Kerala High Court Weekly Round-Up: December 12 To December 18, 2022

Nominal Index [Citation 2022 LiveLaw (Ker) 644- 657]

Sajeevan v. State of Kerala 2022 LiveLaw (Ker) 644

Neetha Lukose v. State of Kerala & Ors. 2022 LiveLaw (Ker) 645

 G. S. Sreekumar v. State of Kerala and Others 2022 LiveLaw(Ker) 646

All Kerala Private Bankers' Association v. The Commissioner of State Tax & Ors.  2022 LiveLaw (Ker) 647

P.T. Prasannakumar & Ors. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 648

 Kiran Kumar S v. State of Kerala & Anr. 2022 LiveLaw (Ker) 649

X v. State of Kerala & Anr. 2022 LiveLaw(Ker) 650

Gauri Sajit v. State of Kerala & Ors. 2022 LiveLaw (Ker) 651

X v. State of Kerala & Ors. 2022 LiveLaw (Ker) 652

 Muhammed Ajmal v. State of Kerala 2022 LiveLaw(Ker) 653

 M.K. Gheevarghese v. Mariam Gheevarghese 2022 LiveLaw (Ker) 654

 K.G. Sunilkrishnan v. K.G. Premsankar 2022 LiveLaw (Ker) 655

 Vineeth v. State of Kerala 2022 LiveLaw (Ker) 656

Suresh B @ Vava Suresh v. State of Kerala & Anr 2022 LiveLaw(Ker) 657

Orders/Judgments This Week

High Court Dismisses Writ By Kerala Private Bankers' Assn Against RBI's Insistence Requiring Small Financiers To Not Describe Themselves As 'Bank'

Case Title: All Kerala Private Bankers' Association v. The Commissioner of State Tax & Ors.

Citation: 2022 LiveLaw (Ker) 647

The Kerala High Court recently dismissed a writ petition filed by All Kerala Private Bankers' Association against RBI's insistence requiring small financiers to not use the word 'Bank' as part of their names.

The Association, comprised of small financiers and unincorporated bodies registered under the Kerala Money Lenders Act, had also sought renewal of its members' licenses.

Justice V.G. Arun held that a writ petition by the Association would not be maintainable since the Association is not conducting money lending business on its own, and thus, could not amount to an 'aggrieved person'.

Sitting On Business License Renewal Applications For Long Can Pave Way For Corrupt Practices: Kerala High Court

Case Title: P.T. Prasannakumar & Ors. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 648

The Kerala High Court has expressed concern over the tendency of state authorities to sit on business renewal license applications, which in turn disrupts business activities and may pave way for corruption.

Justice Bechu Kurian Thomas while quashing the FIR registered against M/S Aditya Finance, a hire-purchase business entity regulated under the Kerala Money Lenders Act, 1958 said, that "a licensee of a running business establishment who had applied for renewal of his license, cannot be asked to wait indefinitely until the authority takes a decision. If the licensee has to stop his running business until a decision is taken, it will disrupt the business. This can also pave they way for corrupt practices and will be giving a premium to the ineptitude of the licensing authority".

Vismaya Dowry Death Case: Kerala High Court Refuses To Suspend Husband Kiran Kumar's 10-Yrs Sentence

Case Title: Kiran Kumar S v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 649

The Kerala High Court on Tuesday dismissed the application filed by Kiran Kumar, the convict in the Vismaya dowry death case, seeking an interim order for suspension of his 10 years sentence.

The application was moved in a Criminal Appeal against his conviction and sentence handed down in May this year following his wife's death under mysterious circumstances, after she had complained of dowry harassment.

The Division Bench consisting of Justice Alexander Thomas and Justice Sophy Thomas observed that, taking into account the nature of accusation, seriousness of the offence and also its social impact, this is not a fit case warranting suspension of sentence. Moreover, the presumption of innocence goes with the conviction and sentence. There is no patent infirmity in the order of conviction to render it prima facie erroneous...Pending appeal, if the sentence is suspended so as to release the applicant/appellant on bail, it will send a wrong message to the society. For all these reasons, we are not inclined to allow this application.

Even If Dowry Is Not Demanded Before Or At The Time Of Marriage, Subsequent Demand Is Sufficient To Attract Dowry Prohibition Act: Kerala High Court

Case Title: Kiran Kumar S v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 649

The Kerala High Court on Tuesday, while dismissing the application filed by Kiran Kumar, the convict in the Vismaya dowry death case, seeking an interim order for suspension of his 10 years sentence, observed that even if there was no demand for dowry before or at the time of marriage, the subsequent demand made is sufficient to attract the definition of dowry under Section 2 of the Dowry Prohibition Act, 1961.

Division Bench consisting of Justice Alexander Thomas and Justice Sophy Thomas while expressing concern on the rise in atrocities against women in their matrimonial homes and harassment for dowry, observed that while enacting Section 304B of the IPC, the Legislature strongly intended to curb the social evil of dowry demand. Section 2 of the Dowry Prohibition Act was amended with effect from 19.11.1986, and Section 304B dowry death was introduced in the Indian Penal Code with effect from the very same day, i.e., on 19.11.1986. Section 113 B presumption as to dowry death was also introduced in the Indian Evidence Act, 1872, on the same day i.e., 19.11.1986. So the Legislative intent in bringing out these amendments in all the three statues simultaneously will show the strong desire to eradicate the social evil of dowry death from the society using the iron hands of law.

Shocking That Many Innocent Persons Are Victims Of False Cases Under SC/ST Prevention Of Atrocities Act : Kerala High Court

Case Title: X v. State of Kerala & Anr.

Citation: 2022 LiveLaw(Ker) 650

The Kerala High Court on Friday observed that many innocent persons are victims of false implication under the SC/ST (POA) Act.

"It is shocking, rather a mind blowing fact that many innocent persons are victims of false implication under the SC/ST (POA) Act", the Court observed while considering an application seeking anticipatory bail. It cautioned that possibility of false implications of innocent people as accused, with a view to achieve ulterior motives of the complainant, must be ruled out.

Noting that many innocent persons are falling victim to false implications under the SC/ST (POA) Act, Justice A. Badharudeen observed that the courts should have a duty to rule out the possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, with threat of arrest and detention of the accused in custody, because of the stringent provisions in the SC/ST (POA) Act in the matter of grant of anticipatory bail.

Therefore, it is the need of the hour for the courts to segregate the grain from the chaff by analysing the genesis of the case, the antecedents prior to registration of the crime, with reference to existence of animosity between the complainant and the accused, with particular attention, vis-a-vis previous disputes/cases/ complaints, etc. while considering the question of prima facie case, when considering plea for pre-arrest bail.

NEET | Candidates Who Secured Admission During First & Second Counselling Cannot Participate In Mop-Up Round: Kerala High Court

Case Title: Gauri Sajit v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 651

The Kerala High Court on Tuesday directed the Commissioner for Entrance Commission to not permit the students who had already secured admission and joined in the first and second round of allotment to participate in the mop up counselling of NEET Examination.

Justice V.G. Arun passed the above order after taking note of the Medical Council of India Regulations on Graduate Medical Education, 1997, which stipulates that candidates who have joined for seats under the All India Quota and State Quota cannot appear for further counselling, and which aspect was also highlighted in the notification issued by the Directorate General of Health Services.

'Each Day's Delay Will Add To Victim's Agony': Kerala High Court Permits Minor To Terminate Pregnancy Of 26 Weeks

Case Title: X v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 652

The Kerala High Court on Monday allowed a minor rape victim to terminate her 26-week pregnancy.

Justice V.G. Arun said the continuation of the pregnancy could affect the mental health of the 17 year old girl, who suffers from intellectual disability.

"In the case at hand, the Medical Board after considering all aspects, has opined that the continuation of the pregnancy can seriously affect the mental health of the victim, and she is likely develop depression and psychosis. In view of the Medical Board's opinion, and considering the mental status of the victim, I am inclined to allow the prayer for medical termination of the pregnancy", the Court observed.

Report Filed By Investigating Officer Does Not Satisfy Mandate Of S.36A(4) NDPS Act: Kerala High Court

Case Title: Muhammed Ajmal v. State of Kerala

Citation: 2022 LiveLaw(Ker) 653

The Kerala High Court has reiterated that the request of an investigating officer seeking extension of statutory 180 days period is not a substitute for the report of public prosecutor as envisaged under Section 36A of the NDPS Act.

The provision stipulates that if it is not possible to complete the investigation within 180 days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention beyond 180 days.

Justice A. Badharudeen remarked, that it is relevant, rather shocking to note that the Public Prosecutor who was appointed by the State to conduct serious cases of this nature, even not cared at least to read Section 36-A(4) and its proviso, before filing the report of the Investigating Officer pressing for extension of detention of the accused beyond the period of 180 days... Indubitably, it is held that, the report/petition filed by the Investigating Officer cannot be considered as a report/petition envisaged under Section 36-A(4), since the Investigating Officer has no such right. So every bit in the matter of extension is void ab initio.

S.125 CrPC Confers Implied Power To Grant Interim Maintenance: Kerala High Court

Case Title: M.K. Gheevarghese v. Mariam Gheevarghese

Citation: 2022 LiveLaw (Ker) 654

The Kerala High Court recently reiterated that in the absence of any express bar or prohibition, Section 125 Cr.P.C. could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar while holding so, noted that the Apex Court in its decision in Shaila Kumari Devi v. Krishnana Bhagwan Pathak (2008) observed,  that "so far as 'interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make an order directing payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such an order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had 'implied power' to make orders to pay interim maintenance. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance".

Which Law Applies For Payment Of Court Fees In Contested Application For Probate Or Letters Of Administration? Kerala High Court Answers

Case Title: K.G. Sunilkrishnan v. K.G. Premsankar

Citation: 2022 LiveLaw (Ker) 655

The Kerala High Court recently said that when an original petition is converted to a suit as contemplated under Rule 26 of the Indian Succession Rules (Kerala), 1968, the court fee has to be paid under Article 11 (k) of Schedule II of the Court Fees Act.

A trial court had earlier directed a plaintiff to pay court fees under Section 25(a) of the Act read with Article 1 Schedule I of the Court Fees Act, even after conversion of original petition to suit. However, Justice C.S. Dias said the same is incorrect and wrong.

The court said Chapter VI of the Kerala Court-Fees and Suits Valuation Act, 1959 deals with the manner in which court fee is to be computed and paid on applications filed for probate, letter of administration and certificate of administration.

S.33(5) POCSO Act | Child Witness Can Be Recalled For Just Decision Of Case; Bar On Special Courts Not Absolute: Kerala High Court

Case Title: Vineeth v. State of Kerala

Citation: 2022 LiveLaw (Ker) 656

The Kerala High Court on Monday observed that the statutory bar imposed on Special Courts by Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') to ensure that a child is not repeatedly called to to testify in the court is not absolute.

Justice Kauser Edappagath observed, that the bar under Section 33(5) of POCSO Act is not absolute. In appropriate cases, if it is necessary for the just decision of the case, of course the child witness can be recalled.

Other Significant Developments This Week  

Ad-Wrapped KSRTC Buses Will Not Transport Sabarimala Pilgrims On Nilakkal-Pamba Route: High Court Directs Transport Commissioner

Case Title: Suo Motu v. State of Kerala & Ors.

The Kerala High Court on Friday directed the Transport Commissioner through the concerned Enforcement Officers in the Motor Vehicles Department to ensure that buses operated by KSRTC for Nilakkal-Pamba chain service, which are wrapped with advertisements, are not used for the transportation of Sabarimala pilgrims.

The Court passed the direction noting that few KSRTC buses used for Nilakkal- Pamba chain services are wrapped in advertisements, openly flouting the prohibitory orders issued by the Court.

The Division Bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar had previously directed the Transport Commissioner and State Police Chief to ensure that no KSRTC bus exhibiting advertisements on the body are allowed to operate in public places. It said that advertisements are likely to distract the attention of other drivers.

Kerala High Court Closes Adani Vizhinjam Port's Petition Seeking Police Protection

Case Title: Howe Engineering Projects (I) Pvt. Ltd. & 3 Ors. v. State of Kerala & 27 Ors. and M/S Adani Vizhinjam Port Pvt Ltd & 2 Ors v. State of Kerala & 27 Ors.

The Kerala High Court on Monday closed the petition filed by Adani Vizhinjam Port Pvt Ltd and its contracting company Howe Engineering Projects for police protection of their employees and workers at the under-construction port, which had till recently faced protests.

Justice Anu Sivaraman made the interim order dated September 1 for workers' protection and free ingress and egress to the construction site absolute.

Though affidavits have been placed on record by the contesting respondents, in view of the fact that the question with regard to the viability of the project or the award of contracts are not matters being considered by this Court in these proceedings, all other contentions of the parties are left open to be decided in appropriate proceedings", the Court added.

Kerala High Court Issues Directions For Crowd Management At Sabarimala

Case Tile: Suo Motu v. State of Kerala & Ors.

The Kerala High on Monday issued directions for crowd management in Sabarimala Temple, anticipating heavy footfall for the upcoming days amid Mandala festival. State has also decided to limit the number of online virtual queue bookings to 90,000 per day, Senior Government Pleader informed the Court. However, spot booking will be permitted without any restrictions.

The Division Bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar was considering issues regarding crowd management at Nilakkal Pamba and Sannidhanam. It directed the District Administration to ensure that all pilgrims have comfortable pilgrimage and darshan.

Kerala High Court Grants Interim Protection From Arrest To Twenty20 Party Leader Sabu Jacob And 5 Others In Case Filed By CPI(M) MLA

Case Title: Sabu M Jacob and Ors. v. State of Kerala

The Kerala High Court on Wednesday restrained the police from arresting Twenty20 party leader Sabu M Jacob and five other accused in a case registered under the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act based on a complaint filed by Communist Party of India (Marxist) MLA P V Sreenijin.

Justice Kauser Edappagath allowed the investigation to proceed but granted interim protection from arrest to the accused,

Considering the entire facts and circumstances of the case, I am of the view that the investigation has to be proceeded with. However, the arrest of petitioners does not appear to be necessary for the time being," said the court. The court directed the petitioners to appear before the investigating officer for the purpose of interrogation, as and when directed.

UGC Regulations Do Not Require Chancellor's Nominee In Search-Cum-Selection Committee For Universities : Kerala High Court's Prima Facie View

Case Title: State of Kerala represented by Additional Secretary to Government v. The Chancellor

The Kerala High Court on Tuesday stayed a Single bench order directing to include the Chancellor's representative in the Search-cum-Selection Committee for appointment of Vice Chancellor of the APJ Abdul Kalam Technological University.

The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly said that Chancellor's representative is not necessary in the search committee for appointment of the KTU VC, and that the Single Judge's order is against statutory regulations to this extent.

"Indisputably by the learned counsel appearing for all parties, Search-cum-Selection-Committee of the UGC is constituted only by the State Government through a public notification, and the said Committee, after considering the factors / parameters, submit a panel to the Visitor / Chancellor. Thereafter, Visitor / Chancellor shall appoint the Vice Chancellor, out of the panel of names recommended by the Search-cum-Selection-Committee. Prima facie, statutory regulations does not contemplate or empower nomination by the Chancellor in the Search-cum-Selection Committee for any University", the Court observed while staying the directions of the writ Court in this regard.

TRS MLA Poaching Case | Telangana Police Tells Kerala High Court 'No Intention' To Arrest Officials Of Amrita Hospital

Case Title: M. Sarath Mohan and others v. State of Kerala and others and Manilal K N v. State of Kerala

The Kerala High Court on Friday closed the anticipatory bail applications moved by four officials of Amrita Institute of Medical Sciences & Research Centre in relation to the ongoing investigation into the whereabouts of Dr Jaggu Kottilil, who is a doctor at the hospital.

Justice K Babu directed the petitioners to cooperate with the investigation as it closed the proceedings in the pre-arrest bail pleas after Telangana police submitted that they have no intention to arrest them.

Attacks On Healthcare Professionals Will Reduce Only When Patients & Attendants Understand Severest Of Consequences Will Follow: Kerala High Court

Case Title: Kerala Private Hospitals Association v. Advocate Sabu P. Joseph

The Kerala High Court on Friday directed the state government to publicize a circular issued by the State Police Chief (SPC) last month instructing all District Police Chiefs and Station House Officers to comply with the court order directing police to register the FIR within an hour of receiving the information about any attacks on doctors and other healthcare professionals.

The division bench of Justice Devan Ramachandran and Justice Kauser Edappagath said the circular be publicised through the news media or other appropriate methods.

"This will ensure that citizens understand that any attack, howsoever small or big it may be, is unacceptable and will be visited with the severest of consequences under law. We are persuaded to this course because if the patients and their by-standers understand that [whatever] be the provocation that they may face, an attack on a healthcare professional will be treated with the severity as is required in law, the number of attacks will certainly come down", the Court observed. 

Malayala Brahmin Appointment As Sabarimala Melshanthi Part Of Tradition, Court Should Not Interfere : Intervenors Tell Kerala HC

Case Title: Vishnunarayanan v. The Secretary and Connected Cases

The Kerala High Court in its Special sitting on Saturday continued its hearing on the batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi(chief priest) of Sabarimala-Malikappuram temples. The notifications herein were challenged on the ground that the same is violative of the fundamental rights guaranteed under Articles 14, 15 (1) and 16(2) of the Constitution of India.

The matter is pending before the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajith Kumar.