Kerala High Court Monthly Digest - February 2023 [Citations 53-108]

Judgments/Order This Month

Rent Controller Can 'Direct' Landlord To Sue For Eviction Of Tenant After Prima Facie Satisfaction On Permanent Tenancy Claim: Kerala High Court

Case Title: P.K. Sajeev & Ors. v. Eldho P. Mathew & Ors.

Citation: 2023 LiveLaw (Ker) 53

The Kerala High Court delved upon the scope of enquiry and competency of the Rent Controller to decide on disputes pertaining to the claim of permanent tenancy under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965.

The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that as per the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Rent Control Court has the jurisdiction to consider the question.

"...the Rent Controller has to prima facie satisfy that the denial of title or the claim of permanent tenancy is bona fide. It is after recording prima facie satisfaction on bona fides of the dispute, the Rent Controller can direct the landlord to sue for eviction of the tenant in a Civil Court. It is then for the Civil Court to decide on a title and pass a decree for eviction on enumerated grounds under the Act, if the Civil Court is satisfied with the title of the landlord", it was observed.

Confession Recorded By Forest Ranger Has No Legal Sanctity: Kerala High Court, Calls For Amendments In Wild Life (Protection) Act

Case Title: Prakashan and Ors. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 54

The Kerala High Court has said that only the Assistant Director Of Wild Life Preservation or Assistant Conservator of Forests authorised by the State Government are competent to record confession statements under Wild Life (Protection) Act, 1972.

Granting pre-arrest bail to three accused who have been booked for offences punishable under the Act, Justice A. Badharudeen observed that the legal question is emphatically clear that the competent persons to record and receive evidence are Assistant Director, Wild Life Preservation or Assistant Conservator of Forests authorised by the State Government in this regard and no other officer/officers below their rank.

"Any officer not below their rank cannot have the power to do any acts provided as (a) to (d) [Section 50(8)] and if anything done by the officer below the rank is a nullity and has no legal effect. Be it as may, the confession recorded by the Forest Ranger is a nullity and the same has no legal effect," the court said.

[Kerala Co-operative Societies Act] Mere Endorsement Of Complaint By Minister Doesn't Eliminate Registrar's Discretion To Not Order Inspection: High Court

Case Title: The President, Vennoor Services Cooperative Bank v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 55

The Kerala High Court held that merely because a complaint had been filed before the Minister of Co-operation alleging misappropriation of funds and maladministration by the Managing Committee members of the Primary Agricultural Co-operative Society, which was then routed to the Joint Registrar through the Registrar of Co-operative Societies, who thus ordered inspection, it could not be said that the latter had acted under dictation of the Minister.

Justice V.G. Arun, while dismissing a petition alleging that the Joint Registrar had acted under dictation, observed that,

"...the Minister has only made an endorsement, asking the Registrar to look into the matter and the Registrar forwarded the complaint to the Joint Registrar for taking appropriate action. As such, there is no element of dictation in the endorsement made by the Minister. Similarly, merely by reason of the Registrar having forwarded the complaint with a direction to do the needful, the discretion vested with the Joint Registrar under Section 66 of the Act is not taken away".

‘Reasonable Grounds’ For Grant Of Bail U/S 37 NDPS Act Implies Something More Than Prima Facie Grounds: Kerala High Court Reiterates

Case Title: Suresh Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 56

The Kerala High Court refused to grant bail to a man booked under Sections 22(c), 27 A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of commercial quantity of MDMA. The bail application was filed by the 9th accused in a crime registered on the files of Excise Range Office, Ernakulam for possession of 1.085 Kgs of MDMA that was discovered at Marhaba Apartment, Vazhakala.

Justice A. Badharudeen while dismissing the bail application observed that the rider under Section 37 of the NDPS Act would apply for possession of commercial quantity of contraband and that bail can only be granted if there are reasonable grounds for believing that the accused is not guilty of the offence and that he will not commit any offence if released on bail.

Courts Should Make Careful Study To Ascertain Similarities When Comparing Disputed Handwritings, Signatures With Admitted Documents: Kerala HC

Case Title: S. Sivadas v. State of Kerala and other connected matters

Citation: 2023 LiveLaw (Ker) 57

The Kerala High Court in a significant judgment held that where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, of the same with the assistance of counsel, to ascertain the similarities and dissimilarities, and not merely a casual or routine glance.

Justice K. Babu, passed the order and observed that,

"In a case where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, if necessary, with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The judgment shall contain the reasons for any conclusion based on a comparison of the handwriting/signature if the Court proceeds to record a finding thereon. Conclusions arrived based on a casual or routine glance, or perusal shall not be relied on to enter into a finding leading to the conviction of an accused".

District Collector's Sanction Not Necessary For Initiating Prosecution Under Section 7 Of Essential Commodities Act: Kerala High Court

Case Title: Sithara Indane Gas V Union of India

Citation: 2023 LiveLaw (Ker) 58

The Kerala High Court held that the sanction of the district collector is not required for initiating prosecution under Section 7 of the Essential Commodities Act, 1955.

Justice Murali Purushothaman said that under Section 7 of the Act, the power to impose penalty is vested with the court and it is not for the District Collector to decide whether a person has committed offence under the Act warranting penal action.

"No sanction of the District Collector is necessary for initiating prosecution under Section 7 of the Act,” said the court.

Kerala High Court Sets Aside State Human Rights Commission's Order On Land Dispute

Case Title: K. Abdul Hameed v. Kerala State Human Rights Commission & Ors.

Citation: 2023 LiveLaw (Ker) 59

The Kerala High Court has set aside Kerala State Human Rights Commission's 2016 order directing authorities to take steps to restore a piece of land for the purposes of a public well.

The issue related to dispute of a land measuring 7.30 ares — the land had been purchased by one Abdul Hameed; while the re-survey showed that the property is 7.30 Ares, the sale deed reflected that only 6.52 was in the name of the purchaser.

In 2015, a complaint was filed by residents of Sakariya Ward, Alapuzha before the Commission that the excess land had been set apart by the earlier owner for construction of a well. The well has been demolished and the Municipal Secretary has given permission for filing it and to construct a building there, it was alleged. The Commission had ruled that since the earlier landlord had given up the land for a public well, steps have to be taken to restore the same. It had directed Additional Tahsildar to submit a report to this effect within one month, and the Municipal Secretary Alappuzha to take steps to stop the construction that was being carried out in the excess land. The order was challenged before the high court by the land purchaser.

The Division Bench of Chief Justice S. Manikumar and Justice Murali Purushothaman said: "....from a reading of the order made in HRMP No. 2294 of 2015 dated 03.06.2016, it is apparent that the said order has been passed solely after taking note of the reports of the Additional Tahsildar, Ambalappuzha as well as the Municipal Secretary, Alappuzha. There is no reference in the impugned order as to whether the writ petitioner has been given an opportunity to explain or rebut the averments made in the complaint. Therefore, in our view, violation of natural justice is per se evident".

Agreement By Which Wife Waives Right Of Maintenance Under Section 125 CrPC Not Enforceable, Kerala High Court Reiterates

Case Title: xxx v. yyy

Citation: 2023 LiveLaw (Ker) 60

The Kerala High Court said the law is well settled that an agreement by which a wife waives her right of maintenance under Section 125 of CrPC is an agreement against public policy and the same is ab initio void and not enforceable.

"Therefore, the claim for allowance of maintenance by the wife cannot be disputed or denied on the basis of a void agreement and the wife is entitled to get maintenance ignoring the said void agreement," said Justice A. Badharudeen.

Simply Because Patient Didn't Respond Favourably To Treatment Or Surgery Failed, Doctor Cannot Be Held Negligent: Kerala High Court

Cause Title: Dr. Balachandran v. State of Kerala and other connected matters

Citation : 2023 LiveLaw (Ker) 61

The Kerala High court has observed that a mere deviation from normal professional practice or an accident or untoward incident is not enough to prove medical negligence. Gross and culpable negligence beyond a reasonable doubt needs to be established for a medical professional to be convicted for criminal negligence, said the court.

A single bench of the court was hearing criminal appeals by three doctors and three nurses convicted by a lower court under sections 304A and 201 read with Section 34 of India Penal Code, 1860 for medical negligence. They were sentenced to simple imprisonment for a year for the offence under section 304A r/w 34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC.

Justice Kauser Edappagath while acquitting the accused persons noted that the action of the medical professional should be the proximate or direct cause of death of the patient to establish a case of medical negligence and such evidence is lacking in the case. According to the court, nothing was brought on record to show gross and culpable negligence on part of the medical professionals.

“There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action.”

'Vertical Reservation' By Calicut University For Persons With Disabilities Faulty And Illegal: Kerala High Court

Case Title: Dr. Anupama K.P. v. University of Calicut & Ors.

Citation: 2023 LiveLaw (Ker) 62

The Kerala High Court has held that the reservation procedure followed by the Calicut University by earmarking roster points for persons with disabilities, and providing them with vertical reservation instead of horizontal, as being faulty and illegal, and also violative of Rule 15 of Part II Kerala State and Subordinate Service Rules (KS & SSR). Such reservation had resulted into reduction of the number of posts for Ezhavas, Thiyyas and Billavas (ETB) communities.

The Division Bench of Justice P.B. Suresh Kumar and Justice Sophy Thomas also found the procedure to be violative of the principles laid down in Indra Sawhney v. Union of India (1992), wherein the Apex Court had stated that while effecting the reservations in favour of category of persons like 'persons with disabilities', it would be obligatory on the part of the employer to ensure that the percentage of reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes remains intact.

"It is seen that on account of the faulty procedure adopted by the University, candidates belonging to ETB Communities who were otherwise entitled to 9 posts in a process of selection for filling up of 63 vacancies, could get only 8 posts. That apart, the procedure adopted by the University is violative of Rule 15 of Part II KS & SSR also, for the same is contrary to the rotation turns provided for in the Annexure to Part II KS & SSR. In terms of the said Annexure, the rotation turns for ETB Communities are 2, 14, 18, 28, 34, 42, 54, 58 and 62 and on account of the introduction of additional slots in the roster, the turns of ETB communities have been changed to 3, 15, 19, 30, 36, 44, 57 and 61. When a percentage of reservation is fixed in favour of a category by allotting reserve points in a roster, the same are to be filled from among the members of that reserved category only," the court held.

Attempt To Murder Charge Cannot Be Quashed Merely On Settlement Between Parties If Prima Facie Possibility Of Conviction Is Strong: Kerala High Court

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.

State Commissioner For Persons With Disabilities Can Only 'Recommend' KPSC To Provide Exam Centres Near Residence Of Disabled Candidates: Kerala HC

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"

Pedestrian Crossings Must Be Marked & Enforced On All Main Roads: Kerala High Court Orders State Govt, NHAI To Take Necessary Action

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".

Detenu Aggrieved By Non-Supply Of Document Having Only 'Casual Connection' With Preventive Detention Must Explain Its Relevance: Kerala High Court

Case title: Shabna Abdulla v. Union of India & Others

Citation: 2023 LiveLaw (Ker) 66

The Kerala High Court 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.

Specific Relief Act | ‘Readiness’ Does Not Imply ‘Willingness’ Under Section 16 (c) : Kerala High Court

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 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.

Lacuna In Arbitration Act Needs To Be Plugged: Kerala High Court On Non-Execution Of Decade Old Foreign Award

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.”

Wife Can Claim Return Of Gold Ornaments Under Prevention of Dowry Act Only If She Proves Entrustment To Husband: Kerala High Court

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.

Suspension Under S.32 Kerala Cooperative Societies Act Not Dependent On Completion Of Inquiry If Compelling Circumstances Exist: High Court

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.

Special Judge Under PC Act Can't Direct Investigating Agency To Obtain Prosecution Sanction While Ordering Further Investigation: Kerala High Court

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."

Plagiarism Row : Kerala HC Grants Anticipatory Bail To Producer & Director Of 'Kantara' On Condition To Not Use 'Varaharoopam' Song

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".

If Authorities Fail To Act Within Stipulated Time After Issuance Of Purchase Notice Under Town Planning Law, Land Owner Can Use Land For Any Purpose: Kerala High Court

Case Title: The Town Planner, District Town Planning Officer V Joseph Jacob & Others.

The Kerala High Court held that after a purchase notice has been issued by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016, it is not mandatory for the person to wait for completion of variation of the Detailed Town Planning Scheme or Master Plan, to utilise the land.

A division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen was considering the procedure to be followed after issuance of a purchase notice by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016 in an appeal filed by the Town Planner of Kottayam district.

Time To Stop Entertaining Writ Petitions Relating To Wakf Act, Parties Must First Approach Statutory Authorities: Kerala High Court

Case Title: Hameedali K.P. v. Chief Executive Officer & Ors.

Citation: 2023 LiveLaw (Ker) 75

The Kerala High Court recently observed that time has come for it to stop entertaining writ petitions seeking directions relating to a wakf and to insist that the party should first approach the authorities under the Wakf Act.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. dismissed a writ petition filed by a person who claimed to be the present hereditary Muthavalli of the Pannur Karandomthook Juma-Ath Palli Committee and challenged the order by which the Wakf Board had appointed a returning officer to conduct elections to the Juma-ath Committee.

It observed, "Any dispute, question, or other matters whatsoever and whatever manner which arises relating to a wakf property can be decided by the wakf Tribunal. No doubt, alternate remedy is not an absolute bar for filing of the writ petition, but at the same time, it is well settled that writ jurisdiction is a discretionary jurisdiction, and when there is an efficacious alternate remedy, ordinarily, a party must resort to that remedy first before approaching this Court. Entertaining a writ petition straight away without insisting that a party should avail alternate remedy is an over-liberal approach that is causing immense difficulties to the high court, adding to the huge arrears".

Kerala High Court Refuses To Suspend Sentence Of Men Accused Of Attempting To Travel To Syria For Joining ISIS, Says Not Safe To Release Them

Case Title: Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency

Citation: 2023 LiveLaw (Ker) 76

The Kerala High Court has dismissed the applications seeking suspension of sentence of three persons, who were last year convicted for attempting to travel to Syria for allegedly joining the ISIS. The applicants had argued they have undergone more than five years in custody, and were even never released on bail during trial.

The Division Bench of Justice Alexander Thomas and Justice Sophy Thomas noted that the Apex Court decision in Satender Kumar Antil vs. Central Bureau of Investigation (2022) that the delay in taking up the main appeal coupled with the benefit conferred under Section 436A of Cr.P.C among other factors ought to be considered for releasing the applicants on bail, was only meant to be a guideline, and that each case pertaining to a bail application had to be decided on its own merits.

"Here is a case where the applicants/appellants acted against the interest of the nation as they wanted to wage war against Syria, an Asiatic power at peace with the Government of India. So, even if the applicants/appellants have undergone major portion of the sentence imposed on them, it is not safe to release them on bail, as we do not know whether they still entertain the idea of performing Hijra to Syria for indulging in violent jihad," the court observed.

Accused Under SC/ST Act Cannot Directly Approach High Court For Bail Or Anticipatory Bail: Kerala High Court

Case Title: Siji V State of Kerala

Citation: 2023 LiveLaw (Ker) 77

The Kerala High Court held that a person accused of offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot directly approach the High Court seeking bail.

A single bench of Justice A. Badharudeen, was hearing the anticipatory bail application filed by the petitioner who was accused of offences under Section 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act. The petitioner had on an earlier occasion approached the Special Court under the SC/ST (POA) Act, for grant of anticipatory bail. However, the same was refused by the special court. The petitioner later approached the High Court by filing an appeal under Section 14A of the SC/ST Act, which was also dismissed.

'Huge Loss Of Deity's Properties': Kerala High Court Orders Enquiry Into Alleged Mismanagement At Manakkattu Devi Temple In Pallipad

Case Title: Rajaneesh Kumar R. & Ors. v. Travancore Devaswom Board & Ors.

Citation: 2023 LiveLaw (Ker) 78

The Kerala High Court directed the Devaswom Commissioner to conduct an enquiry into alleged mismanagement of the affairs of the Sree Devi Bhuvaneswari of Manakkattu Devi Temple, Pallipad, and to take the appropriate follow-up action.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was considering a writ petition that had been filed by certain devotees of the Temple seeking a mandamus to be issued to the Travancore Devaswom Board (1st respondent herein) to assume the management of the said Temple under the provisions of Section 37 of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as 'the Act'), and also for conducting an enquiry into the mismanagement of the affairs of the Temple under Section 38 of the Act.

"As rightly contended by the learned counsel for respondents No.4 (the Deity) and 5 (the Bharana Samithy) only if two mandatory conditions, namely, there is mismanagement and the same is proved, the 1st respondent get jurisdiction to invoke the provisions of Section 37 of the Act. For deciding that, the 1st respondent should conduct the enquiry which the Board has already ordered through its officers, and reach a logical conclusion", it observed while allowing the petition.

S.156(3) CrPC | Necessary To Order Police Investigation In Cases Warranting Recovery, When Material Objects In Possession Of Accused: Kerala HC

Case Title: Femeena E. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 79

The Kerala High Court set aside a Magistrate court’s order under Section 156(3) CrPC, insofar as it did not order Police investigation in an alleged case of theft.

Single Judge Bench of Justice K. Babu observed that in a case where the allegations warrant a recovery under Section 27 of the Evidence Act, it would be necessary to entrust that task to the Police.

"If it is alleged that the documents or other material objects are in the physical possession of the accused or other persons then, in the interest of justice, the Police would be given the task of investigating and recovering them by resorting to the power under the Cr.P.C. In such cases, without ordering an investigation as provided under Section 156(3), the complainant cannot be in a position to retrieve the relevant evidence regarding his allegations. This may lead to putting the complainant handicapped in that he would be failing to prove his case without being able to bring the relevant materials having probative value on record."

6th UGC Scheme - Teacher Who Availed Advance Increments Based On M.Phil Can't Seek Increments Based On Subsequently Acquired Ph.D : Kerala HC

Case Title: State of Kerala rep. by Additional Chief Secretary & Ors. v. Dr. Louis J. Kattady & Ors.

Citation: 2023 LiveLaw (Ker) 80

The Kerala High Court has held that a teacher, who entered service with M.Phil and was awarded two advance increments on the basis of the M.Phil degree, and who subsequently acquired Ph.D while in service, would not be entitled to three additional non-compounded increments provided in the State Government order based on the Sixth UGC Scheme.

A Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha, observed that the teacher could not be regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of the subsequent Government Order in terms of the Sixth UGC Scheme entitling teachers who completed their Ph.D. in service to three non-compounded increments.

"The pointed question is as to whether the petitioner could be regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of Ext.P4 order.If a person like the petitioner who has been awarded Ph.D about two years prior to the coming into force of Ext.P4 order and who was governed by Clause 6.17 of Ext.P2 order is regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of Ext.P4 order, then all similar teachers who were governed by Clause 6.19 of Ext.P2 order would also fall under Clause 10.5, as the Sixth Scheme of the UGC .... only precludes teachers who have already availed the benefit of advance increments from possessing Ph.D at the entry level under the earlier Scheme, from claiming advance increments under the Sixth Scheme in terms of Clause 7(xxi) therein. If that be so, they can also claim three non-compounded increments in addition to the two advance increments which have been granted to them in terms of Clause 6.19 of Ext.P2 order. Such an inference, according to us, cannot be made, for if such an inference is made, those who have entered service with Ph.D when Ext.P2 order was in force will have to be satisfied with four increments, whereas those who have entered service without Ph.D, but acquired Ph.D while in service, will be able to claim five increments, two under the Fifth Scheme and three under the Sixth Scheme", it was observed.

Varaharoopam Plagiarism Row : Kerala HC Allows Thaikkudam Bridge To Proceed Against Kantara Music Director Before Kozhikode District Court

Case Title: Thaikkudam Bridge v. Hombale Films & Ors.

Citation: 2023 LiveLaw (Ker) 81

In relation to the row over alleged plagiarism by the "Varaharoopam" song of "Kantara", the Kerala High Court has set aside the order passed by District Court Kozhikode which returned the plaint filed by Thaikkudam Bridge alleging copyright infringement by the makers of the Kannada superhit film. The District Court had cited two main reasons for returning Thaikkudam Bridge's plaint : one, the suit should be filed before Commercial Court being a commercial dispute; two, the defendants do not reside or carry out business within Kozhikode jurisdiction.

Allowing the first appeal filed by Thaikkudam bridge, the High Court has now set aside the District Court's order. While the appeal was pending in the High Court, Thaikkudam bridge had deleted producer Hombale Films, director Rishabh Shetty and the film's distributers from the array of defendants. So, the plaint is now confined only to Kantara's music director BL Ajaneesh.

The order passed in Thaikkudam Bridge's appeal by a bench of Justice MR Anitha is notable for its discussion on the interplay between Section 20 of the Code of Civil Procedure, Section 62 of the Copyright Act and the provisions of the Commercial Courts Act regarding jurisdiction to try a copyright infringement suit.

S.311 CrPC | Error Different From Lacuna, Courts Should Be Magnanimous In Allowing Errors By Parties In Trial To Be Corrected : Kerala High Court

Case Title: Manu Dev V XXX and Another

Citation: 2023 LiveLaw (Ker) 82

The Kerala High held that principles of fair trial demands that no party be denied the opportunity to correct its errors and that courts must be magnanimous in allowing such mistakes to be corrected.

A single bench of Justice K Babu observed that an error or omission on the part of a party to trial is not to be confused with lacuna. While a lacuna points to an intrinsic weakness in the case of a party, an error might be a mere oversight or omission. The court cannot deny a fair trial by refusing any party an opportunity to correct these errors.

“The lacuna in a case need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses. Such an error or an omission cannot be understood as “lacuna”, which a Court is not expected to allow the parties to fill up. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The Court should be magnanimous in allowing such mistakes to be corrected. The function of a criminal Court is the administration of criminal justice and not to concentrate on omissions and errors.”

[Custody] Parents' Demands Can't Be Given Importance If Child Is Grown Up & Able To Take Rational Decision In Personal Matters: Kerala High Court

Case Title: XXX v XXX

Citation: 2023 LiveLaw (Ker) 83

The Kerala High Court observed that when a child is grown up and is capable of making rational decisions on his/her own, the court must not give too much importance to the demands of the parents' battling the custody of the child.

A division bench of comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was hearing a challenge against the order of a family court that had denied custody to the father. The court in this case had personally interacted with the child to ascertain his desire. The child had expressed his desire to stay with his mother.

"The welfare of the child has to be given predominance. Since he is grown up and able to take rational decision in his personal matters, too much importance cannot be given to the parents' demands."

UGC Regulations Prescribe Appointment Of Principal In Affiliated Colleges Only By Direct Recruitment, Not By Promotion: Kerala HC

Case Title: Aleyamma Kuruvilla v. Mahatma Gandhi University

Citation: 2023 LiveLaw (Ker) 84

The Kerala High Court considered the question as to whether the Principal of a UGC affiliated private college in the State could be appointed by promotion, contrary to that provided in the UGC Regulations for maintenance of the standards in institutions for higher education.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas, while considering an appeal by a person who had been appointed to the post of Principal by promotion, and not by direct recruitment, perused the MG University Act, as well as the 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 (Regulations, 2018), and observed that,

"Insofar as the UGC Regulations prescribe direct recruitment as the only method of appointment to the post of Principal of affiliated colleges, if a candidate is appointed as Principal by promotion, the said appointment can be construed to be only as one made disobeying the UGC Regulations".

Police Cannot Insist On 'Politically Neutral' Colour Decorations For Temple Festivals: Kerala High Court

Case Title: Major Vellayani Devi Temple Advisory Committee & Anr. v. State of Kerala & Ors. and Sreeraj Krishnan Potti M.S. v. Travancore Devaswom Board & Ors.

Citation: 2023 LiveLaw (Ker) 85

The Kerala High Court held that the District Administration or the Police could not insist that only ‘politically neutral’ coloured decorative materials be used for temple festivals. It added that a worshipper or devotee also has no legal right to insist that saffron/orange coloured decorative materials alone are used for festivals in a temple under the management of the Travancore Devaswom Board.

"Politics has no role to play in the conduct of daily worship and ceremonies and festivals in temples. A worshipper or a devotee has no legal right to insist that saffron/orange coloured decorative materials alone are used for festivals in a temple under the management of the Travancore Devaswom Board. Similarly, the District Administration or the Police cannot insist that only ‘politically neutral’ coloured decorative materials are used for temple festivals. The District Administration or the police cannot meddle with the power of the Travancore Devaswom Board in conducting Kaliyoottu festival in accordance with the custom, rituals and practices of that temple", the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed.

It went on to hold however, that, "in case there is an apprehension of any untoward incident in the temple premises or in the near vicinity of the temple, that may hamper the law and order situation, which would affect the smooth conduct of the festival, the District Administration and the police shall take appropriate steps to ensure that law and order in the temple premises and in the near vicinity of the temple is maintained properly".

Family Court Does Not Have Jurisdiction To Entertain Claim For Defamation: Kerala High Court

Case Title: R v. R

Citation : 2023 LiveLaw (Ker) 86

The Kerala High Court held that a family court does not have the jurisdiction to entertain a claim for defamation. For a family court to assume jurisdiction, the dispute must have a proximate relationship to the marital relationship of the parties, the court observed.

A division bench of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing an appeal filed by the wife, claiming damages for defamation against her husband and father-in-law. The cause of action was the pleadings before the Family Court and also utterances made in the presence of others, describing her as a mentally ill person. The court considered the question of whether the family court has jurisdiction to entertain a petition claiming compensation on account of defamation. The court was of the opinion that in such cases the determining factor is the nature of the dispute involved, not the identity of the parties.

“The cause of action for the appellant to claim compensation is the injury allegedly caused to her reputation on account of such libel and slander. It is an action for tort. A tort is a civil wrong and that by itself constitutes cause of action. Whether or not she is married to the 1st respondent, the alleged statements made by the respondents if defamatory, is a sufficient cause of action.”

KSRTC's Stand That Housewife Earns No Income And Is Not Entitled To Compensation For Disability & Loss Of Amenities 'Outrageous': Kerala High Court

Case Title: Kalukutty v. P.M. John & Anr.

Citation: 2023 LiveLaw (Ker) 87

The Kerala High Court held that the monetary compensation to be awarded to a housewife who had been injured due to the reckless application of brakes while traveling in a Kerala State Road Transport Corporation (KSRTC) bus, would have to be measured and weighed on the same scales, as it would, had she been a working woman.

"...the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, is outrageous and beyond comprehension. The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness", Justice Devan Ramachandran observed while enhancing the compensation that had been awarded by the Tribunal.

S.52A NDPS Act Not Bar To Grant Interim Custody Of Seized Vehicles U/S 457 CrPC: Kerala High Court

Case Title: Shanil v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 88

The Kerala High Court held that jurisdictional courts, such as the Special Court and Magistrate Court, are vested with the power to grant interim custody of vehicles seized in connection with offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS) under Section 457 CrPC, irrespective of the procedure for disposal stipulated in Section 52A of the Act.

Justice V.G. Arun arrived at the above finding while noting that the Apex Court had, in Sainaba v State of Kerala & Anr. (2022), reversed the finding in Shajahan v. Inspector of Excise (2019), that Magistrates were denuded of the power to grant interim custody under Section 451 CrPC.

"...the appeal (in Sainaba) was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted"

State Human Rights Commission Vested With Jurisdiction To Order Compensation For Human Rights Violations

Case Title: Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors.

Citation: 2023 LiveLaw (Ker) 89

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman passed the order in a case where a street vendor had been evicted by the Kottayam Municipality in a discriminatory manner, and without issuance of notice.

"The right of the 3rd respondent to carry on vending on street guaranteed by the Constitution is subject to the restrictions imposed by the Kerala Municipality Act, 1994. However, we find that the power of removal of encroachers vested in the Secretary under the Municipality Act is not exercised judicially and reasonably. The 3rd respondent's right to livelihood has been deprived otherwise than in accordance with a just and fair procedure established by law. Consequently, it follows that the Municipality has infringed the fundamental rights of the 3rd respondent under Article 21 of the Constitution", the Court observed.

Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor

Citation: 2023 LiveLaw (Ker) 90

The Kerala High Court upheld a single bench order which refused to interfere with appointment of Professor (Dr.) Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, however emphasised that her appointment under Section 13(7) of the A.P.J. Abdul Kalam Technological University Act, 2015 is for a period not exceeding six months in the aggregate till the regular Vice-Chancellor assumes office.

S.243 CrPC | Trial Court Bound To Issue Process To Witness Proposed By Accused Unless It Is Attempt To Defeat Ends Of Justice

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

Citation: 2023 LiveLaw (Ker) 91

The Kerala High Court set aside the order of a Trial Court that rejected the prayer for summoning a witness cited by the accused, where there was nothing to indicate that the accused had attempted to defeat the ends of justice through seeking the examination of such proposed witness.

"Unless it is established that the application to summon a witness is made for vexation or delay or for defeating the ends of justice, the trial Court has no discretion in the issuance of process to compel the attendance of any witness cited by the accused. The trial Court is bound to issue process to the witness proposed by the accused in a case where there is nothing to show that the attempt of the accused is to defeat the ends of justice", the Single Judge Bench of Justice K.Babu observed while setting aside the impugned order of the Judicial First Class Magistrate Court, Kalamassery.

Rent Decreed By Civil Court Is Liable To Be Included While Computing Admitted Arrears Under Rent Control Proceedings

Case Title: Gireesh V Antony

Citation: 2023 LiveLaw (Ker) 92

The Kerala High Court held that the arrears of rent decreed by a civil court, is liable to be included while computing the admitted arrears of rent under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965.

A Division Bench consisting of Justice P B Suresh Kumar and Justice Sophy Thomas observed that the object of Section 12 of the Act was to make sure that the tenant does not avail of the pendency of the petition for eviction for evading regular payment of rent which, even by the tenant’s own admission, is due to the landlord.

Court Within Territorial Jurisdiction Of Seat Or Place Of Arbitration Alone Can Entertain Application U/S 34 Arbitration Act

Case Title: Southern Railway V M R Ramakrishnan

Citation: 2023 LiveLaw (Ker) 93

The Kerala High Court held that the Court situated within the territorial jurisdiction of the seat or place of arbitration alone will have the jurisdiction to entertain an application filed under Section 34 of the Arbitration and Conciliation Act, 1996.

A single bench of Justice K Babu observed that the term “subject-matter of arbitration” in the definition of “court” in Section 2(1)(e) of the Act, refers to the Court having supervisory control over the arbitration proceedings. This would mean the Court where the seat or place of arbitration is will have jurisdiction to entertain a challenge to the arbitral award under Section 34 of the Act.

[Prevention Of Corruption Act] Private Complaint Against Public Servant Can't Be Forwarded For Investigation Without Sanction

Case Title: C.V. Balan & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 94

The Kerala High Court reiterated that the requirement of sanction under section 19 of the Prevention of Corruption Act is a prerequisite for presenting private complaint against a public servant alleging the commission of an offence specified in sections 7, 11, 13 and 15 of the Act, for investigation.

The Single Judge Bench of Justice Kauser Edappagath, held that in the absence of such sanction, no such complaint could be forwarded for the conduct of an investigation under Section 156(3) of the Cr.P.C.

State Human Rights Commission Cannot Entertain Service Matters

Case Title: The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr.

Citation: 2023 LiveLaw (Ker) 95

The Kerala High Court reiterated that the Kerala State Human Rights Commission has no jurisdiction to entertain service matters.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman relied upon the decisions in Malabar Cements Ltd. (M/s.) v. K. Baburajan & Ors. (2019), and District Tourism Promotion Council, represented by its Secretary v. State of Kerala represented by the Secretary & Ors. (2021), both of which had held that, in terms of Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, the Commission may dismiss in limine a complaint, if the issue pertains to service matters.

Kerala High Court Allows Pulsar Suni To Remain Physically Present In Trial Court To Witness Proceedings In Actor Assault Case

Case Title: Sunil N.S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 96

The Kerala High Court allowed Sunil N.S., also known as 'Pulsar Suni', who is the main accused in the 2017 Actor Assault Case, to remain physically present before the trial court to witness the proceedings.

Justice K. Babu allowed the petition and observed that the same ensures fair trial.

"Fair trial is the main object of criminal procedure, and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused, the victim, and of society. Fundamentally, a fair trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced," the court observed.

Ivory Case Against Mohanlal : Kerala High Court Asks Magistrate To Decide Afresh State's Plea To Withdraw

Case Title: V. Mohanlal v. State of Kerala & Ors. and other connected cases

Citation: 2023 LiveLaw (Ker) 97

The Kerala High Court dismissed the plea filed by actor Mohanlal seeking to quash the JFCM Court, Perumbavoor order which dismissed the plea to withdraw the prosecution case against him pertaining to illegal possession of ivory.

However, the Court has allowed the revision petition filed by the State Government against the order of the Magistrate Court, and remanded the matter for fresh consideration.

Finding merit in the submission made by the counsels for the intervenors that the law ought to be equal for all, without any discrimination, the Single Judge Bench of Justice A. Badharudeen observed:

"...it has to be held that Law must be uniform to all, irrespective of their status as peasant, poor, middle class or higher class. Going by the settled principles as discussed in detail herein above, I don't think that the trial court addressed this question following the above principles and the trial court ventured the legality of the declaration as the sole basis, while dismissing the petition, which is the subject matter of dispute before the Division Bench of this Court".

Additional Document Can Be Produced After Prosecution Evidence Is Complete If It Is Vital And Omission Was Bonafide Mistake

Case Title: Thachanalil Shyju V State of Kerala

Citation: 2023 LiveLaw (Ker) 98

The Kerala High Court held that an additional document can be produced after prosecution evidence is complete if the omission of such document was a bonafide mistake and the document is purported to be vital.

A single bench of Justice Bechu Kurian Thomas was considering a challenge to an order of the Additional Sessions Court that permitted the prosecution to produce an FIR to show the motive of the accused, after the prosecution had completed its evidence. The accused who is being tried for offences under Section 302 and 307 of the Indian Penal Code, opposed the production of the additional document. The court however, observed that

“…there is no embargo on the production of additional documents during a trial if they are essential for arriving at a proper decision. If the requirements of justice command the production of such a document, the trial judge can permit such production, based on principles of fair play and good sense. No fetter can be placed on the right of the party to produce such a document.”

'Active Politicians Can't Be Temple Trustees' : Kerala High Court Holds CPI(M), DYFI Members As Disqualified

Case Title: Anantha Narayanan & Others V Malabar Devaswom Board & Others

Citation: 2023 LiveLaw (Ker) 99

The Kerala High Court held that a person actively involved in politics, whether or not holding an official post, is not eligible to be appointed as a non-hereditary trustee in temples under the Malabar Devaswom Board.

A division bench comprising of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing a plea challenging the appointment of certain persons as non-hereditary trustees in Pookkottukalikavu Temple pursuant to the notification of the Malabar Devaswom Board which stated that active politicians or persons holding official posts in any political party were ineligible for appointment to the post.

Kerala High Court Directs State To Make Immediate Permanent Appointments In Government Law Colleges, Says Faculty Strength Not Being Met

Case Title: Arun P Wilson and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 100

The Kerala High Court directed the state government to take immediate steps to create posts and make permanent appointments in Government Law Colleges across the state in order to satisfy the requirements of faculty strength for the academic year 2023- 2024 in accordance with the Rules of Legal Education, 2008 framed by Bar the Council of India and the Advocates Act, 1961.

A single bench of Justice Shaji P Chaly was hearing a plea filed by students pursuing their LLB degrees from various Government Law Colleges within the state. The students had approached the court to not permit the Government Law Colleges in the state to commence their courses without having sufficient permanent faculties as prescribed by the Bar Council of India in the 2008 Rules.

Issuance Of Show Cause Notice Mandatory Under Rule 24 Of Kerala Minerals Rules, 2015

Case Title: K.J. Abraham v. The District Geologist

Citation: 2023 LiveLaw (Ker) 101

The Kerala High Court held that a show-cause notice is mandatory under Rule 24 of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, before taking any action in cases relating to breach of conditions, prescribed in the license, by a dealer.

Justice N. Nagaresh also said that the reply of such person ought to be considered in such cases.

Trial Court Not Bound To Conduct Enquiry U/S 329 CrPC Merely On Counsel's Submission That Accused Is Of Unsound Mind

Case Title: Yasin Sunu V State of Kerala

Citation: 2023 LiveLaw (Ker) 102

The Kerala High Court held that a trial court is not bound to conduct a detailed enquiry into whether an accused is of unsound mind simply based on a submission made by the counsel for the accused.

A single bench of Justice K Babu observed,

“If there is something in the demeanour of the accused or in the facts of the case, which raise doubt in the mind of the Court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the Court to try the said fact before proceeding with the trial into the charge.”

Joint Locker Hirer Not Liable To Secure Letter Of Administration To Operate Locker Upon Death Of One Of Hirers

Case Title: Lalithambika & Ors. v. Grievance Redressal Committee & Ors.

Citation: 2023 LiveLaw (Ker) 103

The Kerala High Court held that a joint owner of a locker is entitled, as of right, to operate the locker, independent of the other owner, and thus, would not have to secure any letters of administration or probate under Section 29 of the Administrators-General Act, 1963, pursuant to the death of the other owner.

Perusing Section 218 of the Indian Succession Act, 1925, that stipulates as 'to whom administration may be granted, where the deceased is a Hindu, Muhammadan, Budhist, Sikh, Jain or exempted person’, the Single Judge Bench of Justice Shaji P. Chaly observed:

"In my considered opinion, Section 218 of the Indian Succession Act, 1925 stipulates the manner in which administration of estate is to be granted by a court of law, in cases where a person has died intestate. This is a case where the first petitioner, who is the joint owner of a locker hired from the Bank, was prevented by the Bank from operating the locker. To put it otherwise, in my considered view, Section 218 of the Act, 1925 has no application, since the petitioner is the joint owner, who is entitled, as of right, to operate the same, even according to the Bank, independent of the other joint hirer of the locker. There is also no requirement to secure any letters of administration under Section 29 of the Administrators-General Act, 1963. There is also no case for the respondent Bank that there is any litigation instituted by anyone in the matter of assets left by the deceased Sasidharan Pillai".

Granting Anticipatory Bail In Cases Of Attacks Against Doctors Would Lead To 'Dangerous Situation'

Case Title: Jamshid P.V. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 104

The Kerala High Court refused to grant anticipatory bail to a person who had attacked a doctor who examined his wife, alleging that the Doctor had misbehaved towards her.

The Single Judge Bench of Justice A. Badharudeen was of the view that granting anticipatory bail in such a case would lead to a 'dangerous situation', whereby doctors, who are duty bound to treat patients as part of their oath, would not get protection and the the proper maintenance of health of the public at large would also be in peril.

Kerala High Court Dismisses PIL Claiming Compensation For Transgender Persons Arrested For Waving Black Flag At CM Pinarayi Vijayan

Case Title: Sam Joseph V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 105

The Kerala High Court dismissed a Public Interest Litigation that was filed for compensation for two transgender persons who were booked for obstructing the motorcade of Chief Minister Pinarayi Vijayan by waving black flags as a mark of protest, while he was attending an event in Ernakulam.

The PIL filed sought for an inquiry into the “professional misconduct of the officers” involved in the incident and for compensation for the transgender persons who were detained.

A bench of Chief Justice S Manikumar & Justice Murali Purushothaman while dismissing the PIL observed that the petitioner failed to make out a case for the prayers sought for.

State Instrumentalities Must Deal With Citizens Fairly: Kerala High Court Orders Release Of Amount Withheld In Excess Of Quantified Loss In Road Project

Case Title: K C Antony V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 106

The Kerala High Court held that the Government cannot retain any amount in excess of the loss already quantified by it with regard to the amount due to a contractor on the premise of breach of contract.“The State and its instrumentalities are expected to deal with the citizens in a fair manner in all circumstances.”, the court observed in this regard.

The division bench comprising of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen was considering an appeal filed by a contractor, for recovery of claims and release of security deposit for work done for the Kerala State Construction Corporation in relation to a road project. The contract was awarded to the appellant but was subsequently terminated at the risk and cost of the appellant and another contractor was engaged for completion of the work.

Leniency Cannot Be Shown When Officers Of State Are Accused Of Heinous Crimes

Case Title: Pradeep and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 107

The Kerala High Court while refusing bail to two army personnel held that when the accused is an officer of the State, "leniency is not the sanction of law, instead rigidity is the rule of law" .

A single bench of Justice A.Badharudeen was hearing an anticipatory bail application where initially the offences registered against the petitioners were bailable, but subsequently the non-bailable offence of Section 307 (Attempt to Murder) of the Indian Penal Code, was added.

Music Important For Child Development, Govt Must Consider Regular Music Teachers’ Post In Schools Irrespective Of Student Strength

Case Title: R. Helan Thilakom v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 108

The Kerala High Court recommended the Government to consider sanctioning regular Music teachers’ post in all schools, at least in primary section, irrespective of the student’s strength or number of periods.

The Court made the above recommendation, while considering the case of a Music teacher, who was forced to fight throughout her service to get a full-time post of, after completing five years in the part time post.

Other Significant Developments This Month

Bar Council Of Kerala To Initiate Proceedings Against Advocate Saiby Jose Kidangoor On Bribery Allegations

The Bar Council of Kerala decided to initiate suo motu disciplinary proceedings against Advocate Saiby Jose Kidangoor, the President of the Kerala High Court Advocates Association, who is now facing allegations of having taken money from clients in the name of bribing judges. The Bar Council took the decision in the emergency meeting convened on Monday. In the meeting presided over by the Chairman of the Bar Council of Kerala, Advocate K.N. Anilkumar, the Council decided to issue a show-cause notice to the lawyer.

The Kerala Bar Council also received from the Union Law Ministry a complaint made to the Union Law Minister in this regard. Since the letter had no clarity regarding the identity of the complainants, the Council decided to seek further information from the Ministry.

FIR Registered Against Kerala HC Lawyer On Allegations Of Collecting Money In The Name Of Bribing Judges

The Ernakulam Central Police Station registered First Information Report (FIR) against the President of the Kerala High Court Advocates Association, Advocate Saiby Jose Kidangoor, in respect of allegations against him pertaining to taking money from clients in the name of bribing judges. Offences under Section 7(1) of the Prevention of Corruption Act, 1988 and Section 420 of the Indian Penal Code have been invoked in the FIR. The FIR has been registered with the approval of the State Police Chief.

As per the Press Note issued by the State Police Media Centre, a Special Investigation Team (SIT) will investigate the case.

KSHEC Constitutes Committee For Framing Separate Legislation To Regulate Educational Consultancy Services In Kerala

The Executive Body of the Kerala State Higher Education Council (KSHEC) has decided to constitute a Committee for conducting a detailed study for the framing of a separate legislation for regulating or controlling the activities of educational consultancy services in Kerala.

By an order dated January 31, 2023, the Vice-Chairman of KSHEC has accorded sanction for the constitution of the committee.

Lift Attachment Of Properties Attached Erroneously: Kerala High Court To Govt After State Says Assets Of Those Not Linked To PFI Also Attached

Case Title: Kerala Chamber of Commerce and Industry v. State of Kerala and Malayalavedi v. State of Kerala

The Kerala High Court directed that the properties of those persons who have no connection with the Popular Front of India and which were erroneously attached by the authorities have to be 'released' to them by lifting the attachment of the properties.

"The 2nd respondent, [Home Department] Additional Secretary shall forthwith ensure that the properties of those persons who have no connection with the additional 13th respondent Organisation, which have been erroneously attached by the Revenue Recovery authorities of the State Government, are released by lifting the attachment on the said properties. The lifting of the attachment shall be evidenced by appropriate orders issued in that regard which are communicated to the persons concerned," the court said.

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P., was informed by the Additional Secretary to Government, Home Department in an affidavit, filed in pursuance of the order dated January 24, 2023, that there had occurred erroneous attachment of some properties of persons who were not associated with the organisation as the proceedings had been done within a limited time period, and mistakes had crept in due to similarities in some of the names.

Following Noise Pollution Rules At Construction Site: Adani-Vizhinjam Port To Kerala High Court

Case Title: Bethsaida Hermitage rep. by its Managing Director v. Vizhinjam International Seaport Ltd. & Ors.

The Kerala High Court recorded the submission of the Vizhinjam International Sea Port Limited and Adani Vizhinjam Port Private Limited that it has been maintaining and will continue to maintain the sound levels at the construction site of the Vizhinjam International Transhipment Deepwater Multipurpose Seaport. within the limits prescribed under the Noise Pollution (Regulation & Control) Rules, 2000.

Justice Viju Abraham was hearing a writ petition filed by Bethsaida Hermitage, a resort at Vizhinjam, Thiruvananthapuram which complained about the noise pollution caused by the construction activities at the seaport led by Vizhinjam International Sea Port Limited and Adani Vizhinjam Port Private Limited, who are the respondents in the writ petition.

2017 Sexual Assault Case | Pulsar Suni Approaches Kerala High Court Again For Bail, Says Has Been In Custody For Almost 6 Years

Case Title: Sunil N.S. v. State of Kerala

Sunil N.S., also known as 'Pulsar Suni', who is the main accused in the 2017 Actor Assault Case, has approached the Kerala High Court once again seeking bail.

The prosecution case against Suni is that in pursuance of the criminal conspiracy by actor Dileep, the former along with certain other accused had abducted and sexually assaulted the victim in a moving car in the year 2017. While Suni is the main accused in the case, Malayalam actor Dileep is a co-accused and is alleged to be the brain behind the conspiracy. There are 10 accused in the 2017 case. Offences under Sections 120 (B), 109, 342, 366, 354, 354B, 357, 376D, 201, and 212 read with Section 34 of the Indian Penal Code and Sections 66 A and 66 E of the Information Technology Act were accordingly charged against the 10 accused persons. Suni has been in jail for almost 6 years now.

When the matter came up before the Single Judge Bench of Justice P.V. Kunhikrishnan on Thursday, the Court noted that the Apex Court had vide its order dated July 13, 2022, allowed the applicant to move the High Court for bail if the trial was not concluded within reasonable time.

"Registry will get a report about the time required to dispose the Sessions Case itself," the court said while posting the matter for further consideration on February 13.

Defamation Suits To Get Cheaper In Kerala With Budget Proposal To Limit Court Fee

In a significant move, the Kerala State Government in its budget presented on 03-02-2023 proposed to limit the Court fees for filing Suit for compensation for defamation and Suit for compensation for negligent and tortious act to 1% of the claim instead of advalorem court fees. The budget proposal requires an amendment to the Kerala Court Fees and Suits Valuation Act 1959. The budget proposal when becomes law, would enable a person to approach the courts for damages for defamation and negligent and tortious Act with cheaper Court fees.

"The Court Fee Charges will be limited to 1% of the claim amount to Suit for compensation for defamation and Suit for compensation for negligent an tortious act"- the Budget proposal.

The existing provision to charge court fee on an ad-valorem basis on the claim dissuaded several affected parties from seeking civil remedies for defamation and tortious actions, as the court-fee so computed would be a hefty amount.

KHCAA President Saiby Jose Kidangoor Moves Kerala HC For Quashing FIR Against Him On Bribery Allegations

Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.

The Kerala High Court Advocates Association President, Advocate Saiby Jose Kidangoor, who is facing allegations of having taken money from clients in the name of bribing judges, has approached the Kerala High Court seeking to quash the FIR that had been registered against him, and to stay all further proceedings.

The Ernakulam Central Police Station had registered the FIR against Advocate Saiby, by invoking offences under Section 7(1) of the Prevention of Corruption Act, 1988 and Section 420 of the Indian Penal Code. The FIR had been registered with the approval of the State Police Chief.

Such Discrimination Frowned Upon By Legislature: Petitioners To Kerala High Court On Decision Restricting Sabarimala ‘Melshanti‘ Post To Malayala Brahmins

Case Title: Vishnunarayanan v. The Secretary and Connected Cases

The Kerala High Court in its Special sitting continued its hearing on the batch of petitions challenging the Travancore Devaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi (chief priest) at Sabarimala-Malikappuram Temples.

The matter is being heard by the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar.

Kerala High Court Expresses Displeasure Over Misleading Reports Regarding Chief Justice's Meeting With State Chief Minister, Issues Clarification

The Kerala High Court expressed its displeasure over misleading news reports regarding the meeting of Chief Justice S. Manikumar with Chief Minister Pinarayi Vijayan today. Public Relations Officer of the high court said it has come to notice that a "Section of Visual Media" is telecasting the news and "creating reasons beyond comprehension, for the same".

"I am to convey the displeasure of the High Court of Kerala in telecasting a news item with fabricated interpretations of a false nature," the High Court PRO said in a press release.

'Serious Allegations Maligning Entire Judiciary': Kerala High Court Refuses To Stay FIR Against Advocate Saiby Jose In Bribery Case

The Kerala High Court 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.

Kerala High Court Lifts Stay On Trial Against Actor Unni Mukundan In Sexual Harassment Case; Woman Alleges False Settlement Claim Made

The Kerala High Court 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

Court's Patience Should Not Be Treated As Its Weakness: Kerala High Court Warns Govt On Issue Of Unauthorized Banners In Public Places

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

Kerala High Court Initiates Suo Motu Contempt Case Against KM Shajahan Over YouTube Video Against HC Judges

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

Advocate Saiby Jose Kidangoor Resigns From Post Of President Of Kerala High Court Advocates Association Amid Bribery Allegations

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.

‘Complete Breakdown Of Road Safety System’: Kerala High Court Directs Police To Take Action Against Offending Vehicles After Bus Hits Youth

The Kerala High Court 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

Sexual Assault Victim 'Confides' In School Counsellor 6 Yrs After Incident, Kerala POCSO Court Says Delay Not Fatal, Convicts 63-Yr-Old

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.