Kerala High Court Weekly Round Up: July 25 To July 30, 2022

Nominal Index [Citations 2022 LiveLaw (Ker) 375 - 390]

NTPC v. Aishwarya Mohan, 2022 LiveLaw (Ker) 375

Nimal James & Ors v. State of Kerala & Ors, 2022 LiveLaw (Ker) 376

R. Karthik v. State of Kerala & Ors, 2022 LiveLaw (Ker) 377

KSRTC & Ors. v. K. Venu Kumar, 2022 LiveLaw (Ker) 378

XXXX v. State of Kerala and others, 2022 LiveLaw (Ker) 379

MES Dental College v. Shahana P.S & Ors, 2022 LiveLaw (Ker) 380

Gulam Rasul v. State of Kerala & Ors, 2022 LiveLaw (Ker) 381

Sooraj V. Sukumar v. State of Kerala & Ors, 2022 LiveLaw (Ker) 382

XXX v. State of Kerala, 2022 LiveLaw (Ker) 383

Shan S & Anr. v. Marriage Officer, 2022 LiveLaw (Ker) 384

Smitha M.G v. State of Kerala and Ors, 2022 LiveLaw (Ker) 385

Muhammed Rafi v. Satheesh Kumar M.V, 2022 LiveLaw (Ker) 386

XXX v. State of Kerala, 2022 LiveLaw (Ker) 387

Anamika v. State of Kerala and Others, 2022 LiveLaw(Ker) 388

Bilal S & Anr v. Passport Officer & Anr, 2022 LiveLaw (Ker) 389

Alex G. Muricken v. Murickens Marketing System LLP & Anr, 2022 LiveLaw (Ker) 390

Judgments/Orders This Week

CLAT-PG Test Ranking Can Be Used To Select NTPC Law Officers: Kerala High Court

Case Title: NTPC v. Aishwarya Mohan

Citation: 2022 LiveLaw (Ker) 375

The Kerala High Court on Monday held that the condition mandating applicants to clear CLAT for applying to the post of Assistant Law Officer in National Thermal Power Corporation Limited (NTPC) is lawful. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P. thereby allowed the appeal preferred by NTPC against the decision of a Single Judge which held that such a condition was violative of Article 16 of the Constitution of India. Accordingly, the Single Judge decision has been set aside.

How Will You Protect BPL Students In Self-Financing Colleges Now That Scholarship Has Been Withdrawn? Kerala High Court Asks State

Case Title: Nimal James & Ors v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 376

The Kerala High Court directed the State government to clarify how a student belonging to the Below Poverty Line category can be asked to pay tuition fees at a self-financing college, even if it was a subsidised rate. Justice Devan Ramachandran also asked the State to respond to how such students can be protected now that they have been stripped of the scholarship scheme that was previously available to them.

Person Born In A Particular Community Can't Be Denied Certificate Sans Enquiry Merely Because His Mother/ Wife Belong To Another Community: Kerala HC

Case Title: R. Karthik v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 377

The Kerala High Court on Tuesday held that a person born in a particular community cannot be denied community certificate merely for the reason of change in his residence or because his mother and wife belong to another community. Justice VG Arun opined that to determine the community status of a person, enquiry must be conducted about the caste to which the applicant is born and how he was brought up and the mere fact that he changed residence or married a belonging to another caste, are not determining factors.

Parties Should Be Heard Before Initiating Recovery From Pension Even If Statute Does Not Require So: Kerala High Court

Case Title: KSRTC & Ors. v. K. Venu Kumar and connected matters

Citation: 2022 LiveLaw (Ker) 378

The Kerala High Court ruled that parties should be offered a hearing before a recovery proceeding as per principles of natural justice, even if a statute does not provide for the same since such proceedings can have civil and pecuniary consequences. A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice C.S. Dias thereby dismissed the argument of Kerala State Road Transport Corporation (KSRTC) that before the Corporation finds that excess payments are made, the employees need not be heard as there is no statutory provision mandating the same.

POCSO Act | Courts Must Be Sensitive To Victim's Plight But Should Not Accept Allegations As Gospel Truth In Every Case: Kerala High Court

Case Title: XXXX v. State of Kerala and others

Citation: 2022 LiveLaw (Ker) 379

The Kerala High Court while allowing a pre-arrest bail application, observed that in matters of alleged sexual offences, especially against minor victims, the courts must be sensitive to the plight of the victims; however, that does not mean that the allegations ought to be accepted as the gospel truth in every case. Justice Bechu Kurian Thomas cautioned the courts about false allegations to achieve ulterior objectives and observed that tutoring a witness by the parents even while considering an application for bail cannot be ignored.

KEAM Candidate Entitled To Accept Higher Options Until Centralized Admission Process Is Complete: Kerala High Court Asks College To Refund Fee

Case Title: MES Dental College v. Shahana P.S & Ors.

Citation: 2022 LiveLaw (Ker) 380

The Kerala High Court on Monday held that as long as the centralized admission process was not complete, a candidate who attempted the Kerala Engineering, Architecture, Medical and Allied Courses (KEAM) exam is not only entitled but also bound to accept the higher options in the stream. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly thereby directed MES Dental College to refund the amount of Rs. 5,00,000/- remitted by the petitioner towards liquidated damages as per the KEAM Prospectus.

Police Officers Entitled To Use Necessary Force To Arrest Fleeing Accused: Kerala High Court

Case Title: Gulam Rasul v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 381

The Kerala High Court on Tuesday ruled that police officers are entitled to use necessary force to arrest an accused while discharging their official duty, particularly when they are pursuing a fleeing accused. Justice Bechu Kurian Thomas also added that while using such force, if any injury is caused to the accused, it does not mean that the officer was not acting in discharge of his duty.

SC-ST Act | Victim's Presence When Insulting Remarks Are Made Includes "Online Presence": Kerala HC Denies Pre-Arrest Bail To YouTuber

Case Title: Sooraj V. Sukumar v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 382

The Kerala High Court denied pre-arrest bail to a YouTuber who allegedly insulted a woman belonging to a Scheduled Tribe through an interview published on social media on the ground that a prima facie case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was made out against him. In a notable observation, Justice Bechu Kurian Thomas ruled that the digital presence of the victim through the internet is sufficient to qualify as 'public view' as contemplated under Section 3 of the Act.

Accused Can Confront Witness With A Document Bearing Contradictory Statements During Cross-Examination: Kerala High Court

Case Title: XXX v. State of Kerala

Citation: 2022 LiveLaw (Ker) 383

The Kerala High Court on Wednesday held that an accused has every right to confront a witness with a document during the cross-examination of such witness before the court, especially if such document is a previous statement given by the same witness. Justice Kauser Edappagath added that it was not necessary to produce the document in advance before the court and that such a mandate would deprive the element of surprise involved in the same.

Indian Diplomats In Non-Apostille Countries Empowered To Administer Oath, Take Affidavits & Notarise: Kerala High Court

Case Title: Shan S & Anr. v. Marriage Officer

Citation: 2022 LiveLaw (Ker) 384

The Kerala High Court recently ruled that Indian diplomatic officers in non-Apostille countries are empowered to administer oath, take affidavits and do notarial acts as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act. Justice V.G. Arun added that such oath, affidavit and notarial act administered, sworn or done by or before any such diplomatic officer shall be effectual as if duly administered, sworn or done by or before any lawful authority in the State.

Art 226 | Writ Court Not Refrained From Granting Relief To Which Party Is Entitled Merely Because That Specific Relief Is Not Sought: Kerala HC

Case Title: Smitha M.G v. State of Kerala and Ors.

Citation: 2022 LiveLaw (Ker) 385

The Kerala High Court on Wednesday, while allowing a writ appeal, observed that the Court exercising power under Article 226 of the Constitution could not refrain from granting a relief to which a party is entitled, merely for the reason that a specific relief had not been sought in petition. A Division Bench consisting of Justice P.B. Suresh Kumar and Justice C. S. Sudha observed, "Merely for the reason that a specific relief has not been sought in the writ petition, it is not an impediment for the court exercising power under Article 226 of the Constitution to grant a relief which a party is entitled to."

Power To Arrest Can't Be Used As A Punitive Tool Unmindful Of Safeguards Mandated U/S 41 CrPC: Kerala High Court

Case Title: Muhammed Rafi v. Satheesh Kumar M.V

Citation: 2022 LiveLaw (Ker) 386

The Kerala High Court on Wednesday ruled that the State and the police cannot use their power to arrest an individual as a punitive tool or a means to mete out harassment and that they have the duty to observe the safeguards provided under Section 41 of the Code of Criminal Procedure (CrPC). A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P ordered so in a petition alleging arrest against the principles laid down by the Supreme Court in Arnesh Kumar v State of Bihar.

Kerala High Court Grants Bail To Tuition Teacher Accused Of Sexually Assaulting Minor Boy For 8 Years

Case Title: XXX v. State of Kerala

Citation: 2022 LiveLaw (Ker) 387

The Kerala High Court on Wednesday released on bail a man accused of sexually assaulting his student over a span of eight years, finding that he had been in judicial custody for over a month. Justice Bechu Kurian Thomas observed that although prima facie there was evidence showing that the petitioner was involved in the crime, his continued incarceration was not necessary for the case.

Transgender Persons Entitled To Participate In Sporting Events In Gender Of Their Choice In Absence Of Separate Category: Kerala High Court

Case Title: Anamika v. State of Kerala and Others.

Citation: 2022 LiveLaw(Ker) 388

The Kerala High Court, on Friday, while passing an interim order in a Writ Petition, observed that in sporting events, in the absence of a separate category for transgender persons, they must be permitted to participate in their chosen category. Justice V G Arun, observed that transgender persons are having equal rights to participate in competitions, and in the absence of a separate category, they should be permitted to participate in their chosen category.

Kerala High Court Directs Registry To Not Accept 'Statements' Filed By Lawyers As Reply To Writ Petitions; Says Counter-Affidavits Should Be Filed

Case Title: Bilal S & Anr v. Passport Officer & Anr.

Citation: 2022 LiveLaw (Ker) 389

The Kerala High Court on Wednesday passed an interim order dissuading lawyers from filing statements on instruction under the guise of reply or counter affidavit to a petition unless it is an affidavit duly verified by the authorised officer. While ruling that the practice of filing statements by a lawyer is not provided under the High Court Rules and Regulations, Justice Amit Rawal also cautioned the Registry of disciplinary action if any of its staff were found accepting such statements from lawyers.

Cases Valued Below ₹10 Lakhs Pending Before Commercial Courts Need Not Be Transferred Despite Increase In Pecuniary Limit: Kerala High Court

Case Title: Alex G. Muricken v. Murickens Marketing System LLP & Anr.

Citation: 2022 LiveLaw (Ker) 390

The Kerala High Court on Tuesday held that cases pending before commercial courts in the State as on 18.03.2022 which have a pecuniary value less than Rs.10 lakh shall continue before the commercial courts. Justice A. Badharudeen observed that a transfer of such pending cases was not necessary since the Government Order increasing the pecuniary limit of commercial courts did not communicate the need for the same.

Other Significant Developments

How Can A Statement Recorded U/S 164 CrPC Be Defamatory? Kerala High Court Reserves Order In Saritha's Plea

Case Title: Saritha S. Nair v. Union of India & Anr.

The Kerala High Court on Monday reserved its verdict on the plea moved by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, an accused in the diplomatic gold smuggling case. Justice Kauser Edappagath, while hearing the submissions made by the petitioner's counsel that defamatory statements about the petitioner have been made in the S.164 Statement, raised the question as to how the petitioner would know imputations against her had been made in the S.164 statement without reading it.

No Approval Granted For K-Rail, All Steps Towards Land Acquisition Premature: Railway Board Informs Kerala High Court

Case Title: Muralikrishnan v. State of Kerala & connected matters

In a statement filed on Monday, the Railway Board has informed the Kerala High Court that all steps taken in pursuance of land acquisition for K-Rail Silverline are premature since no approval has been granted for the project so far. Through the statement moved the ASG S. Manu, the Railway Board reiterated that it has neither approved nor concurred with the SIA and that the survey conducted by the State Government was under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition Act.

Plea In Kerala High Court Seeks To Disqualify Saji Cherian From MLA Post Over His Remarks On The Constitution

Case Title: Biju P. Cheruman v. Election Commission of India & Ors.

A petition has been moved in the Kerala High Court seeking a direction to declare that CPI(M) legislator and former minister Saji Cherian is not entitled to hold the office of MLA after his remarks allegedly insulting the Constitution sparked a controversy across the State. When the matter was taken up on Tuesday, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly took a prima facie view that Article 173 of the Constitution, which deals with qualification for being an MLA, may not be applicable here.

K-Rail | SIA Being Done Only Through Geo-Tagging, No Large Survey Stones Used: State Undertakes Before Kerala High Court

Case Title: Muralikrishnan v. State of Kerala & connected matters

The State Government on Tuesday assured the Kerala High Court that any activity related to the ongoing SIA conducted in furtherance of its K-Rail project is being done only through the Geo-tagging facility and that no large survey stones are being used for demarcation. Justice Devan Ramachandran while recording this undertaking clarified that this does not mean that the Court has neither permitted nor stopped the SIA in any manner.

NEET-UG | Female Candidates Asked To Remove Innerwear: PIL Before Kerala High Court Seeks Retest, Compensation

Case Title: Asif Azad v. Union of India & Ors.

A Public Interest Litigation filed in the Kerala High Court has sought compensation to the female candidates who were recently forced to remove their innerwear before appearing for the National Eligibility-cum-Entrance Test (NEET) in Kollam. While the plea primarily seeks a direction to the Centre to publish a common protocol to conduct examinations in India, the petitioner has also sought a direction to the National Testing Agency (NTA) to re-conduct the exam within two weeks.

Evidence Tampering Case | Kerala High Court Seeks Status Report On Ongoing Trial Against Minister Antony Raju

Case Title: George Vattukulam v. State of Kerala

The Kerala High Court on Friday called for the status report in the evidence tampering case involving Transport Minister Antony Raju regarding the progress of the trial before the Judicial First Class Magistrate Court, Nedumangad. Justice Ziyad Rahman A.A was adjudicating upon a petition seeking expedited trial in the case where the Transport Minister has been accused of tampering with evidence while he was practising as a lawyer.

Another Obstacle For Prithviraj-Starrer 'Kaduva' As Plea Before Kerala High Court Contests Its OTT Release

Case Title: Jose Kuruvinakkunnel v. Union of India & Ors

Prithviraj-starrer Malayalam movie 'Kaduva' faces yet another challenge as a new petition before Kerala High Court alleges that the movie was released in theatres violating court orders. The plea has thereby sought to block the OTT release of the film. Justice V.G Arun on Tuesday admitted the plea and issued notice to the respondents. Meanwhile, reports suggest that the OTT release of the action entertainment has been scheduled for August 4.

Drains Left Uncovered, Grates Missing: Kerala High Court Seeks Response From Kochi Corporation, CSML

Case Title: Pauly Vadakkan v. Corporation of Cochin

The Kerala High Court on Friday directed the Cochin Corporation and Cochin Smart Mission Limited (CSML) to file a report on the missing grating covering the drains on the roads in the city. The matter came to the notice of the Court from a newspaper report in the 'Malayala Manorama' that the gratings were missing on certain roads in Kochi, covering the holes to draw water into the drains, and this is likely to injure pedestrians and motorists, particularly two-wheelers.