Kerala High Court Weekly Round-Up: August 12- August 18, 2024

K P Aliyar v State of Kerala, 2024 LiveLaw (Ker) 523

Malayala Manorama Co. Ltd v State of Kerala, 2024 LiveLaw (Ker) 524

Shaji M. v State of Kerala, 2024 LiveLaw (Ker) 525

K. P. Mohammed Mustafa v Najeeb Kanthapuram and Others, 2024 LiveLaw (Ker) 526

Shiyas S v State of Kerala, 2024 LiveLaw (Ker) 527

Sayyid Imbichi Koya Thangal @ Bayar Thangal v State of Kerala and Another, 2024 LiveLaw (Ker) 528

The Director v Sajeed V M & Connected Cases, 2024 LiveLaw (Ker) 529

Sajimon Parayil v State of Kerala and Others,  2024 LiveLaw (Ker) 530

Ratheesh @ Akku v State of Kerala, 2024 LiveLaw (Ker) 531

Nishin Hussain v State of Kerala,  2024 LiveLaw (Ker) 532

Muhammad Rasheed v State of Kerala, 2024 LiveLaw (Ker) 533

A. K. Raveendran @ Major Ravi v State of Kerala and Another, 2024 LiveLaw (Ker) 534

Geojit Investment Services Ltd. Versus Commissioner Of Income Tax, 2024 LiveLaw (Ker) 535

Judgment/Orders This Week

'Public Place' U/S 294(b) IPC Includes Areas Where Obscenities Can Cause Annoyance To Those In Vicinity, Not Limited To Public Spaces Alone: Kerala HC

Case Title: K P Aliyar v State of Kerala

Citation: 2024 LiveLaw (Ker) 523

The Kerala High Court recently held that when an obscene act is committed to the annoyance of others in any public place in or near any public place attracts an offence under Section 294 of the Indian Penal Code.

Justice A. Badharudeen added that 'in or near public place' mentioned in Section 294 (b) of the IPC is wide enough to include areas in the vicinity of public places and does not limit its orbit to absolute public place alone.

Be Vigilant Of Unwanted Defamation Cases Against Press, Media Persons: Kerala High Court To District Judiciary

Case Title: Malayala Manorama Co. Ltd v State of Kerala

Citation: 2024 LiveLaw (Ker) 524

The Kerala High Court has directed the judicial officers of the district judiciary to exercise caution when considering allegations of defamation against newspapers and media personnel.

Justice A. Badharudeen observed that unwanted legal prosecutions against newspapers and media persons under Sections 499 and 500 of the IPC would amount to violation of Freedom of the Press and people's right to know. The Court thus directed the Trial Courts to be vigilant while considering prosecutions alleging defamation against Press and Media persons.

S.377 IPC Contemplates Unnatural Acts Against The Order Of Nature, Does Not Cover Unnaturality Of Relationship Such As Incest: Kerala HC

Case Title: Shaji M. v State of Kerala

Citation: 2024 LiveLaw (Ker) 525

The Kerala High Court has held that having carnal intercourse against 'the order of nature' mentioned in Section 377 of the Indian Penal Code looks only into the nature of the act and not the relationship of the parties involved.

A Division Bench of Justice Raja Vijayaraghavan V. and Justice G. Girish was hearing an appeal where the appellant was convicted of raping his daughter by the Sessions Court.

No Fundamental Right To Elect Or Be Elected: Kerala High Court

Case Title: K. P. Mohammed Mustafa v Najeeb Kanthapuram and Others

Citation: 2024 LiveLaw (Ker) 526

The Kerala High Court has held that the Court have to strictly go by the law and cannot apply rules of equity in an election matter. The Court held that right to elect though fundamental to a democracy is neither a fundamental right neither a common law right.

Justice C. S. Sudha observed: “Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore subject to statutory limitations. An election petition petition is not an action in common law, nor an equity,”

Gram Nyayalaya Lacks Jurisdiction To Deal With Applications Under Muslim Women (Protection Of Rights On Divorce) Act: Kerala High Court

Case Title: Shiyas S v State of Kerala

Citation: 2024 LiveLaw (Ker) 527

The Kerala High Court has held that Gram Nyayalaya under the Gram Nyayalayas Act, 2008 lacks jurisdiction to consider applications filed under the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Justice Bechu Kurian Thomas found that Gram Nyayalaya cannot deal with applications filed under the Muslim Women (Protection of Rights on Divorce) Act seeking maintenance or mahr to be given to the wife at the time of divorce.

Kerala High Court Quashes Section 377 IPC Charge Against Husband, Discusses Absence Of An Equivalent Provision In BNS

Case Title: Sayyid Imbichi Koya Thangal @ Bayar Thangal v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 528

The Kerala High Court recently quashed the criminal proceedings initiated by a woman against her husband for offence under Section 377 IPC.

The Court observed that after the definition of rape in Section 375 was amended in 2013, forcible acts of oral sex committed by a male accused on a female victim is an offence of rape. However, since a wife can't prosecute her husband for offence of rape, neither section 377 not section 375 will stand against the accused.

The Court also noted that Bharatiya Nyaya Sanhita (BNS) which replaced the Indian Penal Code (IPC) does not have an offence equivalent to Section 377 IPC. The rationale for this omission, the bench said, is not stated in the statute.

TransUnion CIBIL Must Update Credit Ratings On Time, Borrowers' Reputation Integral To Right To Dignity And Privacy Under Article 21: Kerala HC

Case Title: The Director v Sajeed V M & Connected Cases

Citation: 2024 LiveLaw (Ker) 529

The Kerala High Court has ruled that if a Credit Information Company such as TransUnion CIBIL Limited fails to update the credit ratings of its borrowers promptly, it would infringe upon their fundamental rights.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. held that borrowers reputation is protected under right to dignity and privacy guaranteed by Article 21 of the Constitution of India.

Public Discussion Crucial To Solve Gender Issues In Malayalam Cinema, Apprehension That Media Will Malign 'Misplaced': Kerala High Court

Case Title: Sajimon Parayil v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 530

The Kerala High Court has called for public debate and discussion to ensure that recommendations made by Justice Hema Committee, to alleviate grievances regarding harassment and discrimination raised by women working in Malayalam film industry, are implemented promptly.

Bench of Justice V. G. Arun thus dismissed the petition filed by producer Sajimon Parayil against publication the Committee report. It also dismissed the apprehensions that unwarranted media coverage about the report would cause irreparable damage to individuals and the industry as a whole.

No Parent Would File False Case Alleging Rape Of Unmarried Daughter: Kerala High Court

Case Title: Ratheesh @ Akku v State of Kerala

Citation: 2024 LiveLaw (Ker) 531

The Kerala High Court recently observed that in normal human conduct, no parent would lodge a false case alleging that their unmarried daughter was raped.

The Division Bench comprising Justice P B Suresh Kumar and Justice M B Snehalatha thus upheld the conviction of a 27-year-old man for raping and sexually abusing the victim and condoned the six-month delay in filing the FIR, given that the victim was a 13-year-old vulnerable teenager.

Section 354A IPC Not Attracted On Alleged Sexual Harassment Of A Woman By Another Woman: Kerala High Court

Case Title: Nishin Hussain v State of Kerala

Citation: 2024 LiveLaw (Ker) 532

The Kerala High Court has quashed the proceedings initiated by a woman under Section 354A of the IPC alleging sexual harassment by her sister-in-law and mother-in-law.

The sister-in-law (3rd accused) and mother-in-law (4th accused) of the de facto complainant had approached the High Court seeking to quash the offences alleged against them under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 354A (sexual harassment and punishment for sexual harassment) and 34 (common intention) of the IPC.

Justice A. Badharudeen ruled that when the legislature has used the term 'any man' and not 'any person' under Section 354A of the IPC, overt acts done by women cannot attract the said offence.

To Attract Offense U/S 111(1) BNS Two Or More Persons Must Carry Out Continuous Unlawful Activity Leading To More Than One Chargesheet Within Last 10 Yrs: Kerala HC

Case Title: Muhammad Rasheed v State of Kerala

Citation: 2024 LiveLaw (Ker) 533

The Kerala High Court allowed the bail application of the petitioner who was arrayed as 1st accused for allegedly committing an offence of organized crime under Section 111(1) of the Bharatiya Nyaya Sanhita, 2023.

Section 111 (1) of the BNS defines organised crime as a continuing criminal activity committed by a member of an organized crime syndicate or on behalf of such syndicate. Section 111 (1)(i) defines 'organized crime syndicate' and Section 111 (1) (ii) defines 'continuing unlawful activity'.

Justice C S Dias observed that prime facie an offence under Section 111 (1) is not attracted against the petitioner since no charge sheet has been filed against him in any Court in the 'preceding period of last ten years' to satisfy the mandate of 'continuing unlawful activity' as defined under Section 111(1) (ii).

'Ex-Army Officer & Celebrity Needs To Be Careful': Kerala High Court Refuses To Quash Case Against Major Ravi For Remarks Against TV Anchor

Case Title: A. K. Raveendran @ Major Ravi v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 534

The Kerala High Court refused to discharge former army officer and Malayalam movie director A. K. Raveendran, also known as Major Ravi, in a criminal case over making sexually coloured remarks against a TV news anchor.

The Court remarked that the petitioner, who is a celebrity and a former army officer, should be careful while making statements as common people watch him and his words.

Compensation To Discontinue Commodity Brokerage Business Chargeable To Income Tax: Kerala High Court

Case Title: Geojit Investment Services Ltd. Versus Commissioner Of Income Tax

Citation: 2024 LiveLaw (Ker) 535

The Kerala High Court has held that the amount received by the assessee is under an agreement for not carrying out any activity in relation to any business that was carried on by the assessee; it would attract the provisions of Section 28(va)(a) of the Income Tax Act and make the receipt chargeable to income tax under the heading of “Profits and gains of business or profession.”.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that Section 28(va)(a) of the Income Tax Act does not restrict the operation of the provision to only amounts received by way of non-compete fee. The words used in the said provision do not admit any restricted meaning. So long as the amount received by the assessee was received for not carrying out any activity in relation to any business and the amount received was not on account of the transfer of the right to manufacture, produce, or process any article or thing or on account of the transfer of the right to carry on any business, which receipts would have been chargeable under the head “capital gains," there was no reason to interfere with the order of the Assessing Authority that brought the amounts received by the assessee from BNP Paribas to tax under the head “Profits and gains of business or profession”.

Other Important Developments This Week

Kerala HC Admits Plea Challenging State Co-Op Bank's Award Of Tender For Supplying Micro-ATM Machines To Sub-Dealers Of Chinese Manufacturer

Case Title: T M Thomas v Union of India & Others

Case Number: WPC 28476/2024

The Kerala High Court has admitted a plea challenging the decision of Kerala State Co-operative Bank to award the tender of supplying 2,000 micro ATM machines to certain companies who are sub-dealers of a Chinese Manufacturer. The plea alleged that the usage of micro ATMs by Chinese Manufacturers in sensitive sectors like banking is a security hazard to the nation. It argues that allowing a Chinese company access to the banking sector undermines the nation's safety, security, integrity, and individual privacy.

The Division Bench comprising Justice A K Jayasankaran Nambiar and Justice Syam Kumar V M issued notice to the respondents including the Union Government, State Government, Department of Expenditure, Department of Co-operation, Kerala State Co-operative Bank and Reserve Bank of India.

Lawyer Moves Kerala High Court Seeking Implementation Of E-Stamp Facility, Cites Shortage Of Non-Judicial Stamp Papers

Case Title: Jyothish P V State of Kerala

Case Number: WPC No. 28547/2024

A plea has been moved before the Kerala High Court by a lawyer stating that there is a shortage of non-judicial stamp papers below the denomination of rupees thousand in the State.

The plea thus seeks a direction to the Director of the Department of Treasuries to implement steps for the implementation of the e-stamp facility for the issuance of non-judicial stamp papers of all denominations in online mode.

The Division Bench comprising Acting Chief Justice A.Muhamed Mustaque and Justice Sophy Thomas will hear the matter on September 04, 2024.

Kerala High Court Dismisses Challenge To Publication Of Justice Hema Commission Report On Issues Faced By Women In Malayalam Film Industry

Case Name: Sajimon Parayil v State of Kerala and Others

Case Number: WP(C) 26497/ 2024

The Kerala High Court has dismissed the plea challenging publication of report submitted by Justice Hema Commission, tasked with studying and suggesting solutions for issues faced by women in the Malayalam film industry.

Bench of Justice VG Arun directed that the report be published within a week.

Kerala High Court Refers Parties To Counselling In Pantheerankavu Domestic Violence Case

Case Title: Rahul P.Gopal V State Of Kerala

Case Number: Crl.MC 5187/ 2024

The Kerala High Court has directed Rahul P Gopal, accused of attempting to strangle his wife using cable wire after she failed to fulfil his dowry demands, to appear for counselling before the Kerala State Legal Services Authority (KeLSA). The wife has also been asked to appear before the authority.

Rahul and his family have been charged under Sections 324, 498A, 307, and 212 of the IPC. His wife later uploaded a YouTube video stating that the allegations against her husband are false. He has approached the Court to quash the criminal proceedings stating that the matter had been settled between them and that they were ready to live together.

Justice A. Badharudeen ordered that no coercive steps will be taken against the petitioners till the next posting date.

Kerala High Court Seeks State's Stand On BJP Leader's PIL Alleging Illegal Beach Sand Mining Under Guise Of Disaster Management

Case Title: Shone George v State of Kerala

Case Number: WPC 28857/2024

A PIL has been filed by lawyer and BJP leader Shone George before the Kerala High Court alleging illegal mining and exploration of beach sand minerals from Thottappally area of Alappuzha district and other coastal areas in the State under the guise of The Disaster Management Act.

The Division Bench comprising Acting Chief Justice A.Muhamed Mustaque and Justice S Manu observed that a detailed hearing of the matter is required and adjourned the case for obtaining statements from the State Government and other party respondents.

CJI DY Chandrachud To Inaugurate Country's First Digital Court For NI Act Cases, Other Projects At Kerala High Court

On August 16, 2024, there will be the inauguration of Digital Courts and other innovative initiatives relating to the judiciary in the Kerala High Court.

Chief Justice of India D Y Chandrachud will deliver the inaugural address and officially inaugurate various projects including the Country's first exclusive Digital Court for Negotiable Instrument Act Cases in Kollam.

The inauguration of the Online Dispute Resolution System will facilitate online deliberations and ensure efficiency, accessibility and transparency. The CJI will also inaugurate the Model Digital Court Room which is made to overcome the limitations of traditional courtrooms by making use of ICT resources and customized furnishings. The CJI will also inaugurate the Learning Management System of the Judicial Academy, Digital Library and Research Centre in the High Court, Restoration of the project of Ram Mohan Palace and there will also be an announcement of Digital District Courts.

Kerala High Court Seeks State Govt's Response On Vulnerable Areas Prone To Natural Disasters In Wayanad

The Kerala High Court has sought information from the State Government about other vulnerable areas in Wayanad that are prone to natural disasters due to the heavy rains.

The division bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. orally stated that news media has reported that due to the heavy monsoon, there are other vulnerable areas in Wayanad which are prone to natural disasters. The Court thus sought information about such vulnerable areas and stated that there should be continuous monitoring to prevent any such natural disasters.

Actress Ranjini Moves Kerala HC Challenging Publication Of Justice Hema Commission Report, Says She Gave Statements Under Promise Of Confidentiality

Case Title: Sasha Selvaraj @ Renjini v State of Kerala and Others

Case No: WA 1240/ 2024

Malayalam film actress Ranjini has approached the Kerala High Court challenging a decision of a single bench of the Court allowing the publication of Justice Hema Committee Report on the conditions faced by women in the Malayalam film industry.

The actress claimed that she had given statements to the Committee under the promise of confidentiality. The appeal was placed before the bench of Acting Chief Justice A. M. Mustaque and Justice S. Manu