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

Nominal Index [Citation 2022 LiveLaw (Ker) 480 - 487]

 Dr. Mathew Jacob & Ors v. State of Kerala & Ors 2022 LiveLaw (Ker) 480

Dr Smitha Chacko v. State of Kerala & Ors. 2022 LiveLaw(Ker) 481

Renjith Pannackal v. State of Kerala & Anr. 2022 LiveLaw (Ker) 482

G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors. 2022 LiveLaw(Ker) 483

Charley Panthallookaran v. Joint Registrar (General) of Cooperative Societies & Ors. 2022 LiveLaw (Ker) 484

Vinson v. State of Kerala 2022 LiveLaw(Ker) 485

Sujith Lal v. Thiruvananthapuram Municipal Corporation & Ors. 2022 LiveLaw (Ker) 486

Mohammed Nisam A.A. v. State of Kerala 2022 LiveLaw(Ker) 487

Judgments/Orders This Week

Transplantation Of Human Organs & Tissues Act No Bar To Enquiry For Professional Misconduct Under IMC Ethics Regulations 2002

Case Title: Dr. Mathew Jacob & Ors v. State of Kerala & Ors

Citation: 2022 LiveLaw (Ker) 480

The Kerala High Court recently considered the question of whether an authority under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 is empowered to issue notice and conduct enquiry on a complaint regarding alleged misconduct in transplantation of human organs, since the latter is governed by the Transplantation of Human Organs and Tissues Act, 1994, and answered the question in the affirmative.

The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter, Ethics Regulations 2002) is a self contained code since it clearly specifies the procedure and manner in which disciplinary action has to be proceeded with, and no bar to this authority could be found in the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter THOTA 1994), either when there is any professional misconduct, or to conduct an enquiry on a complaint received in this regard.

Assistant Prof Appointment | Teaching Experience & Research Aptitude Relevant Only For Shortlisting Candidates; Selection To Be Based On Interview: Kerala HC

Case Title: Dr Smitha Chacko v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 481

The Kerala High Court recently set aside an order issued by the Mahatma Gandhi University in October 2021 for appointment of assistant professors, insofar as it relates to teaching and research aptitude as interview selection criteria.

A division bench consisting of Justice P.S Suresh Kumar and Justice C.S. Sudha observed that the University Order is contrary to UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018.

Proceedings U/S 240 CrPC Culminate In An Order "Framing Charge" Only After Plea Of Accused Is Taken: Kerala High Court

Case Title: Renjith Pannackal v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 482

The Kerala High Court recently held that proceedings under Section 240 of the Criminal Procedure Code (CrPC) culminate in an order framing charge only after the plea of the accused is taken as per sub-section (2) of Section 240 of the Code.

While holding so, Justice K. Babu went on to observe that, "If Section 240 Cr.PC is interpreted in such a manner that even before taking the plea of the accused there is an order framing charge, it will defeat the very purpose of sub-section (2) of Section 240 Cr.PC".

Ex-Parte Orders Passed Without Issuance Of Notice Cannot Be Brought Within Purview Of S.36 CPC For Execution: Kerala High Court

Case Title: G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors.

Citation: 2022 LiveLaw(Ker) 483

The Kerala High Court recently observed that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party.

Justice P. Somarajan observed that in cases where the ex parte order has been passed without issuing notice to the opposite party, including an order passed under the proviso attached to Rule 3 of Order XXXIX CPC, will not have any binding force on the opposite party, since it is deprived of "audio alteram partem" (right to be heard) which is a fundamental requirement for making the order binding on the parties. Furthermore, the only exception to this fundamental principle is with respect to administrative matter when there is no occasion for causing prejudice to the opposite party, and also in the exercise of legislative authority.

If Respondent Does Not Avail Benefit Of Order 41 Rule 22 CPC In Appeal, Courts Not Obliged To Examine Correctness Of Finding In Review: Kerala HC

Case Title: Charley Panthallookaran v. Joint Registrar (General) of Cooperative Societies & Ors

Citation: 2022 LiveLaw (Ker) 484

The Kerala High Court recently considered the ambit of Rule 22 of Order 41 of the Code of Civil Procedure and observed that where the respondent in an appeal does not choose to avail the benefit conferred by the said provision then it would not be obligatory for the Court to examine the correctness of the finding rendered in the impugned judgment in a review petition.

The Division Bench comprising of Justice P.B. Sureshkumar and Justice C.S. Sudha went on to observe that, "The Kerala High Court recently considered the ambit of Rule 22 of Order 41 of the Code of Civil Procedure and observed that where the respondent in an appeal does not choose to avail the benefit conferred by the said provision then it would not be obligatory for the Court to examine the correctness of the finding rendered in the impugned judgment in a review petition".

Kerala High Court Grants Bail To A Psychiatric Patient Citing That Further Detention In Jail Would Adversely Affect His Illness

Case Title: Vinson v. State of Kerala

Citation: 2022 LiveLaw(Ker) 485

The Kerala High Court on Tuesday granted bail to an accused, taking into consideration the fact that he is suffering from a psychotic illness and further detention in jail would adversely affect his illness.

Justice Kauser Edappagath observed that since the major part of the investigation is over and the petitioner, a psychiatric patient, has already spent more than three weeks in jail, further detention in jail would adversely affect his illness. "Considering the fact that the petitioner is suffering from psychotic illness, and also considering the fact that he is in jail for more than last 3 weeks, I am of the view that his further detention in jail may adversely affect his illness", it was observed. 

Where Doctrine of Desuetude Applies To A Statute, It Will Also Apply To Schemes Framed Under Such Statute: Kerala High Court

Case Title: Sujith Lal v. Thiruvananthapuram Municipal Corporation & Ors.

Citation: 2022 LiveLaw (Ker) 486

The Kerala High Court on Wednesday observed that where the 'Doctrine of Desuetude' could find application in the case of statutes, there was no reason for the same not to apply to a scheme that had been framed under the provisions of that Statute.

Justice T.R. Ravi, while observing so, noted that relying upon the findings of the Apex Court in Monnet Ispat & Energy Ltd. v. Union of India, only two conditions had to be satisfied for the application of the doctrine of desuetude - whether the statute or legislation has not been in operation for a very considerable period, and whether the contrary practice has been followed over a period of time. "The only aspect to be looked into is whether the two conditions for the application of the doctrine are satisfied. Admittedly, even after 40 years, the road has not been widened to 18 metres width. At the same time, the reply received from the Public Works Department shows that at present the proposal that is being considered is widening the road to a width of 12 metres. It is also in evidence that the restriction for construction within 18 metres was not followed for the past 40 years and on the contrary, persons have been permitted to effect construction by applying the restriction to only 12 metres. Both the conditions for the application of the doctrine thus stand satisfied", it was observed.

Kerala High Court Upholds Life Sentence Of Beedi Tycoon Mohammed Nisham For Mowing Down Security Guard Chandrabose

Case Title: Mohammed Nisam A.A. v. State of Kerala

Citation: 2022 LiveLaw(Ker) 487

The Kerala High Court, on Friday, dismissed the appeal filed by beedi tycoon Mohammed Nisham against conviction and life sentence in the Chandrabose murder case.

Division Bench consisting of Justice K Vinod Chandran and Justice C Jayachandran has upheld the life imprisonment awarded to the accused. "...It is clear that the conscious act of running down a man to cause injuries, which injuries in the ordinary course would lead to death, makes the accused liable for murder. Ramming a man, deliberately with a vehicle, is also an act, imminently dangerous as to cause death, in all probability. Looking at the commission of the act, which cannot be termed to be an accident, it is murder, most foul and vicious, snuffing out the life of a poor soul". 

Other Significant Developments

Kerala's First Child-Friendly Family Court To Be Inaugurated At Kozhikode Today

Pursuant to the suggestions made by the Kerala High Court earlier this year, the Family Court at Kozhikode has become the first "child-friendly" Family Court in the State.

Named 'Swapnakoodu', this first of its kind initiative in the State is a joint endeavour of the Calicut Judiciary and the Calicut Bar Association Committee, 2022. This novel venture is set to be inaugurated today by the District and Sessions Judge, S. Krishna Kumar at 1.30 P.M. at the Calicut Bar Association Hall.

State Obliged To Protect Citizens From Ferocious Dogs, But People Can't Take Law Into Hands To Harm Dogs : Kerala High Court

Case Title: In Re: Bruno v. Union Of India & Ors.

The Kerala High Court on Wednesday observed that the State Administration is obligated to protect the citizens from the attacks of ferocious dogs by identifying and containing such dogs and removing them from public places.

A bench of Justice A. K. Jayashankaran Nambiar and Justice Gopinath P. J., in the special sitting convened after noting the increasing instances of dog bites reported across the State, observed that it is the obligation of the State to protect the citizens from the attacks of ferocious dogs by identifying and containing such dogs and removing them from public places. "The State Administration must remind itself of the fact that in its role as a welfare state and as a parens patriae of the citizenry, it is obligated to protect the citizens from the attracks of ferocious dogs by identifying and containing such dogs and removing them from public places". 

Adani Vizhinjam Ports Files Contempt Petition Against Kerala Government Alleging Violation Of HC Order For Police Protection

Case Title: M/S Adani Vizhinjam Ports Pvt Ltd & Ors v. Dr. V.P. Joy IAS & Ors.

M/S Adani Vizhinjam Ports Pvt Ltd has moved the High Court of Kerala by filing a Memorandum of Contempt under Section 12 of the Contempt of Courts Act, alleging willful disobedience of the respondent State government in complying with the Kerala High Court Order dated 01.09.2022 granting police protection for the petitioners.

Vide the said Order, the Kerala High Court had granted the police protection to the petitioners sought for, while adding that the protests could go on peacefully, without causing any obstruction and without any trespass being permitted into the project area. "The right to agitate or protest against any matter including the apathy or neglect of the Government cannot confer any right either on respondents 11 to 25 or any of the protesters to contend that they have a right to obstruct the activities which have due permissions or to trespass into the project site and cause damage to public property", it had been observed.

Kerala High Court Admits Medical Practitioners' Plea Seeking Permission To Practice Multiple Systems Of Medicine

Case Title: Dr. Ranjith Kumar P. v. Ethics and Medical Registration Board, National Medical Commission

The Kerala High Court has admitted and issued notice to the concerned authorities in a plea challenging Clause (F) in Chapter 2 of the National Medical Commission, Registered Medical Practitioner (Professional Conduct) Regulations, 2022 which prevents registered medical practitioners from practicing any other system of medicine, once licensed to practice Modern Medicine under the National Medical Commission Act, 2019.

Justice V.G. Arun, while admitting the matter, further sought response from the Central Government and the National Medical Commission (NMC) on this matter.

NCLT Kochi Bench Re-Constituted, Proceedings To Be Conducted Only On Wednesday, Thursday And Friday Until Further Orders

File No.: 10/03/2022-NCLT

The National Company Law Tribunal, Kochi Bench, has been re-constituted vide a Circular dated 14.09.2022, issued by NCLT as per Section 419(3) of the Companies Act, 2013. The new NCLT Kochi Bench shall comprise of:

NCLT Kochi (First Half)

1. Shri P. Mohan Raj (Judicial Member)

2. Shri Satya Ranjan Prasad (Technical Member)

The Circular has been issued in partial modification of Order of even number dated 01.07.2022 and is applicable from 15.09.2022 till further orders. The reconstituted Bench shall conduct proceedings on every Wednesday, Thursday and Friday only and the matters shall be heard through Video Conferencing.

'Provocative Dress' Remark : Sessions Judge Files Appeal Before Kerala HC DB Against Single Bench Order Upholding Transfer

Case Title: S. Krishnakumar v. State of Kerala & Ors.

The Principle District and Sessions Judge, Kozhikode, S. Krishnakumar, who passed the controversial 'Provocative Dress' order in Civic Chandran's case, has approached the Kerala High Court challenging the dismissal of the plea moved by him challenging his transfer to the post of Presiding Officer, Labour Court, Kollam.

In the Writ Appeal moved through Advocate Mathew J Murikan, the appellant challenges the order passed by the Single Judge on the ground that it is not sustainable in law as the finding of the Single Judge that the transfer norms are only guidelines and that it will not confer any right on the transferred employee. It is contended that order is against the dictum laid down by the Apex Court in a recent decision on a similar matter.

Kerala High Court Stays Transfer Of Sessions Judge Who Passed 'Provocative Dress' Order

Case Title: S. Krishnakumar v. State of Kerala & Ors.

The Kerala High Court on Friday stayed the order transferring the Principle District and Sessions Judge, Kozhikode, S. Krishnakumar, who passed the controversial 'Provocative Dress' order in Civic Chandran's case, to the post of Presiding Officer, Labour Court, Kollam.

Division Bench consisting of Justice A K Jayashankaran Nambiar and Justice Mohammed Nias C P, while admitting the appeal, has stayed the transfer order till 26th September.

Kerala High Court Seeks UGC, AITC Stand On Plea Against Colleges Offering Foreign Collab Courses Sans Statutory Clearance

Case Title: Nirmal Infopark(India) Ltd. v. State of Kerala & Ors.

The Kerala High Court on Wednesday sought the stand of University Grants Commission and All India Council for Technical Education on colleges said to be offering B.Voc. Courses and courses in collaboration with Foreign Universities without obtaining all statutory and regulatory approvals required for conducting such courses.

Justice Devan Ramachandran adjourned the matter to 27th September for completion of counter pleadings of all the parties and also extended the order directing the Mahatma Gandhi University at Kottayam to ensure that it offers and conducts B.Voc. courses only on the strength of required statutory clearances, including those from the University Grants Commission and All India Council For Technical Education till 27th September.

Kerala Stray Dog Menace: High Court Directs Government Hospitals To Provide Free Medical Assistance To Victims Of Dog Bites

Case Title: In Re Bruno v. Union of India

The Kerala High Court on Friday directed that during the time taken by the State to establish and set up the machinery in the State to contain the menace of stray dogs, prompt, efficient and free medical assistance shall be provided to all victims of dog bites by government hospitals and hospitals attached to government medical colleges. It added that the said treatment shall also be without prejudice to the right of the person concerned to separately seek compensation from the State for the injuries, mental and/or physical, sustained by him/her, before the appropriate forum.

The Division Bench composed of Justice A. K. Jayashankaran Nambiar and Justice Gopinath P. J., while directing so, observed that adequate medical and vaccine supply shall also be ensured at these hospitals. "Once the State machinery has been established and set up to deal with the issue, we will lift the obligation for free treatment", the Court added in its oral observations. The Court further declared that in order to ensure that the machinery would be brought about efficiently, it shall monitor the steps taken in this regard on a weekly basis and requested for reports to be submitted accordingly.

Kerala High Court Takes Suo Moto Cognizance Of Unaffordability Of Patented Life-Saving Medicines Following Death Of Petitioner

Case Title: XXX v. Union of India

The Kerala High Court on Friday took suo moto cognizance of the unaffordability of patented life-saving medicines. Justice V.G. Arun, on being informed of the petitioner's death during the pendency of the proceedings, observed that, "the unfortunate incident should not result in the cause disposed by the petitioner to go in vain". 

In the plea moved through Advocate Maitreyi Sachidananda Hegde, the petitioner who was a bank employee diagnosed with breast cancer and undergoing targeted therapy, averred that her treatment required three drugs, the monthly expense for which went over ₹63,000, out of which Ribocicilib alone costs ₹58,140.

Kerala High Court Constitutes District Collector Led Committee To Resolve Issue Of Flooding In Kochi

Case Title: Treasa K. J. v. State of Kerala and Connected Cases

The Kerala High Court, on Friday, directed the District Collector to convene a committee of all the stakeholders to resolve the issue of flooding in the city of Kochi.

Justice Devan Ramachandran expressed his displeasure at the fact that despite various orders being issued by the Court, the City of Kochi was flooded due to heavy rainfall last month and observed that one agency alone "cannot be trusted" with resolving the issue. "It is clear from real experience that one Agency alone cannot undertake, or be trusted with the resolution of the issues, particularly when rains are very heavy. I am, therefore, of the firm view that a Committee of the all stakeholders will have to be formed, to be headed by the District Collector, because the said officer is also the Chairperson of the District Disaster Management Authority". 

'Expelling Members For Marrying Outside Community Violates Article 25' : Kerala Court Dismisses Knanaya Church's Appeals

Case Title: The Metropolitan Archbishop, the Archeparchy of Kottayam & Anr. v. Knanaya Catholic Naveekarana Samithy & Ors.

The Court of the Additional District Judge - V, Kottayam on an appeal before it from the judgment of the Additional Sub Court, Kottayam, held that endogamy within the Knanaya Catholic Community is not an essential religious practice and on this basis, the expulsion of the Knanaya Catholic member and their family unit permanently from the Church for marrying outside the community is violative of Article 25 of the Constitution of India.

In the Judgment delivered by the Additional District Judge-V, Sanu S. Panicker, while holding so, it was observed,

"..I am of the view that endogamy is nothing but a marriage custom prevailing in the community, which is not an essential religious practice for limiting the membership of the Church, and as such, I am of the view that the Church would not be justified in regulating the membership of the Church on the basis of the custom of endogamy prevailing in the community".

Right To Be Forgotten Not Absolute, Must Be Balanced With Right To Know : Kerala HC Standing Counsel Tells High Court

Case Title: Virginia Shylu v. Union of India And Other Connected Cases

The Kerala High Court, on September 15, heard a batch of petitions seeking the removal of identifiable information from judgments or orders published in various online portals and the High Court Website, alleging that it is a violation of the Right to Privacy and Right to be Forgotten.

Division Bench consisting of Justice A Mohammed Mushtaq and Justice Sophy Thomas observed that when competing interest is involved certainly, the public interest will overtake the individual interest. It observed, "When Apex Court declared it as a Fundamental Right, right to be protected, then we, an institution, are we not bound to protect it? That is where the competing interest comes in one right of a citizen to publish and the fundamental right of another citizen to be protected. When competing interests are involved, certainly, the public interest will overtake the interest of the other citizen. Publishers like LiveLaw, Bar and Bench and Indian Kanoon are protected under Article 19, but we as an institution are not protected under Article 19".