Kerala High Court Weekly Round-Up: June 03 - June 09, 2024

Geetha v State of Kerala, 2024 LiveLaw (Ker) 327

M/S. Krishna Holiday Village v The Deputy Commissioner, 2024 LiveLaw Ker 328

Prabhakaran P. V State Of Kerala, 2024 LiveLaw Ker 329

Suo Moto v Yeshwanth Shenoy, 2024 LiveLaw Ker 330

Jewel Roshan T v Union of India,2024 LiveLaw (Ker) 331

Vignesh Kumar Balasundar v State of Kerala, 2024 LiveLaw Ker 332

Chandanapurath Rajeevan and Another v State of Kerala, 2024 LiveLaw (Ker) 333

Sunil N S v State of Kerala, 2024 LiveLaw (Ker) 334

Sijo Thomas v State of Kerala and Others, 2024 LiveLaw (Ker) 335

M/S.I.T.I.LTD Versus State Of Kerala, 2024 LiveLaw (Ker) 336

Chairman, PSM College of Dental Sciences & Research v Reshma Vinod and Others, 2024 LiveLaw (Ker) 337

Shafeek v State of Kerala & Connected Cases, 2024 LiveLaw Ker 338

A J Stephen v Rosemariya, 2024 LiveLaw (Ker) 339

S. Kamaladharan v Kerala Shipping and Inland Corporation Ltd. And Others, 2024 LiveLaw (Ker) 340

M/S M.Trade Links Versus Union Of India, 2024 LiveLaw (Ker) 341

Judgment/Orders This Week

[KAAPA Act] Preventive Detention Involves Curtailment Of Precious Constitutional Guarantees, High Degree Of Diligence Expected From Authorities: Kerala High Court

Case Title: Geetha v State of Kerala

Citation: 2024 LiveLaw (Ker) 327

The Kerala High Court held that authorities are expected to act diligently in matters relating to preventive detention since that involves curtailment of the fundamental rights of citizens.

In the present case, the representation was submitted by the detenu to the government on February 15, 2024, against the detention order. It was considered only on April 08, 2024, after receipt of the report from the Advisory Board on March 19, 2024.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice S Manu held that lethargy, lapses, negligence, delay and callousness on the part of the authorities in considering representations in preventive detention cases violates Article 22 (5) of the Constitution of India.

Writ Court Has Power To Grant Installments For Payment Of Tax Dues Extending Beyond Installments Provided Under Statute: Kerala High Court

Case Title: M/S. Krishna Holiday Village v The Deputy Commissioner

Citation: 2024 LiveLaw Ker 328

The Kerala High Court has held that the Writ Court has the power to grant instalments, extending beyond the instalments granted by the assessing authority for clearing tax dues under Rule 30 B of the Kerala General Sales Tax (KGST), 1963.

As per Rule 30B of the KGST Rules, the assessing authority can permit payment of tax in not more than six monthly instalments based on the request of the dealer.

Justice Murali Purushothaman observed that the writ court invoking its jurisdiction under Article 226 of the Constitution has the power to grant instalment facilities extending beyond instalments granted by the assessing authority under Rule 30B of the KGST Rules.

Misconception That Anticipatory Bail Could Be Granted If Custodial Interrogation Was Not Required: Kerala High Court

Case Title: Prabhakaran P. V State Of Kerala

Citation: 2024 LiveLaw Ker 329

The Kerala High Court held that it is a common misconception that anticipatory bail could be granted if custodial interrogation was not required. The Court stated that custodial interrogation was just one factor to consider when deciding on an anticipatory bail application.

Justice A. Badharudeen stated that the Court has to consider if a prima facie case was made out against the accused, the nature of the offence and the severity of punishment while considering anticipatory bail applications.

Judge Not Initiating Summary Contempt Proceedings Doesn't Bar Court From Initiating Suo Moto Proceedings: Kerala High Court

Case Title: Suo Moto v Yeshwanth Shenoy

Citation: 2024 LiveLaw Ker 330

The Kerala High Court has held that if a Judge didn't initiate contempt proceedings in accordance with the procedure as laid down under Section 14 of the Contempt of Courts Act, it does not bar the High Court from initiating suo moto contempt proceedings under Section 15 of the Act.

The Division Bench of Justice Anil K. Narendran and Justice G. Girish made this observation while deciding the challenge made by Advocate Yeshwanth Shenoy against the contempt proceedings initiated against him.

[KEAM 2024] Scribe Can Be Someone Who Has Completed Matriculation But Not Completed 12th Standard: Kerala High Court

Case Title: Jewel Roshan T v Union of India

Citation: 2024 LiveLaw (Ker) 331

The Kerala High Court has permitted a candidate who has 90 per cent permanent physical disability to attend the Kerala Engineering Architectural Medical Examination (KEAM), 2024 with the help of a scribe who has completed matriculation and had not completed 12th standard.

The KEAM, 2024 exam will begin today.

Justice Ziyad Rahman A.A. ordered thus:

“Therefore, this writ petition is disposed of directing respondent No.3 to permit the petitioner to attend the examination through the help of a scribe who has the qualification referred to above, i.e. a matriculate and had not completed 12th standard.”

[S.482 CrPC] Staying Investigation When FIR Read With FIS/Compliant Disclose Cognizable Offence Is Grave Injustice To Victim: Kerala High Court

Case Title: Vignesh Kumar Balasundar v State of Kerala

Citation: 2024 LiveLaw Ker 332

The Kerala High Court has held that the power to quash a First Information Report (FIR) under Section 482 of CrPC should be exercised by the Court with caution for ex debito justitiae, that is for the advancement of justice.

The Court stated that quashing FIR or dropping charges is not legally permissible if the FIR read along with FIS/complaint disclose the commission of a cognizable offence. It stated that the Court should dismiss the petition challenging the FIR so as to enable the investigating officer to continue with the investigation and to ascertain the truth by collecting evidence.

Justice A. Badharudeen said that staying FIR when the commission of the cognizable offence is disclosed would cause injustice to the aggrieved or victim. It stated that staying FIR would halt the investigation process and prevent the investigating officer from collecting further evidence thereby giving an opportunity to the accused to destroy material evidence and to escape from punishment.

S.145 Evidence Act | Witness Not Expected To Accurately Recall Sequence Of Rapid Events, Minor Errors In Testimony Not Contradiction: Kerala HC

Case Title: Chandanapurath Rajeevan and Another v State of Kerala

Citation: 2024 LiveLaw (Ker) 333

The Kerala High Court has reiterated that Section 162 of Code of Criminal Procedure enables the accused to use the statement of a witness to contradict him in the manner provided by Section 145 of the Indian Evidence Act only. The second part of Section 145 says that when a statement is used to contradict a witness, his attention must be called to those parts which are used to contradict him.

The Court further observed that minor discrepancies in the statements does not amount to contradiction. Such discrepancies can occur due to normal errors of observations or normal errors of memory due to lapse of time. The Court added that such discrepancies will always be there, however honest and truthful the witness is. The witness is not expected to correctly recall the sequence of events in rapid succession or in a short span of time. Some variance with the former statement is not enough. Only if the former statement can discredit the later statement, the witness can be contradicted.

[Actress Assault Case] Kerala High Court Imposes Rs 25K Cost On Pulsar Suni For Filing 10th Bail Application

Case Title: Sunil N S v State of Kerala

Citation: 2024 LiveLaw (Ker) 334

The Kerala High Court on Monday dismissed the 10th bail application filed by Sunil N.S., also known as 'Pulsar Suni', the main accused in the 2017 Actor Assault Case.

Justice P.V.Kunhikrishnan also imposed a cost of rupees twenty-five thousand upon him for filing "bail application after bail application". While imposing the cost, the Court noted that the 10th bail application was filed within three days of dismissing his earlier bail application.

Kerala Public Service Commission Can Fill Vacancies That Arise During Validity Of Rank List: Kerala High Court

Case Title: Sijo Thomas v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 335

The Kerala High Court has declared that Rule 14 in the PSC Rules of Procedure empowers the Commission to fill vacancies notified as well as arising from the ranked list during its validity. Rule 14 says that the Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the rank lists are kept alive.

The Division Bench of Justice A. Muhamed Mustaque and Justice S. Manu observed that the notification clearly stated that the vacancies mentioned are provisional and subject to change according to the allotment of seats and due to rising of more vacancies. Therefore, the general principle that 'filling up of vacancies more than that has been notified is illegal' cannot be applied in the facts of the case at hand.

Claim For Sales Tax Exemption In Respect Of Transit Sales To Be Justified By Showing Sale As Having Occurred In Transit: Kerala High Court

Case Title: M/S.I.T.I.LTD Versus State Of Kerala

Citation: 2024 LiveLaw (Ker) 336

The Kerala High Court has held that a claim for exemption in respect of transit sales must be justified by showing the sale as having occurred in transit.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that the petitioner/assessee cannot establish the transit sales by showing the sale as having occurred in transit since the E1 Forms relied on by the assessee have been accounted for only in a subsequent year, which could only be after the transportation of the goods and not while the goods were in transit.

Maternity Benefit Applicable To Private Medical Institutions With Effect From March 6, 2020 Only: Kerala High Court

Case Title: Chairman, PSM College of Dental Sciences & Research v Reshma Vinod and Others

Citation: 2024 LiveLaw (Ker) 337

The Kerala High Court has held that the Maternity Benefit Act is not applicable to private educational institutions before 06.03.2020. The Court noted that the State Government issued a gazette notification under Section 2(b) of the Act making the Act applicable to private educational institutions only on 6th March 2020.

The matter came before Justice Dinesh Kumar Singh in a Writ Petition. The plea was filed by a Dental College and Research Centre. The college was served with a notice from the inspector under the Maternity Benefit Act alleging non-payment of maternity benefits to Reshma Vinod. The petitioner submitted a reply to this. However, an order was passed by the Inspector directing the petitioner to pay an amount of Rs. 64,393.56 to Reshma as a maternity benefit and medical bonus. This order was appealed by the institution under S.17(3) of the Act which was dismissed.

[S.34 IPC] Mere Participation Or Sharing Same Intention Independent Of Each Other Not Sufficient, Prearranged Plan Has To Be Proved: Kerala High Court

Case Title: Shafeek v State of Kerala & Connected Cases

Citation: 2024 LiveLaw Ker 338

The Kerala High Court has held that mere participation in an offence would not be sufficient to attribute common intention unless it was proved that they shared a premeditated plan. The Court stated that common intention has to be proved through the conduct of the accused, surrounding circumstances or other incriminating evidence.

In the facts of the case, three accused have approached the Court aggrieved by their conviction of life imprisonment ordered by the Sessions Court for allegedly committing a murder.

The Division Bench comprising Justice P B Suresh Kumar and Justice M B Snehalatha upheld the conviction of the first accused and set aside the conviction of the second and third accused on the finding that they did not possess a premeditated plan and common intention to cause the murder.

Doctrine Of 'Paternity' By Estoppel: Kerala High Court Says Child's Parentage Can't Be Challenged When Conduct Proves Otherwise

Case Title: A J Stephen v Rosemariya

Citation: 2024 LiveLaw (Ker) 339

The Kerala High Court has held that it is not permissible for a man to challenge the paternity of a child when his conduct proves otherwise.

The facts of the case were that in 2022, the petitioner approached the Family Court seeking DNA test stating that he reasonably suspects the minor child's paternity. The Family Court observed that the petitioner suppressed material fact that he had entered into an agreement with the child's mother wherein he accepted the paternity. It thus dismissed petitioner's prayer to undergo DNA test. Aggrieved by this, the petitioner approached the High Court under Article 227 seeking a declaration that he was not the father of the minor child.

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P M Manoj applied the principle of doctrine of Paternity by Estoppel by relying on by Pennsylvania Supreme Court in T.E.B. v. C.A.B. v. P.D.K. Jr. to state that if a man cannot be permitted to deny child's parentage if he has held out be a child's father through his conduct.

Separate Calculation Of Gratuity Amount For Parent Service And Deputation Service Impermissible: Kerala High Court

Case Title: S. Kamaladharan v Kerala Shipping and Inland Corporation Ltd. And Others

Citation: 2024 LiveLaw (Ker) 340

The Kerala High Court has held that the total gratuity payable to an employee has to be calculated based on the monthly salary last drawn by the employee immediately preceding his termination, irrespective of the deputation service of the employee.

In the Writ Petition, the question to be decided was how much amount the company should contribute towards the gratuity of its deputed employee. S. Kamaladharan retired from Kerala Shipping and Inland Navigation Corporation on 30/11/2014. He worked for a period of 7 years and 10 months in Kerala Tourism Development Corporation (KTDC) on deputation.

Time Limit To Avail ITC Is Till 30th November In Each Financial Year From Beginning Of GST Regime: Kerala High Court

Case Title: M/S M.Trade Links Versus Union Of India

Citation: 2024 LiveLaw (Ker) 341

The Kerala High Court has held that the time limit to avail ITC is November 30th in each financial year from the beginning of the GST regime.

The bench of Justice Dinesh Kumar Singh has observed that prior to the amendment in Section 39 by the Finance Act 2022, the date for furnishing the return under Section 39 was September 30th. Considering the difficulties in the initial stage of the implementation of the GST regime, the Legislature made the amendment and extended the time for filing the return from September to November 30th in each succeeding financial year. The amendment is only procedural to ease the difficulties initially faced by the dealers and taxpayers. Therefore, for the period from 01.07.2017 till 30.11.2022, if a dealer has filed the return after September 30 and the claim for ITC was made before November 30, the claim for ITC of such dealer should also be processed if he is otherwise entitled to claim the ITC.

Other Significant Developments This Week

Vloggers Recording Video Inside Driver Cabin Of Moving Vehicles To Be Booked Under Motor Vehicles Act: Kerala High Court

Case title: Suo Moto v State of Kerala

Case number: SSCR Nos.29, 30 and 36 of 2023

The Kerala High Court has directed the Enforcement Officers in the Motor Vehicles Department to collect videos of extensively modified and altered vehicles by registered owners or vloggers uploaded on online video platforms like YouTube.

The Court further directed that vloggers who record video inside the driver's cabin of the moving vehicle disturbing the driver's concentration and endangering the safety of road users shall also be proceeded against under the Motor Vehicles Act.

Kerala High Court Directs ED To Retain And Preserve CCTV Footage Of Interrogation Of CMRL Officials

Case Title: WPC 15757/2024

Case Number: M/S. Cochin Minerals and Rutile Limited V Directorate of Enforcement

The Kerala High Court passed an order directing the Enforcement Directorate (ED) to preserve and retain the CCTV visuals of the interrogation of officials of Cochin Minerals and Rutile Ltd (CMRL) who the ED summoned.

It was alleged that CMRL committed cognizable offences warranting investigation under the Prevention of Money Laundering Act, 2002 and a summons was issued to its officials. The ED alleges that CMRL being a public limited company was involved in creation of bogus funds to the tune 1.72 crores for the benefit of certain individuals warranting ED investigation.

Justice T R Ravi directed thus:

“Since there is an allegation that the petitioners were detained by the respondents for more time than that is allowed by the law of the land, there will be an interim direction to preserve and retain the CCTV footage of the interrogation. This order is issued only to ensure that issue is not precipitated due to the delay in the hearing before this Court. This order shall not be understood as an order on merits of the contention."

Kerala High Court Directs Registry To Number Criminal Miscellaneous Cases Only After Producing Witness Statements And Documents Along With Final Report

Case Title: Sajeer Puthiyapurayil v State of Kerala

Case Number: CRL.MC NO. 4711 OF 2022

The Kerala High Court on Monday directed the Registry to number criminal miscellaneous cases only after producing the final report along with witness statements and documents.

Justice A. Badharudeen ordered that the Registry shall comply with the direction strictly.

“In view of the matter, Registry is directed to number Crl.M.Cs only after producing the final report along with witnesses statements and documents, hereinafter. This direction shall be complied strictly hereinafter.”

Kerala High Court Expresses Disinclination To Grant Anticipatory Bail To Mohiniyattam Performer Booked For Casteist Remarks Against Fellow Artist

Case Title: Sathybhama v State of Kerala

Case Number: Crl A 733/2024

The Kerala High Court has reserved for orders the appeal moved by Mohiniyattam performer Kalamandalam Sathyabhama against the dismissal of her anticipatory bail application by the Special Court for Trial of offences under SC/ST Act, for allegedly making casteist remarks against fellow artist Dr. RLV Ramakrishnan.

Justice K Babu today orally said, “I will not grant anticipatory bail, I will direct her to appear before the jurisdictional Court and let the Court decide.”

State Moves Kerala High Court Against Bail Of Accused In SDPI Leader Shan's Murder Case

Case Name: State of Kerala v Rajendra Prasad @ Andi Prasad

Case Number: Crl. M. C. 4707/24

The Kerala government has moved the High Court challenging the grant of bail to Rajendra Prasad, first accused in the murder of Social Democratic Party of India (SDPI) State Secretary K.S. Shan who was hacked to death in December 2021.

The bench of Justice Bechu Kurian Thomas issued notice on the matter and posted it on June 25 along with similar appeals challenging grant of bail to eight other accused.