Kerala High Court Weekly Round-Up: September 25 - October 1, 2023
Navya Benny
1 Oct 2023 7:22 PM IST
Nominal Index [Citations: 2023 LiveLaw (Ker) 509-530] Suo Moto V State of Kerala 2023 LiveLaw (Ker) 509Sanil Kumar V. v. Authorized Officer, Indian Overseas Bank 2023 LiveLaw (Ker) 510 Smitha T T v. Sreeroop V 2023 LiveLaw (Ker) 511Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2023 LiveLaw (Ker) 512Mansoor & Ors. v. State of Kerala & Anr. 2023 LiveLaw (Ker)...
Nominal Index [Citations: 2023 LiveLaw (Ker) 509-530]
Suo Moto V State of Kerala 2023 LiveLaw (Ker) 509
Sanil Kumar V. v. Authorized Officer, Indian Overseas Bank 2023 LiveLaw (Ker) 510
Smitha T T v. Sreeroop V 2023 LiveLaw (Ker) 511
Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2023 LiveLaw (Ker) 512
Mansoor & Ors. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 513
V.P. Nandakumar v. Assistant Director 2023 LiveLaw (Ker) 514
Cochin Devaswom Board V Union of India 2023 LiveLaw (Ker) 515
Prana Educational and Charitable Trust & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 516
Muneer A. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 517
K Sivanandhan V State of Kerala and other matters 2023 LiveLaw (Ker) 518
Finil Biju V State of Kerala 2023 LiveLaw (Ker) 519
Malathy Ravi v. State of Kerala & Ors. 2023 LiveLaw (Ker) 520
M.N. Saji v. K.R. Krishnakumar 2023 LiveLaw (Ker) 521
Justice Chettur Sankaran Nair v. Madhu Vadakkepatt 2023 LiveLaw (Ker) 522
Sayanth S v State of Kerala 2023 LiveLaw (Ker) 523
Anitha K. Varghese v. State of Kerala & Ors. 2023 LiveLaw (Ker) 524
Antony Joseph v. The Sub-Registrar 2023 LiveLaw (Ker) 525
Akhila Nandakumar v. State of Kerala & Ors. 2023 LiveLaw (Ker) 526
Sangeetha R. v. The Secretary & Ors. 2023 LiveLaw (Ker) 527
Rohit Krishna v. State of Kerala & Anr. 2023 LiveLaw (Ker) 528
Soubiya & Anr. v. District Level Authorization Committee for Transplantation of Human Organs & Ors. and connected matter 2023 LiveLaw (Ker) 529
Muhammad Salmanul Faris K Versus The Superintendent 2023 LiveLaw (Ker) 530
Judgments/Orders This Week
Case title: Suo Moto V State of Kerala
Citation: 2023 LiveLaw (Ker) 509
The Kerala High Court recently issued a slew of directions to be followed while appointing the Melsanthies of Sabarimala and Malikapuram Temple for the period 2023-2024 in a suo moto case registered to ensure fairness, transparency and adherence to the interview guidelines for shortlisting candidates.
The Sabarimala and Malikappuram Temple come under the Travancore Devaswom Board, and traditionally Melsanthies of the temples are selected every year.
The Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas examined the precedents on the selection of Melsanthies and found that in Mohandas Embranthiri v. Travancore Devaswom Board (2001), the Travancore Devaswom Board being an entity of the State under Article 12 of the Constitution, has to follow proper procedure for the selection of Melsanthies.
Case Title: Sanil Kumar V. v. Authorized Officer, Indian Overseas Bank
Citation: 2023 LiveLaw (Ker) 510
The Kerala High Court has reiterated that writ courts should not interfere in matters pertaining to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act'), particularly when the factual circumstances do not make out a specific case for issuance of the writs.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Anil K. Narendran observed: "When the tribunal constituted under the SARFAESI Act is expected to go into the issues of fact and law, including a statutory violation, the attempt made by the appellant to circumvent the particular mode prescribed under the statute shall not be encouraged by the writ court".
RTO Not Liable To Compensate Victim For Accident From Uninsured Vehicle: Kerala High Court
Case title: Smitha T T v. Sreeroop V
Citation: 2023 LiveLaw (Ker) 511
The Kerala High Court has held that Registration Authorities like the Road Transport Officer (RTO) or the District Collector cannot be made liable to pay compensation for road accidents from uninsured vehicles.
Justice Dinesh Kumar Singh observed that the owner of the vehicle has the primary responsibility to get the vehicle insured, so the owner alone or driver or both will be liable to pay compensation for road accident if the vehicle was not insured.
“The primary responsibility is of the motor vehicle owner to get insured the motor vehicle. In case, if the motor vehicle owner fails to get the motor vehicle insured, the liability for payment of compensation would not fall upon to the registration authority. It means that the responsibility is of the owner alone or the driver or both to make payment of the compensation for the accident.”
Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors.
Citation: 2023 LiveLaw (Ker) 512
The Kerala High Court has laid down that the Subordinate Judge's Courts are vested with the jurisdiction to grant leave for institution of a suit relating to a public charitable trust, and thereafter try and dispose of the same under Section 92 of the Code of Civil Procedure (CPC).
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen passed the order on a reference made by a Single Bench of Justice C.S. Dias, which had expressed its doubt as to whether the decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others (2020), laying down that only the Principal District Judge has the jurisdiction to grant leave for institution of a suit under Section 92 CPC would hold ground.
Kerala High Court Grants Bail To Four Accused In Tanur Drugs Case
Case Title: Mansoor & Ors. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 513
The Kerala High Court granted bail to four persons arrested in connection with the alleged possession of narcotic drugs in Tanur, Malappuram.
Justice Mohammed Nias C.P. passed the order.
Case Title: V.P. Nandakumar v. Assistant Director
Citation: 2023 LiveLaw (Ker) 514
The Kerala High Court recently laid down that where the Enforcement Case Information Report (ECIR) has been quashed and no subsequent FIR has been registered against the accused, further proceedings under the Prevention of Money Laundering Act ('PML Act') shall be dropped and an order issued under Section 17(1A) would not stand.
Section 17(1A) empowers an authorized officer to freeze a property, where it would not practically be possible for such authority to search or seize the record or property.
Justice Devan Ramachandran observed.
"...when there is no FIR registered, hypostised on which an 'ECIR' is also not available, any further investigation against the petitioner under the 'PMLA' will have to cease....in view of quashing of the 'ECIR' and in the absence of any further FIR being registered against the petitioner, Ext.P12 cannot be allowed to hold the field, particularly when it causes sure prejudice to the person against which it is issued."
Case title: Cochin Devaswom Board V Union of India
Citation: 2023 LiveLaw (Ker) 515
The Kerala High Court has held that a deity cannot be divested of title to a land owned by it which is used for religious purposes, without a legal process such as acquisition or voluntary transfer.
A bench of Justice Anil K Narendran and Justice PG Ajithkumar found that the property in question was used as a Temple road for religious activities and that the title of Deity will not be divested because the road was maintained by the local authorities under social obligation.
“It is a Temple road and has been in the use of the public, including for the purposes of religious activities. The local authority would have maintained it out of its social obligation. Albeit such maintenance, the road never was brought to the asset register. It being a property of the Deity, by such an overt act of tarring alone, the title of the Deity will not be divested. There shall be a process known to law, such as acquisition, voluntary transfer, etc. for the Deity to lose its title to a property.”
Case Title: Prana Educational and Charitable Trust & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 516
The Kerala High Court recently laid down that a Trust, either public, private or charitable, is a juristic person and can be made liable for dishonour of cheques punishable under Section 138 of the Negotiable Instruments Act ('NI Act').
Justice A. Badharudeen, on taking note of a plethora of precedents, further observed in this regard that such Trust would also be a company in terms of Section 141 of the N.I. Act ('Offences by companies'), and every Trustee who was in charge of the day-to-day affairs of the Trust would also be liable for punishment.
Kerala High Court Quashes Proceedings Under POCSO Act Following Marriage Of Accused & Victim
Case Title: Muneer A. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 517
The Kerala High Court recently quashed the proceedings against a man who had been alleged of having committed offences under Sections 354 and 376 of the Indian Penal Code (IPC), and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act), on the ground that the parties were now married.
Justice Gopinath P. observed,
"The petitioner and the victim are now living together as husband and wife. Therefore, no useful purpose will be served by continuing with the prosecution against the petitioner".
Case title: K Sivanandhan V State of Kerala and other matters
Citation: 2023 LiveLaw (Ker) 518
The Kerala High Court has held that Supplyco, implementation agency for Decentralized Paddy Procurement Scheme in the State, is liable to ensure that payments under the scheme are effected to the farmers, that they are not delayed and that farmers cannot be prejudiced any further stating that Supplyco could not obtain a bank loan within time.
Justice Devan Ramachandran directed Supplyco to obtain a bank loan for making payments to the farmers based on a tripartite agreement between the bank, Supplyco and the Government.
“The petitioners cannot be put to any further prejudice, solely because the ‘Supplyco’ has not been able to garner resources to comply with their contractual commitments; nor can anything be attributed to them if the financing Bank causes any delay in grant of loan to the ‘Supplyco’ under the tripartite agreement between two of them and the Government. The shifting of any such responsibility onto the shoulders of the farmers is uncharitable and, in any case, wholly impermissible.”
Case title: Finil Biju V State of Kerala
Citation: 2023 LiveLaw (Ker) 519
The Kerala High Court recently discharged a person charged under Section 304 IPC stating said that the offence of 'culpable homicide not amounting to murder' will not be attracted to motor accident death caused by him late at night, when roads are deserted.
Justice N. Nagaresh observed that knowledge and intention of causing an accident or death could not be presumed in this case and thus the accused would have to be tried for offence under Section 304 A of IPC.
“The petitioner was riding the motorcycle during night hours and at about 1.45 am when ordinarily roads will be deserted...There is no allegation that the petitioner had any intention to cause death of the deceased. The petitioner's offence would clearly fall within the ambit of Section 304A IPC. In the circumstances, I am of the view that the petitioner ought to have been charged under Section 304A IPC instead of Section 304 IPC. The rejection of the application for discharge as far as Section 304 IPC is concerned is therefore unsustainable.”
Case Title: Malathy Ravi v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 520
The Kerala High Court declared that the State Government ought to confirm the detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA, 2007') within 3 months from the date of its execution.
The Division Bench comprising Justice Anu Sivaraman and Justice C. Jayachandran observed that while Article 22 (4) of the Constitution does not create an embargo for detention beyond the period of three months, the Apex Court had held in Ujjal Mondal v. the State of W.B (1972) that unless the power of confirmation is exercised within 3 months from the date of detention, further detention upon expiry of the said period would be without the authority of the law.
CPC | Parties Can't Adduce Evidence Not Supported By Pleadings: Kerala High Court
Case Title: M.N. Saji v. K.R. Krishnakumar
Citation: 2023 LiveLaw (Ker) 521
The Kerala High Court recently laid down that no party could succeed a case by adducing evidence without support of pleadings, since the law is well-settled that one could be permitted to let in evidence only in tune with the pleadings.
Justice A. Badharudeen added that the basic rule governing pleadings is founded on the principle of secundum allegata et probate, that a party is not allowed to succeed where he has not set up the case which he wants to establish.
"...the object and purpose of pleading are to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. Pleadings help the court in determining the burden of proof. The burden of proof is fixed on the basis of the contentions of the aggrieved party. If some evidence has been produced which is not in conformation with the written statement or plaint, it may disturb the position of the whole case."
Case title: Justice Chettur Sankaran Nair v. Madhu Vadakkepatt
Citation: 2023 LiveLaw (Ker) 522
The Kerala High Court recently held that a trial judge cannot wait until conclusion of trial to decide if the plaint has to be rejected, and added that such decision should be made solely on an assessment of the plaint under Order VII Rule 11 CPC.
Justice Devan Ramachandran observed that Trial judge waiting for rejecting the plaint until trial was completed defeats the purpose of law laid down under Order VII Rule 11 CPC.
“Obviously, the holding of the learned Munsiff in Ext.P11, that the petitioner will have to wait until the trial is completed, for his application under Order VII, Rule 11 of the CPC to be considered, is not merely anachronistic, but militates against the very purpose for which said provision has been brought into force.”
Case Title: Sayanth S v State of Kerala
Citation: 2023 LiveLaw (Ker) 523
The Kerala High Court stated that decisions such as if a competition has to be conducted in a particular category or not is a prerogative of the Government and has to be decided by a competent authority of the State.
Justice Devan Ramachandran observed that the writ court under Article 226 cannot make such decisions as it requires evaluation of necessary factual and documentary inputs.
“The question whether a competition in a particular category should be conducted, and in what manner, are to be decided by competent Authority of Government of Kerala at the first instance and it cannot be done by this Court, while acting under Article 226 of the Constitution of India, particularly, because it requires evaluation of necessary factual and documentary inputs.”
Case Title: Anitha K. Varghese v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 524
The Kerala High Court recently quashed the appointment of two Anganwadi workers to the permanent post with the Kadapra Panchayat as illegal, since the appointments had been made by the Child Development Project Officer and not the Village Panchayat.
Single Judge Bench of Justice Raja Vijayaraghavan V. perused Section 166 (2) Kerala Panchayat Raj Act, 1994, which provides that the Village Panchayats shall have exclusive power to administer the matters enumerated in the Third Schedule and to prepare and implement the schemes relating thereto, and proceeded to observe as follows:
"...on a conjoint reading of Section 166(2) and the relevant clause in the Schedule, it would be evident that the Village Panchayat would have the exclusive power to administer matters relating to the running of Anganwadis and the only requirement is that it has to be subject to the other provisions of the Act and guidelines and financial, technical or other assistance of the Government. In other words, it is for the Village Panchayat to decide matters relating to the running of Anganwadis."
Case Title: Antony Joseph v. The Sub-Registrar
Citation: 2023 LiveLaw (Ker) 525
The Kerala High Court has held that the registering authority did not have to look into the nature of divorce obtained by the parties while considering their marriage applications under Section 8 of the Special Marriage Act.
The bench observed that the Registering Authority only has to be satisfied that neither party who intends to marry has a living spouse at the time of registration of marriage.
“Going by the mandate of Section 8 of the ‘Act’, it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered. Therefore, the only aspect to be decided by the respondent is this and nothing more.”
Case Title: Akhila Nandakumar v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 526
The Kerala High Court has closed the petition filed by the Chief Reporter of Asianet News Channel Akhila Nandakumar to quash the FIR registered against her for allegedly conspiring to defame CPI(M)'s student wing leader PM Arsho in connection with the Maharaja’s College examination controversy.
Justice P.V. Kunhikrishnan passed the order, taking note of the submission made by the Public Prosecutor that Nandakumar had already been removed from the array of accused in the crime.
Case Title: Sangeetha R. v. The Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 527
In an interesting development, the Kerala High Court invoked its parens patriae jurisdiction to select the name of a child, caught in a dispute between her estranged parents with respect to what her name should be.
Justice Bechu Kurian Thomas reasoned that attempting to resolve the dispute between the parents will cause inevitable delay and in the meanwhile, the absence of a name would not be conducive to the welfare or the best interests of the child.
"In the exercise of such a jurisdiction, the paramount consideration being the welfare of the child and not the rights of the parents, the Court has to perform the task of selecting a name for the child. While choosing a name, factors like the welfare of the child, cultural considerations, interests of parents and societal norms can be reckoned by the court. The ultimate objective being the well-being of the child, the court has to adopt a name, taking into consideration the overall circumstances. Thus, this Court is compelled to exercise its parens patriae jurisdiction to select a name for the child of the petitioner," the Court observed.
Case Title: Rohit Krishna v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 528
The Kerala High Court has quashed the criminal proceedings initiated against a man for affixing poster of a lotus, which is a symbol of a political party, on an electric poll with gum. It was alleged that the accused caused a commotion near Annamkulangara Devi Temple and the Electricity Board had to spend Rs. 63 for removing the poster.
Justice PV Kunhikrishnan observed that affixing a poster containing the symbol of a recognized political party on an electric post cannot be treated as an act done malignantly or wantonly. It added,
"The only overt act attributed to the accused is that he affixed a poster of a lotus, which is a symbol of a political party, on an electric post and made commotion. I am of the considered opinion that even if that act is accepted in toto, the offence under Section 153 IPC is not made out. Of course, it may be an illegal act to affix a poster on an electric post. But affixing a poster containing the symbol of a recognized political party on an electric post cannot be treated as an act done malignantly or wantonly."
Case Title: Soubiya & Anr. v. District Level Authorization Committee for Transplantation of Human Organs & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 529
The Kerala High Court called upon the District Level Authorization Committee for Transplantation of Human Organs (DLAC) to decide if a 'Certificate of Altruism' was required to be obtained by petitioners, kidney patients who are presently on dialysis and other life support mechanisms.
Justice Devan Ramachandran highlighted the importance of adhering to the legal requirements outlined in the Rules for organ donation and acknowledged that these rules should not be relaxed or diluted on a case-by-case basis.
"...it is indubitable that there are certain specified prescriptions stipulated in the ‘Rules’, to apply in the process of organ donation. This Court cannot, certainly, dilute the same or relax it in individual cases...the petitioners will have to follow the mandate of law strictly and scrupulously, because it is only if the systems are robust, can the laudable intent behind organ donation be preserved. That said, since the learned Government Pleader says that all which the petitioners require is to obtain a ‘Certificate of Altruism’ from the Superintendent, or Deputy Superintendent of Police, of the area where both the recipient and donor are residing and not a 'PCC'; and that too, subject to it being insisted by the 1st respondent – DLAC, I am certain that this is a matter that should be left to such Authority to decide".
Case Title: Muhammad Salmanul Faris K Versus The Superintendent
Citation: 2023 LiveLaw (Ker) 530
The Kerala High Court has held that the Superintendent of Central Tax should take an independent decision without being influenced by the direction of the DGGI, Kochi Zonal Unit.
The bench of Justice Dinesh Kumar Singh has observed that the DGGI, Kochi Zonal Unit, has already taken the decision to cancel the GST registration of the petitioner. The competent authority was only required to form the formalities, and the authority concerned or the competent authority could not have taken an independent decision. Therefore, the impugned order is set aside. However, the order is not revived for a period of one month.
Other Significant Developments This Week
Case: Kumari Ivana William and ors. vs M/s Velankanni Matha Hospitals Pvt. Ltd. and others
Case No.: C.C. No. 61/2013
The Kerala State Consumer Disputes Redressal Commission, led by President Justice Sri. K. Surendra Mohan, along with Judicial Member Sri. Ajith Kumar D. and Member Smt. Beena Kumary, recently dismissed a complaint filed by a woman who had undergone a delivery procedure at Velankanni Matha Hospitals. The State Commission rejected her allegations of negligence against the attending doctor, which had resulted in a condition known as brachial plexus in her newborn baby. The bench ruled that such events were unpredictable, and the doctors could not be held responsible for them. Additionally, the woman failed to provide sufficient evidence to substantiate her claims.
Fake Drugs Case: Kerala High Court Prevents Arrest Of Kin Of Beauty Parlour Owner
Case Title: Liviya Jose v. State of Kerala & Anr.
Case Number: BAIL APPL. NO. 7993 OF 2023
The Kerala High Court directed the Assistant Excise Commissioner, Ernakulam, not to arrest Liviya Jose, the kin of beauty parlour owner Sheela Sunny, in connection with the fake drugs case.
Sunny who had been accused of possessing 0.106 grams of the drug LSD stamp, was exonerated and the proceedings against her were quashed in July 2023, on the ground that the chemical analysis of the seized articles had revealed that the same was not LSD stamps as had been alleged. The contraband had been seized from Sunny's scooter. It was following her allegation that her daughter-in-law and sister had used her scooter the day before the drugs were seized, that the Excise Crime Branch issued notice to Jose to appear for questioning.
Jose thus filed the present anticipatory bail plea. She alleged that she had been made a scapegoat by the investigating officers in the present case.
The Single Judge Bench of Justice Mohammed Nias C.P. took note of Sunny's exoneration and the finding that the seized articles were not LSD, and it thereby issued the present directive to the Assistant Excise Commissioner not to arrest Jose till the next date of posting on October 3, 2023.
Case name: Greeshma @ Sreekutty & Others V State Of Kerala
Case number: : Crl.MC 6811/ 2023
The Kerala High Court left the issue of territorial jurisdiction in Sharon murder case to be determined during trial. This was after both defence and prosecution made a statement to that effect.
“Now both sides submitted that the question may be left open and that may be decided during the trial…granting liberty to the petitioner to raise the question of jurisdiction during the trial,” ordered Justice PV Kunhikrishnan.
Case Title: In Re: Bruno
Case Number: WP(C) 13204/ 2021
The Kerala High Court lamented the rising encroachments on forest lands leading to increased human-animal conflicts in the State by the day.
"Right now, every inch of space animals have, we occupy – and we expect animals to live as per the laws that we make. And we decide what their rights are," the Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. orally observed.
