Kerala High Court Weekly Round-Up: June 24 - June 30, 2024

Nominal Index

Amal v State of Kerala, 2024 LiveLaw (Ker) 378

Kishore Kumar J V Additional Chief Secretary & Connected Matter, 2024 LiveLaw (Ker) 379

Sakeer v State of Kerala, 2024 LiveLaw (Ker) 380

The Federal Bank Ltd. V Federal Bank Officer's Association, 2024 LiveLaw (Ker) 381

Sharafudheen v State of Kerala & Connected Cases, 2024 LiveLaw (Ker) 382

S v State of Kerala, 2024 LiveLaw (Ker) 383

Smitha v Anil Kumar, 2024 LiveLaw (Ker) 384

P. Ummer Koya v State of Kerala and Others, 2024 LiveLaw (Ker) 385

Ashraf @ Asharaf Moulavi v Union of India, 2024 LiveLaw (Ker) 386

State of Kerala v Ajayakumar V., 2024 LiveLaw (Ker) 387

Jayasree v Indrapalan and Another, 2024 LiveLaw(Ker) 388

Rajesh K. The District Geologist and Others, 2024 LiveLaw (Ker) 389

:JTPAC v Maradu Municipality, 2024 LiveLaw (Ker) 390

Reghunadan v State of Kerala, 2024 LiveLaw (Ker) 391

Murali @Muralidharan V State Of Kerala , 2024 LiveLaw (Ker) 392

P.B.Sourbhan v State of Kerala, 2024 LiveLaw (Ker) 393

Hena Khatoon and Another v State of Kerala and Another, 2024 LiveLaw (Ker) 394

Shalet v State of Kerala , 2024 LiveLaw (Ker) 395

Hillwood Furniture Pvt. Ltd Versus The Assistant Commissioner, 2024 LiveLaw (Ker) 396

Judgments/ Orders This Week

S.52A NDPS Act: Kerala High Court Grants Bail To Accused As Seizure Officer Mixed Alleged Contraband Found In Three Separate Packets

Case Title: Amal v State of Kerala

Citation: 2024 LiveLaw (Ker) 378

The Kerala High Court has granted bail to an accused booked under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possession of over 100 gms contraband, noting that the Investigating Officer had mixed the content found in three separate packets.

Justice C. S. Dias cited Section 52A of the Act which requires the Investigating Officer to draw separate samples from "each of the packets", that too in the presence of the jurisdictional Magistrate and then, send the representative samples from each packet for chemical analysis.

The bench said that an infraction of the statutory provision by the Investigating Officer had prejudiced the accused and therefore, the rigour on grant of bail under Section 37 of the NDPS Act stands diluted.

Delinquent Public Servant Has Right To Be Tried Within Reasonable Time, State Can't Initiate Disciplinary Action After Unexplained Delay: Kerala HC

Case Title: Kishore Kumar J V Additional Chief Secretary & Connected Matter

Citation: 2024 LiveLaw (Ker) 379

The Kerala High Court has made it clear that there is no fair process of enquiry if unexplained delay has occurred in initiating disciplinary proceedings against a delinquent employee, since it causes him significant prejudice.

The Court further stated that the Constitution guarantees the right to a fair trial, which should be ensured not only in criminal cases but also in all cases where procedures are required to indict an individual.

In the facts of the case, a charge memo was filed against an officer in 2022, alleging dereliction of duty in the investigation of a crime he had investigated in 2001, during which he wrongfully arrested innocent persons.

False Implication For Getting Back Money: Kerala High Court Quashes Criminal Proceedings Against Man Accused Of Rape

Case Title: Sakeer v State of Kerala

Citation: 2024 LiveLaw (Ker) 380

The Kerala High Court has held that in exceptional cases, the High Court by invoking its inherent powers under Section 482 of CrPC can even quash even criminal proceedings alleging the commission of an offence of rape under Section 376 of the Indian Penal Code.

Justice A. Badharudeen quashed the proceedings against the petitioner pending before the Special Court for the Trial of Cases Relating to Atrocities and Sexual Violence Against Women and Children (POCSO).

In the present case, the Court found that there were financial dealings between the petitioner and the de facto complainant. It also observed that a case was filed against the de facto complainant by the wife of the accused. The Court thus stated that criminal proceedings could be quashed when prosecution materials do not attract the offence alleged to be committed.

No Fundamental Right To Protest Anywhere The Agitator Pleases: Kerala High Court

Case Title: The Federal Bank Ltd. V Federal Bank Officer's Association

Citation: 2024 LiveLaw (Ker) 381

The Bank filed a suit before the Munisff for a permanent prohibitory injunction restraining it's employee union, its members and supporters from obstructing the bank officials and customers from dealing with the bank.

The Single bench of Justice Kauser Edappagath held that the right under Article 19 is not absolute and it must be exercised in a way as not to interfere with the right of the employer to carry on their lawful business. Court said freedom of speech and expression cannot interfere with the right of someone else to enjoy property or carry on business.

Guardian Of Minor Driving Vehicle Without Licence Can Be Prosecuted U/S 199A MV Act Even Before Determining Minor's Guilt: Kerala HC

Case Title: Sharafudheen v State of Kerala & Connected Cases

Citation: 2024 LiveLaw (Ker) 382

The Kerala High Court has held that the guardian of a minor or owner of a vehicle driven by a minor can be prosecuted for offence under Section 199A of the Motor Vehicles Act, even in the absence of finding of guilt of the minor.

The provision prescribes imprisonment for a term which may extend to three years.

Bench of Justice Bechu Kurian Thomas said though commission of an offence under the MV Act by the juvenile is an essential ingredient of Section 199A, however, a finding regarding the commission of an offence under the MV Act by the juvenile is not a sine qua non for initiating proceedings against the guardian or owner of the motor vehicle under the said section.

LGBTQIA+ Individuals Experience Familial Rejection, Crucial To Recognize Family As 'Sites Of Violence' And Grant Protection: Kerala High Court

Case Title: S v State of Kerala

Citation: 2024 LiveLaw (Ker) 383

The Kerala High Court recently observed that families can often become sites of violence and control for LGBTIQA+ individuals who they need protection from rather than guardianship. 

The Court observed that LGBTIQA+ persons face defiance in society and are subjected to stigma, violence and discrimination from an early age due to societal beliefs and cultural norms.

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P M Manoj made the observation while dealing with the plea filed by parents of a 23-year-old woman stating that their daughter was illegally detained and living in a 'toxic' relationship with a person of the same gender.

[S.120 Evidence Act] Husband & Wife Can Testify On Behalf Of Each Other Without Executing Power Of Attorney: Kerala High Court

Case Title: Smitha v Anil Kumar

Citation: 2024 LiveLaw (Ker) 384

The Kerala High Court has held that under Section 120 of the Evidence Act, a husband is permitted to testify in lieu of his wife and vice versa even without a written authority or power of attorney.

Justice Kauser Edappagath stated that the Trial Court had wrongly rejected the request for examining the plaintiff's husband for and on her behalf in the trial of a suit.

Merely Because A Person Worked In Pakistan Doesn't Make Him An 'Enemy' Under Rule 130 Of Defence Of India Rules: Kerala High Court

Case Title: P. Ummer Koya v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 385

The Kerala High Court has held that merely because a person had moved to Pakistan in search of a job does not make him an enemy under Rules 130 and 138 of the Defence of India Rules, 1971 unless he was trading with an enemy. 

Court thus quashed the proceedings initiated under the Enemy Property Act, against a property formerly held by the petitioner's father, who had worked at a hotel in Pakistan.

Must Guard Against Ideological Biases, False Narratives In Terrorism Cases: Kerala HC Grants Bail To 17 PFI Members Accused In RSS Leader's Murder

Case Title: Ashraf @ Asharaf Moulavi v Union of India

Citation: 2024 LiveLaw (Ker) 386

The Kerala High Court today held that while considering allegations of terrorism and related offences under the Unlawful Activities (Prevention) Act, 1967, the Courts should not get carried away by confirmation bias that might creep in based on ideological biases and false narratives prevalent in the society.

The Court was considering the criminal appeals moved by 26 persons belonging to Popular Front Of India (PFI) who were accused of allegedly murdering RSS Leader Srinivasan at Melamuri Junction in Palakkad Town in Kerala on April 16, 2022.

Home Guards Appointed On Daily Wage Basis, Recruitment And Selection Process Different From Civil Police Officers: Kerala High Court Denies Pay Parity

Case Title: State of Kerala v Ajayakumar V

Citation: 2024 LiveLaw (Ker) 387

The Kerala High Court has stated that Home Guards are appointed on a daily wage basis and their recruitment and selection process differed from that of a Civil Police Officer. The Court further observed that Apex Court in Grah Rakshak, Home Guards Welfare Association vs. State of Himachal Pradesh and Others (2015) had not declared that Home Guards shall be treated at par with Civil Police Officers. 

In this case, aggrieved by the order of the Tribunal in granting parity in pay to Home Guards with that of Police Constable, the State Government has approached the High Court with an appeal.

Domestic Violence Act | Divorced Wife Can't Be Evicted From 'Shared Household' Except With Procedure Established By Law: Kerala High Court

Case Title: Jayasree v Indrapalan and Another

Citation: 2024 LiveLaw(Ker) 388

The Kerala High Court in a recent judgment observed that a former wife, though divorced cannot be evicted from a shared household except through a procedure laid down by law. 

The Court observed that even though a divorced woman had no right over the shared household, if she was staying there during or after divorce, she could be evicted only through a procedure established by law.

No Permission Needed When Minerals Extracted From One's Property Aren't Transported, Only Liability Is To Inform Authorities & Pay Royalty: Kerala HC

Case Title: Rajesh K. The District Geologist and Others

Citation: 2024 LiveLaw (Ker) 389

The Kerala High Court declared that a person need not seek permission while extracting minerals on his property when the mineral is not transported outside the premises of the property. The Court said that he only needs to inform the concerned authorities and pay them a royalty fee for using the granite for construction.

[Kerala Local Authorities Entertainment Tax Act] Entertainment Tax Cannot Be Levied On Unsold Concert Tickets: High Court

Case Title: JTPAC v Maradu Municipality

Citation: 2024 LiveLaw (Ker) 390

The Kerala High Court directed the Municipality under whose jurisdiction a music concert was held to refund the entertainment tax levied on unsold tickets.

Justice Gopinath P. stated that entertainment tax could only be charged under Section 3 of the Kerala Local Authorities Entertainment Tax Act, 1961 towards sold tickets and not on unsold tickets.

After Man Convicted For Wife's Murder Dies, Kerala High Court Dismisses His Appeal Saying Children Would Not Want To Continue

Case Title: Reghunadan v State of Kerala

Case Citation: 2024 LiveLaw (Ker) 391

The Kerala High Court has dismissed an appeal as abated after the death of a man convicted for the murder of his wife. 

Division Bench of Justice A. K. Jayasankaran Nambiar and Justice Syam Kumar V. M. said that the man's children would not be interested in coming on record to continue the appeal since in a sense, they are also victims of the alleged crime.

[S. 306 IPC] Compliant Filed Before A Lawful Authority Cannot Amount To Abetment To Suicide: Kerala High Court

Case Title: Murali @ Muralidharan V State Of Kerala 

Citation: 2024 LiveLaw (Ker) 392

The Kerala High Court has held that a complaint filed before a lawful authority would not amount to instigation or abetment to suicide under Section 306 of the IPC, since filing such a complaint is not intended to instigate or abet the deceased to commit suicide.

Nothing Confidential About Property Register Kept In Public Office In Modern Era Of Right To Information & Transparency: Kerala High Court

Case Title: P.B.Sourbhan v State of Kerala

Citation: 2024 LiveLaw (Ker) 393

The Kerala High Court held that a property register maintained in a public office is not confidential or a record of proceedings to be protected from disclosure as per Rule 225 of Criminal Rules of Practice, Kerala 1982.

The petitioner has approached the High Court challenging the dismissal of his application for obtaining a certified copy of a property register in relation to a property produced in a criminal trial in the Court. His application was dismissed stating that it is a register kept in the office of the court and is a confidential non-judicial record as per Rule 225.

S.311 CrPC | Plea For Examining New Witnesses, Submitting Fresh Documents Should Only Be Allowed To Meet The Ends Of Justice: Kerala High Court

Case Title: Hena Khatoon and Another v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 394

The Kerala High Court observed that a petition filed at a later point seeking a re-examination of a witness, an examination of a new witness or a summons of new documents can be allowed only to meet the ends of justice. It should not be used to fill the lacuna of evidence, to give advantage to one party or as a disguise for a re-trial, the court said.

Kerala High Court Directs Police Chief To Issue Instructions To Ensure Citizens Are Not Illegally Detained, Arrested Due To Mistaken Identity

Case Title: Shalet v State of Kerala 

Citation: 2024 LiveLaw (Ker) 395

The Kerala High Court has directed the State Police Chief to issue suitable instructions to ensure that citizens are not illegally arrested and detained based on the wrong identity.

In the facts of the case, the petitioner was wrongly detained and arrested by the police in a case of mistaken identity. 

Justice Gopinath P. ordered that the identity of persons should be clearly established before police officials arrest or detain citizens to prevent any illegal invasion into the life and liberty of innocent citizens. 

Credit Available On Advance Tax Paid For Stock-Transferred: Kerala High Court

Case Title: Hillwood Furniture Pvt. Ltd Versus The Assistant Commissioner

Citation: 2024 LiveLaw (Ker) 396

The Kerala High Court has held that the petitioner will be entitled to credit for the entire amount paid in terms of Circular No. 50/2006 for the goods in question, which were stock-transferred to its branch office in Pollachi.

The bench of Justice Gopinath P. has observed that a combined reading of the provisions of Circular No. 50/2006 and the definition of input tax in Section 2(xxiii) of the KVAT Act indicates that the tax paid in terms of Circular No. 50/2006 cannot assume the character of input tax.

Other Developments This Week

Kerala HC Stays Single Judge's "Prima Facie" Finding Of Ex-DGP Revealing Rape Victim Identity, Says Police Will Be Forced To Proceed Against Him

Case Title: Siby Mathews v K K Joshwa and Others

Case Number: WA 841/2024

The Kerala High Court has stayed the prima facie observations made by its single bench against former DGP Siby Mathews for commission of an offence under Section 228A IPC by allegedly revealing the identity of the Sooryanelli rape victim in his autobiographical novel 'Nirbhayam'.

The book was published back in 2017. Pursuant to the single judge's order, an FIR was registered.

The Division Bench comprising Chief Justice A J Desai and Justice V G Arun said if the observation is not stayed, "there would be no alternative for the investigating agency to proceed further, in accordance with law, in connection with the FIR registered in this case."

Pantheerankavu Domestic Violence Case: Police Oppose Husband's Quashing Plea; Says Wife Was Seriously Injured, Must Have Settled Under Pressure

Case Title: Rahul P. Gopal v State of Kerala

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

The Kerala Police has opposed the quashing petition filed by Rahul P Gopal, accused in the infamous Pantheerankavu domestic violence case, stating that his wife was seriously injured when she came to the police station and the alleged compromise between the parties must be an outcome of pressure and threats.

Rahul allegedly attempted to strangle his wife using cable wire, after she failed to fulfil his dowry demands. The 29-year-old and his family are booked under Sections 324, 498A, 307 and 212 of IPC. His wife however uploaded a YouTube video stating that the allegations against her husband are false.

When Does An Appeal Lie To The Commercial Appellate Division Of The Court? Kerala High Court Discusses

Case Title: Y. Sleebachan v State of Kerala and Another

Case Number: Coml. A. 6/ 2024

The Kerala High Court in a recent order held that appeals will lie in the Commercial Appellate Division of High Court when the order is passed by Commercial Court at the level of a District Judge or by the Commercial Division of the High Court. 

Division Bench of Justice Anil K. Narendran and Justice Harisankar V. Menon said, if the order is passed by a Commercial Court below the level of a District Court, it has to be challenged before the Commercial Appellate Court. Any Act passed by the State Government fixing pecuniary jurisdiction of the appellate Courts would not be tenable.

22-Yr-Old Differently Abled Person Moves Kerala High Court Seeking Permission To Take Driving License Test

Case Title: Rudranath A S v State of Kerala 

Case Number: WPC No. 23297/ 2024

A 22-year-old, 40 per cent physically disabled citizen has moved the Kerala High Court stating that he has been denied the opportunity to take part in the driving license test.

It is stated that the petitioner's fundamental rights guaranteed under Articles 14, 19 And 21 have been denied by violating his right to equal opportunity. He stated that his right to reputation and right to livelihood is threatened due to the denial of right to participate in the driving license test.

Kerala HC Orders Production Of Transwoman Allegedly Being Forced To Undergo 'Conversion Therapy', Restrains Any Surgeries On Her Till Then

Case Title: Adithya Kiron v Station House Officer and Others

Case Number: WP (Crl.) No 704/ 2024

A Habeas Corpus petition has been moved before the Kerala High Court alleging that a trans woman is being forced to undergo conversion therapy in Amrita Hospital, Kochi.

The Division Bench comprising Justice Amit Rawal and Justice Easwaran S. ordered to produce Elida Rubielle before the Court on Monday. The Court also directed that no surgeries should be performed on her in the meanwhile.

Lawyer Moves Kerala High Court Against Dumping Of Plastic Waste In National Parks, Wildlife Sanctuaries, Tiger Reserves & Forest Areas In State

Case Title: Adv Sunil Kumar A G v State of Kerala & Ors

Case Number: WPC 22966/2024

A lawyer has moved the Kerala High Court against the dumping of garbage and plastic waste in forest areas, national parks, wildlife sanctuaries, Tiger reserves in the State.

The petitioner is aggrieved by the inaction of the authorities in combating plastic pollution into ecologically sensitive and forest areas to prevent environmental pollution. 

The Division Bench comprising Chief Justice A J Desai and Justice V G Arun issued notice to the respondents. The Government Pleader took notice on behalf of the State Government, State Police Chief, Department Of Forest, Ministry of Environment and Kerala Forest Development Corporation. The Standing Counsel of the Pollution Control Board took notice for the State Pollution Control Board. 

Can Voters Approach SEC Seeking Disqualification Of Elected Members U/S 4 Of Local Authorities (Prohibition Of Defection) Act: Kerala HC To Consider

Case Title: Baburaj Thottukara v State of Kerala & Others

Case Number: WP(C) 23171/2024

A plea has been moved before the Kerala High Court challenging Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 to the extent to which it excludes voters from filing petitions before the State Election Commission for disqualification of an elected member on the grounds of defection.

Kerala High Court Appoints New Special Commissioner For Sabarimala

Case Name: Suo Motu v State of Kerala and Others

Case Number: DBP No: 44/ 2024

The Kerala High Court has appointed Sri. Jayakrishnan R., who is currently the Special Judge for the Trial of Scheduled Caste/ Schedule Tribe (Prevention of Atrocities) Case, Kottarakara as the new Special Commissioner to Sabarimala. This post would be in addition to his duties as the Special Judge.

Officials Of CMRL Prima Facie Liable For Misappropriating Public Money, Cheating General Public: ED Tells Kerala High Court

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

Case Number: WPC 15757/2024

The Enforcement Directorate (ED) submitted before the Kerala High Court that officials of Cochin Minerals and Rutile Ltd (CMRL), a public limited company committed cognizable offences under the Prevention of Money Laundering Act, 2002 and cheated the general public by misappropriating large amounts of public money. It was stated that the proceedings based on the Enforcement Case Information Report (ECIR) registered by the ED against the officials of CMRL cannot be quashed since the inquiry is only at a premature stage.