Kerala High Court Weekly Round-Up: July 16 – July 21, 2024
Tellmy Jolly
22 July 2024 8:55 PM IST
Nominal Index [Citations: 2023 LiveLaw (Ker) 437-458]Remya Haridas v State of Kerala and Others, 2024 LiveLaw (Ker) 437Abdul Razak v Union of India, 2024 LiveLaw (Ker) 438Vivek Joy v State of Kerala & Connected Case, 2024 LiveLaw (Ker) 439Soman T. N. v Additional District Collector and Others, 2024 LiveLaw (Ker) 440Joby George v Siby Valloran, 2024 LiveLaw (Ker) 441Sajith Shyam v State...
Nominal Index [Citations: 2023 LiveLaw (Ker) 437-458]
Remya Haridas v State of Kerala and Others, 2024 LiveLaw (Ker) 437
Abdul Razak v Union of India, 2024 LiveLaw (Ker) 438
Vivek Joy v State of Kerala & Connected Case, 2024 LiveLaw (Ker) 439
Soman T. N. v Additional District Collector and Others, 2024 LiveLaw (Ker) 440
Joby George v Siby Valloran, 2024 LiveLaw (Ker) 441
Sajith Shyam v State of Kerala, 2024 LiveLaw (Ker) 442
Pradeep v State of Kerala, 2024 LiveLaw (Ker) 443
Sunil Kumar K Versus The State Tax Officer-I, Kottarakkara, 2024 LiveLaw (Ker) 444
PCIT Versus Kunhitharuvai Memorial Charitable Trust, 2024 LiveLaw (Ker) 445
Sujith v State of Kerala, 2024 LiveLaw (Ker) 446
Suneeh Babu v Maneesha, 2024 LiveLaw (Ker) 447
Rajesh Gopalakrishnan v State of Kerala, 2024 LiveLaw (Ker) 448
Abdul Rahman v State of Kerala and Others, 2024 LiveLaw (Ker) 449
Raju George @ N M Raju v State of Kerala & Connected Case, 2024 LiveLaw (Ker) 450
Dr. Radhakrishna S Naik v State of Kerala, 2024 LiveLaw (Ker) 451
CA P J Johney v The GST Council Through Its Secretary, 2024 LiveLaw (Ker) 452
XXX v State of Kerala and Others, 2024 LiveLaw (Ker) 453
Geetha S v Pradeep G, 2024 LiveLaw (Ker) 454
Abdul Khader v State of Kerala, 2024 LiveLaw (Ker) 455
Elite Green Pvt Ltd Versus Under Secretary (Customs-III/VI), 2024 LiveLaw (Ker) 456
The South Indian Bank Ltd Versus ACIT, 2024 LiveLaw (Ker) 457
Unitac Energy Solutions (India) Pvt.Ltd. Versus The Assistant Commissioner Of Income Tax, 2024 LiveLaw (Ker) 458
Judgements/ Orders This Week
Case Title: Remya Haridas v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 437
In A Writ petition filed by former MP Remya Haridas, the High Court ordered that the extension given to the current Director General of Kerala Institute of Local Administration (KILA) is illegal. Joy Elamon, General Director crossed the age of 60 and is therefore not qualified to continue as the Director General. The State had argued that the extension was given only till a new appointment was made.
The Court said that Joy Elamon continuing in the post after he attained 60 years is illegal and improper as it is against the Memorandum of Association. Justice Basant Balaji observed: “The Memorandum of Association of a registered society is a charter of the company. The Governing Council approved the said Memorandum on 16.01.2018, so all appointments and the functioning of the society shall be in tune with the memorandum of Association. Clause 43 states explicitly that the Director General recruited from the open market can be allowed until he has attained the age of 60 years, and reappointment is permitted subject to age restriction.”
Case Title: Abdul Razak v Union of India
Citation: 2024 LiveLaw (Ker) 438
The Kerala High Court has stated that the importance of constructing national highways for the larger public good should not be over-emphasized since it is equally crucial to consider the interests of the people of a particular locality to promote the common good effectively.
Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. dismissed the writ appeal taking note of the existence of a vehicular underpass close by to the location suggested by the appellants.
Case Title: Vivek Joy v State of Kerala & Connected Case
Citation: 2024 LiveLaw (Ker) 439
The Kerala High Court has laid down that no penal consequences would be attracted under Section 494 of the IPC for solemnizing second marriage during the operation of ex parte decree of divorce from the first marriage, even if the ex parte decree was set aside on a subsequent date.
Justice A. Badharudeen observed that there was no legal marriage subsisting between the parties when the second marriage took place due to the operation of the ex parte decree of divorce, even if it was set aside later.
Case Title: Soman T. N. v Additional District Collector and Others
Citation: 2024 LiveLaw (Ker) 440
The Kerala High Court has ordered that the District Magistrate has to re-ascertain all the criteria before allowing an application for increasing the permissible amount of explosive one can store, from 25 kilograms to 100 kilograms. The Court observed that the parameters of enquiry for 25 kilograms is not similar to the parameters for 100 kilograms. Justice C. Jayachandran observed, “The parameters of enquiry for storing 25 kilograms cannot be said to be similar and the same, as the parameters for an enquiry storing 100 kilogram.”
Case Title: Joby George v Siby Valloran
Citation: 2024 LiveLaw (Ker) 441
The Kerala High Court recently remarked that the Motor Accidents Claims Tribunals have an active role in decision-making process and cannot act as a mute spectator while considering claims.
Justice V G Arun referred to a government order (G.O(P) No.161/97/H&FWD) and Rule 387 of the Motor Vehicles Rules, 1989 to state that the Tribunal has powers to take second opinion if they have doubts regarding the authenticity or correctness of disability certificate.
Case Title: Sajith Shyam v State of Kerala
Citation: 2024 LiveLaw (Ker) 442
The Kerala High Court dismissed the bail application filed by an accused who was allegedly part of a human organ trafficking racket. The Court stated that evidence indicates the involvement of the accused in an organized international crime warranting investigation by the National Investigation Agency. The allegations include trafficking financially vulnerable donors to Iran where their organs were removed, followed by importing these organs to India for transplantation.
Justice C. S. Dias stated that there is prima evidence showing his involvement in organ trafficking such as evidence of call data records and monetary transactions that establish his connection with the prime accused who is absconding.
Case Title: Pradeep v State of Kerala
Citation: 2024 LiveLaw (Ker) 443
The Kerala High Court laid down that Freedom of the Press may not include Sting Operations in all cases, but Sting Operations conducted by recognized media persons have to be considered differently, given their crucial role as the Fourth Estate in a democracy. It stated that the Court should assess whether the Sting Operation was carried out with bonafide intention to uncover the truth and inform the public and this must be determined on a case-to-case basis.
Justice P.V.Kunhikrishnan observed that the Press have to be bonafide and vigilant while conducting sting operations and their intention should be to promote democracy and not to harass or humiliate anyone.
Assessment Order Downloaded From Common Portal Amounts To A Valid Service: Kerala High Court
Case Title: Sunil Kumar K Versus The State Tax Officer-I, Kottarakkara
Citation: 2024 LiveLaw (Ker) 444
The Kerala High Court has held that the assessment order downloaded from the common portal amounts to a valid service.
The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has upheld the decision of the Single Bench in which it was held that the petitioner had downloaded the assessment order from the very same portal, and therefore, the delay occasioned in retrieving the assessment order from the portal was a predicament that the appellant found himself in because of his own latches.
Case Title: PCIT Versus Kunhitharuvai Memorial Charitable Trust
Citation: 2024 LiveLaw (Ker) 445
The Kerala High Court has held that the tax effect in the appeals filed by the income tax department pertaining to assessment years 2006–07, 2007–08, 2008–09, 2009–10, and 2010–11 is well below the monetary limit of Rs. 1 crore and is liable to be dismissed.
The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that, as per Circular No. 3 of 2018 issued by the Central Board of Direct Taxes, appeals cannot be maintained by the revenue before the High Court if if the tax effect in the appeal does not exceed Rs. 50 lakhs. A subsequent Circular No. 17 of 2019 dated August 8, 2019 was issued by the CBDT, and the monetary limit has since been enhanced to Rs. 1 crore.
Case Title: Sujith v State of Kerala
Citation: 2024 LiveLaw (Ker) 446
The Kerala High Court recently quashed the criminal proceedings initiated against a man accused of raping a woman on finding that the sexual intercourse was voluntary and not an outcome of misconception of fact.
In this case, the complainant alleged that the petitioner who was a tempo van driver subjected her to rape in 2005, 2011, 2015 and 2016.
Justice A. Badharudeen observed that no complaint was lodged till 2017 and a crime was registered alleging the commission of rape only after a long period of 13 years. The Court noted that the sexual relations between the complainant and petitioner were voluntary with her consent and not based on any misconception of fact.
Case Title: Suneeh Babu v Maneesha
Citation: 2024 LiveLaw (Ker) 447
The Kerala High Court has directed a Family Court to conduct joint trial of an Original Petition (OP) and Miscellaneous Case (MC) filed under Section 125 of CrPC seeking maintenance.
The petitioner/husband had approached the High Court against the dismissal of his joint trial application of an OP and MC by the Family Court.
The Division Bench comprising Justice Devan Ramachandran and Justice C Pratheep Kumar observed that join trial would save judicial time and energy.
Case Title: Rajesh Gopalakrishnan v State of Kerala
Citation: 2024 LiveLaw (Ker) 448
The Kerala High Court has directed the Trial Court to proceed with the trial against the petitioner who allegedly cheated, defrauded and had forceful sexual intercourse with a woman after taking her to Muscat, Oman by offering her a job at his house.
The Court referred to the Apex Court judgment in Sartaj Khan v. State of Uttarakhand (2022), wherein it was laid down that there was no necessity of any sanction if a part of the offence was committed in India.
After analyzing the facts of the present case, Justice A. Badharudeen observed that sanction was not required under Section 188 CrPC to proceed against the petitioner since the offence has been partly committed in India and partly abroad.
Case Title: Abdul Rahman v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 449
The Kerala High Court recently dismissed the petition filed by Abdul Rahman, a Malayali businessman seeking to quash the FIR registered against him on behalf of a UAE-based bank for cheating of 42.898 million UAE dirhams.
Rahman, the owner of Hexsa Oil and Gas Services, is accused of absconding from Dubai after taking a loan from the Invest Bank, Sharjah and diverting the money for his personal purposes.
Case Title: Raju George @ N M Raju v State of Kerala & Connected Case
Citation: 2024 LiveLaw (Ker) 450
The Kerala High Court has dismissed the bail applications moved by four members of the same family who were arrayed as accused for allegedly committing criminal breach of trust and offences under the Banning of Unregulated Deposit Schemes Act, 2019.
Justice C S Dias observed that the petitioners were accused of being involved in more than 100 crimes registered across various police stations in the State. The Court noted that petitioners were charged with committing serious economic offences, where they took money from depositors by promising them high interest rates and subsequently cheated them by siphoning off more than 8.2 crore rupees.
Case Title: Dr. Radhakrishna S Naik v State of Kerala
Citation: 2024 LiveLaw (Ker) 451
The Kerala High Court has held that every person has to inform the police within a reasonable time as per Section 19 (1) of the POCSO Act if they have an apprehension that an offence has been committed against a minor. It held that a person will be prosecuted only when there is a deliberate omission to report the offence to the police.
Justice A. Badharudeen held that a reasonable time must be given to doctors to inform the police about such incidents.
Case Title: CA P J Johney v The GST Council Through Its Secretary
Citation: 2024 LiveLaw (Ker) 452
The Kerala High Court recently directed for completion of the selection process for establishing the GST Appellate Tribunal.
“In the light of the fact that the process has already been initiated to establish the GST Appellate Tribunal, we order that entire selection process shall be completed within a period of four months”, ordered the Division Bench comprising Acting Chief Justice A.Muhamed Mustaque and Justice S Manu
Case Title: XX v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 453
Kerala High Court has held that an act of showing a person's private part to a child and asking her to measure it will constitute the offence of sexual harassment under the Protection of Children from Sexual Offences Act (POCSO Act).
Justice A. Badharudeen observed; “In this case, as I have already pointed out, lifting of dhothi to show his private part, and then asking the victim to measure his penis, are the allegations. The same would squarely attract Section 11(1) of the PCSO Act as well as under Section 509 IPC, prima facie.”
Case Title: Geetha S v Pradeep G
Citation: 2024 LiveLaw (Ker) 454
The Kerala High Court recently granted permission for the dissolution of marriage upon the wife's request, despite the husband seeking dismissal of the petition and not pursuing divorce.
The Court stated that parties were unable to lead a meaningful matrimonial life and that forcing one spouse to continue in marriage would create mental agony and that would undermine the purpose of marriage.
The matrimonial appeal was filed by the appellant/wife against the dismissal of her original petition seeking dissolution of marriage on grounds of matrimonial cruelty.
Case Title: Abdul Khader v State of Kerala
Citation: 2024 LiveLaw (Ker) 455
The Kerala High Court has laid down the following principles to determine whether the procedure under the Code of Criminal Procedure, 1973 (Cr. P.C) or Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is applicable when an appeal is filed.
- An appeal filed on or after 01.07.2024 shall be governed by BNSS
- Irrespective of whether the conviction was given on or before 01.07.2024 or if the appeal is filed on or after 01.07.2024, BNSS is to be followed
- All applications filed and steps taken in appeals prior to 01.07.2024 shall be governed by Cr. P.C
- When an appeal/ application is re-presented after curing defects, its date of filing shall be the date of its first presentation.
SAD Refunds Can't Be Denied For Taking Away Facility Of Re-Crediting DEPB Scrips: Kerala High Court
Case Title: Elite Green Pvt Ltd Versus Under Secretary (Customs-III/VI)
Citation: 2024 LiveLaw (Ker) 456
The Kerala High Court has held that if the appellant/assessee satisfies the conditions in Notification No.102/2007-Cus dated 14.09.2007 for the purposes of refund of the 4% Special Additional Duty (SAD), then merely because the facility of re-crediting the Duty Entitlement Pass Book (DEPB) scrips has been taken away, the refund that the appellant is entitled to by virtue of the notification cannot be denied.
The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that since the Delhi High Court has already annulled the Circular dated April 29, 2013, the respondent-department is now legally obliged to consider the refund application preferred by the appellant independently, on its merits, to see whether the conditions specified in Notification 102/2007-Cus dated September 14, 2007 have been satisfied by the appellant.
Case Title: The South Indian Bank Ltd Versus ACIT
Citation: 2024 LiveLaw (Ker) 457
The Kerala High Court has held that the South Indian Bank is entitled to the deduction envisaged under Section 36(1)(viii) of the Income Tax Act in respect of the long-term finance provided by it for the construction and purchase of houses in India for residential purposes.
The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that a view has been expressed that the National Housing Bank was not entitled to the benefits of the unamended Section 36(1)(viii), on the ground that it was not engaged directly in the long-term financing for the construction or purchase of houses in India for residential purposes
Case Title: Unitac Energy Solutions (India) Pvt.Ltd. Versus The Assistant Commissioner Of Income Tax
Citation: 2024 LiveLaw (Ker) 458
The Kerala High Court has held that the disallowance operates against erring employer assessee when employees' contribution to EPF/ESI not made within the due date.
The bench of Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. has observed that where the employees' contribution to EPF/ESI was not made over by the employer to the statutory authorities within the due date prescribed for making those payments under the respective statutes, the disallowance under Section 36(1)(va) would operate against the erring employer assessee.
Other Significant Developments This Week
Case Title: The Council of Principals of Colleges in Kerala v State of Kerala
Case Number: WPC No. 25087/2024
The Kerala High Court passed an interim order staying the government notification that mandated the Principals to grant permission for the conduct of programs like musical events, DJ performances by external agencies or professional groups in colleges and universities affiliated with the state.
Justice Ziyad Rahman A.A. stated that the interim order would not prevent the heads of the institutions from granting permission to follow the conditions stipulated in the government notification. “There shall be an interim order staying Clause 3(12) of Ext.P8, so far as it mandates the head of the institution to grant sanction for programmes by external agencies/professional groups/paid programmes such as musical events inside or outside the campus in compliance with the conditions stipulated in that Clause. However, this interim order shall not preclude the head of the institution to grant the permission upon exercising the discretion vested upon him, subject to the conditions contemplated in Clause 3(12) of Ext.P8.”
Case Title: Suo Motu v State of Kerala and Others
Case No: WP(C) 7844/ 2023
In the case of a missing sanitation worker whose body was recovered from the Aamayizhanchan canal, the Kerala High Court has ordered the Railways, Trivandrum Corporation and Trivandrum Collector to submit reports regarding the reasons for the flow of plastic waste into the canal, the manner in which it is to be removed and the persons responsible for removing it.
The bench of Justice Bechu Kurian Thomas and Justice Gopinath P. held a special sitting after the news of a missing sanitation worker, Joy came to light. His body was found after 46 hours of searching. Joy was one among the workers contracted by the railways to clean the portion of the canal near Trivandrum Central Station. The water was stagnant when the cleaning began but he was swept off by the heavy rains.
Case Title: A. K. Sreekumar v State of Kerala and Others
Case Number: Crl. M. C. 4677 of 2022
The Kerala High Court has referred to a larger bench the question of whether the Supreme Court's decision in Anil Kumar v M. K. Aiyappa and Another (2013) is still a valid precedent considering the subsequent judgment made by the Supreme Court in Jayant and Others v State of Madhya Pradesh (2020).
Case Title: WPC 15757/2024
Case Number: M/S. Cochin Minerals and Rutile Limited V Directorate of Enforcement
The Enforcement Directorate (ED) today submitted before the Kerala High Court that they have not taken any coercive steps against the officials of Cochin Minerals and Rutile Ltd (CMRL) and that no criminal prosecution has been commenced so far.
The officials of CMRL were being summoned by the ED to enquire about the allegations of committing cognizable offences under the Prevention of Money Laundering Act, 2002 by cheating and misappropriating large amounts of public money.
Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director
Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024
The Enforcement Directorate (ED) today submitted before the Kerala High Court that Former Finance Minister Dr Thomas Isaac who was the Vice Chairman of the KIIFB General Committee as well as the Chairman of the Executive Committee had the knowledge and awareness and he was a prime person to collect information from regarding utilization of funds.
Additional Solicitor General of India (ASGI) A.R.L.Sundaresan, appearing on behalf of ED submitted that KIIFB has substantially complied with the summons by submitting attested copies of documents, leaving only oral statements to be taken if any further inquiries arise based on the documents submitted by them.
Case Title: Treasa K. J. v State of Kerala
Case No: WP(C) 23911/ 2018
The Kerala High Court has commended the bravery of persons who engaged in the rescue operation of Joy, the sanitation worker who died after being swept off by rains while cleaning the part of Aamayizhanchan canal near Trivandrum Central Station.
The Court noted that the workers had to conduct the rescue operations in very unhygienic conditions. The canal is blocked with huge quantities of waste. The Court remarked that the loss of life is extremely saddening.
Case Title: State of Kerala v The Chancellor
Case Number: WP(C) NO. 25583 OF 2024
The Kerala High Court has stayed Governor Arif Mohammad Khan's decision to form a Search-cum-Selection committee for conducting the selection process for appointing the Vice Chancellor of the Kerala University of Fisheries and Ocean Studies (KUFOS).
Justice Ziyad Rahman A.A. thus issued an interim order staying all further proceedings based on the notification dated 28 June 2024 passed by the Governor.
Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director
Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024
The Kerala Infrastructure Investment Fund Board (KIIFB) submitted before the High Court that the ED cannot target and carry inquiry against KIIFB in the State of Kerala alone when there are dozens of other masala bonds issued in other States.
Senior Advocate Arvind Datar, appearing on behalf of KIIFB submitted that if ED was not carrying out an investigation under the Foreign Exchange Management Act (FEMA) in all other cases of masala bonds, then it could not investigate KIIFB alone.
Kerala High Court Invites Applications From Eligible Lawyers For Senior Advocate Designation
The Kerala High Court issued a notification inviting applications from eligible advocates for designation as Senior Advocates.The notification states that Senior Advocates can also recommend the names of advocates for designation.
As per the notification dated July 18, the last date to submit applications is on or before August 12, 2024, by 4.30 PM. It is stated that applications or recommendations received thereafter will not be considered.
Registrar (District Judiciary) of the Kerala High Court has issued an Official Memorandum directing all District Judges to ensure that the Video Conferencing facility provided in the District Judiciary is effectively utilized and to make hybrid mode of hearing mandatory in all courts. The direction was issued amid advance of monsoon and heavy rains in the State. The OM issued on 17th July asked the courts to conduct roll call, examination of official and formal witness through video conference as far as possible.
In a Full Court meeting of judges, the Kerala High Court has resolved to carry out amendments in the Selection Rules for appointment to the post of Civil Judge (Junior Division), specifying a requirement of minimum of three years of practise as an Advocate to apply for the Kerala Judicial Service Examination.
The Kerala High Court issued a notification on July 19 directing the Filing Scrutiny Officers to register petitions filed under the DRT Act and SARFAESI Act as unnumbered and sent to the Bench as per roster for directions.
Case Title: Dr. Mathew Kuzhalnadan v Pinarayi Vijayan and Others
Case No: Crl. Rev. Pet 589/ 2024
In the CMRL Pay-Off Case, MLA Mathew Kuzhalnadan yesterday argued that the Special Judge (Vigilance) went into a mini-trial to exonerate the Chief Minister Pinarayi Vijayan of all the allegations at the stage of taking cognizance of the complaint, without even examining him.
Justice K Babu was hearing the review petition filed by MLA Mathew challenging the decision of Special Judge (Vigilance) dismissing his complaint against the Chief Minister Pinarayi Vijayan and his daughter Veena Thaikandiyil. The petitioner argued that CMRL gave payments of Rs. 1.72 Crore to Veena's Exalogic Solutions to get favourable decisions from the Chief Minister.
