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Kerala High Court Weekly Round-Up: October 14- 20, 2024
Tellmy Jolly
21 Oct 2024 9:28 AM IST
Nominal Index [Citations: 2024 LiveLaw (Ker) 634-652]Romi K J @Romy v State of Kerala, 2024 LiveLaw (Ker) 634K.T. Saidalavi v. The State Tax Officer, 2024 LiveLaw (Ker) 635Transformers And Electricals Kerala Ltd. v. The Commissioner Of Central Tax And Central Excise Central Revenue Building, 2024 LiveLaw (Ker) 636Fisal Khan v State of Kerala, 2024 LiveLaw (Ker) 637State of Kerala v Ismail...
Nominal Index [Citations: 2024 LiveLaw (Ker) 634-652]
Romi K J @Romy v State of Kerala, 2024 LiveLaw (Ker) 634
K.T. Saidalavi v. The State Tax Officer, 2024 LiveLaw (Ker) 635
Transformers And Electricals Kerala Ltd. v. The Commissioner Of Central Tax And Central Excise Central Revenue Building, 2024 LiveLaw (Ker) 636
Fisal Khan v State of Kerala, 2024 LiveLaw (Ker) 637
State of Kerala v Ismail and Others, 2024 LiveLaw (Ker) 638
Angel Mary J N v State of Kerala & Others, 2024 LiveLaw (Ker) 639
Muhammad Iliyas v State of Kerala, 2024 LiveLaw (Ker) 640
Jillet K T & Another v State of Kerala & Others, 2024 LiveLaw (Ker) 641
Ashok Kumar v Hassainar, 2024 LiveLaw (Ker) 642
Fr. K. K. Mathews, Son of Kuriakose v Rev. Fr. C. K. Issac Cor Episcopa and Connected cases, 2024 LiveLaw (Ker) 643
XXX v State of Kerala, 2024 LiveLaw (Ker) 644
Sojith v State of Kerala and Another, 2024 LiveLaw (Ker) 645
Muhammed Haroon v State of Kerala, 2024 LiveLaw (Ker) 646
Hamjith v State of Kerala, 2024 LiveLaw (Ker) 647
O. P. Ashraf v The State of Kerala and Others, 2024 LiveLaw (Ker) 648
XXX v State of Kerala, 2024 LiveLaw (Ker) 649
Kumar S v. Union of India, 2024 LiveLaw (Ker) 650
Krishna Agencies v. The Superintendent, Central Tax & Central Excise,
Kayamkulam Range, 2024 Live Law (Ker) 651
Dr Jacob Mani v State of Kerala, 2024 LiveLaw (Ker) 652
Judgments/Orders This Week
Case Title: Romi K J @Romy v State of Kerala
Citation: 2024 LiveLaw (Ker) 634
The Kerala High Court recently granted pre-arrest bail to a man, accused of abetting the suicide of his wife, after noting that there was no prima facie evidence suggesting the commission of the offence and that the deceased had never complained of any physical or mental harassment by the husband prior to her death.
In doing so the court further observed that the matter requires an investigation and is "ultimately" to be decided at the time of trial.
A single judge bench of Justice C S Dias further held that there is "no prima facie" evidence to prove that the husband had physically or mentally harassed the deceased wife, abetting her suicide.
Case Title: K.T. Saidalavi v. The State Tax Officer
Citation: 2024 LiveLaw (Ker) 635
The Kerala High Court held that the initiation of an enquiry or the issuance of summons under Section 70 of the CGST Act cannot be deemed to be initiation of proceedings for the purpose of Section 6(2)(b) of the CGST Act.
The Bench of Justice Gopinath P. observed that “The term 'initiation of any proceedings' is no doubt a reference to the issuance of a notice under the provisions of the CGST/SGST Acts and the initiation of an enquiry or the issuance of summons under Section 70 of the CGST/SGST Acts cannot be deemed to be initiation of proceedings for the purpose of Section 6(2)(b) of the CGST/SGST Acts.”
Case Title: Transformers And Electricals Kerala Ltd. v. The Commissioner Of Central Tax And Central Excise Central Revenue Building
Citation: 2024 LiveLaw (Ker) 636
The Kerala High Court stated that assessee cannot claim input tax credit for transportation services if transportation costs are not included in assessable value of goods for payment of central excise duty.
The Division Bench of Justices A.K. Jayasankaran Nambiar and Syam Kumar V.M. observed that “………the assessee did not include the transportation costs in the assessable value of the goods for the purposes of payment of Central Excise duty. Under such circumstances, the assessee cannot claim in input tax credit in respect of the transportation services availed by it for the purposes of transporting the goods from the place of removal to the buyer's premises.”
Case Title: Fisal Khan v State of Kerala
Citation: 2024 LiveLaw (Ker) 637
The Kerala High Court has stated that having sexual intercourse, after getting naked, in front of a minor child would amount to sexual harassment of a child defined under Section 11, and punishable under Section 12 of the POCSO Act.
Justice A. Badharudeen stated that exhibiting any part of the body with the intention that it would be seen by a child would amount to sexual harassment.
“To be more explicit, when a person exhibits naked body to a child, the same is an act intending to commit sexual harassment upon a child and therefore, the offence punishable under Section 11(i) read with 12 of the POCSO Act would attract. In this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same. Thus, prima facie, the allegation as to commission of offence punishable under Section 11(i) read with 12 of the POCSO Act, as against the petitioner in this case is made out.”
Case Title: State of Kerala v Ismail and Others
Citation: 2024 LiveLaw (Ker) 638
The Kerala High Court has sentenced 7 persons allegedly affiliated with the Indian Union Muslim League namely Ismail, Muneer, Sidhique, Muhammed Anees, Shuhaib, Jasim, Samad to rigorous life imprisonment for the murder of DYFI activist Shibin.
The court observed that the court is not imposing harsh punishment as the murder occurred after a quarrel with the murdered victim and others. One of the accused, Ismail is absconding. However, the Court imposed a sentence upon him invoking the provision of Section 392 of Bharatiya Nagarik Suraksha Sanhita. One of the accused, Aslam had expired and thus the charges against him abated.
Case Name: Angel Mary J N v State of Kerala & Others
Citation: 2024 LiveLaw (Ker) 639
A division Bench of Kerala High Court consisting of Justice Anil K. Narendran and Justice P.G. Ajithkumar dismissed a series of petitions filed by nursing officers challenging the Kerala Administrative Tribunal's ruling. The petitions questioned the Kerala Public Service Commission's (KPSC) rejection of their applications for transfer appointments, which were turned down on account of their probationary status. The Court upheld the KPSC's decision, affirming that only those declared probationers or full-time members could apply for transfer appointments under the Kerala State and Subordinate Service Rules (KS&SSR), 1958.
Thus, the High Court found that the Kerala Public Service Commission had acted appropriately in rejecting the applications of the petitioners, given their failure to complete probation. The Kerala Administrative Tribunal's order was affirmed, and the petitions were dismissed. The Court concluded that both the one-year service requirement and probation completion were necessary for recruitment by transfer under the KS&SSR.
Case Title: Muhammad Iliyas v State of Kerala
Citation: 2024 LiveLaw (Ker) 640
The Kerala High Court stated that the criminal courts can frame charges based on the prosecution records, excluding the offences in the Final Report and even including offences not mentioned in the final report as per Section 228 and Section 240 of the CrPC.
Section 228 pertains to framing of charges in Session cases and Section 240 deals with framing of charges for trial of warrant cases.
Justice A. Badharudeen was considering a revision petition of the accused, a school van driver accused of sexually assaulting a minor child. He had approached the Court to set aside the charges framed by the Special Court for offences which were not incorporated by the police in the Final Report.
Case Title: Jillet K T & Another v State of Kerala & Others
Citation: 2024 LiveLaw (Ker) 641
The Kerala High Court has directed the State Government to notify the constitution of Hospital Based Authorization Committees to conduct an inquiry into the joint applications submitted by the donor and recipient who are not near relatives, and when the organ donation is being made out of love and affection.
The Court further stated that the State Government has to ensure that qualified persons must be included in the Authorization Committees.
Justice V G Arun was considering a writ petition filed by a recipient and an organ donor whose joint application submitted under Section 9 of the Transplantation of Human Organs and Tissues Act, 2012 was rejected by the District level Authorization Committee, due to suspicions of commercial dealings, as they were strangers and not close relatives.
Case Title: Ashok Kumar v Hassainar
Citation: 2024 LiveLaw (Ker) 642
The Kerala High Court the power to transfer revision cases. It ruled that the provision is not applicable in cases where revision is pending before the High Court but appeal is pending before the Sessions Court.
Justice K Babu thus invoked its inherent powers under Section 482 to transfer the revision pending before it to the Sessions Court where the convict had preferred an appeal, to avoid conflict of jurisdiction.
Case Title: Fr. K. K. Mathews, Son of Kuriakose v Rev. Fr. C. K. Issac Cor Episcopa and Connected cases
Citation: 2024 LiveLaw (Ker) 643
The Kerala High Court has dismissed the appeals filed challenging a single bench order directing the Collectors of Ernakulam and Palakkad districts to take over possession of six churches involved in the Orthodox – Jacobite faction feud.
The Division Bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar, pronouncing their order in open court said, 'the appeals are dismissed'. Detailed Judgment is awaited.
Case Title: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 644
The Kerala High Court has quashed the final report against a school principal and teacher for failing to report a sexual offence complaint received from a minor student on the same day. The Court stated that it cannot be justified to say that there was a wilful omission since the complaint was lodged with the police and FIR was registered on the next day itself.
Justice A. Badharudeen stated that it was harsh to hold that the principal and teacher were liable since they reported the crime to the police on the next day.
Case Title: Sojith v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 645
The Kerala High Court held that the framing of a charge by a Sessions Court having no jurisdiction to try the case does not affect the evidence recorded by a Special Court constituted under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
The Single Bench of Justice K. Babu noted that as per Section 464 of Code of Criminal Procedure a finding or sentence of a valid court would not be deemed invalid merely because no charge was framed or there was any error in the charge unless the Court is of the opinion that there is a failure of justice due to it. The Court observed that according to this provision, even if the trial court did not frame fresh charge, there would have been no invalidity.
Case Title: Muhammed Haroon v State of Kerala
Citation: 2024 LiveLaw (Ker) 646
The Kerala High Court has granted bail to Muhammed Haroon, the sixth accused in the murder of RSS worker Sanjith.
Allowing the bail application of Haroon, Justice Ziyad Rahman A.A. held thus, “As far as the petitioner in this case is concerned, he has been in custody since 23.01.2022 and thus, more than two years and nine months have elapsed. Moreover, the petitioner was never involved in any other offences in the past. Even though there is an allegation that he was an active member of PFI, a banned organisation, it was contended by the petitioner that, as on the date of commission of the crime, it was not banned. The said contention is not denied by the prosecution. Therefore, the fact that he was a member of such an organisation, by itself, would not attract any culpability, warranting incarceration, and it is for the prosecution to establish the role of the petitioner, in the trial.”
Case Title: Hamjith v State of Kerala
Citation: 2024 LiveLaw (Ker) 647
The Kerala High Court has quashed the proceedings initiated against a man for allegedly smoking a beedi filled with ganja on finding that the beedi was not subjected to forensic examination.
Justice Bechu Kurian Thomas stated that the beedi that was allegedly said to be smoked by the petitioner was not subjected to forensic examination. The Court stated thus:
“In the absence of any forensic examination of the beedi, the prosecution against the petitioner for the offence under Section 27(b) of the Act, is without any legal basis.”
Case Title: O. P. Ashraf v The State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 648
The Kerala High Court, noting that the prosecution could not establish the ingredients of copyright infringement under Section 51(a) of the Copyright Act, set aside the conviction of a man for allegedly selling fake audio cassettes on the footpath in Kannur.
The police had seized 38 cassettes from the revision petitioner. He was convicted under Sections 51(a) and 52A r/w 63 of the Copyright Act by the Magistrate Court, upheld by the Sessions Court.
Section 51 relates to copyrights infringement. Justice K. Babu noted that the prosecution has not verified the contents of the cassettes seized. They did not ascertain who the copyright holder was or whether the copyright holder has retained any exclusive right or whether any license has been granted.
“Shocking Failure To Take Action”: Kerala High Court Questions Delay In Probing 2022 Rape Allegations Against Ponnani Police Officers
Case Title: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 649
The Kerala High Court has questioned the delay in ordering an investigation into the rape allegations made by a woman in 2022 against four higher police officials in Ponnani in Malappuram district.
The Court was hearing a plea of a woman seeking to register an FIR under Section 173(1) of the BNSS against four higher police officials for raping and sexually assaulting her. She had approached the High Court stating that Magistrate, instead of directing to order investigation, called for a report from a superior officer by relying upon Section 175 (4) of the BNSS.
Justice A. Badharudeen questioned the delay in investigation and directed the Magistrate to pass orders for investigation within a period of ten days
Kerala High Court Upholds Denial Of Temporary Status And Regularisation For Contingent Employees
Case Title: Kumar S v. Union of India
Citation: 2024 LiveLaw (Ker) 650
Recently, a Division Bench of Kerala High Court, comprising of Justice Anil K. Narendran and Justice P.G. Ajithkumar, considered a petition against the order passed by the Central Administrative Tribunal. The judgement pertained to status and regularisation of employment.
The Bench noted that even according to the petitioner, he was engaged by the Department for the last 15 years on a daily wage basis, and not engaged continuously but for specified days in each month. The claim of the petitioner can be considered only in the light of such nature of his employment.
Further pointing that, in Umadevi, the Apex Court directed the Central and State Governments and the instrumentalities under it to regularise temporary employees, who have put in a minimum of 10-year service as a one-time measure and persons employed against sanctioned posts, but on a temporary basis continuously.
Lastly, the Bench reiterated that there's no reason to find fault with the view taken by the Tribunal and dismissed the original petition.
Case Title: Krishna Agencies v. The Superintendent, Central Tax & Central Excise, Kayamkulam Range
Citation: 2024 Live Law (Ker) 651
The Kerala High Court stated that rectification order is not sustainable if does not provide any reason justifying exercise of power of rectification.
The Bench of Justice Gopinath P. observed that “….personal hearing notice does not indicate that any reason justifying the exercise of power of rectification was pointed out to the assessee. Therefore, the assessee is right in contending that the rectification order cannot be sustained in law.”
Case Title: Dr Jacob Mani v State of Kerala
Citation: 2024 LiveLaw (Ker) 652
The Kerala High Court stated that a victim under the proviso to Section 413 of BNSS is a person who suffered damages or loss as a direct consequence of the crime.
Section 413 of BNSS corresponds to Section 372 of CrPC, where the proviso laid down the right of a victim to appeal against an order of acquittal, or an order convicting the accused for a lesser offence, or imposing inadequate compensation. Section 2 (y) of the BNSS defines victim as someone who has suffered loss or injury due to the actions or omissions of the accused.
Justice C Jayachandran quashed the appeal preferred by the appellant who claims to be a victim. The Court observed that the loss or damage claimed to have been suffered is too remote a cause while considering the allegations made by the appellant.
Other Important Developments This Week
Case Number: WPC No. 31205/2024 & Other Cases
Case Title: Jannath v State of Kerala & Other Cases
The Kerala High Court today orally advised actors and celebrities to restrain from taking up roles and characters that depict women in a derogatory manner.
The Special Bench of Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha, constituted to hear matters connected with the report of Justice Hema Committee, observed that since celebrities are capable of influencing the public, they have a greater fundamental duty and obligation to restrain themselves.
Kerala High Court Constitutes Committee For Welfare, Happiness And Grievances Of Judicial Officers
The Kerala High Court has constituted a Committee for the Welfare, Happiness and Grievances of Judicial Officers of the District Judiciary. The committee was constituted following the orders made by Justice A. M. Mustaque while he was serving as Acting Chief Justice of the High Court. An email id has been created exclusively for redressing the grievances of the judicial officers.
A Judicial Counselling Centre with Family Court counsellors has also been established to provide counselling services to judicial officers. The committee has decided to conduct medical checks twice a year in every District with the help of the Kerala State Legal Service Authority to monitor the overall health of judicial officers.
Case Title: XXX v. State of Kerala
Case Number: W.P. (Crl.) 445/ 2022
The Kerala High Court dismissed the application filed by the survivor in the 2017 actress sexual assault, involving Malayalam actor Dileep. The survivor filed the application to set aside or quash the fact-finding inquiry report dated January 08, 2024, submitted by the Ernakulam Sessions and District Judge. The application also sought to appoint a Special Investigation Team to investigate the alleged unauthorised access to the contents of the memory card which contained the visuals of the sexual assault.
The present application was filed in a writ petition moved by the survivor that was disposed of with direction to conduct a fact-finding inquiry into the allegations that the memory card containing videos of the sexual assault had been accessed, copied and transferred unauthorizedly while it was in the custody of the Court.
Justice C S Dias dismissed the application moved by the survivor as not maintainable and held that the survivor could initiate appropriate proceedings as per law.
Case Title: Jannath v State of Kerala & Other Cases
Case Number: WPC No. 31205/2024 & Other Cases
The Kerala High Court has directed the Special Investigating Team (SIT), constituted by the Government to inquire into the allegations made in the Justice Hema Committee Report, to take necessary action as per Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Section 173 of the BNSS deals with the registration of FIR when information is received regarding the commission of a cognizable offence. Section 173(3) provides that the investigating officer would conduct a preliminary inquiry before registering the FIR within a period of 14 days. It states that if the investigating officer is satisfied that a prima facie case exists to proceed under Section 173(3), then it will with further investigation. Section 176 provides the procedure for investigation.
The Special Bench of Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha, hearing matters related to the Justice Hema Committee Report, stated that the witness statements in the Justice Hema Committee Report discloses commission of cognizable offences, which could be treated as "information" to take action as per Section 173 of the BNS.
The Supreme Court Collegium headed by Chief Justice D.Y. Chandrachud, has recommended the names of four Judicial Officers for appointment as Judges of the Kerala High Court.
The following are the Judicial Officers who have been recommended to be elevated as Judges of the High Court of Kerala:
(i)Shri K V Jayakumar
(ii) Shri Muralee Krishna S
(iii) Shri Jobin Sebastian
(iv) Shri P V Balakrishnan
Case Title: Pravasi Legal Cell v State of Kerala & Others
Case Number: WP(C) 36106/2024
A plea has been moved before the Kerala High Court seeking to integrate the existing online RTI portal with all regional, district and village-level offices, to enable all citizens, particularly NRIs to submit RTI applications and receive information and documents electronically.
The petition also seeks direction to the government to facilitate digital payment methods like net banking and UPI, instead of requiring individuals to visit Treasury offices in person to make payments for information and document requests.
A division bench of Chief Justice Nitin Jamdar and Justice S Manu directed the Secretary of the General Administration Department to file an affidavit within three weeks regarding the time frame to bring the regional, district and village level offices of the State within the purview of the existing online RTI portal of the State government.
The Kerala High Court has issued notice to the Secretary of Kerala Legal Service Authority on a petition concerning maternity benefits for a lawyer employed as Assistant Legal Aid Defence Counsel at the District Court Center. Justice Murali Purushothaman will consider the matter on October 21.
Petitioner was appointed by the National Legal Service Authority (NALSA) and Kerala Legal Service Authority (KELSA) in January 2023. She argued that she had applied for maternity leave with benefits for 6 months after her delivery but, there has been no conclusive response from the concerned authorities.
Kerala High Court Stays BJP State President K Surendran's Discharge In Election Bribery Case
Case Title: State of Kerala v K. Surendran
Case Number: Crl.Rev.Pet. 1089/ 2024
The Kerala High stayed the order of the Sessions Court, Kasargod allowing the discharge petition filed by BJP Kerala State President K. Surendran in the Manjeswaram election bribery case. The order was pronounced by Justice K. Babu.
The prosecution case was that during the 2021 Kerala Assembly election, K. Surendran, while he was contesting from the Manjeswaram constituency, threatened and bribed another candidate in the same constitutency, K. Sundara, a BSP candidate and made him withdraw his nomination.
The prosecution also submitted that K. Sundara belonged to Scheduled Caste. The BJP President was booked under Section 171(E)(bribery), 171B, 342 (wrongful confinement), 506(i) (criminal intimidation) and 201 of the Indian Penal Code and Section 3(l)(i)(B) and Section 3(2)(Va) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act).
Case Title: In Re: Prevention And Management Of Natural Disasters In Kerala V State Of Kerala
Case Number: WP(C) 28509/ 2024 & Connected Cases
Following queries by the Kerala High Court regarding disbursal of funds for disaster relief in Wayanad, the Central government today filed a statement claiming that Rs. 782.99 crore is available in State's Disaster Response Fund including Rs. 291.20 crores released by the Union government.
The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. has now ordered the State and the Amicus Curiae to submit their response to this statement.
Kerala High Court Closes Suo Motu Contempt Proceedings Against High Court Bar Association President
Case Title: Suo Moto v Yeshwanth Shenoy
Case No.: Con.(Crl) 2 of 2023
The Kerala High Court has closed the contempt proceedings initiated suo motu against the High Court Bar Association President Advocate Yeshwanth Shenoy, observing that correct procedure has not been followed in initiating the contempt procedure.
The contempt proceedings were initiated after now-retired Justice Mary Joseph sent a letter to the Chief Justice disapproving of Shenoy's conduct in her court. The Division Bench of Justice Devan Ramachandran and Justice B. Snehalatha noted that Shenoy was not given a copy of the letter.
