Kerala High Court Weekly Round-Up: November 25 - December 01, 2024

State of Kerala v Jayakrishnaraj G, 2024 LiveLaw (Ker) 748

Baburaj Jacob v State of Kerala and Another, 2024 LiveLaw (Ker) 749

The Federal Bank Ltd. v The Additional/ Joint/ Dputy/ Assistant Commissioner of Income Tax,  2024 LiveLaw (Ker) 750

Pooja Anand v Ashokan K. and Another, 2024 LiveLaw (Ker) 751

Georgekutty C X v Chairman and Managing Director, KSEB, 2024 LiveLaw (Ker) 752

Master Jyothis Raj Krishna @ Jyothi Krishna v Sunny George & Connected Matter, 2024 LiveLaw (Ker) 753

Shaju Jose v State of Kerala, 2024 LiveLaw (Ker) 754

 Princy Mol v State of Kerala, 2024 LiveLaw (Ker) 755

 Aaliya Ashraf v State of Kerala and Another, 2024 LiveLaw (Ker) 756

Prasanna E.V. v. State of Kerala & Ors., 2024 LiveLaw (Ker) 757

State of Kerala v P V Mohan & Connected Matter, 2024 LiveLaw (Ker) 758

Muraleedharan Koncherillam v State of Kerala, 2024 LiveLaw (Ker) 759

  Sunil Rajan K. v Inspector of Police and Another, 2024 LiveLaw (Ker) 761

 Dr.Beena Bahuleyan v State of Kerala,  2024 LiveLaw (Ker) 762

 Union of India and Others v Bhaskaran N., 2024 LiveLaw (Ker) 763

 Bharat Prakashan (Delhi) Ltd. v CP Mohammed Basheer, 2024 LiveLaw (Ker) 764

M/S. Cradle Calicut Maternity Care Pvt. Ltd v State of Kerala & Connected Case, 2024 LiveLaw (Ker) 765

Judgments/Orders This Week

Kerala High Court Warns State Of 'Adverse Consequences' For Bureaucratic Indecision Affecting Promotion Entitlements Of Govt Servants

Case Title: State of Kerala v Jayakrishnaraj G

Citation: 2024 LiveLaw (Ker) 748

The Kerala High Court has warned the State of the adverse consequences it must face for causing administrative delays in granting promotions to government servants without any reason.

In the facts of the case, a professor who has been entitled to promotion since 2003 was brought to the Court in an appeal preferred by the State against the order of Kerala Administrative Tribunal upholding his right to promotion since 2003.

The Division Bench of Justice A.Muhamed Mustaque and Justice P. M. Manoj upheld the order of the Tribunal which found that he was entitled for promotion since 2003, since there was a vacancy of the Professor even prior to 2003 and that his name was on the select list published in 2002.

'Inordinate Delay In Registering FIR', Kerala High Court Grants Anticipatory Bail To Malayalam Actor Baburaj In Sexual Harassment Case

Case Title: Baburaj Jacob v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 749

The Kerala High Court has allowed the anticipatory bail application moved by Malayalam film actor Baburaj in connection with allegations of sexual harassment that came to light following the Hema Committee report, with stringent conditions. The Court has directed actor Baburaj to surrender before the Investigating officer in ten days.

The crime was registered against him at the Adimali police station in Idukki alleging rape and sexual harassment between January 01, 2018 to December 31, 2019.

While allowing the bail application, Justice C S Dias referred to the decision in Siddique v State Of Kerala And Another, wherein Malayalam actor Siddique was granted bail by the Supreme Court on similar grounds of delay in lodging the FIR.

Not Considering Income Tax Assessee's Request For Personal Hearing Violates Natural Justice: Kerala High Court

Case Title: The Federal Bank Ltd. v The Additional/ Joint/ Dputy/ Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Ker) 750

The Kerala High Court held that the income tax authorities, by not considering a request for personal hearing has violated the principles of natural justice. Justice K. Babu observed that due to this violation, the orders passed without considering the assessee's request is bound to be set aside.

“The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a competent statutory authority embarks on an action involving civil consequences. The fundamental principle is that no one should be condemned unheard.”

Filing Complaint Against A Person Before Lawful Authority Does Not Attract The Offence Of Defamation: Kerala High Court

Case Title: Pooja Anand v Ashokan K. and Another

Citation: 2024 LiveLaw (Ker) 751

The Kerala High Court while quashing a case of defamation, observed that the complaint filed in the present case before a lawful authority which was enquired by it, will not attract an offence under Section 500 IPC.

Justice P. V. Kunhikrishnan in its order said that the fourth exception to Section 499 IPC says that, it is not defamation to publish a substantially true report of the proceedings of a court of justice or of the result of any such proceedings.

Kerala High Court Quashes Punishment On Sub-Engineer At Kerala State Electricity Board Invoked Based On 'Factum Valet' Doctrine

Case Title: Georgekutty C X v Chairman and Managing Director, KSEB

Citation: 2024 LiveLaw (Ker) 752

The Kerala High Court quashed the punishment imposed upon a Sub-Engineer of the Kerala State Electricity Board Limited (KSEBL) and exonerated him from all the charges for the delay in issuance of a provisional assessment order, which was imposed by the disciplinary authority by invoking the doctrine of Factum Valet.

For context, the doctrine of Factum Valet which means that an act that was not supposed to be done, is valid once it is done.

Justice K Babu stated that the disciplinary proceedings initiated against the Sub-Engineer by invoking the doctrine of Factum Valet, was illegal and vitiated in law. The court said this after noting that the principle cannot be invoked to hold that the petitioner sub engineer, who was not authorised to issue a provisional assessment order with respect to a consumer, but had issued it in the interest of the board, is responsible for the delay in issuing the same.

What Should Be The Notional Income Of A 5-Yr-Old Minor In A Motor Accident Claim? Kerala High Court Answers

Case Title: Master Jyothis Raj Krishna @ Jyothi Krishna v Sunny George & Connected Matter

Citation: 2024 LiveLaw (Ker) 753

The Kerala High Court has fixed the notional income at rupees 17, 325 per month for a 5-year-old minor boy, who has been in a state of paraparesis and lost his childhood since a 2016 accident.

The Insurance Company challenged the Tribunal's decision to fix the notional income to rupees 8,000 per month.

Justice Easwaran S. referred to Master Ayush v. The Branch Manager, Reliance General Insurance Co. Ltd and Others (2022) wherein the Apex Court granted over 50 lakh rupees as compensation to a 5 year old victim who was paralysed for life in an accident. Relying on it, the High Court observed that Courts must undertake a progressive thinking while fixing notional income of a minor child and must not apply a restrictive mind.

Not Always Possible To Send Notice Before Making Adverse Remarks Against An Authority: Kerala High Court

Case Title: Shaju Jose v State of Kerala

Citation: 2024 LiveLaw (Ker) 754

The Kerala High Court while dismissing a case for expunging the adverse remarks made against a police officer, observed that such remarks were absolutely necessary to take an appropriate decision in that order.

Justice A. Badharudeen said that in such a case, it will be difficult to issue notice to the officer before making such observation. "...such a finding by the learned Special Judge was absolutely necessary for taking an appropriate decision of the discharge petition as an integral part thereof. Therefore, in such a case, it was difficult to issue notice to the Circle Inspector of Police before making observations."

Kerala HC Refuses To Quash Criminal Case Against Lab Technician For 'Endangering Life' By Deviating From Test Method Prescribed By Doctor

Case Title: Princy Mol v State of Kerala

Citation: 2024 LiveLaw (Ker) 755

The Kerala High Court has held that a lab technician can be held liable for negligence if they deviate from the test prescribed by the doctor on the ground that the test so prescribed was unavailable in their lab.

Consequently, the Court refused to quash the final report alleging offence punishable under Section 336 (rash or negligent acts endangering human life) IPC against a lab worker, who conducted the Elisa Test by 'Particle Gel Immuno Assay' method, instead of the 'Hit Antibody Test' method on complainant's mother.

Justice A. Badharudeen observed that the lab technician was duty-bound to conduct the test prescribed by the doctor or to send back the patient if the test was unavailable in their lab.

S.2(p)(iii) KAAPA | Complaint By Police Can Be Counted Towards Declaring Accused 'Known Rowdy' If No Personal Grievance Involved: High Court

Case Title: Aaliya Ashraf v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 756

The Kerala High Court has held that the bar under Section 2(p)(iii) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) does not apply if the police officer does not have any 'personal grievance' against the accused.

The Division Bench of Justice Raja Vaijayaraghavan V. and Justice Jobin Sebastian observed that such a grievance cannot be said to have existed if the crime relates to obstruction of discharge of duty.

Kerala High Court Orders Strict Compliance Of Food Safety Standards For Eateries Selling Shawarma, Cancellation Of License For Violations

Case Title: Prasanna E.V. v. State of Kerala & Ors.

Citation: 2024 LiveLaw (Ker) 757

The Kerala High Court on Wednesday (November 27) ordered the authorities to conduct periodical inspections and supervisions on hotels, vendors and restaurants selling Shawarma to ensure that there is strict compliance of the Food Safety and Standards Act, 2006.

The Court further ordered that the license of eateries selling Shawarma without adhering to safety standards must be cancelled and stringent action must be taken against them.

Justice Devan Ramachandran directed the authorities to ensure strict compliance of its interim order dated November 14, 2023. The interim order was issued directing all eateries selling Shawarma to exhibit the date and time of preparation of food articles on its packaging.

When Pay Scale Is Revised Retrospectively, Entitled Pensioners Must Be Given Benefits Even If They Retired Before Revision Order: Kerala HC

Case Title: State of Kerala v P V Mohan & Connected Matter

Citation: 2024 LiveLaw (Ker) 758

The Kerala High Court has reiterated that when pay scale is revised retrospectively, then the revised pay scale must be considered while calculating pension even if the pensioners have retired prior to the issuance of the pay revision order, provided they are entitled to the revised pay scale.

In doing so the high court upheld an order of the Kerala Administrative Tribunal which set aside a government letter which had said that revised pension of university teachers in the state who receive UGCpayscale would be effective from 2009 and not from 2006.

A Division Bench of Justice A.Muhamed Mustaque and Justice P. Krishna Kumar ordered thus: “The law is settled that when the pay is revised retrospectively, that revised pay should be taken into account when calculating the pension, even if the pensioner retired prior to the issuance of the pay revision order, provided he is entitled to get the revised pay.”

Kerala High Court Refuses To Entertain PIL Seeking CBI Probe Into Former ADM Naveen Babu's Death

Case Title: Muraleedharan Koncherillam v State of Kerala

Citation: 2024 LiveLaw (Ker) 759

The Kerala High Court has refused to entertain a public interest litigation moved by a social activist seeking CBI probe into the death of former ADM Naveen Babu, stating that there is another writ petition moved by the wife of the deceased which is already under the Court's consideration.

Stating that the wife's plea seeks similar relief, the Division Bench of Chief Justice Nitin Jamdar and Justice S Manu disposed of the PIL.

“We are informed by the state that the wife of the deceased has already moved this Court for the same relief. In thereof, not necessary to entertain a public interest litigation as the matter is already seized before this Court in another writ petition. The PIL is accordingly disposed of.”

State Public Service Commission Alone Has The Power To Extend The Life Span of Ranked List Of Candidates Issued By It: Kerala High Court

Case Title: Kerala Public Service Commission v Vilayathulla P. H. and Others

Citation: 2024 LiveLaw (Ker) 760

The Kerala High Court held that the Kerala Administrative Tribunal does not generally have the power to extend the life of the ranked list of candidates issued by Kerala Public Service Commission (PSC), and the latter alone has the power to decide the extension period.

The Division Bench of Justice A. Muhamed Mustaque and Justice P. M. Manoj emphasized that PSC is a constitutional body. It referred to Rule 13 of the Kerala Public Service Commission Rules of Procedure which pertains to the lifespan of a ranked list and circumstances in which the lifespan of the ranked list can be extended. The Court held that as per the rules, only PSC has the power to extend the lifespan of the ranked list.

[S.349 BNSS] Magistrate Can Direct Any Person To Provide Voice Sample For Purpose Of Investigation: Kerala High Court

Case Title: Sunil Rajan K. v Inspector of Police and Another

Citation: 2024 LiveLaw (Ker) 761

The Kerala High Court held the criteria for the Magistrate to direct any person to give voice sample under Section 349 of BNSS is the satisfaction of the Magistrate that such sample is required for the purpose of investigation.

“Under Section 349, the criteria is the satisfaction of the Magistrate that it is expedient to direct any person to provide his voice sample, again, for the purposes of the investigation or proceeding under BNSS. Therefore, the thrust is upon the question whether the voice sample is required for the purpose of investigation of the crime.”

Justice C. Jayachandran held that as per Ritesh Sharma and BNSS, the determining factor is whether the voice sample is required for the purpose of investigation.

"Doctors Are Backbone Of Healthcare, Police Officer's Badge Is Symbol Of Trust": Kerala HC On Cross-Allegations By Medical Officer & Circle Inspector

Case Title: Dr.Beena Bahuleyan v State of Kerala

Citation: 2024 LiveLaw (Ker) 762

The Kerala High Court has quashed criminal proceedings against a doctor under Section 166B of the IPC, who was accused of showing unwillingness to examine the victim in a child missing case and failing to issue a medical certificate, on finding that the ingredients of the said offence were not made out.

The Court however, expressed that enquiry has to be conducted against the doctor and opined that departmental action must be taken, if necessary.

Justice P.V.Kunhikrishnan observed that the victim was admittedly not a victim of offences like acid attack or rape-related offences and therefore offence under Section 166B cannot be attracted.

AFT Should Not Lightly Interfere With Views Of Medical Experts: Kerala High Court On 2008 Rules On Disability Pension For Ex-Army Personnel

Case Title: Union of India and Others v Bhaskaran N.

Citation: 2024 LiveLaw (Ker) 763

The Kerala High Court held that the Armed Forces Tribunal (AFT) should not lightly interfere with the opinion of medical board as to the nature of disability of ex-service personnel in the question of granting disability pension.

The Court observed that whether the disability has connection to the personnel's service is a crucial factor for granting pension and it depends upon the opinion of the Medical Board.

No Criminal Proceedings Can Lie For 'Defamation' Of Banned Organisation Like PFI, Kerala High Court Grants Relief To Media House

Case Title: Bharat Prakashan (Delhi) Ltd. v CP Mohammed Basheer

Citation: 2024 LiveLaw (Ker) 764

The Kerala High Court quashed criminal defamation proceedings initiated against a media house for allegedly publishing a defamatory article about the 'Popular Front of India' (PFI).

Justice P.V.Kunhikrishnan observed that PFI is a banned association in India; therefore, defamation cannot be alleged against a banned organization, since it has no legal entity. While quashing the defamation case against the media house, the Court observed that a banned organization cannot raise a complaint of defamation.

Sophisticated Medical Beds For Expecting Mothers Are Subject To Luxury Tax: Kerala High Court

Case Title: M/S. Cradle Calicut Maternity Care Pvt. Ltd v State of Kerala & Connected Case

Citation: 2024 LiveLaw (Ker) 765

The Kerala High Court has held that 'sophisticated medical beds' provided for expecting mothers would be subject to luxury tax under the Kerala Tax on Luxuries Act of 1976.

In doing so, the high court underscored that what was ultimately being taxed under the Act was the "experience of luxury as regards the accommodation/amenities in the hospital".

Justice Harisankar V. Menon stated that admittedly expecting mothers are being permitted the use of amenities and services while being accommodated in the hospital rooms which was not disputed. It said:

“Thus, ultimately, what is to be looked into is as to whether the facility provided is a necessary requirement of an average member of the society. There cannot be any dispute that even without the aid of the medical bed provided by the petitioner, an expecting mother can give birth.”

Other Developments This Week

ADM Naveen Babu's Wife Moves Kerala High Court Seeking CBI Probe, Says Possibility Of Homicidal Hanging Cannot Be Ruled Out

Case Name: Manjusha K v CBI & Others

Case Number: WP (Crl) 1297/2024

A plea has been moved before the Kerala High Court by the wife of deceased ADM Naveen Babu seeking a CBI investigation into her husband's tragic death.

CPM Member and former Kannur district Panchayath President PP Divya who was accused of abetting the suicide of Naveen Babu was granted bail by the Thalassery Sessions Court in the first week of November.

Thrissur Pooram | Police Unwarrantedly Interfered In Pooram Rituals: Thiruvambady Devaswom Tells Kerala High Court

Case Title: V. R. Rajasekharan v State of Kerala and Others

Case No: WP(C) 16753/ 2024

Thiravambady Devaswom in their written statements submitted before the Kerala High Court that there was interference from the part of the police in the ezhunellippu. The Devaswom submitted that the police interfered in the Ezhunelippu. They submitted that the police had blocked the roads to Swaraj Road and the people could not view or participate in the ezhunellippu.

The Devaswom was replying to the writ filed seeking details of the action taken by the State against the alleged police atrocities committed in Thrissur Pooram 2024. The matter is considered by the bench of Justice Anil K. Narendran and Justice Muralee Krishna S.

Sabarimala Pilgrimage | Kerala High Court Asks Authorities To Ensure That Pilgrims Are Not Charged Excessively By Eateries

Case Title: Suo Motu v State of Kerala and Others

Case No: SSCR 79 of 2024

The Kerala High Court directed the Duty Magistrates at Nilakkal, Pamba and Sanidhanan and Vigilance Wing Officers of Travancore Devaswom Board to see that Kuthaka holders are not charging price excessive of those fixed by the District Collector of Pathanamthitta. The Court said that if any kuthaka holder is charging excessive price, action should be taken against them.

The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. on Tuesday (26th November) issued a series of instructions to the kuthaka holders. The court directed that the kuthaka holders can conduct sale only within their identified allotted areas. The court also directed that the workers engaged by the kuthaka holders should wear their identity cards. The court gave strict direction that no workers without identity card shall be employed by the kuthaka holders.

Hema Committee Report: Kerala High Court Directs SIT To Nominate Nodal Officer To Prevent Witness Intimidation

Case Title: Women In Cinema Collective v State of Kerala & Others & Connected Matters

Case Number: WPC 41327/2024 & Connected Matters

The Kerala High Court has directed the Special Investigation Team, probing offences after publication of Justice Hema Committee Report, to nominate a nodal officer to prevent alleged intimidation and threatening of witnesses by the accused or other persons.

The Special Bench of Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha directed the SIT to publicize the name and contact details of the nodal officer so that witnesses can contact the nodal officer if they are being threatened or intimidated.

Kerala High Court Seeks State's Response In Plea For CBI Probe Into ADM Naveen Babu's Death, Calls For Case Diary

Case Name: Manjusha K v CBI & Others

Case Number: WP (Crl) 1297/2024

The Kerala High Court on Wednesday (November 27) directed the investigating officer to produce the case diary and file a statement regarding the investigation into death of former Kannur ADM Naveen Babu.

Naveen Babu's wife had moved the High Court seeking CBI investigation into the death of her husband. The petition came before the bench of Justice Bechu Kurian Thomas.

Suresh Gopi Election Case: ECI Moves Kerala High Court Seeking Release Of EVMs In Thrissur

Case Title: Binoy A. S. v Suresh Gopi

Case No: El.Pet. 1/ 2024

The Election Commission of India has approached the Kerala High Court seeking release of EVMs used in the Parliamentary election of Thrissur constituency.

Suresh Gopi, who contested as the BJP candidate, won the election from Thrissur constituency in the 2024 Lok Sabha election. He is now serving as the Minister of State for Petroleum and Natural Gas in the Union Ministry.

The result of the election was challenged alleging that Gopi indulged in corrupt practices as mentioned under Section 123 of the Representation of People Act. The matter is before Justice Kauser Edappagath.

Kerala High Court To Hear Daughter's Appeal Against 'Donation' Of Late CPI(M) Leader MM Lawrence's Body On December 5

Case Title: Asha Lawrence v State of Kerala and Others

Case Number: WA 1857/ 2024

Daughter of late veteran CPI(M) leader MM Lawrence, Asha Lawrence has moved an appeal before the Kerala High Court against the decision of a single judge which had allowed the handing over of her father's body to Ernakulam Medical College.

The appeal was heard on Thursday by a division bench of Chief Justice Nitin Jamdar and Justice S. Manu.

Moving an appeal against this decision Asha has stated that the claim that the deceased has asked his body to be donated has not been verified or scrutinised. She also submitted that the request should be made to an authorised officer as per the Act and not just in presence of 2 witnesses.

No Photography Permitted In Sanctum Of Sabarimala Temple, Except For Ceremonies And Festivals: Kerala High Court

Case Title: Suo Motu v State of Kerala and Others

Case No: SSCR 79 of 2024

The Kerala High Court on Thursday (November 28) ordered that photography is not permitted in the sanctum of Sabarimala temple especially in pathinettam padi (eighteen holy steps) and thirumuttam, except in connection with ceremonies and festivals.

The Travancore Devaswom Board had earlier submitted before the Court that the pilgrims were taking photos and videos in the thirumuttam of Sabarimala using mobile phone in spite of there being boards installed banning such activities.

During the hearing today, a division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S orally observed:

“Vloggers or pilgrims cannot take photograph or videography while climbing pathinettam padi or when they are moving for darshan, especially near the upper thirumuttam.”

Elephant Parading For Temple Festivals Not Essential Religious Practice: Kerala High Court

Case Title: In Re Captive Elephants V Union Of India & Connected Cases

Case Number: WP(C) 31520/ 2024 & Connected Cases

The Kerala High Court dismissed an application filed by the Cochin Devaswom Board which sought a modification of Court's guidelines requiring a 3 meter distance between two Elephants when parading them for festivals.

The Division Bench of Justice A.K.Jayasankaran Nambiar and Justice Gopinath P, on applying the essential religious practise Test laid down by the Apex Court in Commr. of Police v. Acharya Jagadishwarananda Avadhuta (2002), Indian Young Lawyers Assn. v State of Kerala (2019), stated that parading of Elephants in temple festivals would not constitute an Essential Religious Practice.

Kerala High Court Directs Department Of Empowerment Of PwD Not To Reject Scholarship Plea Of 75% Visually Impaired Law Student

Case Title: Golla Madhu v Department of Empowerment of Persons with Disabilities

Case Number: WP(C) 42738/2024

In an interim order passed on Friday (November 29) the Kerala High Court directed the Department Of Empowerment Of Persons With Disabilities not to reject a scholarship application of a 75 percent visually impaired first-year law student on account of non submission of Unique Disability ID (UDID) details.

In doing so the court prima facie noted that the petitioner who is a student at NUALS, Kochi should not be denied benefits accrued to him for reasons which are not attributable to him.

Justice V G Arun directed the Central Government Counsel to get instructions in the matter.

GST | Separate Notification Needed For Cross-Empowerment Of State Officials? Kerala High Court Refers To Division Bench

Case : Pinnacle Vehicles and Services Pvt Ltd v. Joint Commissioner

Case Number: WP(C) NO. 25724 OF 2024

A single bench of the Kerala High Court has referred to the division bench the issue relating to the cross-empowerment of State officials under Section 6(1) of the Goods and Services Act.

Justice P Gopinath passed the reference order in a writ petition filed by a company challenging a show-cause notice issued by the State authorities.