Kerala High Court Weekly Round-Up: November 6 - November 12, 2023

Nominal Index [Citations: 2023 LiveLaw (Ker) 629-648]

Roli Pathak v Union of India 2023 LiveLaw (Ker) 629

Shibu J v State of Kerala 2023 LiveLaw (Ker) 630

Mathrubhumi Printing & Publishing Co. Ltd v State of Kerala 2023 LiveLaw (Ker) 631

XXX & Anr. v. Union of India & Ors. 2023 LiveLaw (Ker) 632

Shoma G. Madan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 633

Deepak K. v The Kerala State Election Commission & connected case 2023 LiveLaw (Ker) 634

Pattakka Suresh Babu v. State of Kerala 2023 LiveLaw (Ker) 635

State of Kerala & Ors. v. Binoj K.B. & Ors. 2023 LiveLaw (Ker) 636

Sunil Kumar @ Rakkan v State of Kerala and connected matter 2023 LiveLaw (Ker) 637

Vishnu v State of Kerala 2023 LiveLaw (Ker) 638

Lilly Krishnan v State of Kerala 2023 LiveLaw (Ker) 639

Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 640

Shijo Das v. State of Kerala 2023 LiveLaw (Ker) 641

Sreeja @Sini v State of Kerala 2023 LiveLaw (Ker) 642

Raveendranath v. State of Kerala 2023 LiveLaw (Ker) 643

Judgments/Orders 

Indian Olympic Association Should Have Resolved Internal Rift Of Volleyball Federation, Not Cancelled National Championship: Kerala High Court

Case Title: Roli Pathak v Union of India

Citation: 2023 LiveLaw (Ker) 629

The Kerala High Court has expressed empathy towards the volleyball players who could not participate in the National Games, 2023 due to internal rifts in the administration of the Volleyball Federation of India (VFI). The Adhoc Committee of VFI decided to cancel the Volleyball championship in the 37th National Games of India, 2023 due to the internecine disputes within the Federation.

Prior to the formation of the VFI, the game was controlled by the Indian Olympic Association (IOA). IOA is the governing body, responsible for regulating the National Games.

Justice Devan Ramachandran observed that the IOA should have resolved the disputes within the Federation rather than cancelling the Volleyball Championship in the National Games.

“In the afore scenario, this Court can do nothing more than to hold empathy for the situation of the petitioners; but before parting, it is necessary to say that, in the interest of the game, the Indian Olympic Association ought to have resolved the disputes within the ‘Federation’, keeping in mind the schedule of National Games and without disturbing it; but alas, this has not been done, but they appear to have chosen the easier path of cancelling the competition in Volleyball itself.”

[NDPS Act] Seizure Mahazar Sent To Court Becomes A Public Document, Accused Entitled To Certified Copy: Kerala High Court

Case Title: Shibu J v State of Kerala

Citation: 2023 LiveLaw (Ker) 630

The Kerala High Court held that seizure mahazar, once prepared and sent to the Court by police or other officers becomes a public document. It noted that a certified copy of seizure mahazar cannot be denied to the accused as he might need it to mould and understand his case at the stage of bail application itself.

Justice P.V.Kunhikrishnan observed thus:

“I am of the considered opinion that, once the seizure mahazar is prepared and sent to the court, it is a public document. There is no bar in issuing a certified copy of the seizure mahazar to an accused especially because the same is necessary for him to mould his case at the stage of filing the bail application also.”

[Kerala Building Tax Act 1975] Remaining Area Used For Ancillary Purposes Of Factory Also Exempted From Payment Of Building Tax: High Court

Case Title: Mathrubhumi Printing & Publishing Co. Ltd v State of Kerala

Citation: 2023 LiveLaw (Ker) 631

The Kerala High Court recently considered whether some ‘area’ used in relation to a factory can be given exemption from payment of the building tax under Section 3(1)(b) of the Kerala Building Tax Act 1975. Section 3 (1)(b) provides that buildings principally used for religious, charitable or educational purposes or as factory or workshop can be exempted from building tax.

Justice Dinesh Kumar Singh observed that the term ‘principally’ under Section 3(1)(b) means ‘predominantly’ and held if the building was predominantly used as a factory, then remaining area used for ancillary purposes of the factory would also be exempted from payment of building tax.

“The authority has to assign the correct meaning to the word ‘principally’. In my view, ‘principally’ means predominantly. If the predominant purpose is running the factory, the area in which ancillary purposes related to the factory are being carried out is also liable for exemption under Section 3(1)(b) of the Act.”

Kerala High Court Allows Married Couple's Plea To Terminate 32-Week Pregnancy On Grounds Of Foetal Abnormality, Mother's History Of Depression

Case Title: XXX & Anr. v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 632

The Kerala High Court allowed the medical termination of a 32-week pregnancy of a woman.

The parents-to-be had approached the Court seeking termination of pregnancy on the ground that the unborn child was suffering from severe neurological and respiratory abnormalities, as revealed from medical reports, and that even if the pregnancy was allowed to be continued, the child would have serious complications which would not allow it to lead a normal life.

Justice Devan Ramachandran also took note that the expectant mother, who is the 1st petitioner herein, had a history of depression.

"I am of the firm view that taking note of the mental health of the mother, which is vital to a child if it is to be born alive, and respecting her autonomy with respect to her physiological and psychological requirements, I deem it appropriate to allow this writ petition," the Court observed.

No Wrongful Gain Or Loss: Kerala High Court Quashes Proceedings Against Wife For 'Fraudulently' Registering Vehicle In Dead Husband's Name

Case Title: Shoma G. Madan & Anr. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 633

The Kerala High Court laid down that in order to satisfy the definition of 'fraudulently' it would be sufficient to if there was a non-economic advantage to the deceiver or a non-economic loss to the deceived, and that both elements need not co-exist.

The Single Judge Bench of Justice K. Babu clarified that the expression 'defraud' involves two elements, namely, deceit and injury.

Relying upon the decision in Dr. Vimla v. The Delhi Administration (1963), the Court observed:

"Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rarecases where there is a benefit or advantage to the deceiver but no corresponding loss to the deceived, the second condition is satisfied".

Defection A Menace To Democracy, Stringent Financial Penalties Needed Against Defectors : Kerala High Court

Case Title: Deepak K. v The Kerala State Election Commission & connected case

Citation: 2023 LiveLaw (Ker) 634

The Kerala High Court held that defection is a menace to the Indian representative democracy and that the existing laws were ineffective in curbing defection effectively.

Justice Bechu Kurian Thomas noted that despite anti-defection laws, many persons commit acts of defection. Taking into account the nature of orders that can be issued against defectors under the existing laws, Justice Thomas held that stringent financial penalties have to be imposed. It observed that only financial penalties will affect the defectors and deter them from committing acts of defection.

“Once an elected representative is found disqualified due to defection, the burden on the exchequer is immense due to the inevitable bye-elections. However, the person responsible for such nefarious activity is not affected seriously due to the nature of the orders that can be issued under the existing law. Considering the entire scenario, this Court has a wishful thinking that the time has come to contemplate on including stringent financial penalties for acts of defection. Unless a monetary pinch is felt by the defector, the evil acts that are sought to be remedied by the anti-defection law will continue. However, as it is a matter that requires a legislative exercise, this Court fervently hopes that the legislature will bestow its consideration earnestly.”

'Prisoner Has As Much Right To Study As Person Outside Confines Of Jail': Kerala High Court Permits Two Life Convicts To Attend Online LLB Classes

Case Title: Pattakka Suresh Babu v. State of Kerala

Citation: 2023 LiveLaw (Ker) 635

The Kerala High Court has called for the integration of technology in the criminal justice dispensation system in order to permit two life convicts to attend LL.B. classes in the online mode for the academic year 2023-24.

The Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath, emphasized upon the importance of education in reforming and rehabilitating prisoners.

"...a convict is entitled to basic human rights and has the right to live with dignity in jail. The prisoners’ right to education is a human right grounded in the right to dignity. A prisoner has as much a right to pursue study as a person free from the confines of jail. The aims of imprisonment include reformation and rehabilitation apart from deterrence. Education can contribute to a sense among prisoners that they remain a part of the wider community. Prison education can provide a source of hope and aspiration whilst making purposeful use of time in detention. It also helps them lead better lives once they are free. Thus, ensuring that prisoners have access to education is essential to achieving the reformative and rehabilitative objectives of imprisonment as well," the Bench observed.

Kerala High Court Sets Aside Order To Raid Religious Places For Seizing Firecrackers But Upholds Restriction On Bursting Them At Odd Hours

Case Title: State of Kerala & Ors. v. Binoj K.B. & Ors.

Citation: 2023 LiveLaw (Ker) 636

The Kerala High Court partially quashed the Order of the Single Judge calling for the conduct of raids in all religious places by District Collectors, and taking into possession firecrackers alleged to be illegally stored therein, with the assistance of the Commissioners of Police.

The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun, however added that the ban imposed by the Single Judge against the bursting of crackers at 'odd times' would be retained.

The Court clarified that firecrackers could be burst between 6AM to 10 PM in accordance with the directions issued by the Apex Court in other cases in this regard, and that the District Administration could take a call on the bursting of crackers during odd hours on a case-to-case basis.

[S.447 IPC] Intention To Commit Any Offence/ Intimidate, Insult Or Annoy Possessor Necessary To Establish Criminal Trespass: Kerala High Court

Case Title: Sunil Kumar @ Rakkan v State of Kerala and connected matter

Citation: 2023 LiveLaw (Ker) 637

The Kerala High Court has made it clear that to establish an offence of criminal trespass under IPC, the prosecution must prove beyond doubt that the accused persons entered into the property to commit criminal trespass with an intention to commit any offence or to cause intimidation, insult or annoyance.

Justice C.S. Dias thus acquitted two persons who were convicted for the commission of the offence of criminal trespass, citing lack of above ingredients.

“...the accused had no intention to commit any offence or intimidate, insult or annoy PW1 when they entered his house. The prosecution has miserably failed to establish beyond doubt that the accused had entered the property with an intention to commit the offence. Therefore, the revision petitioners/accused are entitled to the benefit of doubt.”

There Cannot Be Unilateral Decision From Court While Scheduling Trial, Convenience Of Lawyer Should Also Be Considered: Kerala High Court

Case Title: Vishnu v State of Kerala

Citation: 2023 LiveLaw (Ker) 638

“There cannot be a unilateral decision from the Court alone while scheduling trial”, the Kerala High Court said adding that the convenience of the lawyer should also be taken into consideration by the Court while fixing a date for the trial.

Justice P.V. Kunhikrishnan observed that when lawyers make genuine submissions for rescheduling the trial to another date, the Court should show magnanimity to accept it and schedule the trial as requested by them, after considering the convenience of the court also.

“There cannot be a unilateral decision from the Court alone while scheduling trial. Accused has got a right to choose his lawyer for conducting the trial and hence the convenience of the lawyer also should be taken care of by the Court. But, the submission of the lawyer should be genuine. Whether the submission of a lawyer for getting a date for trial is genuine or not is to be decided by the Court at the stage of scheduling the trial. If the submission of the lawyer of the accused or prosecution is genuine, the Court should be magnanimous to accept it and schedule the trial as requested by them after considering the convenience of the Court also.”

Munsiff-Magistrate Trainee Can't Be Appointed As District Judge By Direct Recruitment From Bar: Kerala High Court

Case Title: Lilly Krishnan v State of Kerala

Citation: 2023 LiveLaw (Ker) 639

Relying on the Supreme Court's landmark decision in Dheeraj Mor v. High Court of Delhi (2020), the Kerala High Court has held that a Munsiff Magistrate Trainee cannot be appointed as a District Judge by direct recruitment in the quota set apart for lawyers.

It has clarified that only a practising advocate who was continuing practise even as on the date of appointment is eligible to be appointed to the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar.

A division bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar thus denied relief to a Munsiff Magistrate Trainee, whose candidature for the post of District Judge was rejected on the ground that she was not a 'practising advocate' on the date of application.

Can't Invoke Article 226 Jurisdiction For Removal Of Dangerous Trees, Approach SDM U/S 133 CrPC: Kerala High Court

Case Title: Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 640

The Kerala High Court recently held that the remedy in case of a tree standing dangerously on any property would be before the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973.

Justice Bechu Kurian Thomas explained that the writ jurisdiction under Article 226 of the Constitution could not be invoked for the said purpose.

“The jurisdiction under Article 226 of the Constitution of India cannot be invoked for the purpose of directing cutting and removal of trees, especially since there is no basic order that has been produced to exercise such a jurisdiction or to allege inaction,” the Court explained.

Abkari Act | Tamper-Proof Despatch Of Sample Must; Lack Of Specimen Seal, Not Examining Persons Handling Samples Fatal: Kerala High Court

Case Title: Shijo Das v. State of Kerala

Citation: 2023 LiveLaw (Ker) 641

The Kerala High Court laid down that the absence of specimen seal in the mahazar and forwarding note, non-mentioning of the name of the Excise Guard in the forwarding note, non-examination of the clerk who despatched the sample or the Excise Guard who took the sample to the lab, and so on are serious laches which would be fatal to the prosecution in a case under the Abkari Act.

"Absence of proper impression of specimen seal in the mahazar and absence of sample seal in the forwarding note etc. are circumstances to doubt the identity of the sample seized and the sample sent for chemical analysis. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused, was the sample which reached the hands of the chemical examiner", Justice Sophy Thomas explained.

Kerala High Court Orders Release Of Woman Detained Under Preventive Detention Law To Take Care Of Her Daughter In Advanced Pregnancy Stage

Case Title: Sreeja @Sini v State of Kerala

Citation: 2023 LiveLaw (Ker) 642

The Kerala High Court has ordered release of a woman detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA Act), considering that her daughter is at an advanced stage of her pregnancy.

The Division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen said normally courts do not interfere in detention orders, but it is not devoid of such power when fundamental rights are involved.

“In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior right available to such person on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified.”

Kerala High Court Acquits NDPS Accused Citing Prosecution's Failure To Produce His Alleged Written Consent For Search In Absence Of Magistrate

Case Title: Raveendranath v. State of Kerala

Citation: 2023 LiveLaw (Ker) 643

The Kerala High Court recently acquitted an accused under the NDPS Act citing prosecution's failure to produce alleged written communication made to him regarding his right to be searched before Magistrate under Section 50 of the Act and his alleged written consent waiving such right.

Justice N. Nagaresh held that failure on the part of the prosecution to produce communication or consent letter obtained in compliance with Section 50 caused prejudice to the accused. The Court added that the evidence of illicit narcotic drugs / psychotropic substances recovered by the police in violation of the safeguards provided under Section 50 of the NDPS Act cannot be relied upon to convict the accused.

“…The prosecution further stated that the appellant had given his consent to dispense with the presence of gazetted Officer / Magistrate during search, that also in writing. If such communications in writing existed, the prosecution ought to have produced the same before the court. The non- production of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified. In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble. In the afore facts of the case, I find that failure of the prosecution to produce Section 50 communication / information before the court has seriously prejudiced the appellant and conviction of the appellant cannot be justified under the circumstances.”

Other Significant Developments This Week