Kerala High Court Weekly Round-Up: September 30 - October 6, 2024

Praveen Prakash v State of Kerala, 2024 LiveLaw (Ker) 606

Vaisakh @ Hari v State of Kerala and Others, 2024 LiveLaw (Ker) 607

XXX v State of Kerala & Connected Matter, 2024 LiveLaw (Ker) 608

N. Bhasurangan v The Assistant Director & Akhiljith J. B. v The Assistant Director, 2024 LiveLaw (Ker) 609

E. Sreedharan v State of Kerala and Others,  2024 LiveLaw (Ker) 610

Naveed Raza v State of Kerala and Another, 2024 LiveLaw (Ker) 611

Vineesh v Raji Radhakrishnan, 2024 LiveLaw (Ker) 612

Anil v State of Kerala, 2024 LiveLaw (Ker) 613

The West Chalakudy Service Co-Operative Bank Ltd V The Special Sale Officer, 2024 LiveLaw (Ker) 614

C R Sudhan v State of Kerala, 2024 LiveLaw (Ker) 615

HLL Biotech Limited versus The Commissioner of Income Tax, 2024 Live Law (Ker) 616

Judgments/Orders This Week

Mere Messages Or Chats With Minor Without 'Sexual Intent' Not Sexual Harassment U/S 11 POCSO Act: Kerala High Court

Case Title: Praveen Prakash v State of Kerala

Citation: 2024 LiveLaw (Ker) 606

The Kerala High Court has quashed criminal proceedings instituted against a 24-year-old man, accused of sending messages and making calls to a 17-year-old girl, causing her disturbance.

The crime was registered against the petitioner under Section 354D (stalking) of the IPC, Section 11(iv) (sexual harassment) and Section 12 (punishment for sexual harassment) of the POCSO Act.

Justice A. Badharudeen stated that there is no evidence against the petitioner to prove that he constantly sent messages or chats to the minor with 'sexual intent' to attract an offence of sexual harassment under the POCSO Act.

Kerala High Court Suggests Use Of Advance Technologies To Reduce Stress Of Judges Writing Down Witness Depositions In Trial Courts

Case Title: Vaisakh @ Hari v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 607

While hearing a plea seeking legible copies of witness depositions in the trial court, Kerala High Court suggested to its Registry to explore the possibility of equipping trial courts in the State with advanced technologies changing archaic practices, adding that the practice of trial court judges "writing down" depositions is stressful.

A single judge bench of Justice Bechu Kurian Thomas in its order observed:

"In this context, this Court is compelled to observe that with the advent of modern technology, including artificial intelligence, it is high time that the trial courts are equipped with sufficient infrastructure to take down the deposition of witnesses by resorting to the latest technology. Though writing depositions in own handwriting may enable the court in its analytical process, the benefits of using modern technology will far outweigh such limited advantages. The laborious and time-consuming process of Judges writing down witness depositions is indeed archaic and even stressful. The plight of the judicial officers indulging in writing down long depositions, cannot be ignored, especially when advanced technologies are available".

Law Doesn't Give Exception From DNA Profiling On Ground That Accused And Victim Are Siblings: Kerala High Court

Case Title: XXX v State of Kerala & Connected Matter

Citation: 2024 LiveLaw (Ker) 608

The Kerala High Court has stated that neither the CrPC nor the Bharatiya Nagarik Suraksha Sanhita (BNSS) gives exception from DNA profiling on the ground that the accused and victims are siblings.

The accused and victim here are siblings, and the accused is alleged to have committed offences punishable under Sections 376, 376(3) (punishment for rape) of the IPC, Section 5j(ii) (aggravated penetrative sexual assault) and Section 6(1) (punishment for aggravated penetrative sexual assault) of the POCSO Act.

Justice A. Badharudeen dismissed the criminal miscellaneous cases filed by the accused and the victim challenging the seizure of blood samples collected for DNA profiling.

Kerala High Court Denies Bail To Ousted CPI Leader, Son In Alleged Money Laundering Case Linked To Kandala Bank

Case Title: N. Bhasurangan v The Assistant Director & Akhiljith J. B. v The Assistant Director

Citation: 2024 LiveLaw (Ker) 609

The Kerala High Court denied bail to former CPI leader N. Bhasurangan and his son in an alleged money laundering case, accused of allegedly indulging in several financial irregularities in the management of the Kandala Service Co-operative Bank.

A single judge bench of Justice C. S. Dias after considering the strict conditions imposed under Section 45 of the Prevention of Money Laundering Act (PMLA) to grant bail found that there is a prima facie case to deny bail to both of them.

"On a careful analysis of the facts and circumstances of the cases, the incriminating materials placed on record against the petitioners, the law on the point, and on considering that there are reasonable grounds to hold that the petitioners have committed the above offence and that they are likely to commit the offences if they are enlarged on bail, I am of the definite view that the petitioners are not entitled to be released on bail at this stage," the court said.

Court Doesn't Have Technical Expertise: Kerala HC Closes 'Metro Man' Sreedharan's Plea To Change Alignment Of Thiruvanaya–Thavanoor Bridge

Case Title: E. Sreedharan v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 610

The Kerala High Court disposed of the petition of E. Sreedharan to re-align the Thiruvanavaq – Thavanoor Bridge observing that it does not have the required technical expertise in this matter and directed the State to consider the suggestions by E. Sreedharan and implement them if it is feasible.

The Division Bench led by Chief Justice Nitin Jamdar and Justice S. Manu was considering the petition filed by E. Sreedharan to consider realigning the Thiruvanaya-Thavanur Bridge across the Bharathapuzha River. He submitted that the proposed bridge divides the Holy Trinity between the Vishnu Temple at Thiruvanaya in Malappuram district on the north bank of Bharathapuzha river from the temples dedicated to Lord Brahma and Lord Vishnu at Thavanur on the south bank of the river He submitted that proposed bridge would thus affect 'religious sanctity' and hurt religious sentiments of Hindu devotees.

Attempt To Suicide To A Large Extent Is No Longer An Offence Due To The Enactment Of Mental Healthcare Act, 2017: Kerala High Court

Case Title: Naveed Raza v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 611

The Kerala High Court has observed that since the enactment of the Mental Healthcare Act (MH Act), attempting suicide, to a larger extent is not an offence.

Justice Bechu Kurian Thomas observed: “Decriminalizing attempts to commit suicide has been under consideration for the last several decades. Though section 309 IPC remained in the statute book, with the enactment of the MH Act in 2017, attempts to commit suicide became, to a large extent, no longer an offence.”

Usage Of 'Deaf And Dumb' Is Ethically And Technically Inaccurate, Instead Use 'Deaf', 'Hard Of Hearing': Kerala High Court

Case Title: Vineesh v Raji Radhakrishnan

Citation: 2024 LiveLaw (Ker) 612

The Kerala High Court stated that the term 'Deaf and Dumb' is ethically and technically inaccurate and is now recognized as offensive. It also observed that the term 'Hearing Impaired' is no longer used since impaired means hindered or damaged.

The present observations were made in an original petition in which the respondent is a hard-of-hearing person, and the original petition described her as deaf and dumb. The Court was considering whether conducting an inquiry under Order XXXII, Rule 15 of the CPC to seek representation through a Next Friend was mandatory.

The Division Bench of Justice Devan Ramachandran and Justice M B Snehalatha observed that the most accepted terms are 'deaf' and 'hard-of-hearing”.

Criminal Appeals Once Admitted Cannot Be Dismissed For Non-Representation/ Non-Prosecution: Kerala High Court

Case Title: Anil v State of Kerala

Citation: 2024 LiveLaw (Ker) 613

The Kerala High Court held that if a Criminal Appeal is not summarily dismissed under Section 384 of the Code of Criminal Procedure (Cr.P.C), then it cannot be dismissed for non-representation or non-prosecution.

Justice A. Badharudeen observed: “Thus the legal position emerges is that when an appeal is not summarily dismissed under Section 384 of Cr.P.C and the appellate court admits the appeal, the same cannot be dismissed for non-representation or non – prosecution without adverting to the to the merits of the appeal”

[Rule 83 Co-Operative Societies Rules] Registrar Can Set Aside Sale Of Property On Grounds Other Than Those Raised By Decree Holder: Kerala HC

Case Title: The West Chalakudy Service Co-Operative Bank Ltd V The Special Sale Officer

Citation: 2024 LiveLaw (Ker) 614

The Kerala High Court observed that the decree-holder or any person whose interests are affected by the sale of a property to a credit-availing facility should approach the Registrar to set aside the sale on the grounds of material irregularity, mistake or fraud as per Rule 83 of the Kerala Co-operative Societies Rules. The Court further held that the Registrar has the authority to set aside the sale on grounds other than those alleged by recording his reasons in writing.

The Court stated that when the sale is not challenged within 30 days from the date of sale of the property, the sale stands confirmed and the Registrar is duty-bound to issue a certificate of sale.

Analysing Rules 81 to 83 of the Kerala Co-operative Societies Rules, Justice N Nagaresh held thus, “When any immovable property is sold under the Kerala Co-operative Societies Rules, the sale shall be subject to the prior encumbrances on the property, if any. Within 30 days from the date of sale of immovable property, the decree holder or any person entitled to share in a rateable distribution of the assets or whose interests are affected by the sale, may apply to the Registrar to set aside the sale on the ground of material irregularity or mistake or fraud in publishing or conducting the he sale. However, the Registrar has power to set aside a sale on grounds other than those alleged in any application.”

Post Retirement Re-Entry Of Toddy Tappers In Welfare Fund Scheme Allowed Due To Scarcity Of Skilled And Experienced Persons: Kerala HC

Case Title: C R Sudhan v State of Kerala

Citation: 2024 LiveLaw (Ker) 615

The Kerala High Court has said that the scarcity of experienced and skilled toddy tappers in the State led to a crisis in the toddy industry, which became a reason for inserting Clause 33A in the Kerala Toddy Workers Welfare Fund Scheme, allowing them to re-enter the Scheme after retirement.

Clause 33A, inserted by way of Kerala Toddy Workers Welfare Fund (Amendment) Scheme 2021, permits the re-entry of toddy tappers to the welfare fund scheme who retired before superannuation due to prolonged illness on the production of medical certificates. The clause however does not mention that re-entry is permitted for toddy workers after retirement.

A single judge bench of Justice N Nagaresh held that it cannot be stated that permitting re-entry to toddy tappers is violative of Article 14 since there is a scarcity of experienced and skilled toddy tappers in the State. The Court further stated that toddy tapping is a hazardous activity as compared to transportation, storage or sale of toddy and thus held that toddy workers cannot claim parity with toddy tappers.

Interest Earned On Funds Granted By Government, Kept In Bank Till Its Utilization Is Capital Receipt: Kerala HC

Case Title: HLL Biotech Limited versus The Commissioner of Income Tax

Citation: 2024 Live Law (Ker) 616

The Kerala High Court held that the 'interest income' on the short-term deposits of the funds infused by the Government, which are sanctioned for purpose of setting up of business, are in nature of 'capital receipt' and not 'revenue receipt'.

The Division Bench of Justice Sathish Ninan and Justice Johnson John observed that “if the funds invested are not surplus funds as such, and the funds and interest accrued thereon are inextricably linked to them setting up of the business, then the ' interest income' from such funds would be in the nature of capital receipts”.

Other Developments This Week

Kerala High Court Lays Down Procedure For Filing Writ Appeal; Says Writ Petition, Its Pleadings, Can Be Tagged From The E- Filing Database

Case Title: M. K. Gopalan v The Secretary and Others

Case No: WA No. 1276/ 2024 (Filing No.)

The Kerala High Court last week issued directions regarding filing of Writ Appeals, stating that in case of a writ petition filed online–the order of which is challenged in the appeal–its pleadings as well as documents filed therein shall be "tagged" from the e-file portal.

The other directions issued by a division bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar include:

1. If the concerned writ petition is filed offline, the Registry shall digitize the pleadings of the writ petition including the documents submitted by both sides within six working days from the date of registration, which will then be tagged with the e-filing database to create a consolidated writ petition case bundle, to form part of writ appeal case bundle.

2. In case the appellant requires such a writ appeal to be moved before the Division Bench immediately or before six working days as aforesaid, a scanned copy of the pleadings in the writ petition, including the documents submitted by both sides, shall be tagged by the appellant to the writ appeal to create a consolidated writ petition case bundle, to form part of writ appeal case bundle.

3. If the physical order sheet of the writ petition also needs to be tagged to the writ appeal then the concerned Section Assistant shall "manually scan and upload it".

Church Feud Case: Kerala HC Orally Warns Of Action Against Collectors, Chief Secretary If Possession Of 6 Churches Not Taken Over In A Week

Case Title: St. Thomas Orthodox Syrian Church, Cherukunnam v Dr. Venu I.A.S and other Connected Cases

Case No: Con.Case (C) 299/ 2024

The Kerala High Court on Monday directed the District Collectors of Ernakulam and Palakkad to take over possession of six churches involved in the Orthodox – Jacobite faction "feud" within a week. A single judge bench of Justice V G Arun orally cautioned that it may have to summon the Collectors and the State's Chief Secretary if the order is not complied without delay.

The high court orally said, "The takeover of the church must happen in a week. If not, the Chief Secretary and District Collectors might have to spend time in court”.

Kerala High Court Orally Orders For Preservation Of CP(I)M Leader MM Lawrence's Mortal Remains Till Thursday

Case Title: Asha Lawrence v State of Kerala & Others

Case Number: WP(C) 34174/2024

The Kerala High Court on Monday orally noted that there appear to be some vitiating factors in the order passed by the Principal of the Ernakulam Government Medical College hospital for donating the body of the veteran CPI(M) leader MM Lawrence to the medical college.

The Court made the observations in the petition moved by Asha Lawrence, daughter, who has approached the Court aggrieved by the order of the Principal of the Ernakulam Government Medical College hospital for rejecting her objections to conduct the funeral as per Christian rites and rituals.

Justice V G Arun ordered that the matter has to be heard in detail and posted it to Thursday. The Court has also sought instructions from the State Government whether an authority superior to the Principal can consider the objections of the petitioner.

YouTuber Booked For Rape, Abetting Influencer Partner's Suicide Moves Kerala High Court Seeking Bail

Case Title: Binoy v State of Kerala

Case Number: Bail No. 7613/2024

Binoy, a 21-year-old social media influencer booked for offences for rape and abetting the suicide of his girlfriend has approached the Kerala High Court seeking bail.

The crime was registered under Sections 363, 354D, 376 (1), 312, 306, 34 of the IPC, Sections 4 read with 3 (a), 6 read with 5 (1), 5 (j)(i), 5 (j)(ii), 8 read with7, 10 read with 9 (j)(ii), 9(ii), 12 read with 11 (iv), 21 read with 19 (1) of the POCSO Act based on a complaint lodged by the deceased girl's mother.

The matter was taken up by a bench of Justice C S Dias today, which adjourned the case after Public Prosecutor opposed the bail and sought time to file a report.

Potholes On Roads: Kerala High Court Warns Of Action Against Municipal Secretaries, District Collectors If Repairs Aren't Made

Case Title: Pauly Vadakkan v. Corporation of Cochin

Case number: WP(C) 34310/ 2019

While hearing a 2019 plea concerning potholes on roads, the Kerala High Court on Tuesday (October 1) warned of strict action against Municipal Corporation Secretaries and District Collectors if they fail to repair and eliminate potholes on the road, emphasizing the need to protect the lives of citizens and prevent road accidents.

A single judge bench of Justice Devan Ramachandran noted that no action has been taken despite its previous orders directing District Collectors in their capacity as Chairpersons of the District Disaster Management Authority to treat even a pothole on the roads as a man-made potential disaster.

Kerala HC Orally Warns Of Strict Action Against Secretaries Of Local Self Govt Institutions For Inaction On 'Unauthorized Boards/ Hoardings

Case Title: St. Stephen's Malankara Catholic Church v State of Kerala and Others

Case No: WP(C) No. 22750/ 2018

The Kerala High Court on Tuesday (October 1) orally said that it would take strict action, including contempt of court against Secretaries of every Local Self Government institution for not taking action for the removal of unauthorized boards, banners and hoardings in public places.

While hearing a 2018 plea concerning unauthorized hoardings, a single judge bench of Justice Devan Ramachandran said that the Secretaries have to take action against entities who place unauthorized boards/ banners public places and have collect fines from them.

Media Airing Statements Which Lead Viewers To Believe That They Were Given By Victims To Justice Hema Committee Would Be Viewed Seriously: Kerala HC

Case Title: Jannath v State of Kerala

Case Number: WPC No. 31205/2024

The Kerala High Court issued a warning against the media personnel that it must not report any information relating to the Justice Hema Committee Report in such a way that it would create an impression in the mind of the viewers that such information was given by the victim before the Justice Hema Committee or the Special Investigation Team (SIT) constituted to probe offences disclosed in the Report.

The above warning was issued by 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, which was constituted by the Government in 2017 that was tasked to study issues faced by women in the Malayalam film industry. The report was published on August 19, 2024.

“On our part, we issue a caveat to media personnel that reporting any information in relation to the Justice Hema Committee report, that might lead viewers to believe that a statement aired in the program was the statement actually given by the victim before the SIT or the Justice Hema Committee, will be viewed very seriously by this Court by deeming the same to be an unnecessary interference with the administration of justice.”

Enactment Of Special Legislation Would Address Issues Faced By Women In Entertainment Industry: Kerala Women's Commission Tells High Court

Case Title: Jannath v State of Kerala

Case Number: WPC No. 31205/2024

The Kerala Women's Commission filed a counter affidavit before the High Court suggesting the enactment of a new legislation called the 'Kerala Entertainment Industry Equality and Empowerment Act' to address the issues women face in the entertainment industry. The State Government has also filed an affidavit before the Court suggesting the formulation of a new film policy in Kerala.

The suggestions regarding the new legislation were placed before 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, established by the Government in 2017 tasked to study the issues faced by women in the Malayalam film industry. The report was published on August 19, 2024.

Kerala HC Calls For Reactivation Of Vigilance & Monitoring Committees At State, District And Divisional Levels To Prevent Unauthorized Quarrying

Case Title: In Re: Prevention And Management Of Natural Disasters In Kerala V State Of Kerala

Case Number: WP(C) 28509/ 2024 & Connected Cases

The Kerala High Court stated that there should be reactivation of Vigilance and Monitoring Committees at State, district and divisional levels to prevent and stop unauthorized and illegal quarrying in the State.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. hearing the suo moto case initiated after the Wayanad landslides, to prevent and manage natural disasters in Kerala held thus:

“State Government had directed for constitution of Vigilance and Monitoring Committee under the state, district and divisional levels to ensure surveillance and enforcement mechanism to prevent illegal and unauthorized quarrying in sensitive areas. It is emphasized that in the wake of natural disasters that have been noticed in the State, the reactivation of these Vigilance and Monitoring Committees is essential.”

Is Pottukuthal Ritual An Essential Religious Practise In Erumely Dharma Shastha Temple? Kerala High Court Calls For Dewaswom Board's Response

Case Title: Manoj S. Nair and Another v Travancore Devaswom Board and Others

Case No: WP(C) 34716/ 2024

The Kerala High Court has directed the Standing Counsel of the Dewaswom Board to get instructions as to whether pottukuthal is an essential religious practice in the Erumely Dharma Shastha Temple.

The Bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar made this direction in a petition filed by two Ayyappa devotees challenging the notice inviting tender from private agencies for undertaking and managing the custom of pottukuthal.

Plea By Lawyer In Kerala High Court Seeks To Address Issues And Implement Suggestions Given In Justice Hema Committee Report

Case Title: T B Mini v State of Kerala

Case Number: WPC No. 34778/2024

A plea has been moved before the Kerala High Court by a lawyer seeking directions from the Court to address the issues faced by women in the film industry and to implement the suggestions given in the Justice Hema Committee Report.

The present petition moved by a lawyer states that the Government has taken no steps to implement the suggestions given in the Report. It stated that the Report disclosed that women in cinema face sexual harassment and are demanded to make sexual adjustments and that there is an absence of legally constituted authority to redress these grievances.

AICTE Can Prescribe Manner Of Recruitment Of Teaching Staff In Technical Institutions: Kerala High Court Full Bench

Case Title: Ajal Ramakrishnan and Others v Athira I. C. and Others

Case No: OP (KAT) 152 of 2021

The Kerala High Court has held that the All India Council for Technical Education (AICTE) has the power to prescribe the manner of appointment of teaching staff to technical institutions.

A Full Bench comprising Acting Chief Justice A. Muhamed Mustaque, Justice Shoba Annamma Eapen and Justice S. Manu was answering a reference placed before it by a Division Bench. When the instant case came before the Division Bench, they doubted the earlier decision of a 2-Judge Bench of the Court in Suresh v State of Kerala (2021) and Haridas v Athira (2021) and referred the matter to this Full Bench. In those earlier cases, the Court held that AICTE has the power to prescribe qualifications, method of appointment etc.