Kerala High Court Weekly Round-Up: June 17- June 23, 2024

Sipahi Kumar v State of Kerala, Jaymangal Shah v State of Kerala, 2024 LiveLaw Ker 362

Lakeshore Hospital And Research Centre Limited Versus The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/ Income Tax Officer, National Faceless Assessment Centre, 2024 LiveLaw (Ker) 363

Balan Panicker Ramesh Kumar Versus Union Of India, 2024 LiveLaw (Ker) 364

Jitha Sanjay v State of Kerala, 2024 LiveLaw (Ker) 365

Equity Intelligence India Pvt. Ltd Versus PCIT, 2024 LiveLaw (Ker) 366

Jitha Sanjay and Others v State of Kerala and Other, 2024 LiveLaw(Ker) 367

Usha Bagri Versus The Assistant Commissioner, 2024 LiveLaw (Ker) 368

M/S. Sunny Jacob Jewellers Gold Hyper Market Versus CIT, 2024 LiveLaw (Ker) 369

Sujith T. V. v Fertilisers and Chemicals Travancore Ltd. And Others, 2024 LiveLaw (Ker) 370

Muhammed Sahir v State of Kerala, 2024 LiveLaw (Ker) 371

Ayana Charitable Trust (formerly known as Gospel for Asia) v State of Kerala, 2024 LiveLaw (Ker) 372

State of Kerala v Muraleedharan K. V., 2024 LiveLaw(Ker) 373

M/S. DLF Home Developers Limited Versus State Of Kerala, 2024 LiveLaw (Ker) 374

Kakkoth Radha and Others v Bathakkathalakkal Batlak Musthafa and Another, 2024 LiveLaw(Ker) 375

Sebin Thomas v State of Kerala, 2024 LiveLaw (Ker) 376

Ivin v State of Kerala, 2024 LiveLaw (Ker) 377

Judgment/Orders This Week

[NDPS Act] Before Conducting Search Of Person, Accused Must Be Informed Of Right To Seek Presence Of Magistrate Or Gazetted Officer: Kerala High Court

Case Title: Sipahi Kumar v State of Kerala, Jaymangal Shah v State of Kerala

Citation: 2024 LiveLaw Ker 362

A single bench of Justice Mary Joseph of the Kerala High Court has held that before conducting the body search of a person, the person has to be informed of his right to have the presence of either the Magistrate or a Gazetted Officer to witness his body search.

The Court observed that unless he was informed of his right in the way he understands, the formalities under Section 50 of the Narcotics and Psychotropic Substance Act (NDPS Act) cannot be deemed to have been fulfilled.

Failure Of Assessee To Update E-Mail Address With Dept.; Kerala High Court Dismisses Writ Petition Challenging Demand Notice

Case Title: Lakeshore Hospital And Research Centre Limited Versus The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/ Income Tax Officer, National Faceless Assessment Centre

Citation: 2024 LiveLaw (Ker) 363

The Kerala High Court has dismissed the writ petition challenging the assessment order and notice of demand on the grounds that they were issued in violation of the principles of natural justice.

The bench of Justice Murali Purushothaman has observed that when the petitioner-assessee is at fault, as they did not update or change the email address with the Department, they cannot legitimately complain that there is a violation of the principles of natural justice.

Prerogative Of Govt. To Fix Income Limit For Encashment Of Earned Leave Salary For Income Tax Exemption: Kerala High Court

Case Title: Balan Panicker Ramesh Kumar Versus Union Of India

Citation: 2024 LiveLaw (Ker) 364

The Kerala High Court has held that it is the prerogative of the government to fix the limit of income from the encashment of earned leave salary for the purposes of exemption from payment of income tax. Unless the government issues a notification fixing the limit of income for earned leave salary, an employee cannot claim exemption from payment of income tax on the encashment of earned leave for up to 300 days.

The bench of Justice Murali Purushothaman has observed that the last notification was issued on May 31, 2002, and the government did not thereafter issue a notification despite there having been three pay revisions. The latest notification is only in 2023, after which the upper limit has been fixed at Rs. 25 lakhs, taking the highest salary of the cabinet secretary, i.e., Rs. 2.5 lakhs per month.

[S.482 CrPC] During Quashing Proceedings, Court Has Duty To Look At Overall Circumstances To Assess Whether Criminal Case Was Initiated Maliciously: Kerala HC

Case Title: Jitha Sanjay v State of Kerala

Citation: 2024 LiveLaw (Ker) 365

The Kerala High Court has held that while exercising its inherent powers under Section 482 of CrPC to quash criminal proceedings, the court owes a duty to look into attending and overall circumstances above the averments made in the FIR or complaint to assess whether criminal proceedings were initiated maliciously.

Justice A. Badharudeen observed that criminal proceedings initiated with ulterior and malafide motives to wreak vengeance due to personal or private grudges cannot be allowed to continue.

Delay In Approaching Revision Authority Under Income Tax Act Can't Be Condoned: Kerala High Court

Case Title: Equity Intelligence India Pvt. Ltd Versus PCIT

Citation: 2024 LiveLaw (Ker) 366

The Kerala High Court has held that the delay in approaching the revision authority under the Income Tax Act cannot be condoned.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that it was the same aspect of delay or limitation that prevented the Department from re-assessing the income of the appellant for the assessment years 2004–2005 and 2005–2006, respectively.

Court Can Look Beyond FIR To Quash Criminal Proceedings When They Are Vexatious Or Frivolous In Nature, Instituted To Wreak Vengeance: Kerala High Court

Case Title: Jitha Sanjay and Others v State of Kerala and Other

Citation: 2024 LiveLaw(Ker) 367

Justice A. Badharudeen of the Kerala High Court has held that the Court can look beyond an FIR to quash the criminal proceedings when they are manifestly vexatious, frivolous or instituted with an ulterior motive for wreaking vengeance. The Court observed that when the complainant is motivated due to extraneous reasons, he can make sure that the FIR contains the necessary ingredients of the alleged offence.

“Therefore, it will not be just enough for the Court to look into the averments made in the FIR/ complaint alone for the purpose of ascertaining whether the necessary ingredient to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case and above averments and, if need be, with due care and circumspection try to read between the lines,” the Court said.

Kerala High Court Allows Dealer To Correct Copy Of Stock Inventory Uploaded Along With Returns

Case Title: Usha Bagri Versus The Assistant Commissioner

Citation: 2024 LiveLaw (Ker) 368

The Kerala High Court has allowed the dealer to correct a copy of stock inventory uploaded along with returns.

The bench of Justice Gopinath P. has observed that the mistake on the part of the petitioner-dealer was that she uploaded the stock inventory as of May 28, 2015, instead of the stock inventory as of March 31, 2015. The provisions of sub-rule (4A) of Rule 22 should be interpreted as permitting the dealer to also revise or correct any mistake in the documents uploaded along with returns under Rule 22 (1), as any other interpretation would mean that while the dealer is permitted to revise his return on detecting a mistake, he cannot correct a mistake in any of the documents uploaded along with the returns.

Absence Of Incriminating Materials, AO Not Empowered To Reopen Assessments In Block Period Of Six Years: Kerala High Court

Case Title: M/S. Sunny Jacob Jewellers Gold Hyper Market Versus CIT

Citation: 2024 LiveLaw (Ker) 369

The Kerala High Court has held that based on the material obtained during the search, the Assessing Officer, who gets the jurisdiction to re-open the assessments, can do so in respect of the individual assessment years comprised in the block period of six years only if the material obtained during the search under Section 132 of the Income Tax Act, or any part thereof, relates to the assessment year in question.

Disciplinary Proceedings Against Employee For Messages In Company's WhatsApp Group Expressing Safety Concerns Violates Right To Free Speech: Kerala High Court

Case Title: Sujith T. V. v Fertilisers and Chemicals Travancore Ltd. And Others

Case Citation: 2024 LiveLaw (Ker) 370

The Kerala High Court has declared that an employee's messages in a private WhatsApp group regarding the safety of the company do not give rise to the charge of harming the reputation of the company. Justice Satish Ninan said that a charge to such effect infringes on the employee's right to freedom of speech guaranteed under Article 19(1)(a) of the Constitution.

The petitioner is an employee of Fertilisers and Chemicals Travancore Ltd. (FACT). It was submitted that he sent messages to a private WhatsApp group of the technicians of the company regarding the safety concerns related to ammonia handling.

Right Of Accused To Adduce All Evidence Is Part Of Fair Procedure, Refusal To Summon Defence Witnesses Should Be Exercised Sparingly: Kerala HC

Case Title: Muhammed Sahir v State of Kerala

Citation: 2024 LiveLaw (Ker) 371

The Kerala High Court held that the Trial Court's denial of issuing summons to defence witnesses, as requested by the accused during a criminal trial should be an exception and to be used sparingly.

Justice Bechu Kurian Thomas held that the right of the accused to enter defence evidence and adduce witnesses is essential to ensure fair procedure under Article 21 of the Constitution of India.

Sabrimala Airport Construction | Land Acquisition Notice To Be Withdrawn, Fresh Social Impact Study To Be Conducted: Govt Tells Kerala High Court

Case Title: Ayana Charitable Trust (formerly known as Gospel for Asia) v State of Kerala

Citation: 2024 LiveLaw (Ker) 372

The Kerala High Court has recorded the submissions made by the Advocate General on behalf of the State Government that it has proposed to withdraw the notifications issued under Section 11(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for the acquisition of Cheruvally Estate in Kottayam for construction and development of the Sabarimala Greenfield Airport.

Justice Viju Abraham also recorded the submission of the State Government that it has decided to conduct a Social Impact Assessment study through a different agency and fresh notifications will be issued in this regard by the Government under Section 4 (1) of the 2013 Act.

Kerala High Court Quashes Special Judge's "Unwarranted Remarks" Against IAS Officer, Says Unnecessary Enquiries Blemish Public Servant's Career

Case Title: State of Kerala v Muraleedharan K. V.

Citation: 2024 LiveLaw(Ker) 373

The Kerala High Court recently criticised the "casual approach" of a Special Judge appointed under the Prevention of Corruption Act for wrongly making adverse observations against an IAS officer, then serving as the Additional Chief Secretary in the State's Revenue department.

Single bench of Justice K. Babu observed that “A special Judge functioning under the PC Act must be conscious of his responsibilities and obligations. Even an unnecessary preliminary enquiry may cause a blemish in the career of a public servant.”

Statutory Scheme Determining Taxable Turnover Of Works Contract Under KVAT Act Doesn't Suffer From Any Defect: Kerala High Court

Case Title: M/S. DLF Home Developers Limited Versus State Of Kerala

Citation: 2024 LiveLaw (Ker) 374

The Kerala High Court has held that the statutory scheme for determining the taxable turnover of a works contract under the Kerala Value Added Tax Act (KVAT Act) does not suffer from any defect so as to render it unworkable to effectuate the charge to tax on a works contract.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V. M. has observed that it was incumbent upon the petitioner or assessee to declare the total turnover (contract receipts) pertaining solely to the works undertaken by them without including the component representing the value of the undivided share in the land. If the petitioner assessees choose not to do so, they have only themselves to blame for the predicament that they find themselves in.

Donor's Acknowledgement In Gift Deed Of Property's Delivery To Donee Is Sufficient Proof Of Gift's Acceptance: Kerala High Court

Case Title: Kakkoth Radha and Others v Bathakkathalakkal Batlak Musthafa and Another

Citation: 2024 LiveLaw(Ker) 375

The Kerala High Court held that when the registered deed of gift of immovable property mentions that the property was delivered to the donee, it is sufficient to establish acceptance.

The Court also observed that the Transfer of Property Act does not mention any one mode of acceptance.

Justice K. Babu observed:

“It is trite that no particular mode is prescribed under the law as to the requirement needed to prove acceptance. There may be various means to prove acceptance of a gift.”

Accidentally Downloading Pornography Involving Child Not An Offence U/S 67B Information Technology Act: Kerala High Court

Case Title: Sebin Thomas v State of Kerala

Citation: 2024 LiveLaw (Ker) 376

The Kerala High Court has held that automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B (b) of the Information Technology Act when the evidence shows that there was no specific intent to do so.

In the facts of the case, the petitioner was alleged to have committed offences under Section 15(2) of the POCSO Act and Section 67 B (b) of the Information Technology Act. The specific allegation was that the petitioner stored and possessed pornographic material involving child which was downloaded on his phone from Telegram.

The bench observed that no prima facie case was made out against the petitioner Section 15(2) of the POCSO Act and Section 67 B (b) of the IT Act and held thus: “In the present case, the materials collected during investigation would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise of the accused. But there are no materials to show that the petitioner intentionally downloaded or browsed or recorded the same. More particularly there are no materials to show that the petitioner had either shared or transmitted or propagated or displayed or distributed the same in any manner.”

Quashing Proceedings Upon Settlement In Heinous Crimes Like Murder & Rape Lacks Legal Sanction, Sends Wrong Signal To Community: Kerala High Court

Case Title: Ivin v State of Kerala

Citation: 2024 LiveLaw (Ker) 377

The Kerala High Court held that settling serious and heinous offences involving mental depravity or offences such as murder, rape and dacoity through quashing process by invoking its inherent powers under Section 482 of the CrPC would seriously impact society and sans legal permissibility.

Justice A. Badharudeen observed that even though the Court has the power to quash proceedings even in non-compoundable offences invoking its inherent powers upon settlement between parties, such powers should be exercised carefully. The Court cautioned that in cases involving serious offences that impact society, the Court must refrain from invoking its jurisdiction under Section 482 of the CrPC to dismiss proceedings based on compromises between the parties.

Other Important Developments This Week

Kerala High Court Directs State To Constitute Special Team And Inquire Revenue Officials For Allegedly Forging Title Deeds

Case Title: One Earth One Life v State of Kerala

Case Number: WP(C) NO. 1801 OF 2010 & Connected Cases

The Kerala High Court recently directed the State Government to constitute a Special Team to inquire into forging of title deeds, including taking bribes by revenue officials in Munnar and Idukki districts.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen directed thus: “Having heard the submission on the learned Special State Prosecutor, we are of the view that a special team consists of high rank officials with the team of others including revenue officials need to be formed to enquire and investigate the nature of involvement of public officials in forging the patta, including any gratification in any form they received.”

Kerala High Court Issues Notice To Chief Minister Pinarayi Vijayan, Daughter Veena In CMRL Pay-Off Case

Case Name: Dr. Mathew A. Kuzhalnadan v Pinarayi Vijayan and Others

Case No: Crl. Rev. Pet. 588/2024

The Kerala High Court today issued notice to Chief Minister Pinarayi Vijayan, daughter Veena Thaikandiyil and other respondents in a revision petition filed by MLA Mathew A Kuzhalnadan against the dismissal of his complaint seeking vigilance enquiry into alleged illegal financial dealings between Cochin Minerals and Rutile Limited (CMRL) and Veena's Company Exalogic Solutions.

Special Judge (Vigilance) had rejected the complaint on May 06. Justice K. Babu has issued notice to all the respondent

Kerala High Court Stays Single-Bench Order Which Held 'Malabar Parota' To Be Akin To 'Bread', Eligible To 5% GST

Case Title: State of Kerala v Modern Food Enterprises Private Limited

Case Number: WA NO. 805 OF 2024

A Division Bench of the Kerala High Court has stayed the order of the single bench which held that Malabar 'Parota' was akin to 'bread' and was exigible at the rate of 5% GST and not 18% GST.

The bench comprising Justice A.Muhamed Mustaque and Justice S. Manu ordered thus:

“There shall be a stay of operation of the impugned judgment for a period of two months.”

Plea In High Court Challenges Increased Work Days For Kerala Schools

Case Title: Kerala Pradesh School Teacher's Association And Another v State of Kerala And Others

Case Number: WP(C) 21811/2024

A petition has been moved before the Kerala High Court against the new academic calendar 2024-25 as per which working days in aided and government schools have been enhanced from 205 to 220.

The plea has been moved by the Kerala Pradesh School Teacher's Association, a recognized association of teachers of various government and aided schools.

The matter will be heard by Justice Ziyad Rahman A.A. tomorrow.

Kerala High Court Details Procedure By Which Third Party Can File An Application For Certified Copies

Case Title: Suo Moto v Adv. Sojan Pavanios

Case Number: Con. Cas. (Crl.) 6/ 2023

The Kerala High Court has emphasized that High Court Rules require a third-party who is seeking certified copies of any records of the proceedings other than the judgment or decree need to file a petition stating the reason for which the copy is required. The certified copies for these proceedings can be granted to a third party only on the orders of the Court.

A Division Bench of Justice Anil K. Narendran and Justice Harisankar V. Menon referred to various Supreme Court judgments where the where the necessity of this procedure was explained. It is to ensure that the copies are sought for bona fide purpose or to effectuate public interest. The Court holds the information as a trustee to the litigants. To prevent the misuse of process of law and information, it is necessary to restrict access to that information.

[Pantheerankavu Domestic Violence Case] Husband Accused Of Attempting To Strangle Wife With Cable Wire Moves Kerala High Court To Quash Criminal Proceedings

Case Title: Rahul P. Gopal v State of Kerala

Case Number: Crl.M.C. 5187/2024

The husband and family in the Pantheerankavu Domestic Violence case have approached the Kerala High Court on 19/06/2024 to quash further proceedings in the crime registered against them. The petitioner claimed that the matter had been settled between the de-facto complainant/ wife of the 1st accused and they were ready to live together.

Rahul P. Gopal was accused of domestic violence by his wife. He and his family were booked under Sections 324, 498A, 307 and 212 of the Indian Penal Code. An FIR was registered against them at Pantheerankavu Police Station. The de facto complainant alleged that the 1st accused assaulted her and attempted to strangle her using cable wire.

Dereliction Of Duty: Kerala High Court Criticises Govt Authorities' Failure To Remove Unauthorised Billboards, Levy Fines From Offenders

Case Title: St. Stephen's Malankara Catholic Church v State of Kerala and Others

Case No: WP(C) No. 22750/ 2018

The Kerala High Court has taken stern exception to the failure of the authorities to remove unauthorised billboards in the city despite court orders.

A single bench of Justice Devan Ramachandran lamented that in spite of court orders, the concerned authorities were not taking action against unauthorized billboards. The Court noted that the authorities by not collecting the requisite fine was causing loss to the exchequer.

Kerala High Court Issues Circular Enabling Service Of Notice, Summons Through E-Post In Trivandrum

The Kerala High Court has issued a notice to introduce the e-Post service of India Post as a new method for the service of summons/notices/ orders to respondents. In the pilot phase, this facility will be available only in Trivandrum and will be extended to other districts later.

This facility can be used when the Court orders service of notice through e-post or Speed post or when no means of delivery is specified. When the Court specifically orders the service through Registered Post, e-post cannot be used.

Legal Representatives Of Appellant In Second Appeal Are Entitled To Re-Submit Appeal Which Was Returned For Curing Defects: Kerala High Court

Case Title: Appu (Died) and Others v Ajayan and Others

Case Number: Unnumbered R.S.A. (Filing No: 1276 of 2012)

The Kerala High Court has declared that an applicant can resubmit an appeal instituted by a person under whom the applicants claim. The Court clarified that legal representatives of an appellant in a Regular Second Appeal are entitled to re-submit the appeal which was returned for curing the defects.

Justice K. Babu held: “The principle emerges is that the right to file an appeal must be held to carry with it the right to resubmit the appeal which had been instituted by a person under whom the applicants claim.”

Ernakulam Bar Association Moves Kerala High Court For Publication Of Expert Committee's Interim Report Proposing Hike In Court Fees

Case Title: The Ernakulam Bar Association v State of Kerala and Others

Case Number: WP(C) 21910/2024

The Ernakulam Bar Association has moved the Kerala High Court seeking publication of the interim report submitted by Justice VK Mohanan led Expert Committee which formed the basis for proposing revisions to court fees during the 2024 Kerala budget. The proposal includes a 5% increase in court fees for cheque cases under the Negotiable Instruments Act, as well as the introduction of court fees for Family Court petitions.

A bench of Justice TR Ravi admitted the matter and enquired whether the interim report has been published. It has sought instructions from the Government Pleader in this regard.

Kerala High Court Advocates Association Opposes Hike In Court Fees

The Kerala High Court Advocates Association (KHCAA) has submitted their opinion to the Expert Committee headed by Justice V K Mohanan opposing the hike in court fees.

KHCAA stated that they strongly condemned the act of the Government for unilaterally relying upon the Expert Committee recommendations to increase the court fees. It is stated that after implementation of the hike in Court fees, the Expert Committee is now seeking suggestions and opinions through public hearings.

"Callous & Casual Attitude Of State Towards Proceedings" : High Court Slams Kerala Govt For Not Filing Counter-Affidavit

Case Title: P. M. Surendran and Another v Government of Kerala and Others

Case No: WP(C) 3017/ 2018

The High Court in a recent order came down heavily on the State Government for the callous and casual attitude they are having towards the Court proceedings. The Court observed that it is unable to decide a Writ petition filed in 2018 as there is no response from the State.

The Writ in the instance was filed challenging the decision of the Government in nationalizing the Ernakulam- Muvattupuzha route. The issue was whether Government has followed the law while doing so.