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Kerala High Court Weekly Round-Up: February 6 To February 12, 2023
Sheryl Sebastian
13 Feb 2023 11:45 AM IST
Nominal Index [Citation: 2023 LiveLaw (Ker) 63-73]Sudheesh Babu v. State of Kerala 2023 LiveLaw (Ker) 63Kerala Public Service Commission v. The State Commissionerate for Persons with Disabilities & Anr. 2023 LiveLaw (Ker) 64 Kerala State Insurance Department v. Joy Wilson M.V. & Ors. 2023 LiveLaw (Ker) 65 Shabna Abdulla v. Union of India & Others 2023 LiveLaw (Ker) 66 George...
Nominal Index [Citation: 2023 LiveLaw (Ker) 63-73]
Sudheesh Babu v. State of Kerala 2023 LiveLaw (Ker) 63
Kerala Public Service Commission v. The State Commissionerate for Persons with Disabilities & Anr. 2023 LiveLaw (Ker) 64
Kerala State Insurance Department v. Joy Wilson M.V. & Ors. 2023 LiveLaw (Ker) 65
Shabna Abdulla v. Union of India & Others 2023 LiveLaw (Ker) 66
George M. Mathews @ George V. Muhammed Haneefa Rawther 2023 LiveLaw (Ker) 67
Mrs. Sasikala Menon V. State of Kerala and Another 2023 LiveLaw (Ker) 68
M/S Peniel Cashew Company V M/S.Ahcom Sarl 2023 LiveLaw (Ker) 69
B v. H 2023 LiveLaw (Ker) 70
Tomy Joseph v. The Joint Registrar of Cooperative Societies (General), Idukki & Anr. 2023 LiveLaw (Ker) 71
M.M. Abdul Azeez & Ors. v. State of Kerala 2023 LiveLaw (Ker) 72
Vijay Kirgandur & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 73
Judgments/Orders This Week
Case Title: Sudheesh Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 63
The Kerala High Court refused to quash an FIR against a man accused of attempt to murder under Section 307 of the Indian Penal Code, 1860 despite the dispute being settled between the accused and the de facto complainant.
Justice A. Badharudeen was hearing two petitions filed by a man accused of offences under Sections 324 and 307 of the IPC and under Sections 3(1) (s), 3(2) (va) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 2015. The first petition was for quashing the FIR filed against him and the second petition was to quash the order of the Special Court that refused to release the car involved in the above crime.
The court observed that if on prima facie analysis by the court the chances of conviction under Section 307 are strong, it can refuse to quash the FIR despite settlement between parties. However, if the chances of conviction are low, the court may permit the quashing of the FIR as it could result in harmony between the parties.
Case Title: Kerala Public Service Commission v. The State Commissionerate for Persons with Disabilities & Anr.
Citation: 2023 LiveLaw (Ker) 64
The Kerala High Court held that the order issued by the State Commissioner for Persons with Disabilities to the Kerala Public Service Commission (KPSC) directing it to provide candidates with disabilities, who are participating in its selection process, with examination centres near their residences, was beyond the scope of its powers.
The Single Judge Bench of Justice Shaji P. Chaly perused Sections 80-82 of the Right of Persons with Disabilities Act, 2016 which lays down the powers and functions of the State Commissioner to hold that the impugned order thus passed by the Commissioner was without any jurisdiction. The court observed:
"The Commissioner, in my view, is not a civil court, even though powers are conferred on the Commissioner to exercise the powers conferred on the civil court for summoning and enforcing the attendance of witnesses etc., and for other consequential aspects, in accordance with Section 82 of the Act, 2016. In that view of the matter, I am of the considered opinion that Ext.P1 order suffers from vice of arbitrariness and illegality, liable to be interfered with under Article 226 of the Constitution of India"
Case Title: Kerala State Insurance Department v. Joy Wilson M.V. & Ors.
Citation: 2023 LiveLaw (Ker) 65
Slamming State Insurance Department for its argument that a person crossing the road using 'zebra crossing' is required to be extra careful, the Kerala High Court held that unless it is specifically pleaded and proved that there was a clear case of negligence on part of pedestrian, such an inference cannot be made.
The department had challenged Motor Accidents Claims Tribunal's award of Rs.48,32,140 in favour of the kin of a 50 year-old woman who was hit by a police vehicle when she was crossing the roading using the 'Zebra Crossing'. Doreena Rola Mendenza, the victim, was headmistress of St.Joseph L.P. School, and died as a result of the accident.
The Court ordered that the pedestrian crossings must be marked and enforced on all main roads, and called it a "forensic duty" of the authorities.
Terming the case as an 'eye opener' for everyone, Justice Devan observed:
"Our roads are still woefully inadequate in pedestrian safety. There are seldom pedestrian crossings properly marked; and even when they are, very few drivers heed it. This Court is fully aware if the Rules relating to ‘Zebra Crossing’ are taught to the learner drivers; but it is evident that they are never enforced. This must now change – and quickly, with the traffic increasing and the jostle for space in our roads escalating rapidly. Pedestrian Crossings must be marked and enforced on all main roads – this is the forensic duty of the Authorities and officers concerned".
Case title: Shabna Abdulla v. Union of India & Others
Citation: 2023 LiveLaw (Ker) 66
The Kerala High Court recently held that a detention order can be invalidated on the ground that documents were not supplied to the detenu only if he can prove that prejudice was caused to him due to the non-supply of such documents. It is the obligation of the detenu to explain why such documents are relevant for issuing a detention order, the court observed.
A division bench of Justice Anil K Narendran and Justice P G Ajithkumar was considering a plea seeking a writ of habeas corpus alleging illegal detention of the petitioner. Contraband gold weighing 14763.300 grams valued at Rs.7,16,16,768/- concealed in the compressors of refrigerators of the detenu was found and seized. Following which a detention order was issued against the petitioner by the detaining authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). This detention order was also challenged by the petitioner in the writ petition.
The court held that under Section 3(3) of the COFEPOSA Act, it is the right of the detenu to get documents relied on by the detaining authority in issuance of the detaining order, if such documents were necessary to reach subjective satisfaction. However, if the documents/materials demanded by the detenu only have a casual connection with the cause for the detention, it is for the detenu to explain the relevance of the documents and what prejudice will be caused to him due to non-supply of the material.
Case Title: George M. Mathews @ George V. Muhammed Haneefa Rawther
Citation: 2023 LiveLaw (Ker) 67
The Kerala High Court has held that ‘readiness’ and ‘willingness’ under Section 16 (c) of the Specific Relief Act, 1963 are distinct and one does not imply the other. The court observed that while readiness refers to the capacity of the plaintiff to enforce a contract, willingness refers to the conduct of the plaintiff warranting performance. According to the court, specific performance of a contract can only be enforced if readiness is backed by willingness.
Principles Of Res Judicata Would Apply To Criminal Proceedings, Reiterates Kerala High Court
Cause Title: Mrs. Sasikala Menon V. State of Kerala and Another
Citation: 2023 LiveLaw (Ker) 68
The Kerala High Court recently held that principles of res judicata and constructive res judicata would squarely apply not just to civil proceedings but to criminal proceedings as well.
Justice A. Badharudeen was hearing a petition filed under Section 482 of the Code of Criminal Procedure, 1973 to quash a complaint pending before Magistrate Court, where she was alleged to have committed offences under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of two cheques worth Rs.15,00,000/- and Rs.11,00,000/-.
The Respondent had previously been booked under the Narcotic Drugs and Psychotropic Substances Act, 1985 and had applied for bail, pleading the ground of mental instability. The petitioner argued that since a mentally ill person is not capable of entering into a contract, there could be no transaction between the petitioner and complainant.
However, the court held that since the current petition was filed on the ground of the mental insanity of the complainant and since the same ground had already been contended before the court in an earlier petition and had been dismissed, the current petition would fail too as it would be hit by the principle of res judicata.
Cause Title: M/S Peniel Cashew Company V M/S.Ahcom Sarl
Citation : 2023 LiveLaw (Ker) 69
The Kerala High Court expressed its displeasure at the non-execution of an arbitration award passed by Combined Edible Nut Trade Association (CENTA), London that had been pending for over 10 years.
Justice C S Dias, while hearing a revision petition filed by the petitioner on the grounds that he had no means to pay the arbitral award, said:
“Both sides are playing the blame game for the delay in the culmination of the execution petition. The fact remains that a decade-old foreign award remains unexecuted. Obviously, this is not the aim of the legislation and the interpretations of Part II of the Act. This case should be an awakener to the stakeholders to plug the lacuna in the legislation and the loopholes in the procedure.”
Case Title: B v. H
Citation: 2023 LiveLaw (Ker) 70
The Kerala High Court observed that gold ornaments kept in a locker in the wife’s name cannot amount to the entrustment of the ornaments to the husband or the husband’s family and thus recovery of the same cannot be initiated along with divorce proceedings.
A division bench of Justice Anil K Narendran and Justice P.G. Ajithkumar said that in the absence of enough evidence that the gold ornaments given to the wife at the time of marriage was entrusted by her to her husband or her in-laws, it would not be possible to recover the same under the Prevention of Dowry Act, 1961.
Case Title: Tomy Joseph v. The Joint Registrar of Cooperative Societies (General), Idukki & Anr.
Citation: 2023 LiveLaw (Ker) 71
The Kerala High Court held that an order of suspension under Section 32 of the Kerala Co-operative Societies Act, 1969 (hereinafter, 'the Act') is not dependent on the completion of the inquiry under Section 65 and the power can, for grave and compelling reasons, be exercised even when the inquiry is pending.
The Single Judge Bench of Justice Gopinath P., in this case was considering a writ petition filed by the president of the Managing Committee of the Idukki District Dealers Co-operative Society, who was aggrieved by the order of the Joint Registrar of Cooperative Societies (General), Idukki (1st respondent herein) placing the elected Managing Committee of the Society under suspension in the exercise of jurisdiction under Section 32 of the Act, pending completion of an inquiry under Section 65 of the Act.
"The very nature of an order of suspension indicates that such power is to be exercised to meet an emergent situation where it may be necessary to keep an elected Managing Committee out of office in order to complete the inquiry under Section 65. If it were to be held that such power can be exercised only after the inquiry is completed under Section 65, it might even defeat the purpose for which an inquiry is contemplated. A reading of Ext.P2 (order of the Joint Registrar) clearly shows that the officer had taken a view that it was necessary to keep the Managing Committee under suspension pending inquiry under Section 65 as it would be difficult to complete the inquiry in a proper manner if the elected Managing Committee is allowed to continue in office pending inquiry", it was observed.
Case Title: M.M. Abdul Azeez & Ors. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 72
The Kerala High Court held that the Special Judge, exercising jurisdiction under the Prevention of Corruption Act, 1988, is not empowered to direct the investigating agency to obtain sanction under Section 19 for prosecution of the accused while ordering further investigation under Section 173 Cr.P.C.
The Single Judge Bench of Justice K. Babu observed:
"It is the statutory duty and responsibility of the investigating agency to fully investigate the matter and then submit a report to the Court concerned, either finding the allegation substantiated or finding no material to support the allegation. It is not within the competence of the Court concerned to issue a direction that the case should not only be investigated, but also a report to the effect that the allegations have been supported by the material collected be submitted."
Case Title: Vijay Kirgandur & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 73
The Kerala High Court granted anticipatory bail to Vijay Kirgandur and Rishab Shetty, the Producer and Director respectively of the Kannada superhit movie 'Kantara' in a case under the Copyright Act 1956 over plagiarism allegations relating to "Varaharoopam" song.
Justice A. Badharudeen, while allowing the anticipatory bail plea filed by the petitioners imposed the specific condition that,
"the petitioners shall not exhibit the film `KANTARA' along with the music `VARAHAROOPAM' in the film till an interim order or final order after addressing infringement of copyright in this matter will be passed by a competent civil court. It is made specifically clear that the petitioners also can move before the competent civil court at their instance at the earliest in this regard to have a meritorious decision as regards to the allegation of infringement of copyright, as per law".
Other Significant Developments
The Kerala High Court on Monday refused to stay the FIR registered against the Kerala High Court Advocates Association President, Advocate Saiby Jose Kidangoor, over allegations that he has collected money from clients under the pretext of bribing High Court judges.
At the outset, the Court asked him why he has moved the Court in hurry within two days of registering the FIR.
A bench of Justice Kauser Edappagath asked the Senior Advocate S. Sreekumar, appearing on behalf of the petitioner, why the petitioner was in a hurry and why he couldn't face investigation.
Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.
The Kerala High Court on Thursday vacated the stay previously granted by it on the trial proceedings initiated against Malayalam film industry actor Unni Mukundan in a case of sexual harassment, after the woman-complainant stated that the Court was earlier misled into believing that the matter has been settled.
A single bench of Justice K Babu was hearing the matter. The counsel for the complainant submitted that the interim stay was granted by the Court acting on a false submission by the counsel for the actor that the matter had been settled between the parties. The affidavit claiming settlement submitted in court, based on which the interim stay was granted, was never signed by the complaint herself, her counsel submitted. The case relates to an ongoing trial court proceeding against the actor, which was initiated based on complaint filed by a woman in 2017, accusing the actor of sexual harassment.
Case Title: Unni Mukundan V State of Kerala
The Kerala High Court directed the Secretary of Industries Department to file an affidavit before 1.45 PM on Wednesday, in the matter pertaining to illegal installation of boards and banners at public places in the State. It added that on failure of the Secretary to do so, he ought to be present in person to give explanation for the same.
Justice Devan Ramachandran, observed,
"This Court, until now, has been acting with great equanimity and patience. However, this is now being taken as weakness. Perhaps, the time has come for this Court to prove otherwise".
During the hearing, it was submitted by the Amicus Curiae Advocate Harish Vasudevan, that in Trivandrum city, there was blatant violation of the orders of the Court.
"Ninety percent of the boards are from Government agencies with the head of the Chief Minister, the Ministers, the constitutional and statutory authorities. In the name of a religious festival, the entire city was flooded with festoons yesterday. I don't know if it has been removed today", he submitted. Advocate Vasudevan submitted that it might be 'high time' to initiate contempt against the authorities.
Case Title: St. Stephen's Malankara Catholic Chruch v. State of Kerala
A suo motu contempt case has been initiated against K.M. Shajahan, the then private secretary of the former Chief Minister of Kerala V.S. Achuthanandan, for the serious allegations levelled by him against High Court judges in a YouTube video.
The matter was first listed before a division bench led by Justice A Muhamed Mustaque on February 2. The matter is now before the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar. The petition seeking criminal contempt action has been filed by the High Court Registrar General alleging that Shajahan has made serious allegations against the Judges of the High Court in his speech which is available in the YouTube video channel 'Prathipaksham'. The speech pertained to an Advocate taking money from clients under the pretext of bribing judges. Shajahan's allegation that some Judges of the High Court are also involved in the said incident is alleged to be contemptuous and scandalising the judiciary.
Case Title: Suo Motu v. K.M. Shajahan
Kerala High Court Advocates Association President, Advocate Saiby Jose Kidangoor, who is facing an FIR over allegations of collecting money in the name of bribing judges, has submitted his resignation letter to be relieved from the post of President of the Association.
The Executive Committee of the KHCAA unanimously decided to accept his resignation letter, after careful consideration of the same.
In the letter submitted to the Secretary of the KHCAA today, he said that ever since the day he had declared his candidature for the post of KHCAA President, he had been "viciously targeted by some lawyers", who also happened to be members of the Association.
The Kerala High Court on Friday directed the Deputy Commissioner of Police (Law and Order), Kochi City to ensure that all the measures and instructions that have been taken and issued by the police against offending vehicles be put into operation without any reservation.
The court today took note of the rash and negligent driving by a private bus near P.V.M. Junction that lead to the death of a youth.
"This Court will never countenance the stand of any person, that they will drive recklessly and kill people, but still cannot be proceeded against, under the legal system", Justice Devan Ramachandran observed.
The Court expressed its anguish that despite the issuance of several orders under the hope that the drivers of the buses would understand the gravity of the situation, the situation was not changing on the ground.
Case Title: Pauly Vadakkan v. Corporation of Cochin
The Fast Track Special Court (POCSO), Thiruvananthapuram has convicted a 63 year old man to 7 years imprisonment under the Section 9(m) r/w 10 of the POCSO Act, 2012 for sexually assaulting his 9 year old neighbour in the year 2014.
The incident was disclosed 6 years later when the victim confided in her school counsellor. The Court found the delay of 6 years in registration of the FIR had been satisfactorily explained by the prosecution, and accepted the same.
"Researches and studies show that there are numerous reasons why a child or even a grown up adult may not disclose about a sexual assault and it may linger at the bottom of their heart as their dirty, scary secret, but they open up or disclose it to someone they find they can confide in or someone whom they trust will listen to them and not judge them etc. In the instant case, according to PW1 she was afraid of the incident and also not aware of the nature of the event that occurred to her. Her subsequent reluctance to visit the house of the accused also shows that she had distanced herself from (the accused) after the incident, which unfortunately her parents failed to notice earlier. Many such factors contribute to non-disclosure of sexual assault by children", the Special Judge Aaj Sudarshan observed while convicting the accused.
Case Title: State v. Sundaresan Nair
Transgender Person Convicted For Sexual Offence Committed Before Sex Change
A transgender person has been convicted by a Kerala Court for sexually abusing a 16 year-old-boy in 2016.
The Special Judge of the Fast Track Special Court (POCSO), Thiruvananthapuram Aaj Sudarsan sentenced the convict to a rigorous imprisonment for a period of seven years for the offence punishable under Section 377 IPC.
The Court in this case perused Section 377 of the Indian Penal Code. It noted that although the Apex Court had watered down the rigour of the provision through the decision in Navtej Singh Johar v. Union of India (2018), non-consensual act of unnatural sex with an adult or any manner of unnatural sex with a minor, be it with consent or not, would attract the offence under Section 377.
Case Title: State v. Sachu Samson
PIL In Kerala High Court Seeks Ban On Circumcisions, Says It Violates Child Rights
A Public Interest Litigation has been filed by Non-Religious Citizens (NRC), a cultural organisation based in Kerala, before the High Court to declare the practice of non-therapeutic circumcision illegal.
The Petitioners contend that the practice of circumcision is a ‘cruel’ and ‘unscientific custom’ that children are often victims of, terming it a human right violation.
The petition also claims that such a practice is violative of the fundamental right to life under Article 21 of the constitution and hence the court is bound to interfere in the matter. “The child is not getting the right of choice. Non-therapeutic child circumcision is a human rights violation. Circumcising a child is an unnecessary violation of his bodily integrity as well as an ethically invalid form of medical violence,” the petition states.
Chief Minister Pinarayi Vijayan Inaugurates Monthly Stipend Scheme For Junior Lawyers In Kerala
The monthly stipend scheme mandating payment of Rs. 3000 per month for junior lawyers in Kerala was inaugurated by Chief Minister Pinarayi Vijayan on Saturday.
The scheme promises a monthly stipend of Rs. 3,000 for junior lawyers in the State. Lawyers below 30 years of age with less than three years of practice and an annual income less than Rs. 1 lakh are eligible for the stipend.
