Kerala High Court Weekly Round-Up: December 2 - 8, 2024

C. Alavi v The State of Kerala and Another, 2024 LiveLaw (Ker) 766

T. N. Mukundan v State of Kerala and Others, 2024 LiveLaw (Ker) 767

Motorsigns India v State of Kerala & Connected Matters, 2024 LiveLaw (Ker) 768

Nizar v State of Kerala , 2024 LiveLaw (Ker) 769

Aravindakshan P. R. v Assistant Director, ED and Another, 2024 LiveLaw (Ker) 770

M/S Inkel Ltd V The Federal Bank Limited, 2024 LiveLaw (Ker) 771

Mrs. Ameera M V The Maintenance Tribunal, Kozhikode, 2024 LiveLaw (Ker) 772

The Muppathadam Service Co-Operative Bank Ltd. V The State Chief Information Commissioner, 2024 LiveLaw (Ker) 773

XXX v State of Kerala, 2024 LiveLaw (Ker) 774

XXX v State of Kerala, 2024 LiveLaw (Ker) 775

The Kerala Public Service Commission V Aboobacker Mattayi, 2024 LiveLaw (Ker) 776

Ismail Valumathige v Union Territory of Lakshadweep and Another, 2024 LiveLaw (Ker) 777

The Principal Commissioner of Income Tax Kochi v. M/s Dewa Projects Pvt. Ltd., 2024 LiveLaw (Ker) 778

Braddock Infotech Private Limited v. Joint Director General Of Foreign Trade, 2024 LiveLaw (Ker) 779

Ameen Akbarali. U V Kerala Veterinary And Animal Sciences University, 2024 LiveLaw (Ker) 780

Aneesh K. Thankachan v Union of India, 2024 LiveLaw (Ker) 781

Judgments/ Orders This Week

'Torture' Not Part Of Police's Official Duty, No Sanction Required To Prosecute For Such Acts: Kerala High Court

Case Title: C. Alavi v The State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 766

The Kerala High Court has held that a Magistrate Court can take cognizance in case of custodial torture by police office, without prior sanction of the State Government under Section 197(1) of CrPC. 

Justice K. Babu reasoned that a Police Officer torturing a man in a police station cannot be treated as part of official duty, thus not requiring sanction to prosecute.

Kerala High Court Asks State To Transfer ₹1510 Crore Paddy Land Conversion Fee To Agricultural Promotion Fund In Next 12 Months

Case Title: T. N. Mukundan v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 767

The Kerala High Court has ordered the State to remit the entire amount it collected as application fee for conversion of paddy land since the enactment of Kerala Conservation of Paddy Land and Wetland Act, 2008 to the Agricultural Promotion Funds (APF) in the next 12 months.

The Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu ordered for this entire amount is to be transferred to the Agricultural Promotion Funds.

Kerala HC Quashes Notification To Set Up High-Security Number Plate Manufacturing Plants, Calls For Fair Tender Process

Case Title: Motorsigns India v State of Kerala & Connected Matters

Citation: 2024 LiveLaw (Ker) 768

The Kerala High Court has quashed the notification issued by the state government dated July 30, 2024, permitting Regional Transport Officers in the State to set up plants for the production of high-security registration number plates (HSRP) and to obtain Technical Approval Certificates (TAC) for the implementation of the HSRP scheme.

The government introduced the HSRP scheme, which provides standardised registration plates and chromium-based holograms to vehicles for enhanced security, facilitates their identification, and reduces motor vehicle-related offences.

The single bench of Justice D K Singh also rejected the permission to license plate manufacturers and their dealers, who have a Type Approval Certificate from the central agency, to affix HSRP plates without further approval or selection by the State Government since that would affect the integrity and object behind implementation of the HSRP scheme.

Modesty Of Woman Is Outraged When Action Of Offender Could Be Perceived As Being Capable Of Shocking Her Sense Of Decency: Kerala High Court

Case Title: Nizar v State of Kerala 

Citation: 2024 LiveLaw (Ker) 769

The Kerala High Court has held that an offence of outraging the modesty of a woman under Section 354 of the IPC is attracted when the offender's action is such that it would be perceived as capable of shocking a woman's sense of decency.

In this case, the President of the Parent Teachers Association (PTA) of an upper primary school was accused of using obscene language and outraging the modesty of the school headmistress. It was alleged that during the PTA meeting, he grabbed both of her hands and pulled her towards his body.

Justice Muralee Krishna S. while quashing conviction under Section 354 of the IPC found that the revision petitioner might have acted in a heat of passion during the PTA meeting when he was being decided to be expelled out of the PTA.

Kerala High Court Grants Bail To Former CPI (M) Municipal Councillor, Another In Alleged Karuvannur Bank 'Scam' Case

Case Title: Aravindakshan P. R. v Assistant Director, ED and Another

Citation: 2024 LiveLaw (Ker) 770

The Kerala High Court on Monday (December 2) granted bail to the former CPI(M) Municipal Councillor of Vadakkanchery Municipality Aravindakshan P. R. accused in the Karuvannur Bank Scam case investigated by the Enforcement Directorate. 

Justice C. S. Dias also granted bail to the former Senior Accountant of the Bank, Jilise C. K. Both of them were alleged to have committed offences punishable under Section 4 (punishment for money laundering) of Prevention of Money Laundering Act.

Unjustified For Bank To Proceed Against Property Based On Prior Settled Mortgage, When No New Mortgage Was Created: Kerala High Court

Case Title: M/S Inkel Ltd V The Federal Bank Limited

Citation: 2024 LiveLaw (Ker) 771

The Kerala High Court has observed that it was not appropriate to proceed against the property of a guarantor who has not created mortgage over the property as collateral, merely because the guarantor had previously acted as a surety in another mortgage that has already been settled.

Justice Harisankar V. Menon directed the petitioner to approach the Debt Recovery Tribunal for the return of original title deeds.

Proceedings Pending U/S 125 CrPC Not Bar On Maintenance Tribunal's Jurisdiction To Provide Residence To Senior Citizens/ Parents: Kerala HC

Case Title: Mrs. Ameera M V The Maintenance Tribunal, Kozhikode

Citation: 2024 LiveLaw (Ker) 772

The Kerala High Court has held that the pendency of maintenance proceedings before the Family Court under Section 125 of the CrPC would not affect the jurisdiction of the Maintenance Tribunal from ordering residence to senior citizens under the Maintenance and Welfare of Parents and Senior Citizens Act of 2007.

Justice D. K. Singh observed that the 2007 Act was enacted to prevent the deprivation of senior citizens by their children and to safeguard their rights guaranteed by the Constitution. The Court clarified that Section 12 of the Act, which stipulates that maintenance can be claimed either under Section 125 of the CrPC or Section 12 of the Act but not under both, does not restrict the Tribunal's authority to grant residence to senior citizens.

Registrar Of Co-Operative Societies Must Provide Information Under RTI Act Provided It Is Not Exempt From Disclosure: Kerala HC

Case Title: The Muppathadam Service Co-Operative Bank Ltd. V The State Chief Information Commissioner

Citation: 2024 LiveLaw (Ker) 773

The Kerala High Court has said that if the Registrar of Co-operative Societies has access to the information requested by an applicant under the Right To Information Act, and if the information is not exempt from disclosure under Section 8(1) of the Act, the official is obligated to provide that requested information to the applicant.

Referring to the provisions of the Co-operative Societies Act, Justice D. K. Singh noted that the Registrar of Co-operative Societies has wider powers in the functioning of the society and has access to the documents sought by the applicants which are not exempted from disclosure.

Mother Was 'Shocked' To Find Unmarried Daughter Pregnant, Delay In Reporting To Police Justified: Kerala HC Quashes Case U/S 19 POCSO Act

Petitioner: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 774

The Kerala High Court has held that the trauma and shock of a mother coming to know of her minor, unmarried daughter's pregnancy is a justifiable reason for delay in informing the POCSO offence to the police. 

Justice A. Badharudeen observed that in one way the mother can also be considered the victim of the crime and thus, prosecuting her under Section 19 of the Act is like “putting chilly powder on the deep wound”.

POCSO Act Being Misused By Certain Persons To Wreak Vengeance Against Their Rivals: Kerala High Court

Case Title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 775

The Kerala High Court has observed that provisions of the POCSO Act were being misused by certain persons to wreak vengeance against their rivals with ulterior motives.

Justice A. Badharudeen observed that the Court shall exercise its powers to quash false and frivolous litigations filed with ulterior motives at the threshold by exercising its jurisdiction under Section 482 of CrPC or Section 528 of the BNSS.

Candidate Who Undertakes Degree Course With Two Main Subjects Would Get Advantage Of Two Main Degrees: Kerala High Court

Case Title: The Kerala Public Service Commission V Aboobacker Mattayi

Citation: 2024 LiveLaw (Ker) 776

The Kerala High Court has stated that a candidate who underwent a degree course having two main subjects would get the advantage of two main degrees.

In the facts of the case, a candidate who has a BA in Arabic and Islamic History from Calicut University was stated to be not eligible to apply for a post advertised by the Public Service Commission requiring a degree in Arabic, due to his dual main degree.

The Division Bench of Justice A.Muhamed Mustaque and Justice P. Krishna Kumar observed that merely the inclusion of an additional subject in the main degree would not mean that the candidate lacks degree in BA Arabic.

Courts Must Be Liberal In Giving NOC For Issuance Of Passport When Applicant Is Accused Of Matrimonial/Trivial Offence: Kerala HC

Case Title: Ismail Valumathige v Union Territory of Lakshadweep and Another

Citation: 2024 LiveLaw (Ker) 777

The Kerala High Court has said that Courts have to be liberal while considering issuing a No Objection of Certificate for passports when the case pending against the applicant is a matrimonial issue or a trivial/ simple offence.

In doing so the court said that if a liberal approach is not adopted in such cases, the applicant's right to go abroad to carry out their employment, without obstructing the trial, "would be in peril".

Justice A. Badharudeen held that the Court has to uphold the right of life of the accused. In the case before it, the high court noted that it was the petitioner's grievance was that the pendency of a criminal case is a matter which would negate the issuance/re-issuance of passport, unless No Objection Certificate from the concerned Court is produced

Loss In Derivatives Is Not A Speculative Transaction And Can Be Set Off Against Business Income Of Assessee: Kerala High Court

Case Title: The Principal Commissioner of Income Tax Kochi v. M/s Dewa Projects Pvt. Ltd.

Citation: 2024 LiveLaw (Ker) 778

The  Kerala High Court stated that loss in derivatives is not a speculative transaction and can be set off against business income of the assessee. Further, this is not a case where Section 73 of Income Tax Act is attracted since it deals with losses in speculation business.

The Bench of Justice A.K. Jayasankaran Nambiar observed that “……..a loss in the derivative business would consequently be a business loss for the purposes of Section 72, and a set off of such business loss would have to be permitted against profits and gains of business as computed in terms of the I.T. Act……..”

Provisions Of Foreign Trade Policy Cannot By Itself Authorise Levy Of Interest U/S 28AA Of Foreign Trade Act: Kerala High Court

Case Title: Braddock Infotech Private Limited v. Joint Director General Of Foreign Trade

Citation: 2024 LiveLaw (Ker) 779

The  Kerala High Court stated that the provisions of the Foreign Trade Policy cannot by itself authorise the levy of interest under Section 28AA of the Foreign Trade (Development and Regulation) Act, 1992, as such levy must be supported by plenary legislation.

The Bench of Justice Gopinath P. was considering a case where the assessee challenged the interest imposed upon him under the provisions of Section 28AA of the Customs Act, 1962 on the amounts repaid by the assessee on the assessee being found ineligible for the benefit of the Scheme introduced by the Foreign Trade Policy.

[Veterinary Student Death] Kerala HC Quashes Orders Expelling, Debarring Students Accused Of Ragging, Directs University To Do Fresh Enquiry

Case Title: Ameen Akbarali. U V Kerala Veterinary And Animal Sciences University

Citation: 2024 LiveLaw (Ker) 780

The Kerala High Court on Thursday (December 5) quashed the order expelling the college students implicated as accused in the suicide of Sidharthan J S. The Court has also quashed the order debarring the students from taking admission to any other college for three years.

Justice Ziyad Rahman A.A. while pronouncing the verdict ordered the Kerala Veterinary And Animal Sciences University to conduct a fresh enquiry after giving the students memo of charges outlining the specific allegations against them, in accordance with the principles of natural justice. The Court has also permitted the students to continue their studies in the college, subject to the final outcome of the fresh enquiry to be conducted.

S.79 IT Act | YouTube Can't Be Directed To Remove Alleged Objectionable Video In Absence Of Court Order Declaring It 'Defamatory': Kerala HC

Case Title: Aneesh K. Thankachan v Union of India

Citation: 2024 LiveLaw (Ker) 781

The Kerala High Court has held that YouTube, being an intermediary cannot be directed to remove an allegedly objectionable video without an order from the Court finding that the alleged video was defamatory in nature.

Justice T.R. Ravi reached the above conclusion by relying upon the landmark judgment in Shreya Singhal v Union of India and perusing Section 79 of the Information Technology Act, 2000.

Other Important Developments This Week

Bathing Of Pilgrims In Pamba River, Erumeli Stream In Sabarimala Is Prohibited: State Tells Kerala High Court

Case Title: Suo Moto v State of Kerala

Case Number: SSCR NO. 79 OF 2024

The Kerala High Court has directed the District Collectors of Pathanamthitta, Idukki and Kottayam to ensure that necessary steps are taken to ensure a safe and secure pilgrimage to Sabarimala pilgrims ahead of the Mandala-Makaravilakku festival season of 2024-25.

The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. was considering the steps and action plans to be implemented by the Travancore Devaswom Board, state government, and police to ensure the safety of pilgrims at Sabarimala.

Have Some Respect For The Dead: Says Kerala HC Orally, Suggests Mediation For Dispute On Donation Of CPI(M) Veteran MM Lawrence's Body

Case Title: Asha Lawrence v State of Kerala and Others

Case No: WA 1857/ 2024

Suggesting mediation with respect to the dispute over donation of deceased former CPI(M) veteran M. M. Lawrence's body, the Kerala High Court on Tuesday (December 3) orally remarked that there must be respect shown to the person who has passed away.

During the course of the hearing today, a Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu observed that the Kerala Anatomy Act does not envisage dispute resolution between family members. It observed that the matter is essentially a civil dispute between family members.

High Court Directs Kochi Municipal Corporation To Nominate Custodian For Living Will Of Retired Doctor Within A Week

Case Title: Martha Jacob v State of Kerala

Case No: WP(C) 41377/ 2024

The Kerala High Court on Monday (December 2) directed the Kochi Municipal Corporation to nominate a custodian for the Living Will of retired doctor Martha Jacob, within a week.

The 70 year old had moved the High Court to appoint a custodian for her living will. She suffered a stroke in 2023 and her mobility has been severely restricted after that. She in her living will had given directions to be followed in case she becomes terminally ill or is no longer able to give informed consent. The will was subsequently notarised. However she is unable to complete the procedure as the authorities have not nominated a competent person who shall act as a custodian for her living will.

Kerala HC Pulls Cochin Devaswom Official For Violating Guidelines Regulating Parading Of Elephants At Temple Festivals, Seeks Affidavit

Case Title: In Re Captive Elephants v Union of India Connected Cases

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

The Kerala High Court has directed an official of the Cochin Devaswom Board to file an affidavit before the Court regarding alleged breach of guidelines issued regulating the parading of Elephants during Temple festivals.

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. observed that the temple authorities had violated the directions of the Court and that Elephants were paraded within distances of less than 3 meters.

“If Mullasserry Canal Doesn't Flow, Kochi Will Drown”: High Court Tells Ernakulam Collector To Look Into Rejuvenation Of Canal

Case Title: Treasa K J v State of Kerala 

Case Number: WP(C) NO. 23911 OF 2018 

The Kerala High Court on Wednesday (December 4) asked the Ernakulam Collector to look into the issue of rejuvenation of Mullassery Canal and the leakage in the flat complex constructed by the Greater Cochin Development Authority (GCDA). Justice Devan Ramachandran said that the issue will be exacerbated if rainfall occurs.

Kerala High Court Warns Its Staff Against Online Gaming, Trading Or Scrolling Social Media During Office Hours

The Kerala High Court Registrar General has recently issued an Official Memorandum banning mobile phone use during office hours. Senior officers provided with mobile phones and chauffeurs are exempted from this direction.

Former CPM Leader Who Joined BJP Moves Kerala High Court Seeking Anticipatory Bail In Dowry Harassment Case, Alleges Political Vengeance

Case Title: Bipin C Babu & Another v State of Kerala & Another

Case Number: Bail Appl. 10093/2024

Bipin C. Babu, a former CPM leader and ex-Vice President of the Alappuzha District Panchayat, has filed a plea for anticipatory bail in the Kerala High Court in connection with a dowry harassment case. 

Babu, who recently left the CPM to join the BJP, claims that the case is politically motivated and filed by his wife at the instance of CPM party leaders, infuriated by the party change.

Why No Action Taken To Remove TV Cables Drawn On Electric Posts Without Following Safety Regulations? Kerala High Court Asks KSEB

Case Title: Cable Operators Association V State Of Kerala

Case Number: WP(C) No. 19754 Of 2024

The Kerala High Court has directed the Kerala State Electricity Board to ensure that cable operators follow safety regulations while drawing cables through electric posts for providing cable TV and Broadband Services.

Justice Gopinath P. enquired with the KSEB as to why no action has been taken for removing cables drawn on electric posts without following the safety regulations.

Putting Up Boards Of Temples, Churches Or Mosques On Busy Roads Is Not Religious Practice: Kerala High Court

Case Title: St. Stephen's Malankara Catholic Church v. State of Kerala & Ors.

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

The Kerala High Court on Wednesday (4^th December) observed that putting up boards in busy thoroughfares cannot be said to be a religious practice. The observation was made by Justice Devan Ramachandran while hearing a 2018 plea concerning unauthorized boards/ banners and public places.

Dolly Workers Cannot Protest During Sabarimala Festival Season, Would Adversely Affect Rights Of Pilgrims: Kerala High Court

Case Title: Suo Moto v State of Kerala

Case Number: SSCR NO. 87 OF 2024

The Kerala High Court stated that dolly workers cannot be permitted to stage protest or strike ahead of the 2024 Mandala-Makaravilakku festival season at Sabarimala.

The Division Bench of Justice Anil K.Narendran and Justice Muralee Krishna S. ordered that dolly workers cannot use protest as a pressure tactic to make the authorities meet their demands during the festival season, and any such demands must have been raised before the beginning of the festival season.

Kerala High Court Directs ED To Probe Alleged Fraud Of ₹24 Crore In Edamulackal Co-Operative Bank

Case Title: Rajendran Unnithan S. v The Registrar of Co-operative Societies and Others

Case No: WA 1861 of 2024

The Kerala High Court on Wednesday (4^th December) ordered, the Enforcement Directorate to register a case against all the persons involved in the Edamulackal Co-operative Bank Fraud. The Division Bench comprising of Justice Amit Rawal and Justice K. V. Jayakumar was dealing with an appeal filed by one of the depositors in the Bank.

State Opposes Plea In Kerala High Court For CBI Investigation Into Former ADM Naveen Babu's Death

Case Name: Manjusha K v CBI & Others

Case Number: WP (Crl) 1297/2024

The State of Kerala on Friday (December 6) opposed a petition filed by the widow of Naveen Babu seeking a CBI investigation into the tragic death of former Kannur ADM, wherein the High Court said that it will decide the issue after checking if the police probe is going on the right track.

When the case came up for hearing before Justice Kauser Edappagath, the State requested time to file the reply statement and to produce the case diary.

''Police Stood As Mute Spectators'': Kerala HC On Protestors Encroaching Footpath Outside Trivandrum Corporation Office

Case Title: Suo Moto v State of Kerala and Others

Case No: WP(C) 7844/ 2023

While hearing a suo motu plea concerning waste management in the state, the Kerala High Court on Friday (December 6) orally said that while it was not against peaceful protests but encroachments which had been allegedly put on the footpath in front of the Trivandrum Corporation's office by certain protestors, cannot be allowed.

During the hearing a division bench of Justice Bechu Kurian Thomas and Justice Gopinath P. orally said that they saw through a WhatsApp call that the protestors had constructed a "pandhal" on the footpath in front of the Corporation Office. It observed that the law prohibits any procession to be conducted on the footpaths. The Court said that though the court is not against peaceful protest but, such encroachments on footpath cannot be allowed.

[Wayanad Landslides] Kerala High Court Tells State To Furnish Details Regarding Availability & Utilisation Of Funds In SDRF

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 has orally directed the State Government to furnish clear details regarding the availability and utilization of funds in the State's Disaster Response Fund (SDRF). The Court has also sought information regarding funds required for future expenses, such as for rehabilitation and construction.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Mohammed Nias C.P. stated that lack of clarity in accounts could result in unnecessary bickering and cause misinformation.

Kerala High Court Directs Devaswaom Board To Ensure Pilgrims' Darshan Is Not Obstructed Due To VIP Darshan At Sabarimala

Case Title: Suo Moto v State of Kerala

Case Number: SSCR 79/ 2024

The Kerala High Court has directed the Travancore Devaswom Board to ensure that incidents of VIP Darshan causing obstruction to pilgrims does not take place in Sabarimala during the Mandala-Makaravilakku festival season.

The Division Bench of Justice Anil K.Narendran and Justice Muralee Krishna S. passed the above order based on the Special Commissioner's report that obstruction was caused to pilgrims at Sabarimala on December 05, 2024 due to the arrival of Malayalam Film Actor Dileep for darshan.

Wayanad Landslides | Kerala High Court Slams State Government For Failure To Explain Available Balance In State's Disaster Response Fund

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 today criticised the State government for its failure to provide details regarding the availability and utilization of funds in the State's Disaster Response Fund (SDRF).

Criticising the inability of the state government to give clear details regarding the funds in SDRF, the bench of Justice A.K.Jayasankaran Nambiar and Justice Mohammed Nias C.P., remarked that this was unacceptable.

Shouldn't Everyone Else Have Darshan?: Kerala HC Enquires On Incident Involving 'VIP Darshan' Of Actor Dileep At Sabarimala

Case Title: Suo Motu v State of Kerala

Case No: SSCR 79/ 2024

The Kerala High Court while hearing a suo motu matter dealing with the issue of VIP 'Darshan' of actor Dileep at Sabarimala questioned whether other pilgrims shouldn't also be entitled to darshan of the temple.

A division bench of Justice Anil K. Narendran and Justice Muralee Krishna S. was informed on Friday about the issues caused by the VIP Darshan of the actor. The Court ordered the Travancore Devaswom Board to ensure that pilgrims have proper darshan and such incidents are not repeated.