Kerala High Court Weekly Round-Up: October 17 To October 23, 2022
Navya Benny
24 Oct 2022 8:45 AM IST
Nominal Index [Citation 2022 LiveLaw(Ker) 525-536]Suhasini v. State of Kerala & Ors. 2022 LiveLaw(Ker) 525Chorayil Kunhiraman v. Sharaful Islam Madrassa Committee 2022 LiveLaw (Ker) 526G. Nagendran v. Kerala State Electricity Board & Anr. 2022 LiveLaw (Ker) 527Praveen K.R. & Anr v. State of Kerala & Ors. 2022 LiveLaw (Ker) 528Rinu Sreejaya Aswan @ Rinu S Aswan v. Union of...
Nominal Index [Citation 2022 LiveLaw(Ker) 525-536]
Suhasini v. State of Kerala & Ors. 2022 LiveLaw(Ker) 525
Chorayil Kunhiraman v. Sharaful Islam Madrassa Committee 2022 LiveLaw (Ker) 526
G. Nagendran v. Kerala State Electricity Board & Anr. 2022 LiveLaw (Ker) 527
Praveen K.R. & Anr v. State of Kerala & Ors. 2022 LiveLaw (Ker) 528
Rinu Sreejaya Aswan @ Rinu S Aswan v. Union of India & Ors. 2022 LiveLaw (Ker) 529
State of Kerala v. Civic Chandran @ V. Kuttan and XXXXX v. State of Kerala 2022 LiveLaw (Ker) 530
Muhammed Shafi & Ors v. State of Kerala & Ors 2022 LiveLaw (Ker) 531
K. T. Rajendran v. Director General & Ors. 2022 LiveLaw (Ker) 532
Jithin @ Kannan v. State of Kerala & Anr. 2022 LiveLaw (Ker) 533
The Manager, Sree Vivekananda Higher Secondary School v. State of Kerala & Ors and Other Connected Cases 2022 LiveLaw (Ker) 534
Pavithralal B. R. v. Union of India & Ors. 2022 LiveLaw (Ker) 535
M. Shabeer v. Anitha Bajee & Anr. 2022 LiveLaw (Ker) 536
Judgements/Orders This Week
Case Title: Suhasini v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 525
The Kerala High Court recently observed that as per Kerala Prisons and Correctional Service (Management) Rules 2010, there is no absolute bar in granting parole to the convict even if he had previously absconded.
Justice Ziyad Rahman A. A observed, "... the purpose of imprisonment is not confined to creating a deterrent effect alone, but it is intended to reform the prisoner as well. If the petitioner's husband has been keeping a good track record inside the prison for the past 11 years from the date he was brought back after he absconded, it is certainly an indication of reformation. Moreover, the likelihood of getting parole would be an incentive for such a prisoner to maintain his good behaviour in prison and on the other hand, an absolute denial of the same may result in adverse consequences".
Landlords Exempted From Kerala Rent Control Act Free To Waive Such Benefit: High Court
Case Title: Chorayil Kunhiraman v. Sharaful Islam Madrassa Committee
Citation: 2022 LiveLaw (Ker) 526
The Kerala High Court recently held that landlords who are exempted from application of all or any of the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 are free to waive such exemption.
The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha held that the exemption granted under Section 25 of the Act is a 'privilege' which the landlords may waive. It observed: "...a notification under Section 25 has been issued by the Government by which certain building or class of buildings have been taken out of the purview of the Act. Therefore it is a benefit or privilege that has been extended or given to the landlords or owners of such buildings, which they are free to waive".
Electricity Dues Of Previous Consumer Create First Charge On Property: Kerala High Court
Case Title: G. Nagendran v. Kerala State Electricity Board & Anr.
Citation: 2022 LiveLaw (Ker) 527
The Kerala High Court on Friday observed that though the subsequent purchaser of a property is not liable to pay the dues owed to the Electricity Board by a previous owner; however, the dues from the previous consumer would create a first charge on the property in question.
Justice Shaji P. Chaly further clarified that the Electricity Board is entitled to recover the dues by proceeding against the property over which a charge is created, consequent to non-payment of the electricity dues by the previous consumer. "...Even though the subsequent purchaser of a property is not liable to pay the dues of a previous owner, the dues from the previous consumer would create a first charge on the property in question; thereby meaning that the board is entitled to recover the dues proceeding against the property over which a charge is created consequent to non-payment of the electricity dues by the previous consumer".
Case Title: Praveen K.R. & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 528
The Kerala High Court on Monday interpreted the 1st proviso to Rule 13 of the Kerala Public Service Commission Rules of Procedure, and held that the provision does not mean that the validity of rank lists issued by the Kerala Public Service Commission would have to be extended by a further period up to the date that coincides with the expiry of one month after the last batch of persons advised under the extended period commenced their training.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P., observed that holding to the contrary would result in an endless loop. Taking note of the facts of the case, it was observed that this would mean, "... All vacancies reported till (the date on which the last batch of candidates advised pursuant to the vacancies reported commenced their training, and the expiry of period of one month thereafter) would then have to be ascertained and candidates from the rank list advised to the said vacancies. We would then, yet again, have to ascertain the date on which the last batch of those candidates commenced their training and so on. This contention of the petitioners is clearly untenable since, accepting the same would result in a never-ending process of extension of a rank list till all candidates in the list are advised to vacancies that are reported during the period of each extension. This could never have been the intention of the rule makers. We also find that an acceptance of the contention of the petitioners would render meaningless the phrase "within a period of one year from the date of finalisation of the ranked lists" that finds mention in the 1st proviso to Rule 13".
Every Driver Legally Presumed To Know Speed Limit Prescribed By Central Govt: Kerala High Court
Case Title: Rinu Sreejaya Aswan @ Rinu S Aswan v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 529
The Kerala High Court recently held that Central Government notifications prescribing the maximum speed limit are mandatory as per Section 112 of the Motor Vehicles Act, 1988 and every driver is legally presumed to know the same. It added that this obligation is irrespective of whether mandatory traffic signs have been put up by the State indicating the reduced maximum speed limits on various stretches of the roads.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed, "it can be seen that when speed limits are fixed by the Central Government, every driver of the vehicle is duty bound to follow the limit prescribed therein. It may be true that the State Government by virtue of the powers conferred under Section 116 of Act 1988 read with Sub-section (2) of Section 112 is duty bound to fix traffic signs showing the speed limits, but once the maximum speed limit is fixed by the Central Government by notification in the official gazette, the said speed limit is legally presumed to be known to every driver driving vehicles on the road, depending on the nature of the road and the speed limits earmarked for such routes. This in our view, is a mandatory requirement under section 112(1) and the proviso to it, of the Act 1988".
Case Title: State of Kerala v. Civic Chandran @ V. Kuttan and XXXXX v. State of Kerala
Citation: 2022 LiveLaw (Ker) 530
Allowing the state government and victim's petitions challenging the sessions court order, the Kerala High Court on Thursday cancelled author and social activist Civic Chandran's anticipatory bail in a sexual harassment case.
Justice A. Badharudeen observed that prima facie case is made out alleging the commission of offences under the SC/ST Act and Section 354 of IPC. "Having appraised the facts of the case with a view to find whether a prima facie case is made out alleging commission of offences under Section 3(2)(va) and 3(1)(w)(i) of the SC/ST Act, the said case is specifically made out. That apart, a non available offence under Section 354 of IPC also is made out. In such a case, the finding entered into by the Special Judge giving a clean chit to the accused at the investigation stage itself cannot be justified so as to anull the entire prosecution even before completing the investigation".
Case Title: Muhammed Shafi & Ors v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 531
The Kerala High Court on Friday dismissed the plea moved by the three accused persons in the recent human sacrifice sase against the Magistrate Court Order granting police the custody of the accused for 12 days. The Court has however, permitted the accused to meet their lawyer for 15 minutes every alternate days. However, it has been expressly stipulated that the presence of such lawyers would not be permitted during interrogation of the accused in police custody.
Justice Kauser Edappagath, while passing the order observed that, the Court below had passed the impugned order granting police custody with "great care and caution". The Court further found merit with the submissions made by the prosecution that, "the accused persons cannot dictate in what manner investigation has to be carried out".
Case Title: K. T. Rajendran v. Director General & Ors.
Citation: 2022 LiveLaw(Ker) 532
The Kerala High Court recently observed that offences under Sections 354, 506 and 509 IPC may not fall within the ambit of 'sexual offences' for the purpose of cancellation of Airport Entry Permit as included in the provisions of Airport Entry Permit Guidelines, 2019. Section 354 penalizes use of assault or criminal force upon woman with intent to outrage her modesty; Section 506 provides punishment for criminal intimidation; and Section 509 criminalizes use of words, gestures or acts intended to insult the modesty of a woman.
Justice V G Arun found merit in the contention that the term 'sexual offence' is given as a caption to only Section 375 and related offences in the Indian Penal Code, the allegation raised against the petitioner under aforesaid Sections may not fall within the ambit of sexual offence.
Kerala High Court Grants Bail To Main Accused In AKG Centre Attack Case
Case Title: Jithin @ Kannan v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 533
The Kerala High Court on Friday granted bail to a Youth Congress leader who was arrested last month for his alleged involvement in the attack on the AKG Centre, which is the State Committee Office of the CPI(M).
Justice Viju Abraham, considering the fact that the investigation has considerably progressed and there is no allegation that anyone was injured during the alleged incident, said the further detention is not required for the purpose of the investigation.
Case Title: The Manager, Sree Vivekananda Higher Secondary School v. State of Kerala & Ors and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 534
A division bench of the Kerala High Court recently upheld the decision of the Single Judge holding community-based reservation of 10 percent seats in plus one admissions of aided higher secondary schools run by managements, other than minorities and other backward classes communities, as unconstitutional.
The division bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen said the 10% community quota reservation was simply a resurrection of what had been struck down by another Division Bench earlier in Akhila Kerala Dheevara Sabha & Anr. v. State of Kerala & Ors. "We are of the firm view that the present 10% reservation quota in managements other than minority and backward class communities is nothing but old wine in a new bottle, and it is a mere resurrection of the very same quota, which was interfered with by the Division Bench and accepted by the State, since the issuance of G.O. dated 09.06.2003. We are not in a position to appreciate why the State Government has again resurrected the 10% community quota in the present cases", the bench observed.
Case Title: Pavithralal B. R. v. Union of India & Ors.
Citation: 2022 LiveLaw(Ker) 535
The Kerala High Court recently dismissed the Public Interest Litigation challenging the display of star plates and the use of flags on the cars of senior police officers.
The division bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that symbols and markings are used by the high ranking police officers for the identification purpose by the other police officers and other officials on traffic and law and order duty. "The public may not be affected by using the boards with symbols as permitted under the law by the superior police officers in contemplation of the Rules and the law … Therefore, the public interest raised by the petitioner in the writ petition does not have any force," said the court, while dismissing the PIL.
S.138 NI Act | Fine Imposed Must Not Exceed Double The Cheque Amount: Kerala High Court
Case Title: M. Shabeer v. Anitha Bajee & Anr.
Citation: 2022 LiveLaw(Ker) 536
The Kerala High Court on Wednesday said that the maximum amount of fine, including the interest, imposed in a case under Section 138 of the Negotiable Instruments Act, 1881 must not exceed twice the amount of the cheque.
Justice A. Badharudeen said the punishment provided for commission of offence under Section 138 of the N.I Act is imprisonment for a term which may extend to two years or with fine, which may extend to twice the amount of the cheque, or with both. "Thus the statutory provision is clear that the maximum fine shall be twice the amount of the cheque and nothing more. So, a blanket order, as in a civil case, directing the accused to pay fine amount along with interest @ 9% per annum for the principal cheque amount if exceeds at the time of payment, in excess of double the cheque amount, the said course of action is not permitted under law and courts must ensure that while ordering payment of fine, the same shall not exceed double the cheque amount," said the court.
Other Significant Developments This Week
Case Title: XXXXX v. Child Welfare Committee and connected matter
The Kerala High Court on Monday ordered the State government to ensure the safety and education of two minor girls from Assam who had migrated to the State with their parents, but were unfortunately subjected to sexual abuse.
Citing safety concerns, the Child Welfare Committee had refused to release the girls to their parents, who are daily wage labourers in Kerala, and had directed that the girls be sent back to their native place. However, expressing his disagreement with this measure, Justice V G Arun said, "State and its instrumentalities cannot abdicate their responsibility of protecting the children from the perpetrators of the heinous crime committed on them".
The Additional District and Sessions Court, Trivandrum, on Wednesday, dismissed the culpable homicide charges that were framed against IAS Officer Sriram Venkitaraman and his friend, Wafa Firoz, in an alleged drunken driving case leading to death of journalist KM Basheer in 2019.
The Court was acting upon the discharge petition been filed by Venkitaraman, contending that there was no evidence regarding him having driven the vehicle in a drunken state.
Kerala HC Initiates Suo Motu PIL For Protection And Rehabilitation Of Children In Streets
Case Title: Suo Motu v. Secretary to Government, Social Justice Justice Department
The Kerala High Court on Tuesday initiated suo motu Public Interest Litigation captioned 'Protection and Rehabilitation of Children in Streets' on noting the plight of the nomadic children begging or selling knick-knacks at busy junctions and tourist spots. The Suo Motu PIL has been initiated with the intention that such children ought to be taken care of, sent to shelter homes or repatriated.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, initiated the proceedings after the emergence of several news reports highlighting the plight of such children. Some reports also showed that the children were sleeping on platforms or roads. The Court has also taken due note of drug peddlers attempting to lure students outside school campuses since they are aware of the strict monitoring within the premises of such educational institutions, and seeks to consider this issue as well.
Case Title: Case Title: St. Stephen's Malankara Catholic Chruch v. State of Kerala
The Kerala High Court on Wednesday ordered setting up of committees at the level of every Local-Self Government Institution to tackle the issue of putting of illegal boards and banners in the state.
Directing the Local Self Department's Secretary to issue immediate orders, Justice Devan Ramachandran ordered that the primary committees shall comprise of the following:- Secretary of the Local Self -Government Institution; Station House Officer (SHO) of the Police Station concerned; Competent official of the National Highway Authority of India; Competent engineer of the PWD.
Case Title: Kerala Yukthi Vadhi Sangham v. Union of India & Ors.
The Kerala government earlier this week informed the High Court that it is contemplating enactment of a legislation against human sacrifice and other such superstitious practices.
The Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly recorded the submission made by the State Attorney in this regard when a case regarding the issue came before it for admission on Tuesday. The court has adjourned the matter for a date after two weeks.
Case Title: Muhammed Shafi & Ors v. State of Kerala & Ors
The three accused persons in the recent human sacrifice case of Elanthoor Village have approached the Kerala High Court against the order of the Judicial First Class Magistrate Court VIII, Ernakulam, which permitted the police to take the accused persons in custody for 12 days.
In the Criminal Revision Petition moved through Advocate B.A. Aloor, the petitioners have argued that the order passed by the Trial Court was illegal and improper, and liable to be interfered with.
Case Title: Eldhose Kunnappilly v. State of Kerala & Ors.
The Additional Sessions Court at Thiruvananthapuram in Kerala, has granted anticipatory bail to the Congress MLA Eldhose Kunnappilly in a case accusing him of rape and attempt to murder.
ASJ Prasun Mohan in the order said the victim or rape survivor in her first complaint dated September 28 never "asserted" that the accused raped her "on any dates before the date of presenting the complaint". The police had initially registered a case under Section 362, 323, 354, 506(i) r/w 34 of the IPC, the court noted.
Case Title: Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors.
In a development related to the appointment of Kerala University's new Vice Chancellor, the High Court on Friday interdicted the state Governor Arif Mohammed Khan, who is the Chancellor of the varsity, from nominating any new members to its Senate in place of the 15 members, who have been removed by him in his capacity as the Chancellor.
The interim order was passed by Justice Murali Purushothaman after considering the petition challenging the Governor's order withdrawing the nomination of the heads of the Institute of Management and departments of Music, Sanskrit and Philosophy as Ex-Officio members of Kerala University Senate. The other Senate members have also filed separate petitions challenging the decision of the Governor.
Applicant's Name: Puthusserikudy Thankappan Santosh; Dated: 01.08.2022
The Kerala Authority of Advance Ruling (AAR) has ruled that commercial vehicle body building on chassis supplied by the customer is a supply of service.
The two-member bench of S.L. Sreeparvathy and Abraham Renn S. has observed that commercial vehicle body building on chassis supplied by the customer attracts 18% GST.
Works contract services provided to Malabar Cancer Centre Attracts 18% GST: Kerala AAR
Applicant's Name: Uralungal Labour Contract Co-operative Society Ltd; Dated: 27.06.2022
The Kerala Authority of Advance Ruling (AAR) has held that work contract services provided to Malabar Cancer Centre attract 18% GST with effect from 01.01.2022.
The two-member bench of S.L. Sreeparvathy and Abraham Renn S. has observed that Malabar Cancer Centre is a society established by the State Government with 100 per cent participation by way of equity or control, to carry out the function of public health, a function entrusted to a municipality as well as a panchayat under Article 243W and Article 243G, respectively, of the Constitution and accordingly falls within the definition of governmental authority.
