Kerala High Court Weekly Round-Up: October 31 To November 6, 2022

Nominal Index [Citation 2022 LiveLaw (Ker) 555-570]

Annamma Raju @ Bincy & Ors v. Shalet Jose & Ors. 2022 LiveLaw (Ker) 555

Asha Bawri v. State of Kerala & Anr. 2022 LiveLaw (Ker) 556

XXXXX v. State of Kerala & Anr. 2022 LiveLaw (Ker) 557

Aleyamma Kuruvila v. Mahatma Gandhi University 2022 LiveLaw (Ker) 558

XXXX v. XXXXX 2022 LiveLaw (Ker) 559

Das @ Anu v. State of Kerala 2022 LiveLaw (Ker) 560

Kallar Harikumar v. Amritha Enterprises Pvt Ltd & Anr. 2022 LiveLaw(Ker) 561

Mathew P. Thomas v. State of Kerala & Ors. 2022 LiveLaw (Ker) 562

S. Krishnakumar v. State of Kerala & Ors. 2022 LiveLaw (Ker) 563

Rousha P Ali v. Union Of India 2022 LiveLaw (Ker) 564

Mangalam Publications (India) Pvt. Ltd. v. Employees Provident Fund & Ors. 2022 LiveLaw (Ker) 565

Muhammed Yasin v. Station House Officer & Anr. 2022 LiveLaw (Ker) 566

XXX v. State of Kerala & Anr. 2022 LiveLaw (Ker) 567

V.K. Bhasi v. State of Kerala & Anr. 2022 LiveLaw (Ker) 568

Mount Zion College of Engineering v. State of Kerala & Ors. 2022 LiveLaw (Ker) 569

Devanandan M.C. & Ors. v. The Board of Control for Cricket in India & Ors 2022 LiveLaw (Ker) 570

Orders/Judgments This Week

S.157 MV Act | Transfer Of Vehicle Results In Deemed Transfer Of Its Insurance Policy Including All Obligations: Kerala High Court

Case Title: Annamma Raju @ Bincy & Ors v. Shalet Jose & Ors.

Citation: 2022 LiveLaw (Ker) 555

The Kerala High Court on Thursday held that when transfer of a vehicle has been effected following the procedure in Motor Vehicles Act, 1988, the insurance policy taken out in respect of the vehicle is also deemed to have been transferred in favour of the transferee without any further process.

Justice Ziyad Rahman A.A., in this light further found that, "Though sub-section (2) of Section 157 provides for intimation of such transfer, since the statute is silent as to the consequence of failure in doing so, it can only be treated as directory in nature and not mandatory".

Requirement To Intimate Transfer Of Vehicle To Insurance Company U/S 157(2) MV Act Only Directory: Kerala High Court

Case Title: Annamma Raju @ Bincy & Ors v. Shalet Jose & Ors.

Citation: 2022 LiveLaw (Ker) 555

The Kerala High Court on Thursday held that the stipulation under Section 157(2) of the Motor Vehicles Act, 1988 to intimate about the transfer of a vehicle to the Insurance Company within a period of 14 days of such transfer is only directory in nature, and not mandatory.

Justice Ziyad Rahman A. A. arrived at this finding on the reasoning that no consequences for non-compliance of the provision has been stipulated in the Act. "Though sub-section (2) of Section 157 provides for intimation of such transfer, since the statute is silent as to the consequence of failure in doing so, it can only be treated as directory in nature and not mandatory", the Court said.

Penal Provisions U/S 138 NI Act Attack Person Who Issued Cheque, Shifting Of Liability No Ground To Quash Complaint: Kerala High Court

Case Title: Asha Bawri v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 556

The Kerala High Court has held that mere shifting of liability after a cheque has been issued would have no significance since penal provisions under the Negotiable Instruments Act would attack the person who issued the cheque, particularly when a prima facie case has already been made out. In this case, the drawer of the cheque sought to quash the criminal case against him which was instituted after the instrument was dishonoured, on the ground that all previous liability would be undertaken by one Montu Saikia as per a registered agreement.

Justice A. Badharudeen held that a mere shifting of liability could not lead to the case being quashed under Section 482 of CrPC.

S.3(2)(v) SC/ST Act Not Attracted In Absence Of Averment About Accused' Caste & His Awareness About Victim's Caste: Kerala High Court

Case Title: XXXXX v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 557

The Kerala High Court has held that in order to attract an offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the accused must not be a member of the SC/ST community and must be shown to have committed the offence with the knowledge about victim's caste/ community. In the absence of an averment to that effect, the offence under Section 3(2)(v) would not be attracted.

Justice Kauser Edappagath observed, "Merely because a person who does not belong to a member of a Scheduled Caste/Scheduled Tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more against a person belonging to a Scheduled Caste/Scheduled Tribe, the offence u/s 3(2)(v) would not get attracted...The word found in the provision being "knowingly", an allegation about the assailant's knowledge or awareness that the victim is a member of Scheduled Caste/Scheduled Tribe at the time of the commission of the atrocity described under the provision must be there. Without the element of knowledge being incorporated in the allegations, the offence is unlikely to be attracted."

UGC Regulations Permit Appointment Of College Principal Only Through Direct Recruitment, Not Promotion: Kerala High Court

Case Title: Aleyamma Kuruvila v. Mahatma Gandhi University

Citation: 2022 LiveLaw (Ker) 558

The Kerala High Court on Tuesday observed that appointment to the post of College Principal must be thorough a valid Selection Committee as stipulated under the University Grants Commission Regulations on Minimum Qualification for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018.

Justice Devan Ramachandran observed that the Apex Court has made it clear that only a person appointed as per the provisions of UGC Regulations 2018 can continue be an Officer of the University. "...Once the Hon'ble Supreme Court has delivered its judgment to the unmistakable effect that only a person who is appointed in terms of the "UGC Regulations, 2018" can continue to be a Teacher of a College, or that matter as an Officer of the University, the petitioners cannot rely upon Section 59(3) of the "MG University Act", to maintain that "promotion" as Principal, on the basis of seniority cum fitness is tenable".

Islamic Law Recognizes Muslim Woman's Right To Demand Divorce, Husband's Consent Not Essential: Kerala High Court

Case Title: XXXX v. XXXXX

Citation: 2022 LiveLaw(Ker) 559

Observing that Islamic law recognises a Muslim woman's right to demand termination of marriage, the Kerala High Court has ruled that the will of the wife cannot be "related to the will of the husband" who may not be agreeing to the divorce.

Dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula, the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias said: "In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband". The court at the outset of the 59-page judgment said: "This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally". 

Court Shall Not Surrender To Opinions Of Islamic Clergy Who Have No Legal Training: Kerala High Court

Case Title: XXXXX v. XXXXX

Citation: 2022 LiveLaw (Ker) 559

The Kerala High Court has said that Islamic clergy, who have no legal training or knowledge in legal sciences, cannot be relied upon by the court to decide on a point of law relating to the personal law applicable to the Muslim community.

"Ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources," said the division bench consisting of Justice A. Muhamed Mustaque and Justice C. S. Dias, while dismissing a revision petition challenging its decision on interpretation of Khula.

Taking DNA Samples Of Rape Accused Does Not Violate His Constitutional Right Against Self-Incrimination: Kerala High Court

Case Title: Das @ Anu v. State of Kerala

Citation: 2022 LiveLaw (Ker) 560

The Kerala High Court on Friday ruled that the protection guaranteed under Article 20(3) of the Constitution of India does not extend to protecting an accused from being compelled to give his blood sample during the investigation of a criminal case.

Justice Kauser Edappagath said the privilege of Article 20(3) is applicable only to testimonial evidence and drawing DNA samples from the body of an accused in a criminal case, especially in a case involving sexual offence, will not violate his right against self-incrimination protected under Article 20(3). "The right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusion of evidence taken from his body when it may be material."

S.138 NI Act | Director Cannot Be Prosecuted For Cheque Dishonour Without Arraying Company As Accused: Kerala High Court Reiterates

Case Title: Kallar Harikumar v. Amritha Enterprises Pvt Ltd & Anr.

Citation: 2022 LiveLaw(Ker) 561

The Kerala High Court has reiterated that when a cheque issued by a company is dishonored, prosecution under Section 138 of the Negotiable Instruments Act against its Director shall not sustain if the company is not arrayed as an accused.

Justice A. Badharudeen relying on the law laid down by the Apex Court, observed that prosecution against the director of the company merely for the reason that the director had signed the cheque shall not sustain if the company is not arraigned as an accused in the case. "In this case, admittedly, the cheque was issued for and on behalf of a company and the company is not arraigned as an accused. Therefore, in view of the above legal position, the entire prosecution is vitiated and accordingly, the concurrent finding of conviction and sentence are liable to be set aside".

It Is For Principal To Raise Before Police Any Law & Order Situation In College: Kerala High Court Denies Protection To Part-Time Lecturer

Case Title: Mathew P. Thomas v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 562

The Kerala High Court on Tuesday refused to grant police protection to a part time lecturer at St. Thomas College, Kozhencherry, who pleaded that he was being harassed and threatened by members of the Students Federation of India (SFI), following what he claimed to be a "frivolous complaint" filed against him for questioning the unauthorized absence of two girls in his class.

Justice Anu Sivaraman, passed the order after noting the submissions made in this regard by the Station House Officer of Aranmula Police Station, and the Principal of the College, and observed that it would be for the Principal to raise the issues of law and order before the police, if any such situation is prevalent in the College.

Kerala High Court Quashes Order For Transfer Of Sessions Judge Who Made Controversial "Sexually Provocative Dress" Remark

Case Title: S. Krishnakumar v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 563

The Kerala High Court on Wednesday set aside the order for transfer of Kozhikode Principal District & Sessions Judge, S. Krishnakumar, who made controversial 'sexually provocative dress' remark Civic Chandran's case.

A Division Bench consisting of Justice A K Jayashankaran Nambiar and Justice Mohammed Nias C P while allowing the judicial officer's writ appeal and quashed the order of Registrar General, transferring him to the post of Presiding Officer, Labour Court, Kollam, observed that: "...although his transfer order states that his transfer is in the exigencies of service, the circumstances under which he was transferred, and that too to a post that is not perceived by those in the service, to be of the same status as that of the Principal District & Sessions Judge in the Higher Judicial Service in the State, persuades us to view the same as punitive in nature and unfair to the appellant". 

Also read: 'Punitive, Stigmatic; Can Have Deleterious Effect On Judicial Officers' Morale': Kerala HC Sets Aside Transfer Of Judge Who Made 'Sexually Provocative' Dress Remark

'Employer Can't Act Arbitrarily On Grant Of Leave To Employee': Kerala High Court, Allows Postal Assistant To Take 1 Year Leave For PhD

Case Title: Rousha P Ali v. Union Of India

Citation: 2022 LiveLaw(Ker) 564

Observing that the State cannot act arbitrarily and unfairly when it comes to grant of leave to employees, the Kerala High Court Tuesday directed the department of posts to permit a Postal Assistant to take an extraordinary unpaid leave of one year to enable her to pursue a PhD Course in Malayalam.

The division bench of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nambiar C. P said: "While we are aware that the grant of leave to an employee in the prerogative of the employer it does not follow that an employer who answers to the description of 'state' under Article 12 of the Constitution can act arbitrarily and unfairly in such matters". 

'Basic Wages' For EPF Contribution Includes 'Interim Wages' Paid As Per Wage Board Direction: Kerala High Court

Case Title: Mangalam Publications (India) Pvt. Ltd. v. Employees Provident Fund & Ors.

Citation: 2022 LiveLaw (Ker) 565

The Kerala High Court on Wednesday said that 20% wages that had been paid to workers by the employer as 'interim relief' at the direction of government constituted Wage Board would come within the ambit of 'basic wages' for contributions under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

Justice P.V. Kunhikrishnan said that such 'interim relief' would not fall within the exceptions carved out for basic wages in Section 2(b)(ii) of the Act. The bench observed, "It is an admitted fact that 20% of the wages are paid as interim relief to all the employees. At no stretch of the imagination, this Court can conclude that this will come within the purview of Section 2(b)(ii) of the Act, 1952."

[POCSO Act] Unilateral Bail Cancellation Without Hearing Accused Not Legal: Kerala High Court

Case Title: Muhammed Yasin v. Station House Officer & Anr.

Citation: 2022 LiveLaw (Ker) 566

The Kerala High Court on Wednesday reiterated that while hearing an application for cancellation of bail, even of an accused booked under the POCSO Act, an opportunity of hearing must be accorded to the accused. It condemned the action of a local Fast Track Court which cancelled the bail of the Petitioner herein, an accused under Sections 354A(I)(i) IPC and Sections 9 and 10 of the Protection of Children from Sexual Offences Act, 2012, with an opportunity of hearing. The bail cancellation was sought on the ground that the accused-Petitioner had contacted the victim child and violated other bail conditions.

Justice Kauser Edappagath, while setting aside the bail cancellation order, observed that, "When the cancellation of bail is sought either on the ground of post conduct of the accused like violation of the conditions of the bail or on the ground of the occurrence of supervening circumstances, the court must issue notice to the accused to explain why the bail granted to him should not be cancelled. He should also be given a fair opportunity of hearing. The order cancelling the bail unilaterally without hearing the accused cannot withstand legally".

'No Specific Allegation Of False Promise of Marriage': Kerala High Court Quashes Rape Case Against Lawyer

Case Title: XXX v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 567

Quashing a rape case against a lawyer, the Kerala High Court on Thursday said there is no specific allegation in the prosecutrix's statement that he had given a false promise to marry her based on which she had been induced into a sexual relationship. The prosecution case was that the accused had sexual intercourse with the woman on the basis of a false promise of marriage. Though the woman had given her no objection for quashing the proceedings, the public prosecutor had argued that the high court cannot quash a rape case even if the dispute has been settled between the parties.

Observing that the allegation is "so vague" and that woman has not been even able to disclose the dates of of alleged sexual intercourse, Justice Kauser Edappagath said admittedly the couple was in a consensual relationship for the past four years.

Hit & Run Cases: Kerala High Court Explains Procedure To Claim Compensation Under 1989 Solatium Scheme

Case Title: V.K. Bhasi v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 568

The Kerala High Court recently embarked upon a detailed analysis of the Solatium Scheme of 1989 framed by the Central Government under Section 163(1) of the Motor Vehicles Act, 1988 which provides for compensation in hit and run accidents.

Justice P.V. Kunhikrishnan was of the opinion that the general public is not aware of the Scheme or the competent authority to be approached in order to submit an application for getting compensation in 'hit and run' cases. "A reading of Sections 161 to 163 of the Act, 1988 and the Solatium Scheme, 1989, will show that it is a complete code and a time limit is also prescribed for paying the compensation in 'hit and run' motor accident cases. The victims of hit and run motor accident cases should invoke the above provisions and the statutory compensation available to them should be utilised," the bench said while explaining the Scheme in detail.

Kerala High Court Orders Release Of Electricity Charges To Private College Requisitioned As COVID Treatment Centre

Case Title: Mount Zion College of Engineering v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 569

The Kerala High Court recently directed the District Collector, Pathanamthitta to disburse electricity charges to a private college which was used as a Covid First Line Treatment Centre from May 21 to December 20 in 2020.

Justice V.G. Arun passed the order directing the officer, who is also Chairperson of Disaster Management Authority, to disburse the amount within an outer limit of two months.

Lodha Committee Recommendations On BCCI Reforms Not Applicable To District Cricket Association Elections: Kerala High Court

Case Title: Devanandan M.C. & Ors. v. The Board of Control for Cricket in India & Ors

Citation: 2022 LiveLaw (Ker) 570

The Kerala High Court has said that Justice R.M. Lodha Committee recommendations do not apply to the district cricket association elections.

Justice N. Nagaresh in a judgement delivered on Monday said the Committee and the apex court in Board of Control for Cricket v. Cricket Association of Bihar and others intended to make reforms in the governance of BCCI and bring the state cricket associations (SCAs) in harmony with such reforms, adding the top court has categorically held in its decision that the composition of the SCAs will remain unaffected "and so does the right of those forming such Associations under Article 19(1)(c)."

Other Significant Developments This Week

Kerala High Court Makes Entry Pass Mandatory For Public, Introduces Online Pass Management System

To bolster security arrangements at the court complex, the Kerala High Court has made entry passes mandatory for public. The litigants and visitors can use Online Pass Management System of the court to obtain the passes.

While the staff members have been directed to wear their identity cards while entering the high court complex, the advocates who are not in robes would be required to show their ID card at the entry points for identification.

Kerala High Court To Introduce 'Unique Neutral Citation Number' System From November 1

Just days after Delhi High Court introduced its own 'neutral citation system' for all the judgments on its official website, the Kerala High Court is also set to implement a 'Unique Neutral Citation Number' for all Judgments and 'CR' marked interim orders issued since the year 1949, from November 1.

According to a notice issued by Kerala High Court's Registrar General P. Krishna Kumar, the citation for judgments will be in the format of [Year Of Judgment uploaded]/KER/[Number] and for the CR marked interim orders in the format of [Year Of Interim Order Uploaded]/KER/[Number].

"Best Face Of Police Force" : Kerala HC Judge Appreciates Officer Who Breastfed Infant Separated From Mother

Civil Police Officer, M.R. Ramya, who breastfed an infant who had been separated from its mother and found in a hapless state, was felicitated with a certificate issued by Kerala High Court Judge, Justice Devan Ramachandran. The certificate was handed over by State Police Chief, R. Anil Kant.

Justice Devan termed Ramya's good deed as the "best face of the police force". The Certificate is accompanied by a letter of appreciation.

Vice Chancellor Appointment | How Can Kerala University Function Without VC? High Court Slams Senate

Case Title: Dr. K.S. Chandrashekhar v. The Chancellor and other connected cases

The High Court on Tuesday grilled Kerala University Senate for not nominating a member for the selection committee, which has to consider names for appointment of the varsity's new vice chancellor. The court was hearing a petition challenging the Governor, Arif Mohammed Khan's "withdrawal" of membership of 15 Senators. Khan had taken the decision in his capacity as the Chancellor.

Questioning the reluctance in nominating the member, Justice Devan Ramachandran said: "You can simply nominate a nominee and a VC can straightaway be appointed. Somehow you don't want to appoint a nominee". Continuing, the court asked: "What is the University trying to achieve out of this? How can it function without a VC? If the University does not want a VC for one year, then tell me that, we will put somebody else on the job".

'As Secular Institutions, Courts Can't Engage in Activities Promoting Particular Religion': Kerala High Court To Judicial Officers On Guruvayur Temple Event

Following a reference from the Judge-in-Charge of Thrissur district, the Kerala High Court on Tuesday issued an official memorandum to the district's judicial officers asking them not to actively involve themselves in organising "Kodathi Vilakku" which is hosted annually at the Guruvayur temple.

Noting that an event under the banner of "Kodathi Vilakku" is annually hosted at the Guruvayur temple by an organising committee comprising of members of the Chavakkad Munsiff Court Bar Association, the high court administration said that even though there can be no objection to the Bar Association members organising such an event, the use of the name "Kodathi Vilakku" is unacceptable "for it gives the impression that the Courts in our State are in some way connected with the organization of the event."

Vice Chancellors Move Kerala High Court Challenging Governor's Show Cause Notice On Appointment

Case Title: Dr. Gopinath Ravindran v. Chancellor, Kannur University & Ors.

The vice chancellors of various state universities have approached Kerala High Court against the show-cause notices issued to them by state Governor Arif Mohammed Khan last month asking them to explain how they can continue on their posts after Supreme Court recently quashed the appointment of APJ Abdul Kalam Technological University's VC for being contrary to University Grants Commission (UGC) norms.

Khan, who is the chancellor of the universities, in the notice said that on failure to show cause the legal right to hold the post of Vice Chancellor, the Chancellor may declare the appointment to the said post as illegal and void ab initio. The VCs have argued that the notice is without authority or jurisdiction and is also vitiated by errors apparent on the face of its record.

'You Want To Destroy A Fine Running University With Petty Controversy': High Court Raps Kerala University Senate

Case Title: Dr. K.S. Chandrashekhar v. The Chancellor and other connected cases

Hearing a matter related to the Senate of Kerala University, the High Court on Wednesday heavily criticised the body for not nominating a representative to the Selection Committee constituted for appointing a new Vice Chancellor.

Observing that the Senate was refusing to nominate their member due to a decision taken by the Chancellor on August 5, Justice Devan Ramachandran said: "Be that as it may, there can be no doubt that the Kerala University requires a Vice Chancellor soon. The disputes between the stakeholders cannot proceed to a situation where the selection of the Vice Chancellor can be delayed indefinitely. They cannot be at war all the time, and thus frustrate the legitimate right of the student community, particularly, to have a Vice Chancellor in office at the earliest".

Human Sacrifice Case | Kerala Court Denies Bail To Accused After Prosecution Says She Was Active Participant In Murders

Case Title: Laila Bhagaval Singh v. State represented by Inspector of Police, Kadavanthara

The Judicial First Class Magistrate Court-VIII, Ernakulam on Wednesday dismissed the bail application filed by one of the accused, Laila Bhagaval Singh, in the Elanthoor human sacrifice case.

The JFCM-VIII, Ernakulam, Eldose Mathew, found favour with the submission made by the prosecution that the incident in the said case is one which has had no precedent in the State in the recent past. "The prosecution case is that the accused have murdered and mutilated two women as part of a ritualistic human sacrifice and dismembered their body and buried. This is a well orchestrated crime accomplished with well pre-planning and prior meeting of mind between the accused persons. All these facts are to be thoroughly investigated. The investigation of the case is in the preliminary stage. If the accused is released on bail at this stage, it will affect the progress of the investigation. There is also chance for her intimidating the witness, tampering with evidence in this case and being absconded. Moreover, the offence is exclusively triable with the Court of Session", the Court said.

Kerala High Court Extends Time For VCs To File Objections To Chancellor's Show Cause Notices

Case Title: Dr. Gopinath Ravindran v. Chancellor, Kannur University & Ors. and other connected cases

The Kerala High Court on Thursday extended the time till November 7 for the Vice Chancellors of various state Universities to respond to the show cause notices issued to them by the Governor for their removal.

Justice Devan Ramachandran was informed by advocates appearing on behalf of the Vice Chancellors that they were inclined to file objections before the Chancellor against the impugned show cause notices.