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Kerala High Court Weekly Round-Up:...

Kerala High Court Weekly Round-Up: May 27 – June 02, 2024

Manju Elsa Isac

3 Jun 2024 12:00 PM IST

Kerala High Court Quashes Disciplinary Proceedings Against Fmr Kasargod College Principal, Cites Extraneous One-Sided Inquiry & Indiscipline Of SFI Students

Case title: Dr Rema M v The Director Of Collegiate Education And Others & Connected Matter

Citation: 2024 LiveLaw Ker 306

The Kerala High Court quashed the disciplinary proceedings initiated against Dr. Rema, the former Principal in charge of Government College, Kasargod against whom proceedings were initiated for allegedly misbehaving with students belonging to SFI Union.

A disciplinary inquiry was initiated against the petitioner alleging that she spoke about the immoral conduct of girls, drug use amongst students and illegal activities of students belonging to SFI Union in an interview given to Marunadan Malayali Channel. She received show cause notice from the Director of Collegiate Education alleging that her statements during the channel interview lowered the dignity and reputation of the college.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed the petitioner has not violated Government Servants' Conduct Rules because no allegations were made against the government nor about the relationship between government and people in the interview.

Violation Of Bail Conditions Akin To Abusing Liberty Granted By Court: Kerala High Court Upholds Order Cancelling Bail

Case Title: Sobhin Sunny v State of Kerala

Citation: 2024 LiveLaw Ker 307

The Kerala High Court held that violation of bail condition by the accused was akin to misusing the liberty bestowed upon him by the court and was a ground for cancellation of the bail.

Referring to Apex Court decisions, Justice A. Badharudeen held that the Court granting bail after imposing conditions has the power to cancel the bail order if any of those bail conditions are violated.

One Accomplice Cannot Corroborate Another: Kerala High Court

Citation: 2024 LiveLaw Ker 308

Case Title: Bharat Raj Meena v Central Bureau of Investigation

The Kerala High Court has held that the court as a matter of practice requires corroboration in material particulars for conviction of an accused on the testimony of an accomplice. The nature and extent of the corroboration required will vary with the circumstances of each case and particular circumstances of the offence alleged in each case.

The Court also deliberated on the requirement of sanction under Section 19(1) of Prevention of Corruption Act to take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15.The grant of sanction is not a mere formality but a solemn act which affords protection to the government servant against frivolous prosecution. All the relevant records and materials for the grant od sanction must be made available to the sanctioning authority, which must undertake complete and conscious scrutiny of those records and materials independently applying its mind before deciding whether to grant sanction or not.

Prosecution Must Establish Facts Indicating 'Special Knowledge' To Shift Burden Of Proof On Accused U/S 106 Evidence Act: Kerala High Court

Case Title: Abu @Abdulla v State of Kerala

Citation: 2024 LiveLaw Ker 309

Granting benefit of doubt, the Kerala High Court recently acquitted a man held guilty and sentenced to life imprisonment by the Sessions Court for the murder of his 7-year-old daughter.

The Division Bench comprising Justice P B Suresh Kumar and Justice M B Snehalatha found that all other persons residing in the house who were present at the time of the alleged incident had stated that the victim suffered injuries from a fall. Thus, it said there is no reverse burden on the father under Section 106 Evidence Act to explain the circumstances of the daughter's death.

Attacks Against Doctors & Hospital Staff Are Continuing: Kerala HC Dismisses Anticipatory Bail Plea By Accused For Allegedly Attacking Lady Doctor

Case Title: Dr Haritha H S v The State Police Chief, Joseph Chacko v State of Kerala

Citation: 2024 LiveLaw Ker 310

The Kerala High Court today dismissed the anticipatory bail application moved by an accused for allegedly attacking and outraging the modesty of a lady Ayurveda Doctor.

Dismissing the anticipatory bail application, Justice A. Badharudeen stated that a prima facie case was made out against the accused for attacking a healthcare professional. The Court further stated that there is a continuing trend of abusing, assaulting and manhandling doctors and hospital staff for flimsy reasons.

Opening And Closing Stock Of The Year Is To Be Valued By Applying Same Methodology: Kerala High Court

Case Title: P. A. JOSE Versus UOI

Citation: 2024 LiveLaw Ker 311

The Kerala High Court has held that the stipulation under Clause 16 of the Income Computation and Disclosure Standards (ICDS) for the adoption of first-in, first-out (FIFO) or weighted average cost for valuation of the stock or inventory cannot be applied in the Assessment Year 2017-2018 for the valuation of the opening stock, as the opening and closing stock of the year are to be valued by applying the same methodology.

The bench of Justice Dinesh Kumar Singh has observed that the substitution of Section 145A with retrospective effect from April 1, 2017 by the Finance Act, 2018 is to give relief to those assessees who had adopted the FIFO to value their stock in the Assessment Year 2017-18 and to save their returns from being declared incorrect or invalid. This retrospective operation has the same purpose and objective. However, if an assessee did not apply the FIFO to value its opening and closing stock, as it was not mandatory, requiring such an assessee to apply the FIFO to value their stocks for the assessment year 2017–18 would result in an uncalled-for outcome.

Expenditure Incurred By Way Of Addition To Buildings, Electrical Fittings On Leasehold Premises Is Capital Expenditure: Kerala High Court

Case Title: Hotel Allied Trades Pvt. Ltd Versus The Additional Commissioner Of Income-Tax

Citation: 2024 LiveLaw Ker 312

The Kerala High Court has held that the expenditure that was incurred by the appellant/assessee by way of addition to buildings and electrical fittings on leasehold premises was in the nature of capital expenditure and not revenue expenditure.

The bench of Justice Dr. A.K. Jayasankaran Nambiar has observed that the assessing authority and the First Appellate Authority have clearly relied on the written submissions given by the assessee to find that the nature of the expenses incurred by the assessee was capital in nature. Neither in the grounds of appeal before the First Appellate Authority nor before the Tribunal was there any material produced by the assessee to show that the expenses incurred by them were revenue in nature. If the assessee had in fact a case that the expenditure incurred by it was revenue in nature, then it was for the assessee to produce materials that would clearly demonstrate that the expenditure was revenue in nature.

Child Must Receive Love And Support From Both Parents Unless Proven Conduct Has Made One Parent Unworthy Of Custody Rights: Kerala High Court

Case Title: Lekha Komath V Harikrishnan Gopikarnakar

Citation: 2024 LiveLaw Ker 313

The Kerala High Court stated that unless there is proven conduct making one parent unworthy of custody rights, it is in the best interest of the child to receive love and support from both parents.

While hearing a matrimonial appeal preferred by the mother, the Court interacted with the minor child and found that she has no objection to spent time with father but expressed reluctance to stay with the father for longer periods including overnight custody.

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P.M. Manoj observed that Courts have to ascertain 'What is the wish/desire of the child', but it must consider 'What would be in the best interest of the child' while deciding custody arrangements. It thus stated that Courts must distinguish between child's wishes and what is genuinely in the best interest of the child.

Courts Not Expected To Form Baseless Apprehensions That Lawyer Will Act Illegally In Discharge Of His Profession: Kerala High Court

Case Title: Chandra Mouli v State of Kerala

Citation: 2024 LiveLaw Ker 314

The Kerala High Court recently quashed a Special Court order directing a lawyer to file an affidavit stating that the copy of witness statement recorded under Section 164 CrPC will not be "misused" by him.

Justice K. Babu said that a lawyer is an officer of the court and Courts are not expected to form an apprehension, without any foundation, that the lawyer may do some illegal acts during the course of his profession. "He is always expected to discharge his duties and responsibilities legally," the bench remarked.

The observation was made in an appeal filed against the proceedings of the Fast Track Special Court (POCSO), Thrissur directing the petitioner to file an affidavit stating the copy of the statements of the victim will not be misused

[S. 17 Arms Act] Place Of Business Of Armory Shop Is Only A Condition Of Licence That Can Be Varied By Licensing Authority: Kerala High Court

Case Title: T Jacob Armory v State of Kerala

Citation: 2024 LiveLaw Ker 315

The Kerala High held that place of business of Armory Shop is only a condition of licence which can be varied by the licensing authority suo moto or on the application of the holder of licence as per Section 17 of the Arms Act.

Section 17 pertains to variation, suspension and revocation of licences. As per Section 17 (1), the licensing authority may suo moto vary the conditions of licence and as per Section 17 (2), the licensing authority may vary the conditions of the licence based on an application submitted by the licensee.

Kerala High Court Closes Plea Upon Noting State Govt's Assurance Over Appointment Of Judicial Member To Real Estate Appellate Tribunal

Case Title: Social Justice Vigilance Forum v State of Kerala

Citation: 2024 LiveLaw Ker 316

The State Government has assured the Kerala High Court that a judicial member will be appointed to the State Real Estate Appellate Tribunal immediately after June O4, 2024.

The Division bench comprising Justice A.Muhamed Mustaque and Justice S Manu disposed of the petition based on the assurance given by the state government that selection to the post is over and appointment will also be made after the Lok Sabha Polls.

No Illegal Religious Structures Should Be Allowed On Govt Lands, Encroachments By Religious Groups Would Lead To Disharmony: Kerala High Court

Case Title: The Plantation Corporation Of Kerala Limited v State of Kerala

Citation: 2024 LiveLaw Ker 317

The Kerala High Court has held that the construction of illegal religious structures and buildings in government lands by Hindus, Christians, Muslims or any other religion cannot be permitted since that would lead to religious disharmony in the State.

The Court referred to the Preamble of the Constitution to state that religious freedom guaranteed by the Constitution does not mean that citizens could encroach upon government land to construct religious structures and disrupt religious harmony.

Justice P.V.Kunhikrishnan issued directions for the identification and eviction of unauthorized and illegal religious structures from government or public lands to uphold communal harmony and to strengthen the country as a 'SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC' as enshrined in the Preamble of the Constitution of India.

Office Attached To Residential House Of Advocate Cannot Be Exempted While Calculating Plinth Area For Computing Luxury Tax: Kerala High Court

Case Title: Abdul Jabbar v State of Kerala

Citation: 2024 LiveLaw Ker 318

The Kerala High Court held that a room used by an advocate for study and office purposes attached to his residential house cannot be exempted while calculating the plinth area for computation of luxury tax under the Kerala Building Tax Act, 1975.

It is to be noted that as per Section 5A of the Kerala Building Tax Act, 1975, a luxury tax is charged on a residential building if its plinth area exceeds 278.7 square meters. The plinth area of a residential building is calculated as per Section 6 of the Act. The proviso to Section 6 states that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of firewood or for any non-residential purpose shall not be calculated while determining the plinth area for the imposition of the luxury tax.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. applied the 'ejusdem generis' rule to state that the legislative intent was only to exclude non-residential rooms used for storage of firewood or garage while calculating plinth area for determination of luxury tax.

[Dying Declaration] Section 32(1) Of The Evidence Act Is In The Nature Of Exception, Circumstances Must Be Established By Party Wishing To Avail It: Kerala HC

Case Title: Pradeep @ Kannan v State of Kerala, Babu and Another v State of Kerala

Citation: 2024 LiveLaw Ker 319

The Kerala High Court while considering a Criminal Appeal observed that unless the statement of a dead person would fall within the purview of Section 32(1) of the Evidence Act, it cannot be admitted in evidence. The admissibility of the statement depends on two conditions: either the statement should relate to the cause of the death or it should relate to any of the circumstances of the transaction which resulted in death.

The High Court relied on various judgments of the Supreme Court to hold that unless the prosecution can prove that the death occurred due to the injuries sustained to the victim, the statement cannot be considered a dying declaration.

Certain Wives Levelling Vague Allegations To Haul Up In-Laws In Non-Bailable Offences: Kerala High Court Asks Courts To Be Careful

Case Title: Shyamala Bhasker v State of Kerala

Citation: 2024 LiveLaw Ker 320

The Kerala High Court has remarked that many wives misuse Section 498A IPC in matrimonial disputes to wreak vengeance against the husband and parents, sisters, brothers and other relatives of the husband by raising vague and general allegations, without mentioning any specific instances of cruelty.

It further observed that Section 498 A is misused with an ulterior motive to initiate criminal proceedings and to malign and defame husband and relatives of husband in the society.

Justice A. Badharudeen thus stated that Courts have a duty to scrutinize the allegations raised against the in-laws to find out whether a prima facie case was made out to proceed with the trial or not. It held that if no prima facie case is made out from the allegations, then the Court should invoke its power under Section 482 of CrPC to quash the criminal proceedings.

ESI Act | Mother Employed But Father Owns Institution; Is Daughter Entitled To 'Ward Of Insured Certificate'? What Kerala High Court Held

Case Title: Ajitha V. S. v The Deputy Director

Citation: 2024 LiveLaw Ker 321

The Kerala High Court recently came across an "unusual" scenario where the daughter of an employee, insured under the Employee State Insurance Act was denied the "Ward of Insured Person Certificate" since her father owned the institution where her mother is employed.

The question before the Court was that since the ESI scheme is intended for the benefit of low paid employees, whether the daughter in this case will be entitled to such benefit when her father owns the institution.

[Veterinary Student Death] Kerala High Court Grants Bail To 19 Students Accused Of Abetment To Suicide, Assault & Criminal Conspiracy

Case Title: Akash S D v State of Kerala & Connected Cases

Citation: 2024 LiveLaw Ker 322

The Kerala High Court has granted bail to 19 students accused of committing abetment to suicide, criminal conspiracy and assault of Sidharthan J S, a second-year Bachelor of Veterinary Science and Animal Husbandry student at the College of Veterinary and Animal Sciences, Pookode in Wayanad.

Sidharthan allegedly committed suicide on February 18, 2024, because of ragging and brutal assault from the college.

The Central Bureau of Investigation (CBI) took over the investigation as per the orders of the Court. After investigation, the CBI filed their final report before the Court naming 19 students as accused and stated that Sidharthan was subjected to brutal physical assault and public trial by some of his classmates and seniors. The CBI had concluded in their final report that 9 accused persons had committed offences punishable under Section 120B, 341, 323, 324, 355, 306, 506 of IPC and under Sections 4 and 3 of the Kerala Prohibition of Ragging Act, 1998 and substantive offences thereof.

Justice C S Dias allowed the bail applications today and held that there is no prima facie material that indicates that the accused students have instigated Sidharthan to commit suicide. It stated that bail cannot be denied merely due to the sentiments of the society.

Only Co-Owners Can Claim Benefit Of Section 44 Of Transfer Of Property Act: Kerala High Court

Case Title: A. Sivalingappa Gowder @ Sivaraj Gowder and Others v M. A. Anidas and Another

Citation: 2024 LiveLaw Ker 323

The Kerala High Court has held that only co-owners can claim the benefit of Section 44 of the Transfer Of Property Act.

A single bench of Justice C. Pratheep Kumar held that only co-owners of a property are entitled to the benefit of the second paragraph of Section 44 of the Transfer of Property Act.

The second paragraph of Section 44 of the Transfer of Property Act says that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

Correction of Date of Birth In Service Records Cannot Be Claimed As A Matter Of Right: Kerala High Court

Case Title: Union of India and Others v Sunny Joseph

Citation: 2024 LiveLaw Ker 324

The Kerala High Court has held that changing the date of birth in service records cannot be claimed as a matter of right.

The division bench of Justice Amit Rawal and Justice Easwaran S. relied on various judgments of the Supreme Court and Kerala High Court to hold that the correction of date of birth in service records cannot be claimed as a matter of right.

The issue came up in a petition where the Union of India challenged the decision of the Central Administrative Tribunal allowing correction of respondent's date of birth in the service records observing that it would not cause any prejudice to the Department.

PIL In Kerala High Court Seeks To Ban Transporation & Cultivation Of Arali Plant In State After Death Of Nurse

Case Title: C. Girishdas v Government of Kerala and Others

Citation: 2024 LiveLaw Ker 325

A public interest litigation was filed before the Kerala High Court to ban the use, transportation and cultivation of the Oleander plant (Arali) from the State.

The petition was filed after the death of a nurse who died from a heart attack on April 28 allegedly caused by consuming Arali leaves. This matter has led to a discussion on whether Arali is safe to be used in pujas.

Surya Surendran was going to the UK to start her new job. She vomited and collapsed at the Cochin International Airport. Later while undergoing treatment, she died in a private hospital. The post-mortem report showed the presence of some toxic substances in her blood. Before the journey, she had chewed a leaf from an Arali plant near her house. She plucked the leaf and chewed it while talking on her phone. However, she immediately spat it out. The doctors said that the juice of the leaves might have gone inside.

Other Developments This Week

Will Issue Rules To Regulate Judicial Officers' Conduct While Handling Digital Evidence Containing Sexual Explicit Material: Registry Tells Kerala High Court

Case Title: XXX v. State of Kerala

Case Number: W.P. (Crl.) 445/ 2022

The Kerala High Court Registry (District Judiciary) submitted before the Court that the Registry is in the process of issuing directives to regulate the conduct of judicial officers of the subordinate judiciary while handling electronic evidence containing sexually explicit materials.

The Court had laid down the comprehensive guidelines on December 07, 2023 while ordering a 'fact-finding enquiry' on the allegations raised by the survivor in the 2017 actor sexual assault case regarding unauthorized access and copy and transfer of the visuals from a Memory Card relating to the incident.

The Registrar (District Judiciary) submitted a report before the Kerala High Court stating that the court's judicial directives, which provide comprehensive guidelines for law enforcement agencies, courts, and examining authorities while handling electronic records containing sexually explicit materials, would be adhered to.

'Hindi Names Of New Criminal Laws Create Difficulty For Non-Hindi Speakers' : Advocate's Plea In Kerala High Court

Case Title: P. V. Jeevesh v Union of India and Others

An advocate, P. V. Jeevesh filed a Public Interest Ligitaion before the Kerala High Court challenging the act of Union of India giving titles in Hindi to the 3 new Criminal Acts – Bharatiya Nyaya Suraksha Sanhita, Bharatiya Nyaya Sanhita and Bharatiya Sakshya Adhiniyam.

The petition was heard by the division bench comprising Chief Justice A J Desai and Justice V G Arun on May 29, 2024 (Wednesday).

The plea seeks the Court to declare the action of the respondent giving Hindi/ Sanskrit name to the Acts as ultra vires, direct the respondent to provide English nomenclature to the three Acts and declare that the Parliament cannot give name to the Acts in any language other than English

Whether Nomenclature Forms Part Of An Act?: Kerala High Court To Examine Validity Of 'Hindi' Titles For New Criminal Law Statutes

Case Title: P. V. Jeevesh v Union of India and Others

The Kerala High Court heard a public interest litigation (PIL) challenging the Hindi-language titles for the three new criminal law statutes.

The petition challenging the Hindi titles given to the 3 new criminal Acts came before the bench of Chief Justice A J Desai and Justice V G Arun on May 29, 2024. The matter is posted for a detailed hearing on 26^th July.

The PIL was filed challenging the Hindi titles given to the three new criminal laws. The petition said the members of the law fraternity in the South may find it hard to pronounce and the names can create confusion, ambiguity and difficulty for them. It therefore violates their right under Article 19(1)(g). The petition also contends that giving Hindi names to the Act goes against Article 348 of the Constitution.

Don't Get Colonial! Kerala High Court Says Police Stations Can't Be "Areas Of Terror", Should Be Approachable For Women & Children

Case title: Mahesh v Anilkant & Connected Matters

Case number: Contempt Case(C) No. 869 OF 2023(S) In WP(C) 11880/2021 & Connected Matters

The Kerala High Court today enquired incredulously as to why the police force in the State were trying to act In Terrorem, to instil fear and terror in the minds of the citizens by using coarse language.

Justice Devan Ramachandran said police officers are public servants and police stations are public offices. Thus, citizens should feel welcome to enter a police station.

Court said the police force should acquire a modern outlook and behave in a civilized manner with the citizens. It said that humility should be the hallmark of the police force and not arrogance. Court added that police officers have wide powers under the statute and if their behaviour is not regulated, it will remain unchecked. It emphasized that police should never use bad language to terrorize citizens.

Whether Disciplinary Action Was Initiated Against Former Deputy Tahsildar For Issuing Bogus Title Deeds: Kerala High Court Asks Govt

Case Title: One Earth One Life v State of Kerala

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

The Kerala High Court yesterday sought instructions from the government as to whether any crimes were registered or any disciplinary action was initiated against Devikulam Former Deputy Tahsildar M I Raveendran for issuing bogus title deeds.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice S.Manu passed the above order while considering cases about the utilization and encroachment of ecologically sensitive areas in the Munnar and Idukki districts. The leading case is a Public Interest Litigation filed back in 2010 to restrict and prevent illegal constructions in Munnar and Idukki districts. The petition was filed to prevent illegal land encroachments, identify encroachers and to conduct inquiry into the genuineness of title deeds.

The Court perused a Government order issued on January 18, 2022, whereby it revoked more than 530 pattas which was illegally issued by M I Ravindran by misusing his authority as a Deputy Tahsildar.

Kerala High Court Grants Interim Anticipatory Bail To Film Director Omar Lulu In Alleged Rape Case

Case Title: Omar Abdul Wahab @ Omar Lulu v State of Kerala

Case Number: Bail Appl. No. 4562 OF 2024

The Kerala High Court granted interim anticipatory bail to film director Omar Lulu in an alleged rape case. Nedumbassery Police has lodged FIR under Section 376 of the IPC based on the complaint of the de-facto complainant. Omar Lulu had denied the allegations of sexual assault and argued that he was in a consensual relationship with the defacto complainant.

Lawyer Moves Kerala High Court Over Water Pollution In Ashtamudi Lake And Mangrove Forest Destruction

Case Title: Advocate Boris Paul v Union of India and Others

Case Number: WP(C) 18400/2024

A plea has been moved before the Kerala High Court by Advocate Boris Paul, President of the Kollam Bar Association against waste dumping and illegal encroachments in the Ashtamudi lake causing water pollution and destruction of mangrove forests.

Ashtamudi Lake in Kollam district is Kerala's second-largest wetland ecosystem. It is designated as a wetland of international relevance under the Ramsar Convention on Wetlands. The Ashatmudi Lake is encircled by Kollam Municipal Corporation and 12 Grama Panchayaths.

The Division Bench comprising Chief Justice A J Desai and Justice V G Arun has posted the matter to July 05. The Court also issued notice to Kollam Municipal Corporation and concerned Grama Panchayaths.

Kerala High Court Issues Directions To Prevent Dumping Of Waste In Public Places, Set Up Plastic Bottle Collection Booths & Create Awareness In Schools

Case Title: Suo Moto v State of Kerala

Case Number: WP (C) 7844/2023

The Kerala High Court has issued directions to sensitize, create awareness and to prevent the public from dumping of waste onto public places.

The Division Bench comprising Justice Bechu Kurian Thomas and Justice Gopinath P. sought instructions from the state government about the steps taken to sensitize school students to avoid dumping waste in public places. The Court has also sought a report from Kochi Municipal Corporation about the steps to clear waste from canals and its sides to reduce flooding in the city.

The directions issued by the Court are as follows:

The local authorities are to be instructed by State Government to identify and set up plastic bottle collection booths
To place on record the details including flow chart for the mode of removal of plastic from collection booths till its disposal
To apprise the Court about steps taken by the government to sensitize school students to avoid dumping waste in public places.
Place report before Court on waste disposal facilities available in six corporations and other districts in the State
To explore and identify measures to remove silt accumulating at outlets of Thevara-Perandoor Canal
Kochi Corporation is directed to submit a report on steps taken to clear waste from canals and its sides in Kochi. The report shall also include steps taken to prevent waste from being dumped into canals and backwaters by commercial and residential complexes

Kerala High Court Weekly Round-Up: May 27 – June 02, 2024

Manju Elsa Isac

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