Kerala High Court Weekly Round-Up: November 11-November 17, 2024

Yasar Arafath v State of Kerala, 2024 LiveLaw (Ker) 708

Suseelan v State of Kerala & Another, 2024 LiveLaw (Ker) 709

Suo Moto v State of Kerala, 2024 LiveLaw (Ker) 710

K Sukumaran v Kerala State Waqf Board, 2024 LiveLaw (Ker) 711

Amjith v State of Kerala, 2024 LiveLaw (Ker) 712

Union Territory of Lakshadweep and Othes v Salimkoya K,. and Another, 2024 LiveLaw (Ker) 713

xxx v xxx , 2024 LiveLaw (Ker) 714

Sabeer A v State of Kerala, 2024 LiveLaw (Ker) 715

Niyas v Mohana, 2024 LiveLaw (Ker) 716

Hindustan Coca Cola Beverages (P) Ltd. and Another v The Controller of Legal Metrology and Others, 2024 LiveLaw (Ker) 717

In Re Captive Elephants v Union of India, 2024 LiveLaw (Ker) 718

Shani v Muhammed Kunji, 2024 LiveLaw (Ker) 719

Vinod Valiyatoor v XXX and Others, 2024 LiveLaw (Ker) 720

Anup V H & Ors. v Pramod A D & Ors. and Connected Case, 2024 LiveLaw (Ker) 721

X v State of Kerala & Connected Cases, 2024 LiveLaw (Ker) 722

Charuvila Philipose Sundaran Pillai and Another v P. N. Sivadasan and Others, 2024 LiveLaw (Ker) 723

K. T. Mujeeb v State of Kerala and Others, 2024 LiveLaw (Ker) 724

Kings Infra Ventures Ltd. v. The Assistant Commissioner of Income Tax, 2024 LiveLaw (Ker) 725

Manjoo and Company v. The Assistant Commissioner of Income Tax Central Circle, 2024 LiveLaw (Ker) 726

Judgments/Orders

Need To Invoke Kerala Anti-Social Activities Act Must Be Assessed If Proceedings For Peace Keeping U/S 107 CrPC Already Initiated: High Court

Case Title: Yasar Arafath v State of Kerala

Citation: 2024 LiveLaw (Ker) 708

The Kerala High Court has held that when proceedings under Section 107 of the CrPC have already been initiated against an individual, the competent authority must assess whether it was necessary to initiate proceedings under the Kerala Anti-Social Activities (Prevention) Act, 2007 as well to preventively detain or extern the individual.

Section 107 of CrPC is initiated for taking security for keeping peace and public tranquillity.

The Division Bench of Justice Raja Vijayaraghavan V and Justice Jobin Sebastian observed that if authorities are convinced that proceedings under the KAAPA Act also have to be initiated against an individual to prevent him from engaging in anti-social activities, then they may initiate such actions, even if proceedings have already been taken under Section 107 CrPC.

Over Speed & High Speed Are Relative Terms, Driving At High Speed By Itself Doesn't Mean Accused Was Rash Or Negligent: Kerala High Court

Case Title: Suseelan v State of Kerala & Another

Citation: 2024 LiveLaw (Ker) 709

The Kerala High Court upheld the conviction imposed upon an accused under Section 304 Part II of the IPC for causing the death of a motor bike rider by driving his car on the wrong side of the road after consuming alcohol beyond the permissible limit.

Section 304 defines culpable homicide not amounting to murder. A person is convicted under Section 304 Part II of the IPC when he does an act with the 'knowledge' that such an act is likely to cause death.

Justice C S Sudha observed that the accused was not speeding his car but he drove the car after consuming alcohol beyond the permissible limit. It observed that the accused was unable to manage or control the car and drove on the wrong side of the car with the presumption of knowledge that if he hit pedestrians or people travelling in vehicles, death would be caused.

Dolly Workers With Police Verification Certificate, Health Cards To Carry Pilgrims To Sabarimala: Kerala High Court Issues Directions

Case Title: Suo Moto v State of Kerala

Citation: 2024 LiveLaw (Ker) 710

The Kerala High Court has recently issued directions to ensure the fitness of 'dollies' (cane chairs) that are used to carry devotees at Sabarimala.

The court said that the Travancore Devaswom Board shall ensure the fitness of the dollies used for carrying pilgrims through the trekking path before the commencement of each Maasapooja and Mandala-Makaravilakku festival season.

For context, a dolly is a reclining bamboo cane chair used for carrying pilgrims who are unable to walk the trekking path from Pamba to Sannidhanam. Four workers carry the dolly, which is tied to the poles using plastic and coir ropes.

A division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar passed the order based on the report of the Sabarimala Special Commissioner about a 59-year-old devotee falling from the dolly and sustaining injuries.

No Prosecution For Possessing Waqf Property Without Sanction From Waqf Board If Possession Was Before Insertion Of S.52A Waqf Act: Kerala HC

Case Title: K Sukumaran v Kerala State Waqf Board

Citation: 2024 LiveLaw (Ker) 711

The Kerala High Court held that there cannot be a prosecution under Section 52A of the Waqf Act for taking possession of Waqf property without prior sanction of the Waqf Board if there was prior possession of the property, that is before the insertion of Section 52A in 2013.

Section 52A of the Waqf Act provides rigorous imprisonment up to 2 years for alienation, purchasing or possession of movable or immovable Waqf property without prior sanction from the Waqf Board.

Justice P.V.Kunhikrishnan thus quashed the proceedings initiated against the employees of the post office on finding that they were in possession of the property since 1999.

[POSH Act] Majority ICC Reports 'Shockingly' Biased In Favour Of Workplace, Can't Impact Police Report Filed On Victim's Complaint: Kerala HC

Case Title: Amjith v State of Kerala

Citation: 2024 LiveLaw (Ker) 712

The Kerala High Court has observed that the report or findings of the Internal Complaints Committee formed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) 2013 will not have an impact against the police report made based on the victim's complaint alleging sexual harassment at workplace.

The Court further observed that this is because most of the ICC reports tend to be one-sided and biased, often favouring the institution involved.

The Court was considering whether the report of the Internal Complaints Committee established under the POSH Act could be solely relied upon to quash criminal proceedings against the accused.

Justice A. Badharudeen thus observed that ICC reports must be carefully examined and scrutinized before any action is taken based on them.

Kerala High Court Lifts Stay On Lakshadweep Tourism Dept's 'Tent City' But Constructions Subject To Verdict In Property Dispute

Case Title: Union Territory of Lakshadweep and Othes v Salimkoya K,. and Another

Citation: 2024 LiveLaw (Ker) 713

The Kerala High Court has removed stay on further construction in connection with the development of Tent City in Thinnakkara and Bangaram islands of Lakshadweep.

A Single-Bench Judge had earlier, while dealing with challenge to assignment of the concerned properties to the Tourism Department, stopped the construction by ordering to maintain status quo.

The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. after perusing the photos produced by the Additional Solicitor General of India saw that the constructions in question were temporary, mainly tent to accommodate tourists. The Court also noted that a substantial amount has been spent on the construction for promoting tourism. It added that the constructions shall be subject to the final decision made by the Court in deciding the validity of allocating the land to Tourism department.

Post-Partum Depression Is Common, Temporary: Kerala HC Sets Aside Family Court's Order Granting Permanent Custody Of Child To Father

Case Name: xxx v xxx

Citation: 2024 LiveLaw (Ker) 714

The Kerala High Court set aside the orders of the Family Court granting permanent custody of a one-and-a-half-year-old daughter to the father on the prima facie finding that the mother was suffering from psychiatric disorders from her old medical records indicating post-partum depression.

The Court further stated that scientific studies are proving that post-partum depression is relatively common in some women and is typically a temporary condition and not permanent.

The Division Bench of Justice Devan Ramachandran and Justice M.B. Snehalatha observed that the Family Court should not have granted permanent custody the daughter to the father merely based on the mother's medical records which indicated post-partum depression shortly after giving birth to the child.

Person Residing Or Having Business In Kerala Can Get His Motor Vehicle Registered At Any RTO Within State: High Court

Case Title: Sabeer A v State of Kerala

Citation: 2024 LiveLaw (Ker) 715

The Kerala High Court has held that a person residing in a state can register his vehicle by any registering authority within the state, irrespective of his place of residence or business within the state, as per Section 40 of the Motor Vehicles (Amendment) Act of 2019.

Section 40 provides for the place where the motor vehicle has to be registered.

The petitioner's car was not registered by the RTO in Attingal in Trivandrum district, stating that the RTO in Kazhakootam in Trivandrum district has the jurisdiction.

Justice DK Singh observed that as per the 2019 amendment to the MV Act and an advisory issued by the Central Government, any registering authority within the State can register the vehicle.

Notional Income Of Ordinary Worker Must Be Determined Based On Fair Wages At Time Of Awarding Compensation: Kerala High Court

Case Title: Niyas v Mohana

Citation: 2024 LiveLaw (Ker) 716

The Kerala High Court has observed that the notional income of an ordinary worker has to be fixed after considering the fair wages applicable at the time of calculating the compensation and not based on his earning capacity at the time of the accident.

The appellant had approached the High Court challenging the award of rupees 75,000 by the Motor Accident Claims Tribunal.

Justice Johnson John stated that earning less than fair wages at the time of the accident should not be a reason to deprive parity in notional income.

Laser Printing On Mineral Water Bottle Legible: Kerala HC Quashes Case Against Kinley Booked For Illegible Packaging Details

Case Title: Hindustan Coca Cola Beverages (P) Ltd. and Another v The Controller of Legal Metrology and Others

Citation: 2024 LiveLaw (Ker) 717

Quashing a case against Hindustan Coca Cola Company under the Legal Metrology (Packaged Commodities) Rules concerning alleged illegible declaration about the packaging details of mineral water sold at a movie theatre, the Kerala High Court observed that it could not be said that the details in the form of laser printing were illegible or not prominent.

After perusing through the seized product Justice P. V. Kunhikrishnan in its order said, "The counsel for the petitioner made available a bottle of 'Kinley', packaged drinking water. The Public Prosecutor also produced the bottle seized by the officer concerned. This Court perused the same. A perusal of the same would show that there is laser printing in the bottle. It cannot be said that the same is not legible and prominent. The counsel for the petitioners produced a news item of the Central Minister, which published in Times Of India dated 24.09.2024 in which it is stated that the Minister bats for laser printing in water bottles. Since the printing is legible, I am of the considered opinion that the continuation of the prosecution against the petitioners is not necessary".

Elephant Fitness Certificate, 3-Days Rest, 3-Hrs Cap On Parading: Kerala HC Issues Directions To Prevent Cruelty During Temple Festivals

Case Title: In Re Captive Elephants v Union of India

Citation: 2024 LiveLaw (Ker) 718

The Kerala High Court has remarked that Elephants in Kerala are widely used in Temples in the name of tradition and religion but, in reality, it is a "commercial exploitation" without any care or concern for their well-being.

The Division Bench of Justice A.K.Jayasankaran Nambiar and Justice Gopinath P. thus issued certain directions for effective implementation of the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 and to ensure compliance of Apex Court's decision in Wildlife Rescue and Rehabilitation Centre and others Vs. Union of India (2016).

When There Is No Appeal Provision Provided By Law, Judgment Made In Appeal Is Non-Est: Kerala High Court

Case Title: Shani v Muhammed Kunji

Citation: 2024 LiveLaw (Ker) 719

The Kerala High Court stated that when there is no appeal provision given in law, then the judgment made in appeal was non-est in law and could be ignored.

The Court was considering the challenge against an order issued by the Sessions Judge, dismissing Magistrate's order when there was no provision provided for appeal.

Justice P .G. Ajithkumar stated that the Sessions Judge committed an error in considering the appeal when there was no provision for appeal.

Court said, “In the circumstances, the learned Sessions Judge committed an error in entertaining and deciding Crl.Appeal No.28 of 2019. It was without jurisdiction. When such a remedy is not provided in law, the judgment in the appeal is a non-est and can only be ignored.”

Serious Irregularities: Kerala HC Quashes Order Directing Magistrate To Decide On Probe Into Rape Allegations Against Ponnani Police Officers

Case Title: Vinod Valiyatoor v XXX and Others

Citation: 2024 LiveLaw (Ker) 720

While hearing a case where a woman had alleged that she was raped by police officials in Ponnani with the police allegedly refusing to register an FIR, the Kerala High Court set aside the judgment of the Single Judge which had directed the Magistrate to pass order regarding investigation, after noting that it suffered from "serious procedural irregularity".

Observing the failure on the part of the police to take action for three years was "shocking", single judge in its October 18 order had questioned the delay in ordering an investigation into matter.

Setting aside the single judge's order the division bench of Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu in its order said, "The reliefs sought in the Petition have nothing to do with the proceedings pending before the learned Magistrate and, in fact, ExhibitP6, the order passed by the learned Magistrate on 11 September 2024 in C.M.P. No.3288/2024 calling for a report, was not even the subject matter of the petition. If the learned Magistrate found that the matter needed to be proceeded further, the Magistrate would have taken steps as per the subsequent provision under the BNSS, in respect of an investigation. If the learned Magistrate found that the complaint should be dismissed, an order would have been passed under Section 226 of the BNSS. Section 223(2) is a stage where the Magistrate will not take cognisance and this stage had not arisen in the present case. If any erroneous order is passed by the learned Magistrate, it is always subject to challenge in appropriate proceedings. The impugned judgment thus suffers from serious procedural irregularity and is required to be set aside".

Can Saving Clause In Forest Subordinate Service (Amendment) Special Rules, 2014 Extend To Promotion Of Appointees Under Earlier Rules? Kerala HC Answers

Case Title: Anup V H & Ors. v Pramod A D & Ors. and Connected Case

Citation: 2024 LiveLaw (Ker) 721

The Kerala High Court held that the saving clause in the Kerala Forest Subordinate Service (Amendment) Special Rules, 2014 would not grant any entitlement to employees who were appointed under the Kerala Forest Subordinate Service of 1962 and Kerala Forest Subordinate Service Special Rules of 2010 in the matters of promotion.

The Court was considering whether the promotion of Beat Forest Officers who were advised for appointment to the post of Section Forest Officer under the 1962 Special Rules would be governed by those rules or by the 2014 Amendment, which prescribed additional qualifications.

The Division Bench of Justice A.Muhamed Mustaque and Justice P. Krishna Kumar found that the saving clause does not confer promotion rights upon employees appointed under the 1962 Rules or 2010 Rules without acquiring the additional qualifications.

Children's Courts Notified For Speedy Trial Of Offences, Jurisdiction Of Criminal Courts Conducting Trial Not Taken Away: Kerala High Court

Case Title: X v State of Kerala & Connected Cases

Citation: 2024 LiveLaw (Ker) 722

The Kerala High Court held that the Magistrate Court does not lose its jurisdiction to try criminal cases merely because the State Government has notified Children's Courts for the speedy trial of offences against children.

However, the Court stated that it is proper that the offences be tried by the Children's Court.The state government issued a notification in 2009 made under Section 25 of the Commissions for Protection of Child Rights Act, 2005 which stipulates that Special Courts are constituted or Sessions Courts are designated as Children's Court to ensure speedy trial of offences against children.

Justice P.G. Ajithkumar observed that the Children's Courts are notified for the specified purpose of trial of speedy offences against children.

Kerala High Court Lays Down Guidelines For Service Of Summons In Suits For Defendants Outside India

Case Title: Charuvila Philipose Sundaran Pillai and Another v P. N. Sivadasan and Others

Citation: 2024 LiveLaw (Ker) 723

The Kerala High Court on Friday laid down guidelines regarding effecting service of summons in a suit where the defendants reside beyond India's borders. The Bench comprising of Justice Raja Vijayaraghavan V., Justice C. Jayachandran and Justice C. Pratheep Kumar was answering a reference by a Division Bench as to whether a summons issued by the Court to a defendant residing outside India has to be effected through modes mentioned under Order V Rule 25 of CPC or as per the Convention on The Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial matters (the Hague Service Convention).

Setting Up Of Religious Place By One Community Can't Be Stopped Merely Due To Opposition By Another Community, Assumption Of Disharmony: Kerala HC

Case Title: K. T. Mujeeb v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 724

The Kerala High Court recently quashed an order of District Collector refusing to give NOC to continue the functioning of a prayer hall in Kadalundi village. Justice Mohammed Nias C. P. quashed the order observing that the main reason for objection of NOC was due to apprehension of law-and-order situation due to the objection made by other members of the community. The Court said that the order based on such apprehension was unreasonable.

[Income Tax] Assessing Authority Can't Reassess Prior Years Without Inquiry While Determining Relevant Year's Assessment: Kerala High Court

Case Title: Kings Infra Ventures Ltd. v. The Assistant Commissioner of Income Tax

Case Citation: 2024 LiveLaw (Ker) 725

The Kerala High Court stated that while determining the assessment of relevant years assessing authority cannot determine the assessment for earlier years without enquiry.

The Division Bench of Justices A.K. Jayasankaran Nambiar and Syam Kumar V.M. observed that “…….we fail to understand how the assessing authority, as well as the First Appellate Authority, while considering assessment proceedings for the assessment years 2011-12 could have embarked upon an enquiry with regard to the nature and extent of business that was carried on by the assessee during the assessment years from 1999- 2000 to 2009-10……..”

Consequential Order Passed By Assessing Authority Beyond Terms Of Remand By Commissioner Is Unacceptable: Kerala High Court

Case Title: Manjoo and Company v. The Assistant Commissioner of Income Tax Central Circle

Citation: 2024 LiveLaw (Ker) 726

The Division Bench of Kerala High Court comprising Justices A.K. Jayasankaran Nambiar and Syam Kumar V.M. observed that “the concern of the Assessing Authority, while passing a consequential order, has to be limited to those specific issues that have been remanded to it for consideration by the Commissioner………..”

Section 263 of the Income Tax Act, 1961 empowers the Commissioner of Income Tax to revise any order passed under the Income-tax Act, 1961, which is erroneous insofar as it is prejudicial to the interest of the revenue.

News Updates

Kerala High Court Calls For Long-Term Action Plan To Prevent Child Marriage Prevalent In Certain Communities Of Wayanad

Case Title: Suo Motu v The State of Kerala and Others

Case No: WP(C) 25285 of 2016

The Kerala High Court has directed the District Legal Services Authority (DLSA), Wayanad to chalk out a long-term plan to increase awareness about negative aspects of child marriage and dissuading people from it.

The Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu passed this order in a Suo Motu proceedings initiated by the Court in 2016 on a report by the DLSA Chairman Wayanad that certain tribal communities namely Paniyas, Mullukurumas, Adiyars, Kurichyas, Ooralis, Kattunaikkans, Kanduvadiyar, Thachandar and Kanaladi in Wayanad practices child marriage.

Provision Penalising Guardian Of Minor Who Commits Offence Under Motor Vehicle Act Challenged In Kerala High Court

A petition has been moved before the Kerala High Court challenging the constitutional validity of Section 199A of Motor Vehicles Act which states that when any offence under the Act is committed by a juvenile, his guardian or owner of the vehicle shall be deemed to be guilty and proceeded against. Under the provision, the registration of the vehicle which the minor was using can be cancelled for 6 months.

Further, the juvenile won't be given a valid driving licence until the child attains 25 years.

During the hearing on Monday (November 10) a single judge bench of Justice Bechu Kurian Thomas asked the respondents to file a reply to the plea and listed the matter on December 10.

Wife Of Lakshadweep Man Who Allegedly Went Missing From Police Custody Moves Kerala High Court Seeking SIT Probe

Case Title: Abida M M v The Administrator Union Territory of Lakshadweep & Ors

Case Number: WP(Crl.) 1187/2024

A plea has been moved before the Kerala High Court by the wife of a man who allegedly went missing while in police custody in Lakshadweep.

His wife, a permanent resident of Lakshadweep has approached the Court seeking to set up a special investigation team headed by the Superintendent of Police, Lakshadweep to investigate the disappearance of her husband, while he was under police custody.

Sabarimala Crowd Management: Kerala High Court Permits Parking Of Pilgrim Vehicles At Chakkupallam-II, Hilltop Area On Experimental Basis

Case Title: Suo Motu v State of Kerala and Others

Case No: DBP 43/ 2024

The Kerala High Court, on an experiment basis, has allowed parking of motor cars carrying pilgrims in Chakkupallam-II and Hilltop area in the upcoming Makaravilakku season.

Earlier, the Court had, as a temporary measure allowed such parking during the masapooja time.

The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. emphasized that the parking shall be done only in a regulated manner in areas earmarked by the Travancore Devaswom Board and in strict compliance of the directions given by the Board and police. A parking fee shall be collected either through FAST tag or manually. A vehicle can be parked only for a maximum period of 24 hours.

Hearing & Speech Impaired Woman Moves Kerala High Court Invoking S.7 Of Disabilities Act For Protection Against Abuse By Miscreant

Case Title: Jayakumari v State Police Chief

Case Number: WP(C) 39323/2024

A plea has been moved before the Kerala High Court by a differently abled woman seeking direction from the Court for police protection against the threat of abuse by relying upon Section 7 of the Rights Of Persons With Disabilities Act of 2016.

Section 7 states that all measures have to be taken to provide protection to persons with disabilities and to prevent them from all forms of abuse, violence and exploitation.

Justice V G Arun has sought instructions in the matter.

Media Persons With ID Cards Issued By Travancore Devaswom Board Alone Can Remain At Sabarimala Sannidhanam: Kerala High Court

Case Title: Suo Moto v State of Kerala

Case Number: SSCR NO. 80 OF 2024

The Kerala High Court has ordered that media reporters who are issued with identity cards by the Travancore Devaswom Board can only remain at the Sabarimala Sannidhanam.

The Division Bench of Justice Anil K. Narendran And Justice Muralee Krishna S was considering the issue of stay of media persons at Sabarimala ahead of the Maasapoojas and Mandala-Makaravilakku festival season of 2024-25.

“Accordingly, the Board is directed to issue identity cards for media persons on a written recommendation by the Head of a print media having registration with Registrar of Newspapers of India or Visual Media having licence with the Ministry of Information and Broadcasting, based on the recommendation of the 6th respondent Chief Vigilance and Security Officer (Superintendent of Police)…. Persons holding identity cards alone shall be permitted to remain at Sannidhanam, since the entry of pilgrims to Sabarimala is regulated by Virtual-Q booking and spot booking, against available slots.”