Kerala High Court Weekly Round-Up: November 28 To December 4, 2022
Athira Prasad
5 Dec 2022 9:37 AM IST
Nominal Index [Citation 2022 LiveLaw (Ker) 618-631]Muhammed Shanavas v. Radhakrishnan & Ors. 2022 LiveLaw (Ker) 618Hussain v. State of Kerala and another 2022 LiveLaw (Ker) 619Memana Baby v. State of Kerala 2022 LiveLaw (Ker) 620State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor 2022 LiveLaw (Ker) 621Nandakumar T.P v. Central Bureau of Investigation and...
Nominal Index [Citation 2022 LiveLaw (Ker) 618-631]
Muhammed Shanavas v. Radhakrishnan & Ors. 2022 LiveLaw (Ker) 618
Hussain v. State of Kerala and another 2022 LiveLaw (Ker) 619
Memana Baby v. State of Kerala 2022 LiveLaw (Ker) 620
State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor 2022 LiveLaw (Ker) 621
Nandakumar T.P v. Central Bureau of Investigation and Sanal Kumar v. State 2022 LiveLaw(Ker) 622
Sindhu and anr. v. State of Kerala 2022 LiveLaw(Ker) 623
Adv. P.V. Jeevesh v. Union of India & Ors. 2022 LiveLaw (Ker) 624
Ratheesh P.K. & Anr v. Cochin International Airport Ltd & Ors. 2022 LiveLaw (Ker) 625
Kerala Private Hospitals Association v. Advocate Sabu P. Joseph 2022 LiveLaw (Ker) 626
Wilson C.C. v. State of Kerala 2022 LiveLaw (Ker) 627
Anti-Corruption Peoples Movement and Ors. v. State of Kerala and Ors and Connected Cases 2022 LiveLaw(Ker) 628
Rahul P.U. v. The Geologist and Other Connected Cases 2022 LiveLaw (Ker) 629
State Of Kerala v. Eldhose Kunnapilly and XXXXX v. State of Kerala & Ors. 2022 LiveLaw (Ker) 630
M/s Crescent Construction Versus Deputy Commissioner of State Tax 2022 LiveLaw (Ker) 631
Orders/Judgments This Week
Case Title: Muhammed Shanavas v. Radhakrishnan & Ors.
Citation: 2022 LiveLaw (Ker) 618
The Kerala High Court recently said that a solitary instance of absence of a counsel or party on the day the case is listed cannot be a ground for the application being dismissed for default.
The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said:
"The courts are created to adjudicate substantial interest of the parties rather than to dispose the cases in a numerical quantity. The court should be very sensitive in dealing with the cases of litigants, especially, many of the cases are remained non represented due to laches or negligence on the part of the counsel".
Case Title: Hussain v. State of Kerala and another
Citation: 2022 LiveLaw (Ker) 619
The Kerala High Court has observed that the Court may permit the prosecution to tender such evidence which appears to be essential to decide the case in a just manner, even after the commencement of the trial.
Justice A. Badharudeen observed that:
It is true that the prosecution is duty bound to place all the evidence to be tendered along with the final report and copies thereof shall be furnished to the accused, as mandated under Section 208 Cr.P.C, in a Sessions trial.
Case Title: Memana Baby v. State of Kerala
Citation: 2022 LiveLaw (Ker) 620
The Kerala High Court recently held that in order to constitute an offence under Section 306 of the IPC the prosecution must establish firstly that a suicide has been committed, and secondly that the person who is said to have abetted the commission of suicide, has played an active role in the same with such a mens rea.
The Single Judge Bench of Justice P.G. Ajithkumar observed that even if circumstantial evidence is being relied upon to prove the same in the absence of direct evidence, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. The bench reiterated the settled position of law that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused.
Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor
Citation: 2022 LiveLaw (Ker) 621
The Kerala High Court on Tuesday dismissed the petition filed by the State Government against the order of the Chancellor appointing Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.
Justice Devan Ramachandran observed that there was no doubt that Thomas was fully qualified going by the UGC Regulations, since it permits experience in both teaching and research, and since she was working as the Senior Joint Director in Directorate of Technical Education, the choice was justified.
Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor
Citation: 2022 LiveLaw (Ker) 621
The Kerala High Court on Tuesday reminded that Constitutional functionaries such as the State Government and the Governor ought not to contest litigations with the view to obtain a win, but to ensure that the law is complied with and that the Constitutional imperatives are supported and achieved, and in any case, the students are not made to suffer as a result of the same.
The Court made the above observation while dismissing the petition filed by the State Government challenging the order of the Chancellor appointing Ciza Thomas (3rd respondent herein) as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University, and holding her to be fully qualified in occupying the said position.
Case Title: Nandakumar T.P v. Central Bureau of Investigation and Sanal Kumar v. State
Citation: 2022 LiveLaw(Ker) 622
The Kerala High Court on Wednesday directed the Director of Central Bureau of Investigation to take up the investigation into the death of Malabar Cements whistleblower V. Saseendran and his two minor sons with due seriousness and to constitute a new investigating team under the supervision of a senior and competent officer.
Justice P. Somarajan pulled up the investigating agency for filing the supplementary report by way of an eye wash without addressing the relevant issues involved in the crime.
Sharon Murder Case : Kerala High Court Dismisses Bail Application Of Greeshma's Mother
Case Title: Sindhu and anr. v. State of Kerala
Citation: 2022 LiveLaw(Ker) 623
The Kerala High Court, on Wednesday, dismissed the petition seeking Bail moved by Greeshma's mother Sindhu, who is one of the accused booked for the murder of Sharon Raj.
Justice Viju Abraham observed that:
The investigation is only in the initial stage, and the petitioners were arrested only on 01.11.2022...Further, role if any of the petitioners, who are the mother and uncle of the 1st accused, could be revealed only in the course of the investigation. The learned public prosecutor raised apprehensions that if the petitioners are released on bail at this stage, there is every chance for them to destroy the evidence and also to influence the witnesses. Considering the seriousness of the allegation and taking into consideration the fact that the investigation is only in the initial stage, I am not inclined to grant bail to the petitioners at this stage.
Case Title: Adv. P.V. Jeevesh v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 624
The Kerala High Court on Wednesday dismissed the plea filed by a lawyer challenging the action of the Governor of Kerala withholding bills passed by the State legislature indefinitely, and without adopting any of the courses envisaged under Article 200 of the Constitution.
The Court obseved that it cannot Court cannot fix a time limit for the Governor to give assent to bills.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, passed the above order.
Case Title: Ratheesh P.K. & Anr v. Cochin International Airport Ltd & Ors.
Citation: 2022 LiveLaw (Ker) 625
The Kerala High Court recently held that auto rickshaw drivers cannot claim any fundamental right to ply their vehicles within the premises of the Cochin International Airport Ltd (CIAL), without specific permissions.
The Single Judge Bench of Justice Anu Sivaraman observed that,
"Any right of the petitioners to ply their vehicles or to exercise their right of occupation is obviously not an absolute right to enter into any premises regardless of any restrictions whatsoever. All such rights, can, obviously be exercised only subject to such reasonable restrictions".
Case Title: Kerala Private Hospitals Association v. Advocate Sabu P. Joseph
Citation: 2022 LiveLaw (Ker) 626
The Kerala High Court on Thursday directed the Police to register the FIR and take cognizance of the offence of attack against the doctors and other healthcare professionals within an hour of receiving the information.
The court issued the direction after taking into consideration the increasing instances of attacks against doctors and healthcare Professionals.
The Division bench of Justice Devan Ramachandran and Justice Kauser Edappagath while Suo Motu impleading the State Police Chief in a case, in the order said:
"...as a first step, in addition to the earlier directions, we are of the firm view that every incident of attack on a Doctor or a Healthcare Professional, including any other staff of the Hospital - be that Security or other - will have to be taken cognizance of by the Station House Officer of the concerned Police Station not later than one hour from the time on which it is reported to him.
Case Title: Wilson C.C. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 627
The Kerala High Court Monday considered the legal question that whether in a case of recovery of contraband on driver's body search, it would be fair to hold that the vehicle also had been used for the purpose of conveying the contraband.
Justice A. Badharudeen said when contraband is recovered on search of a person, who is driving the vehicle alone, after compliance of Section 50 of NDPS Act, it would not be safe to hold that vehicle also was used for transporting the drug so as to make the vehicle a subject matter of confiscation.
Case Title: Anti-Corruption Peoples Movement and Ors. v. State of Kerala and Ors and Connected Cases
Citation: 2022 LiveLaw(Ker) 628
The Kerala High Court on Thursday dismissed a batch of PILs challenging the validity of the appointment of personal staff to the office of the Chief Minister, Ministers, leader of the opposition, and the Chief Whip by the Special Rules of 1959.
Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed:
to attain good governance and good practices in civil, cultural, economic, political, justice, social right, accountability, etc., the Government in power has to modulate its activities and discharge its functions, taking into account its political theories, election manifesto, and perceptions. For that, it must have a good and loyal team to its satisfaction producing results that meet the needs of the community at large, and to provide timely instructions and guidance from the political and social angle... In that view of the matter, we are of the undoubted and considered opinion that the petitioners have not made out a case of arbitrariness or unfairness, so as to secure the reliefs as are sought in the writ petitions.
Case Title: Rahul P.U. v. The Geologist and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 629
The Kerala High Court on Wednesday held that non-constitution of Special Courts under Section 30B of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) cannot affect seizure and confiscation proceedings under the Act.
Justice N. Nagaresh, in this regard, relied upon the decision in Pradeep S. Wodeyar v. State of Karnataka which held that the Special Court does not have, in the absence of a specific provision in the MMDR Act, the power to take cognizance of an offence under the Act without the case being committed to it by the Magistrate under Section 209 CrPC.
Kerala High Court Upholds MLA Eldhose Kunnappilly's Anticipatory Bail In Rape Case
Case Title: State Of Kerala v. Eldhose Kunnapilly and XXXXX v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 630
The Kerala High Court on Friday dismissed the petitions seeking cancellation of Congress MLA Eldhose Kunnappilly's anticipatory bail in the case accusing him of rape and attempt to murder of a woman.
Justice Kauser Edappagath observed that:
The cancellation of bail is directly linked with the personal liberty which is one of the cherished constitutional freedoms guaranteed under Article 21 of the Constitution of India and hence it must not be lightly resorted to.
Wrong VAT Rate Can Be Rectified: Kerala High Court
Case Title: M/s Crescent Construction Versus Deputy Commissioner of State Tax
Citation: 2022 LiveLaw (Ker) 631
The Kerala High Court has held that the mistake of applying the wrong value-added tax (VAT) rate can be rectified.
The single bench of Justice Gopinath P. has observed that, as per Section 66 of the KVAT Act, once it is brought to the notice of the officer that there is a mistake in applying the correct rate of tax, it is within the power conferred on the officer to rectify the mistake.
Other Significant Developments This Week
Kerala High Court Seeks Action Taken Report Following Violent Protests Against Adani Vizhinjam Port
Case Title: M/S Adani Vizhinjam Ports Pvt Ltd & Ors v. Dr. V.P. Joy IAS & Ors.
The Kerala High Court on Monday enquired as to what steps have been taken by the State in light of violent protests at Vizhinjam, where fishermen have been protesting against construction of an International Seaport by the Adani Group.
Justice Anu Sivaraman directed that all appropriate steps ought to be taken in light of the developments over the course of the last two days, and that the same must to be informed to the Court by Friday.
Questioning the curfew in the girls hostel in the Government Medical College, the Kerala High Court on Tuesday asked the competent authorities to provide the rationale as to why restrictions have been imposed on students from even walking in the campus after 9.30 PM. The Court observed that there could be justification for the same only if compelling reasons could be shown.
The Court in the instant case was considering a plea moved by certain girl students of Government Medical College Kozhikode against the impugned notification issued by the Higher Education Department barring female students from going out of the Hostel after 9.30 PM.
Case Title: Mohammed Nazar M.P. & Ors. v. Union Territory of Lakshadweep & Ors.
The Kerala High Court on Monday issued show-cause notice to former Sub Judge/Chief Judicial Magistrate at Amini island in Lakshadweep, asking him to explain why disciplinary proceedings should not be recommended against him for allegedly manipulating evidence of a witness in a 2015 case.
Justice P.V. Kunhikrishnan observed,
"The main allegation against him is that, he manipulated the evidence of a witness. It is fundamental in criminal law that if a witness is examined before the Court, the deposition should be read over to the witness and he should sign the deposition then and there. The explanation of the Magistrate shows that PW7, the Investigating Officer in this case, after giving evidence, left the court premises without signing the deposition. Even if this is accepted, I am of the prima facie opinion that this is a clear case of dereliction of duty. If PW7 has committed that mistake, he is also responsible".
Case Title: M. Sarath Mohan and others v. State of Kerala and others and Manilal K N v. State of Kerala
The Kerala High Court on Friday granted interim protection from arrest to the three officials of Amrita Institute of Medical Sciences & Research Centre till December 5 in the TRS MLA poaching case.
The petitioners filed an anticipatory bail application in the court as they are apprehending arrest in relation to the ongoing investigation into the whereabouts of Dr Jaggu Kottilil, who is a doctor at the hospital.
Justice K. Babu took note of the fact that the petitioners have not been arrayed as accused in the case being probed by the SIT of Telangana Police.
"The Petitioners shall not be arrested till 5.12.2022," the court said.
Case Title: M/S Adani Vizhinjam Ports Pvt Ltd & Ors v. Dr. V.P. Joy IAS & Ors. and other connected cases
In light of the ongoing protests at Vizhinjam that took a violent turn last Sunday, the Kerala High Court has asked the Additional Solicitor General for India to get instructions regarding deployment of Central forces to maintain security in the port area.
Justice Anu Sivaraman directed both the State Government and the Central Government to discuss the matter and inform the Court regarding the steps taken.
In relation to the copyright dispute regarding "Varaharoopam" song in the Kannada superhit movie "Kantara", the Kerala High Court on Friday clarified that its order staying the Kozhikode District Court's order, which returned the plaint filed by music band Thaikkudam bridge against the film's maker, will not result in the revival of the earlier interim order passed by the District Court against the use of the song in the movie.
The fact that a stay has been ordered on the District Court's order which returned the plaint will not mean that all the previous orders passed in the said suit have been revived by the High Court, said a bench of Justice P Somarajan.
The High Court passed this clarification today after an urgent mention of the matter was made by the counsel of Hombale Films Advocate Santhosh Mathew, who was appearing on caveat.
Case Title: M/S Ansu Enterprises Pvt. Ltd. v. The Registrar, DRT-I Ernakulam & Ors
The Kerala High Court on Friday stayed the operation of notification issued by the Ministry of Finance, dated October 4, 2022, to the extent it transfers/confers jurisdiction of all applications involving a debt amount of Rs.100 Crores and above falling within the jurisdiction of Debts Recovery Tribunal-I and Debts Recovery Tribunal-II, Ernakulam with the Debts Recovery Tribunal-I, Chennai.
The Court clarified that the stay order shall operate until disposal of the petition.
In A First, Kerala High Court Live Streams Hearing On Youtube
The Kerala High Court on Saturday live-streamed its proceedings on YouTube, for the very first time.
The court held a special sitting on Saturday to hear a batch of petitions which challenged the Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi of Sabarimala.
The matter was heard by the division bench comprising Justice Anil K. Narendran and Justice Ajith Kumar. The Court has adjourned the same to December 17, 2022, for further hearing.
Case Title: Vishnunarayanan v. The Secretary and Connected Cases
The Kerala High Court on Saturday, in a special sitting, heard a batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi(chief priest) of Sabarimala-Malikappuram temples.
A Division Bench consisting of Justice Anil K. Narendran and Justice Ajith Kumar heard the petitions which challenge the notification on the ground that it is violative of the fundamental rights guaranteed under Articles 14, 15 (1) and 16(2) of the Constitution of India.
