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Kerala High Court Weekly Round-Up: April 3 To April 9
Sheryl Sebastian
10 April 2023 8:40 AM IST
Nominal Index [Citation: 2023 LiveLaw (Ker) 168-177]Sukumaran v. R.C. Ibrahim & Ors., 2023 LiveLaw (Ker) 168Suni @ Sunil V State of Kerala, 2023 LiveLaw (Ker) 169Priyesh B Kartha V. The Deputy Superintendent Of Police, 2023 LiveLaw (Ker) 170Dr. P K Asokan V State of Kerala, 2023 LiveLaw (Ker) 171Asif Azad v. Union of India & Ors.,2023 LiveLaw (Ker) 172All India Digital Cable...
Nominal Index [Citation: 2023 LiveLaw (Ker) 168-177]
Sukumaran v. R.C. Ibrahim & Ors., 2023 LiveLaw (Ker) 168
Suni @ Sunil V State of Kerala, 2023 LiveLaw (Ker) 169
Priyesh B Kartha V. The Deputy Superintendent Of Police, 2023 LiveLaw (Ker) 170
Dr. P K Asokan V State of Kerala, 2023 LiveLaw (Ker) 171
Asif Azad v. Union of India & Ors.,2023 LiveLaw (Ker) 172
All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr., 2023 LiveLaw (Ker) 173
Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 174
Anand Mahadevan V State Of Kerala, 2023 LiveLaw (Ker) 175
State of Kerala V Shefy Joseph, 2023 (Ker) LiveLaw 176
In Re Bruno v. Union of India & Ors., 2023 (Ker) LiveLaw 177
Judgments/Order
Case Title: Sukumaran v. R.C. Ibrahim & Ors.
Citation: 2023 LiveLaw (Ker) 168
The Kerala High Court recently held that an accident could be said to have arisen 'out of the use of' a vehicle that had been stationary at the relevant time, in order to prove a claim under Section 163A of the Motor Vehicles Act, 1988 (hereinafter, 'MV Act, 1988').
Although the Single Judge Bench of Justice Sophy Thomas dismissed the appeal against the order of the Motor Accidents Claims Tribunal, Irinjalakuda, finding that the appellant does not fall within the ambit of the low income group under Section 163A of the MV Act with maximum annual income up to Rs.40,000/- , the Court relied upon precedents to observe that under the said provision, the appellant would not have to plead or establish any wrongful act or negligence or default of the owner of the vehicle or any other person.
Case Title: Suni @ Sunil V State of Kerala
Citation: 2023 LiveLaw (Ker) 169
The Kerala High Court held that the police is not competent to register an offence under Section 195A (threatening any person to give false evidence) of the Indian Penal Code and that only a court is competent to consider an offence in relation to false evidence.
A single bench of Justice A. Badharudeen observed that
“When the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195 A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed.”
Case Title: Priyesh B Kartha V. The Deputy Superintendent Of Police
Citation: 2023 LiveLaw (Ker) 170
The Kerala High Court recently held that the open space designated for parking vehicles of customers and shop licensees in front of a shopping complex, even when it is owned by the municipality, could not be considered a public space for the purpose of freely conducting public gatherings, without the permission of the municipality.
A single bench of Justice N Nagaresh observed:
“Though every citizen has a right to access to the Shops in the building, the open space is intended for parking of the vehicles of the customers only. Therefore, such spaces can have a status of semi-public space only. No organisation or group of citizens can claim a right to organise Dharna or public meeting in such places, without the permission of the Municipality.”
Cause Title: Dr. P K Asokan V State of Kerala
Citation: 2023 LiveLaw (Ker) 171
The Kerala High Court recently set aside the bail granted by a sessions court to two persons who allegedly a attacked a doctor after a woman gave birth to a still-born child at the hospital.
A single bench of Justice Bechu Kurian Thomas expressing concern about the continued attacks on doctors observed:
“Doctors continue to face threats, when a mishap occurs to a patient. Even for the slightest provocation, health personnel are attacked. Despite legislation prevailing in the State of Kerala and the repeated court orders to treat attacks on health personnel as a serious crime, violence against them recur. The casual approach adopted by the courts while dealing with instances of attacks on health personnel also contribute to the tendency to resort to such violence.”
Case Title: Asif Azad v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 172
The Kerala High Court came down heavily upon the practice of filing writ petitions without any basis and thereby 'threatening the system into ridicule'.
Justice Bechu Kurian Thomas while dismissing a plea alleging State's Top officials of influencing others to destroy petitioner's life, imposed a cost of Rs.25,000/- payable to the Kerala Legal Services Authority.
"Access to justice, though a fundamental right, cannot be extended to a right to prefer misconceived and frivolous petitions. The nature of reliefs claimed for and the nebulous pleadings are indicative of absence of any particular right of the petitioner having been infringed," the Court observed while dismissing the petition.
Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.
Citation: 2023 LiveLaw (Ker) 173
The Kerala High Court dismissed the plea filed by All Indian Digital Cable Federation (AIDCF) challenging the Telecom Regulatory Authority of India's (TRAI) new Tariff Order, under which broadcasters had increased channel prices for cable TV operators for inclusion in bouquet from INR 12 to INR 19 per channel.
AIDCF, which is an apex body with several multi system operators (MSOs), that provide cable services to consumers, had moved an application seeking urgent hearing following the issuance of disconnection notices by the Indian Broadcasting and Digital Foundation (IBF) on failure to sign new interconnection agreements with revised prices.
The Single Judge Bench of Justice Shaji P. Chaly found that AIDCF had failed to establish any illegality, arbitrariness, unbridled exercise of power, mala fides or any other legal infirmities with respect to the New Tariff Order and the 2022 Regulations of TRAI that justified the interference of the Court. It also noted that the impugned Regulations were issued by TRAI for protecting public interest and regulating and controlling the telecommunication services for public good.
Case Title: Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 174
The Kerala High Court held that any purposeful attempt made to create an impression that a convict is not a well-behaved person in turn to deny leave to him is illegal.
Justice Bechu Kurian Thomas, while allowing a petition seeking ordinary leave for a convict, observed that
“There has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal…an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself”.
Case Title: Anand Mahadevan V State Of Kerala
Citation: 2023 LiveLaw (Ker) 175
The Kerala High Court has reiterated that the police cannot arrest a person under Section 151 of the Code of Criminal Procedure (arrest to prevent the commission of cognizable offences), without the knowledge of the existence of a design to commit a cognizable offence and a belief that the commission of the offence can only be prevented by the arrest of the person.
A single bench of Justice Bechu Kurian Thomas observed that since extraordinary powers of arresting without a warrant has been granted to the police in case of knowledge of a design to commit a cognizable offence, strict interpretation of section 151 was important to avoid any misuse of such powers:
“The object of Section 151 of the Code is one of preventive justice and before invoking the said provision, it must be evident that there is imminent danger. Unless the arrest under Section 151 of the Code is based upon a bonafide belief of the existence of a design to commit a cognizable offence and without arresting the person, the threat of commission of offence cannot be averted, only then can the Police Officer be clothed with the power to arrest under Section 151 of Code. The corollary of the above is that, without the knowledge of a design and without an imminent threat to commit a cognizable offence, a Police Officer cannot arrest, that too without a warrant from the Magistrate in exercise of the power under Section 151 of the Code.”
Case Title: State of Kerala V Shefy Joseph
Citation: 2023 (Ker) LiveLaw 176
The Kerala High Court recently vacated its interim order staying NGT's direction to M/s.Cochin Granites to pay environmental compensation for its illegal and unauthorised mining activities.
A challenge to the said order of the National Green Tribunal had been earlier dismissed by the Supreme Court. Subsequently, a review petition was filed which was also dismissed by the Apex Court. However, the order came to be stayed by the Kerala High Court in a plea filed by the State.
The Supreme Court had directed its Registry to communicate its orders to the Registrar General of the High Court, who placed it before a single bench of Justice Viju Abraham for consideration. Vacating the interim order in light of the orders of the Apex Court, the court held:
“..the Apex Court has dismissed the appeal and review petition challenging the order of the National Green Tribunal. In view of the fact that the order impugned in these writ petitions has been challenged unsuccessfully by filing an appeal and a review petition before the Hon’ble Apex Court, I am of the opinion that the interim order granted in both the writ petitions i.e., W.P(C) No.13221 of 2022 and W.P(C) No.17340 of 2022 on 15.06.2022 and subsequently extended, is not liable to be extended further and the request for extending the interim order in both the writ petitions is accordingly declined.”
Case Title: In Re Bruno v. Union of India & Ors.
Citation: 2023 (Ker) LiveLaw 177
The Kerala High Court ordered that the rogue elephant, 'Arikomban', which had been wreaking havoc in human settlements in Chinnakkanal and Santhanpara Panchayaths in the Idukki District, ought to be captured, radio-collared and relocated to the Muthuvarachal/Orukomban within the Parambikulam Tiger Reserve.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. issued the above order after perusing the report filed by the Committee of Experts that had been constituted by it to advise the Court on matters pertaining to Human-Elephant conflict situations arising in the State.
"Having considered the report of the Committee and having heard the counsel appearing for the various parties in this writ petition including parties who sought to get themselves impleaded in the writ petition as also the learned Additional Advocate General appearing for the State of Kerala, we are of the opinion that the Committee has considered all the relevant aspects and has come to the conclusion that the best possible way to deal with the present situation is only to capture, radio-collar and translocate the animal to the Parambikulam Tiger Reserve. We are convinced that this is the best option, despite the submission of the learned Additional Advocate General that it is for the Chief Wildlife Warden to take a final decision as to whether the elephant has to be translocated or kept in captivity," the Court observed in its Order.
Other Significant Developments
Former HC Chief Justice Thottathil B. Radhakrishnan Passes Away
Former Chief Justice of the High Courts of Calcutta, Andhra Pradesh, Telangana, and Chhattisgarh, and Judge of the Kerala High Court, Justice Thottathil Bhaskaran Nair Radhakrishnan, passed away.
He served as Judge of the Kerala High Court for 12 years, and had been the acting Chief Justice twice.
He breathed his last at a private hospital in Kochi.
Kerala Court Convicts 14 In Madhu Lynching Case, Acquits Two
The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad convicted 14 of the 16 persons accused in the Madhu Lynching Case.
The accused persons had been charged for tying up and brutally beating a tribal youth to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018.
Asianet News Files Plea Before Kerala High Court Alleging Police Harassment
Case Title: Asianet News & Ors. v. State Police Chief & Ors.
Malayalam News Channel, Asianet News, has filed a plea before the Kerala High Court alleging harassment by the Police for having launched a campaign against drug abuse in the State, particularly amongst children, and the publication of an interview with one such victim of drug abuse.
It is the case of the petitioners that despite the aforementioned news item having been published with due care and caution, without disclosing the identity of the victim or her relatives, the channel was continuously receiving notices under Sections 160(1) and 90 of Cr.P.C. directing them to produce their recordings and original video tapes of the news that was telecasted several months ago.
Madhu Lynching Case| Kerala Court Sentences 13 Convicts To 7 Years Imprisonment
The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad pronounced the quantum of sentence in the Madhu lynching case.
The case pertains to the brutal lynching of a mentally challenged tribal youth, Madhu, to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018.
The Special Court Judge K.M. Retheesh Kumar had earlier pronounced the order convicting 14 of the 16 accused persons.
The accused had been charged with offences punishable under Sections 143, 147, 148, 323, 324, 326, 294(b), 342, 352, 364, 367, 368, and 302 r/w 149 of the Indian Penal Code (IPC) and Sections 3(1) (d), (r) (s) and 3(2) (v) of the Scheduled Caste and SC/ST(PoA) Act. The accused were found guilty of culpable homicide not amounting to murder.
The Court sentenced 13 of the 14 accused persons to rigorous imprisonment for a period of 7 years. The first accused has to pay a fine of Rs. 1,05,000/- while the remaining 12 accused have been imposed with a fine of Rs. 1,18,000/-.
The 16th accused person in the case, Muneer, was only found guilty of the offence under Section 352 of IPC, and sentence to undergo simple imprisonment for three months and to pay a fine of Rs. 500/-. However, since Muneer was already found to have completed the jail term during the remand period, the Court directed that he would be released from prison on remitting the fine.
The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad convicted 14 of the 16 persons accused in the Madhu Lynching Case. The case pertains to death of a mentally challenged tribal youth, Madhu, who was lynched in February 2018, on suspicion of theft of rice, spices from shops in the Mukkali area in Palakkad, Kerala. The Court sentenced 13 of the 14 convicted persons to rigorous imprisonment for a period of 7 years for the offence under Section 304 Part II (Punishment for culpable homicide not amounting to murder) read with Section 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code.
The Special Court Judge K.M. Retheesh Kumar while convicting 14 of the 16 persons accused in the lynching case observed:
“This is the first mob lynching case in Gods Own Country. Let it be last such case.”
Even though the counsel for the accused had requested for some leniency while awarding the sentence contending that several of the accused persons were sole bread winners of their family and that they had no criminal antecedents. The court observed that:
“This court is bound to respect the life of Madhu just like the life of any other citizen in this country. Our constitution guarantees equal right to life for each and every citizen in India irrespective of their social status. Hence, the court cannot award a flee bite sentence in this case for the reason that the person who died in the incident is not a big shot.”
The Kerala High Court has issued a data privacy notice, specifying the guidelines that the High Court and the courts under its supervisory control will adhere to when collecting or holding personal data of individuals. The court on the judicial side had earlier directed its Registry to publish privacy notice on the website in both English and vernacular languages.
While the court has made the privacy notice available in English and Malayalam on its official website, it has also issued an official memorandum to all the Principal District Judges to take necessary steps to publish the same on the official website of their respective judicial district immediately.
Case Title: State v. Shilpi
A Kerala Court sentenced a 26 year old man to undergo 20 years rigorous imprisonment for committing rape and impregnating a 17 year old minor. It also imposed a fine of Rs.86,000/-.
The Fast Track Special Court (POCSO), Thiruvananthapuram Judge Aaj Sudarsan passed the order, stating no other situation could be more ‘emotionally charged’ than a rape victim becoming pregnant.
“Rape is an evil act. It is a crime of violence as also clearly seen in the facts and circumstances of the case at hand, which is deeply personal and unwanted violation of a human being, a brutal exertion of power and control over another person,” the Court observed, while adding that pregnancy from rape could compound and prolong the victim’s anguish.
Kerala High Court Set To Inaugurate Various IT Initiatives
Kerala High Court will inaugurate various IT initiatives including the Vigilance Court Case Management System (VCMS) and the Family Court Case Management Module on April 10 at the High Court Auditorium. The court is also set to launch an Online RTI Portal.
While Chief Minister Pinarayi Vijayan will inaugurate the Vigilance Court Case Management System, the Family Court Case Management Module and other IT initiatives will be inaugurated by Chief Justice S. Manikumar.
