is settled law that an owner of a registered trademark cannot sue for infringement of his registered trademark if the opposite party also has the trade mark which is registered.

The bench was however quick to add that an aggrieved party may bring action for passing off. It observed,

"The rights granted by the registration in the form of exclusivity are not absolute but are subject to the provisions of the Act. Section 28(3) of the Trade Marks Act provides that the rights of two registered proprietors of identical or nearly resembling trademarks shall not be enforced against each other. However, they shall have the same rights as against the third parties. Further, the rights in passing off are emanating from the common law and not from the provisions of the Act and they are independent of the rights conferred by the Act."

Panchayats Can't Claim Expertise Over Competent Statutory Bodies And Stop Legally Permissible Entrepreneurial Projects: Kerala High Court

Case Title: Sinoj Thomas v. Balal Grama Pachayat & Anr.

Citation: 2023 LiveLaw (Ker) 358

The Kerala High Court recently observed that Panchayats should only wield their designated powers and not assume the role of enforcers in all public interests, particularly in areas where other competent statutory authorities hold expertise and decision-making authority.

Justice N. Nagaresh added that citizens pursuing start-ups and projects should be able to rely on clearances from these specialised bodies without additional hurdles from local self government institutions.

"When such specialised and expert statutory bodies are created, Panchayat Committees, who cannot claim expertise in those areas, cannot take a view contrary to that of other competent statutory authorities. Citizens who opt for start ups and entrepreneurships should be able to rely on the decisions and clearances given by specialised statutory bodies and go ahead with their projects. Local Self Government Institutions cannot take a view different from the views of other statutory bodies and stop or create hurdles for the entrepreneurs in going ahead with projects which are permitted under laws."

"The Panchayat institutions but can exercise only those powers conferred on and vested with them by legislature. The Panchayats cannot act as if they are protectors and enforcers of all public interests and exercise powers not vested with them."

Customised Software Designed For Specific User Remains Taxable As 'Goods': Kerala High Court

Case Title: State of Kerala v. V.C Vinod and connected matters

Citation: 2023 LiveLaw (Ker) 359

The Kerala High Court recently reiterated that software customised for a specific user and not sold to other users still falls under the category of 'goods' defined under Article 366(12) of the Constitution for the purposes of levy of sales tax under the Kerala General Sales Tax Act (KGST Act).

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P added that customised software satisfies the attributes of 'goods' as it possesses utility, and can be bought, sold, transmitted, transferred, delivered, stored, and possessed.

"even a customised software will satisfy the definition of 'goods' for, it is evident that it has the attributes having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. Once the said attributes are seen satisfied in the software in question, then whether the software is treated as customised or non-customised, it would nevertheless be categorised as 'goods' for the purposes of levy of tax... We are therefore of the view that merely because the software developed by the respondent/assessee in the instant case was customised for a particular user and was not sold to other users, the charges collected from the customer cannot escape the levy of sales tax under the KGST Act."

Rape Survivor's Testimony Not To Be Discredited For Delayed Disclosure If Otherwise Reliable: Kerala High Court

Case Title: Raju v. State of Kerala

Citation: 2023 LiveLaw (Ker) 360

The Kerala High Court recently observed that the evidence provided by a prosecutrix under Section 376 IPC should not be discredited merely because the sexual abuse began when she was a child but she did not disclose it until she was much older.

A Division Bench of Justice P.B Suresh and Justice C.S Sudha added that the credibility of the prosecutrix evidence in such cases would differ from case to case.

"A child who was subjected to sexual assault by her father, not disclosing the same to anyone during her childhood, is no reason to think that what is spoken to by her at a matured age is false. The question whether the evidence tendered by such a person is reliable, is to be decided having regard to the facts and circumstances of each case."

Other Significant Developments This Week

Right To Reputation: Kerala HC Issues Notice To Google, The New Indian Express On Plea To Redact Name & Images Of Man Acquitted In Cheating Case

Case Title: SSH (name withheld) v. Union of India & Ors.

A plea has been moved in the Kerala High Court by a person who was acquitted in a cheating case, seeking to redact his name and other identities from the public domain.

A Single Judge Bench of Justice P.V. Kunhikrishnan on Thursday issued notices to the Central, State Governments, Google and The New Indian Express.

The petitioner said that he is aggrieved that despite him having been acquitted in a cheating case, there are several news articles and images of him on the internet with the heading 'Man Held For Handing Over Invalid Cheque to Shop'.

Guidelines Necessary To Ensure Doctors Are Duly Qualified : Kerala High Court Seeks State's View

Case Title: Sreedevi & Anr. v. State of Kerala & Ors.

The Kerala High Court on Wednesday sought the views of the Government on a plea seeking guidelines to ensure that appointment orders of medical practitioners in the State are issued to selected candidates only after getting their educational certificates verified and authenticated by the Universities that have issued them. It directed the Government to file an affidavit in this regard.

The Single Judge Bench of Justice P.V. Kunhikrishnan clarified that the same was not intended to "demoralize the hard working doctors in the state", but to ensure that there were no culprits in the profession.

CBI Court Convicts Income Tax Officer For Taking Bribe From Ernakulam Doctor

Case Title: Inspector of Police, CBI v. Dinesh K.K.

The CBI Special Court, Ernakulam, has sentenced an Income Tax Department officer to rigorous imprisonment for a period of 4.5 years and fine of Rs. 50,000/- for taking bribe from a doctor.

The Additional Special Sessions Judge (SPE/CBI)-III, Ernakulam, KK Balakrishnan passed the order.

The prosecution case against the accused Income Tax official, KK Dinesh, was that he had obtained a bribe of Rs. 10 Lakhs from a doctor. It is alleged that Dinesh had threatened the doctor to give him the bribe, lest the latter incur a liability of crores of rupees.

Centre Notifies Appointment Of Four Additional Judges As Permanent Judges Of Kerala High Court

The Central Government issued a notification appointing Justices Basant Balaji, Chandrasekharan Kartha Jayachandran, Sophy Thomas, and Puthen Veedu Gopala Pillai Ajithkumar, as permanent Judges of the Kerala High Court.

Contempt Petition In Kerala High Court Against Police Officer Alleging Violation Of DK Basu Guidelines

Case Title: Sulaikha & Anr. v. Viswanadh R. IPS & Ors.

A contempt petition has been filed in the Kerala High Court against four police officers over alleged violation of D.K. Basu guidelines on arrest [DK Basu v. State of West Bengal (AIR 1997 SC 610)].

A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas on Thursday sought response from the respondents.

Monson Mavunkal Case: IG Lakshman Files Quashing Plea Before Kerala High Court

Case Title: Gugulloth Lakshman IPS v. State of Kerala & Anr.

Kerala's Inspector General of Police, Gugulloth Lakshman, has approached the High Court seeking to quash the case registered against him for his alleged involvement in Monson Mavunkal cheating case.

Single Judge Bench of Justice Rajavijayaraghavan V. has directed the Public Prosecutor to take instructions.