Kerala High Court Weekly Round-Up: May 8 To May 14, 2023

Nominal Index [Citation: 2023 LiveLaw (Ker) 214-217]

Muhammed Shiraz @Shiraz v. State of Kerala & Ors, 2023 LiveLaw (Ker) 214

Antony C.L. v. Kerala Water Authority & Ors., 2023 LiveLaw (Ker) 215

Sujith Sreerengum V Sunil Sradheyam & Another, 2023 LiveLaw (Ker) 216

State of Kerala V Nino Mathew, 2023 LiveLaw (Ker) 217

Judgments/Order This Week

FIR U/S 57 Kerala Police Act Is For Locating Missing Person; Does Not Contemplate Investigation Unlike FIR U/S 154 CrPC: Kerala High Court

Case Title: Muhammed Shiraz @Shiraz v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 214

The Kerala High Court held that the registration of a First Information Report (FIR) under Section 57 of the Kerala Police Act (hereinafter, 'K.P. Act') is only for the purposes of locating a missing person, and the same cannot be treated as an FIR under Section 154 Cr.P.C.

Explaining the intent of Section 57 of the K.P. Act, the Single Judge Bench of Justice K. Babu observed that,

"when a Station House Officer receives information reasonably sufficient to suspect that any person is missing and there are circumstances to believe that such person is in danger or not under the lawful protection of guardianship or such person may be subjected to danger or absconding to prevent someone from implementing a lawful right declared by any court, the information shall be entered in a register in a manner similar to the procedure prescribed for a cognizable offence. The Station House Officer shall then take immediate action to locate the missing person".

Water Supply | Residential Apartment Which Is Neither Flat Nor Multi-Storied Building Entitled To Domestic Connection: Kerala High Court

Case Title: Antony C.L. v. Kerala Water Authority & Ors.

Citation: 2023 LiveLaw (Ker) 215

The Kerala High Court recently held that where an apartment does not fall within the ambit of the definition of flat or multi-storied building under the Kerala Water Supply and Sewerage Act, 1986 (hereinafter, 'Act, 1986'), the owners of such apartment could not be insisted upon to apply for a Contributory Street Main Extension (CSME) connection.

Justice Shaji P. Chaly observed,

"...If the apartment in question comes under a flat or multi-storied building, then Section 38A of the Act, 1986 would come into play along with Appendix 'B' of the Regulations, 1991. But here is a case, where the apartment in question would not come under a flat or multi-storied building and therefore, is entitled for a domestic connection".

Kerala Anti-Defection Law| Formal Membership In Political Party Not Prerequisite To Apply Disqualification Provisions For Voluntarily Giving Up Membership: High Court

Case Title: Sujith Sreerengum V Sunil Sradheyam & Another

Citation: 2023 LiveLaw (Ker) 216

The Kerala High Court recently held that a formal membership in a political party is not a prerequisite for the provisions of 'disqualification' for voluntarily giving up party membership under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 to apply. The Court observed that a member contesting as a candidate in an election with the support of a political party shall be deemed to be a member of the party.

A single bench of Justice N Nagaresh observed,

“Explanation to Section 2(ii) of the Act, 1999 provides that a member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included in that political party or coalition. In view of the afore statutory fiction enacted as a deeming provision, a member though has no formal membership in a political party, can be still treated as a member of the party in order to apply Section 3(a) of the Act, 1999. The reason or consideration of the member for contesting as a party candidate is irrelevant”

High Court At Appellate Stage Can Order Mitigation Investigation Even Before Conviction Is Upheld: Kerala High Court In Death Sentence Reference

Case Title: State of Kerala V Nino Mathew

Citation: 2023 LiveLaw (Ker) 217

While hearing two death sentence references, the Kerala High Court held that there is no legal bar in commencing mitigation investigation even before the High Court begins hearing the issue on conviction at the appellate stage.

A division bench comprising of Justice Alexander Thomas and Justice C. Jayachandran was of the view that if the mitigation investigation is conducted only after the High Court has affirmed the finding of conviction arrived at by the lower court, this would amount to unduly protracting the hearing proceedings at the appellate stage:

“If the study process is commenced only after the conviction is affirmed at the appellate stage, then there will be serious issues and delay, if the said exercise is to be carried out meaningfully and effectively thereafter. This will lead to the position that the convict, who was awarded death sentence by the trial court, will face more anxious and agonizing time, and for all purposes, he may experience a “Damocles' sword hanging over his head”, guessing with great tension, as to whether the death sentence awarded by the trial court will be confirmed by the High Court or would be commuted to life sentence.”

Other Significant Developments This Week

Medical Interns, PG Students Should Be Protected: Kerala High Court Issues Preliminary Directions After Fatal Attack On Woman Doctor In Kollam

Case Title: Kerala Private Hospitals Association v. State of Kerala & Ors.

The Kerala High Court has ordered that medical interns, house surgeons and post-graduate medical students should also be provided protection under the provisions of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012.

The Division Bench comprising Justice Devan Ramachandran and Justice Kauser Edappagath issued this preliminary direction in a special sitting convened today in light of the tragic death of a young house surgeon who was stabbed to death by a patient who was in police custody. The matter was heard in the ongoing case relating to frequent attacks against doctors and healthcare staff.

Tanur Boat Tragedy: Kerala High Court Initiates Suo Moto Proceedings, Cracks Whip On State Authorities For Failed Supervision

Case Title: Suo Motu v. State of Kerala

The Kerala High Court initiated suo motu proceedings in light of the boat accident that claimed 22 lives, including 15 children in Tanur area of Malappuram district.

As per media reports, the tourist boat which had allegedly been functioning without the mandatory fitness certificate, had possibly capsized due to overcrowding. It is alleged that the boat which only had around twenty seats, had accommodated persons over and above its capacity.

The Division Bench comprising Justice Devan Ramachandran and Justice Shoba Annamma Eapen, while proposing to initiate suo motu action on the incident observed:

"The final loss is for the citizens and no other, because instances like this are erased from memory soon. Therefore judicial interference becomes necessary, lest the unfortunate loss of lives is forgotten."

'If Doctors Can't Be Protected, Shut Down All Hospitals': Kerala High Court Slams State, Police Over Doctor's Murder By Man In Custody Brought For Checkup

Case Title: Kerala Private Hospitals Association v. State of Kerala & Ors.

In an urgent special sitting convened today, the Kerala High Court slammed the State and Police authorities for their failure to prevent the gruesome murder of a 23-yr-old house surgeon who was stabbed multiple times by an injured man brought to the government hospital in police jeep. The unfortunate incident happened early this morning.

"If doctors can't be protected, shut down all hospitals," a Division Bench comprising Justice Devan Ramachandran and Justice Kauser Edappagath orally remarked, while slamming the police for failing in its duty to protect the young female doctor. "You have failed this girl. This is a case where you brought a man from your custody. The police should have maintained continuous vigilance," it added.

The 23-year-old house surgeon was allegedly stabbed multiple times by the attacker, Sandeep, who is a school teacher. The attacker who was in police custody was brought to the Kottarakkara Taluk Hospital for treatment of his injuries. While he was being treated, he turned violent and proceeded to stab the victim with dressing room scissors.

Kollam Doctor Murder | Police Duty To Guard Citizens Even At Cost Of Their Own Lives: Kerala High Court; Police Chief Assures Of Modified Protocol

Case Title: Kerala Private Hospitals Association v. State of Kerala & Ors.

The Kerala High Court observed that it is the lack of protocols and systemic failure that led to the gruesome murder of a 23-yr-old house surgeon who was stabbed multiple times by an injured man brought to the government hospital in a police jeep, in Kottarakkara, Kollam.

A Division Bench comprising of Justice Devan Ramachandran and Justice Kauser Edappagath observed,

"As far as the incident in question is concerned, there can be little doubt that the killing of a doctor by a person in custody of police, be that as an accused or in any other capacity, points strongly at a systemic failure. The police officers were also ad idem that it is the fundamental duty of any officer to have guarded a citizen even at the cost of their own lives."

Can't Allow Boat Operators To Make Money At Cost Of People's Lives: Kerala High Court Issues Preliminary Directions To Avert Overloading

Case Title: Suo Motu v. State of Kerala

Following the unfortunate Tanur boat tragedy that claimed 22 lives, including that of 15 children, the Kerala High Court on Friday issued preliminary directions to avert any further boat accidents in the State.

As per media reports, the tourist boat that had allegedly been functioning without the mandatory fitness certificate, had possibly capsized due to overloading. It is alleged that the boat which only had around twenty seats, had accommodated persons over and above its capacity.

While continuing its suo motu proceedings in the matter, a Division Bench comprising Justice Devan Ramachandran and Justice Sophy Thomas was resolute that inter alia, overloading of boats, whether tourist and passenger, has to be restrained.

"Why should someone be allowed to make money at the risk and cost of someone else's life? There may have been other underlying factors involved, but had the aspect of overloading been avoided, perhaps, the loss of life would have been averted or minimized," the bench orally remarked.

It thus went on to declare that "the fundamental imperative is to ensure that every boat in Kerala is allowed to ferry/carry persons only to the maximum capacity as certified by the competent authority...We have a duty towards these people, and to the Constitution. So the fundamental first duty is to prevent overloading. For that, we have to begin now."

Kerala High Court Allows Conduct Of Vacation Classes For Students Aged Above 14 Years, Stays Govt Order

Case Title: Kerala CBSE School Management Association & Ors. v. State of Kerala & Ors.

The Kerala High Court stayed the order issued by the Kerala Government prohibiting conduct of vacation classes. The High Court observed that vacation classes for students above the age of 14 years could be conducted, and could not be disturbed without valid reasons.

Staying the Government order for a period of two weeks, the Single Judge Bench of Justice A. Badharudeen observed,

"...classes during vacation, in fact, are aimed for the welfare and well-being of the students, for which PTA (Parent Teacher Association) also given consent. Therefore, classes provided during summer vacation, as consented by the school authorities and the parents and the students for the benefit of the students, need not be disturbed without valid reasons".

'When Court Speaks For People, It Becomes Anti-Govt?' : Kerala High Court Laments Cyber Attacks On Judges

Case Title: Suo Motu v. State of Kerala

The Kerala High Court condemned the cyber attacks being launched against judges for taking up matters of public importance.

"...The problem is, when Court speaks for the people, it becomes anti-government. I don't know how this happens. We are facing cyber attacks. What kind of system are we creating where Judges can't speak aloud? Because we have initiated a suo motu in this case, we are attacked...It is the duty of the State to also ensure that the Judiciary is also able to work," the Judge observed today.

Justice Ramachandran was referring to certain social media posts made against his bench for initiating suo motu action in light of the tragic boat accident in Tanur and the murder of a young house surgeon by a patient who was in police custody. The adverse remarks were brought to the Court's attention by its Registry.

The Judge disclosed that the incidents had emotionally exhausted him, adding to the fact that the judiciary was being attacked by certain persons 'left, right, and centre'. The Judge mentioned that a few 'persons in robes' were also amongst those levelling the attacks.

'Even Profit Making Entities Indifferent To Consumers': Cochin Airport Directed To Compensate Passenger Who Got Drenched While Boarding, Caught Fever

Case Title: T.G.N. Kumar v. The Managing Director, CIAL & Ors.

The District Consumer Disputes Redressal Commission at Ernakulam recently directed the Cochin International Airport Ltd. (CIAL) to pay a compensation of Rs. 16,000/- to a passenger for its failure to provide adequate facilities to him to board the flight without getting drenched in the rain.

The bench comprising President DB Bindu and members V. Ramachandran and Sreevidhia T. N., while passing the Order, observed,

"It is generally seen that even huge profit making entities are indifferent in their attitude towards consumers in the protection of their rights. We cannot be mute spectators when consumers approach commissions like these for the redressal of their grievances which cannot be raised elsewhere".