Kerala High Court Annual Digest 2023: Part II [Citations 256-511]

Jeffin Jose T V The Central Board of Secondary Education, 2023 LiveLaw (2023) 263

Ashok Kumar V. Sankarankutty Pillai 2023 LiveLaw (Ker) 264

Ejo P.J. v. Regional Passport Office & Anr. 2023 LiveLaw (Ker) 265

X v. NIL 2023 LiveLaw (Ker) 266

Dheera N.G. & Anr. v. Simesh S. and Simesh S. v. Dheeran N.G. & Anr. 2023 LiveLaw (Ker) 267

K.R Santhosh Versus Revenue Divisional Officer 2023 LiveLaw (Ker) 268

Govindarajan @ Govind v. Vidya & Anr., 2023 LiveLaw (Ker) 304

Shamir T.J v. State of Kerala & Ors., 2023 LiveLaw (Ker) 305

Thushar Nirmal Sarathy v. State of Kerala, 2022 LiveLaw (Ker) 306

Cheriyathoda Cheriyakoya & Ors v. Cheriyathoda Kunni Kunni & Ors, 2022 LiveLaw (Ker) 307

V. Anilkumar & Ors. v. State of Kerala & Anr., 2023 LiveLaw (Ker) 308

Justin T.J v. State of Kerala, 2022 LiveLaw (Ker) 309

Sheela Sunny v. State of Kerala & Anr., 2023 LiveLaw (Ker) 310

Harikrishnan v. State of Kerala & Ors., 2022 Livelaw (Ker) 311

Suo Motu v. Yeshwanth Shenoy, 2023 LiveLaw (Ker) 312

Jayaprakash P.P v. Sheeba Revi, 2022 LiveLaw (Ker) 313

Afeefa C.S & Anr v. Director General of Police & Ors, 2023 LiveLaw (Ker) 314

XXX v. YYY & Anr. 2023 LiveLaw (Ker) 316

R.S. Sasikumar v. State of Kerala 2023 LiveLaw (Ker) 364

Mohandas v. State of Kerala 2023 LiveLaw (Ker) 365

Kerala State Legal Services Authority v. State of Kerala 2023 LiveLaw (Ker) 366

Dotty Shiby v. State of Kerala & Anr. 2023 LiveLaw (Ker) 367

Shaju A.N v Rahoof P.K and connected matters 2023 LiveLaw (Ker) 368

M/S. Elite Green Pvt Ltd Versus Under Secretary 2023 LiveLaw (Ker) 369

Suresh K M v. State of Kerala 2023 LiveLaw (Ker) 370

Suo Motu v. State of Kerala 2023 LiveLaw (Ker) 371

P.K.Abdul Salam v. Abdul Jabbar (Deceased) 2023 LiveLaw (Ker) 372

Amod Mathew v. A.P.M Mathew & Ors 2023 LiveLaw (Ker) 373

Nirmala & Ors v. Sundaresan & Ors 2023 LiveLaw (Ker) 374

Bhaskaran KP v Kerala State Electricity Board Ltd. 2023 LiveLaw (Ker) 375

Case Title: Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors.

Citation: 2023 LiveLaw (Ker) 256

The Kerala High Court recently held that married daughters belonging to the Hindu Malayala Kammala caste would also be entitled to a share in the self-acquired property of their parent.

The Court in this case was dealing with a case in which it was contended that the females would not be entitled to a share in the property, since as per the custom of the community, they were given in marriage in the customary Kudivaippu form, after giving streedhanam.

It held that any custom governing intestate succession in respect of the self acquired property of a Hindu that was inconsistent with the provisions of the Hindu Succession Act, 1956 (hereinafter, 'Act, 1956'), would be abrogated immediately on coming into force of the statute, by virtue of Section 4.

Gratuity Is To Be Calculated From Date On Which It Became Payable, Not From Date Of Disbursement: Kerala High Court

Case Title: K. Rajendra Prasad V State Of Kerala

Citation: 2023 LiveLaw (Ker) 257

The Kerala High Court recently observed that the maximum amount of gratuity payable under the Payment of Gratuity Act, 1972 must be calculated from the date on which gratuity became payable and not on the date the amount was actually disbursed.

The Court was considering the plea of a retired Regional Engineer from the Kerala State Housing Board whose DCRG and last month pay was withheld due to audit objections. The Petitioner retired in the year 2002. He had earlier approached the Court and the Secretary of the Board was directed to disburse the withheld amounts. However, according to the petitioner, in light of the 2010 Amendment to the Payment of Gratuity Act, 1972 under Section 4(3) he is entitled to a maximum gratuity of Rupees Ten Lakhs.

Dismissing the petitioner's claim a single bench of Justice Murali Purushothaman observed:

“The gratuity is payable to an employee on the termination of his employment. The gratuity payable to an employee shall not exceed the maximum that is notified under the respective enactments as on the date on which the gratuity becomes payable. Even if it is assumed that the petitioner's claim for gratuity was under the Payment of Gratuity Act, 1972, the maximum amount of gratuity payable under the said Act has to be determined with respect to the date on which the gratuity became payable and not on the date on which sanction was accorded for payment of DCRG or the date on which the amount was actually disbursed to him. Therefore, there is no merit in the contention of the petitioner that he is entitled to the maximum gratuity of Rs.10,00,000/- as per section 4(3) of the Payment of Gratuity Act, 1972, as amended by Act 15 of 2010.”

[Coach Selection] Kerala High Court Directs Sports Council To Reconsider Application Of Candidate Who Failed To Show Activeness In Sport After 2002

Case Title: Satheesh Kumar R V Kerala State Sports Council & Another

Citation: 2023 LiveLaw (Ker) 258

The Kerala High Court recently directed the State Sports Council to reconsider the application of a candidate under the Khelo India Scheme which was rejected for crossing the prescribed upper age limit, despite a provision in the selection notification of age relaxation for deserving candidates.

The candidate had applied to the post of Swimming Trainer at the District Sports Academy, Pirappancode under the State Level Khelo India Centre Scheme. However, he was not selected to the post, as he was beyond the upper age limit of 40 prescribed for the post and also because he failed to show that he had been active in swimming after the year 2002.

However, the Court noted that the selection notification allowed for relaxation of the age limit if the candidate is an exceptional sportsperson. The Court took specific note of the documents produced by the candidate in his appeal which showed the appellant was active in swimming in recent years. The Court observed that it was only because he failed to produce sufficient supporting documents at the time of the interview that the relaxation of age limit was not considered and his application was rejected.

Can't Direct That A Judge Should Hear Particular Number Of Cases A Day : Kerala High Court Dismisses Lawyer's Plea

Case Title: Yeshwanth Shenoy V The Chief Justice High Court of Kerala & Others

Citation: 2023 LiveLaw (Ker) 259

The Kerala High Court on Friday dismissed the petition filed by Adv. Yeshwanth Shenoy alleging that a sitting judge has limited the number of cases listed before the bench to only 20 matters a day, terming it a 'Publicity Interested litigation' to malign judges and the judiciary.

A single bench of Justice P V Kunhikrishnan terming it a frivolous writ petition for popularity and news value, observed:

“Lawyers are the officers of the Court; they are part of the judiciary. If these types of litigations are filed by the lawyers, what is the message that will go to the Society? A lawyer having 21 years of practice filing a writ petition before this Court arraying a Judge of this Court and the Hon'ble Chief Justice as party and making wild allegations without any basis.”

NDPS Act | Mere Virtual Presence Of Accused Not Relevant If He's Not Informed Of Prosecution's Plea For Extension Of Detention: Kerala High Court

Case Title: Sabarinathan v. State of Kerala

Citation: 2023 LiveLaw (Ker) 260

The Kerala High Court recently held that the decision of the Additional Sessions Judge in a NDPS case, allowing an application for extension of detention and the period of investigation is illegal on account of the failure of the Court to inform the accused as regards the filing of the application and of his right to object to the same.

The Court arrived at the above decision while considering a petition against order allowing Public Prosecutor's application under Section 36A(4) NDPS Act, for the further detention of the accused for a period of 180 days.

Justice Raja Vijayaraghavan V. observed that the failure of the Court to give oral notice would vitiate the entire proceedings.

"The mere fact that the presence of the accused was secured virtually will not serve any purpose as the accused was not made aware of the filing of the application and there are no materials to suggest that the accused was granted an opportunity to formally raise his objections to the application for extension of detention. In that view of the matter, the impugned order cannot be sustained under law," the Court observed.

Kerala High Court Directs State To Consider Representations By CBSE Schools Association Against Proposed Fee Regulatory Committee

Case Title: Kerala CBSE Schools Management Association & Ors. v. State of Kerala & Ors. and Sarosh P. Abraham v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 261

The Kerala High Court recently directed the State government to consider the representations filed by the Kerala CBSE School Management Association challenging the proposed guidelines framed by the Director of General Education (DGE) for setting up Fee Regulatory Committee and fixing the fee in CBSE/ICSE affiliated schools and unaided schools in the State that follow Kerala State syllabus.

Justice P.V. Kunhikrishnan passed the Order and further directed the State to pass appropriate orders in the matter within three months, after affording an opportunity of hearing to the petitioners.

Accused Has No Vested Right To Seek Joint Trial: Kerala High Court

Case Title: Jithin P V State of Kerala

Citation: 2023 LiveLaw (Ker) 262

The Kerala High Court recently held that an accused has no vested right to seek a joint trial under Section 220 of the Code of Criminal Procedure,1973. The Court observed that if the offences form part of the the same transaction, they can be tried together in a joint trial.

A single bench of Justice K Babu observed as follows about Section 220 (Trial for more than one offence) of the Cr.PC:

“The Section is an enabling provision. It permits the Court to try more than one offence in one trial. The Court may or may not try all the offences together in one trial. If the Court tries the offences separately, it does not commit any illegality. The accused in a case has no vested right to seek joinder of charges and trial of more offences in one trial.”

KEAM | Kerala High Court Permits Students Wrongly Awarded Class 12th Marks To Upload Corrected Marksheets

Case Title: Jeffin Jose T V The Central Board of Secondary Education

Citation: 2023 LiveLaw (2023) 263

The Kerala High Court recently directed the Commissioner of Entrance Examinations to extend the time limit for uploading Plus Two Examination marks of 33 students of St. Paul's Public School, Thrissur for the KEAM-2023 (Kerala Engineering Architecture Medical) Entrance Exam.

A single bench of Justice P V Kunhikrishnan passed the order after 33 pointed anomaly in the Mathematics internal/practical marks awarded to them by the school. The students had sought a direction for issuance of fresh mark sheets incorporating the correct marks and extension of time limit to upload their marksheets in the portal for the KEAM-2023 entrance examination.

Cheque Issued As Security Will Mature For Presentation On Default When Payment Becomes Due: Kerala High Court

Case Title: Ashok Kumar V. Sankarankutty Pillai

Citation: 2023 LiveLaw (Ker) 264

The Kerala High Court recently held that a cheque issued as security would mature for presentation on default when payment is due. In the event of non-payment of the amount, the recipient of the cheque would be compelled to present the cheque for payment, the Court observed.

A single bench of Justice Sathish Ninan observed

“The very fact that the cheque was issued as security by itself imply that, in the event of non-payment, the security is liable to be enforced. A cheque issued as security would mature for presentation on default when payment is due.”

We Are In AI Era, Documents Issued By Govt Must Conform To Global Standards: Kerala High Court

Case Title: Ejo P.J. v. Regional Passport Office & Anr.

Citation: 2023 LiveLaw (Ker) 265

We are in the AI era and government instrumentalities ought to be abreast with emerging global demands in order to have the vision of 'digital India' to materialize, the Kerala High Court observed when faced with the instance of a Police Clearance Certificate issued by an Indian authority being rejected by the authorities in Kuwait.

Single bench of Justice C.S. Dias asked the competent authority under the Ministry of External Affairs to take immediate steps to upgrade the central database and issue the Police Clearance Certificate (PCC) with the barcode, scanned photograph and details of criminal cases of the person concerned.

"We are in the AI era and the 5G revolution. Our Nation is a front-runner in technology. We are striving to make India Digital with initiatives like Indiastack.global, to have a repository of open standards and interoperability principles of key projects implemented under the Digital India Mission like Aadhaar, UPI, Digilocker etc. The certificates issued by the government and statutory authorities have to be internationally accepted, especially when India is a signatory to international conventions and treaties".

Law Does Not Recognise Live-In Relationship As Marriage, Couples Living Together By Virtue Of Agreement Can't Seek Divorce: Kerala High Court

Case Title: X v. NIL

Citation: 2023 LiveLaw (Ker) 266

The Kerala High Court recently held that the law does not recognise a live in relationship as marriage and hence such a relationship cannot be recognised for the purpose of divorce either.

The law only allows parties to divorce if they are married under a recognised form of marriage as per personal law or secular law, the Court observed. So far, marriages entered into between parties through a contract does not have any recognition under law for the purpose of divorce, the Court noted.

A division bench comprising of Justice Muhamed Mustaque and Justice Sophy Thomas observed:

“Marriage as a social institution, as affirmed and recognised in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognise the live-in relationship as marriage. The Law accords recognition only if the marriage is solemnised in accordance with the personal law or in accordance with secular law like the Special Marriage Act.”

Dominant Purpose Of Section 125Cr.P.C. Is To Ensure That Neglected Wife, Child, Parents Are Not Left Helpless: Kerala High Court

Case Title: Dheera N.G. & Anr. v. Simesh S. and Simesh S. v. Dheeran N.G. & Anr.

Citation: 2023 LiveLaw (Ker) 267

The Kerala High Court recently enhanced the monthly maintenance allowance of the paralyzed estranged wife and son of a headload worker, on taking note of the latter's neglect and refusal to maintain his wife and child.

The Single Judge Bench of Justice V.G. Arun observed that in such cases, Court ought to be aware of the dominant purpose behind Section 125 Cr.P.C. that stipulates for maintenance, which is that of ensuring that the neglected wife, child and parents are not left in a 'helpless state of distress, destitution and starvation'.

"The court should also be convinced about the existence of the following factors; i) that the respondent has neglected or refused to maintain the claimant. (ii) the claimant do not have the means to maintain herself/himself. (iii) the respondent has sufficient means for maintaining the claimant," it added.

Land To Be Re-assessed For Fixing Basic Tax Rate After Change In The Nature Of Land: Kerala High Court

Case Title: K.R Santhosh Versus Revenue Divisional Officer

Citation: 2023 LiveLaw (Ker) 268

The Kerala High Court has held that as the nature of the land of the petitioner has been permitted to be changed pursuant to the passing of a statutory order under the Kerala Land Utilisation Order, 1967, the competent authority is bound to re-assess the rate of basic tax and to make necessary entries in the Basic Tax Register after verifying the veracity and genuineness of the permission obtained.

The bench of Justice N. Nagaresh, while relying on the decision in Mary Abraham v. State of Kerala and others, observed that once an enabling order is passed under Rule 6(2) of the Kerala Land Utilisation Order, 1967, permitting conversion of the land, then the earlier entries in the BTR showing the land as Nilam, Paddy Land, etc. will become superfluous and redundant, and the competent Revenue officials like the Tahsildar are obliged under law to make a fresh assessment of the property under Section 6A of the Kerala Land Tax Act, 1961.

Kerala High Court Quashes Property Tax Demand Raised Without The Assessment Of The Property

Case Title: Mohammed Kabeer Versus Secretary

Citation: 2023 LiveLaw (Ker) 269

The Kerala High Court has quashed the property tax demand raised without an assessment of the property.

The bench of Justice Anu Sivaraman has observed that the property tax was demanded at the maximum rate possible without considering any relevant aspect, including the age of the building.

IIM Kozhikode Not Instrumentality Of State Under Article 12 Of Constitution; Writ Petition Over Service Dispute Not Maintainable : Kerala High Court

Case Title: Shiny George Ambat V. Union of India

Citation: 2023 LiveLaw (Ker) 270

The Kerala High Court held that IIM, Kozhikode being an autonomous body as per the Indian Institute of Management Act, 2017 and there being no statutory rules with regard to the service conditions of the employees of the institute, the writ jurisdiction of the High Court under Article 226 cannot be invoked for grant of relief.

A single bench of Justice Anu Sivaraman observed that IIM Kozhikode is an autonomous institution and would not come under the ambit of 'State' under Article 12:

“….the contention that the IIM, Kozhikode would answer the definition of State or “Instrumentality of State” under Article 12 of the Constitution of India cannot be accepted. Though the constitution of the governing body appears to be by way of nomination, the institute is specifically intended to be an autonomous institution. It is true that the institute is performing the duty of imparting education in management and carrying out research in the field. However, there is no monopoly intended to be created either by the Statute or by any other means in favour of such institutes in the matter of imparting of management education. The Institute is not a creature of the Statute, since it was a society whose functions were brought under the purview of 2017 Act.”

Magistrate Cannot Impose Condition To Deposit Cash Security While Granting Default Bail: Kerala High Court Reiterates

Case Title: Rajesh @ Malakka Rajesh & Anr. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 271

The Kerala High Court reiterated the position that while granting statutory bail, the Magistrate cannot impose any other condition for deposit of cash security.

The Single Bench of Justice Raja Vijayaraghavan V. relied upon the Apex Court decision in Saravanan v. State represented by the Sub Inspector of Police wherein it was held that while granting default bail/statutory bail under Section 167(2) Cr.P.C., the condition of deposit of amount cannot be imposed.

The bench noted that the Apex Court had clarified in the said decision that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail.

Kerala High Court Upholds Tribunal's Order Directing PSC To Provisionally Accept Trans-Woman's Application For Post Confined To Women Candidates

Case Title: Kerala Public Service Commission v. Aneera C. & Ors.

Citation: 2023 LiveLaw (Ker) 272

The Kerala High Court recently refused to interfere with the interim order issued by the Kerala Administrative Tribunal permitting a trans-woman applicant to submit her application for the post of House Keeper (Female) that had been notified by the Kerala Public Services Commission (Kerala PSC).

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran was of the view that the impugned order was only an ad interim interlocutory order, that was intended to 'preserve the subject matter of the lis'.

Pre-Arrest Bail Plea Though Barred For Offence U/S 376(3) IPC May Be Considered If Material Does Not Prima Facie Attract Offence: Kerala High Court

Case Title: XXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 273

The Kerala High Court recently dismissed the anticipatory bail application filed by a father accused of sexually abusing his minor daughter.

A single bench of Justice Ziyad Rahman observed that as per Section 438 (4) of the Criminal Procedure Code, there is a specific bar against entertaining an application for anticipatory bail where offences Section 376(3) or section 376AB or section 376DA or section 376DB of the Indian Penal Code are alleged. However, the Court may entertain an application for anticipatory bail if the materials placed before the Court does not attract the specific offences under Section 376 IPC:

“As per Sub Section 4 of Section 438 of Cr.P.C., the prohibition in entertaining an application in this regard would come into play when there is an accusation against the accused for having been involved in the offences referred to therein. Therefore, what is relevant is the accusation made against the petitioner. In this case, the allegations constituting the offence under Section 376(3) of IPC can be found in the form of various statements made by the victim before the learned Magistrate. The aforesaid accusations would make out a prima facie case. Thus bar contemplated under Sub Section 4 of Section 438 would come into play.”

Objection Filed After Sale Of Attached Property Barred Under Order 21 Rule 58 CPC, Family Courts Should Be Careful: Kerala High Court

Case Title: Thankam v. Remani & Anr.

Citation: 2023 LiveLaw (Ker) 274

The Kerala High Court recently held that an objection cannot be filed after the sale of attached property has been confirmed, as per the bar under proviso (a) to Order 21 Rule 58(1). It thereby cautioned Family Court judges to be more careful, vigilant, and sensitive, while dealing with cases before them.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas passed the Order while finding the Family Court had erroneously entertained and passed its decision on a claim petition that was hit by proviso (a) to Order 21 Rule 58(1).

Order 21 Rule 58(1) stipulates that "Where any claims preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained". Proviso (a) goes on to state in this regard that, "no such claim or objection shall be entertained where before the claim is preferred or objection is made, the property attached has already been sold".

Solatium & Interest As Per Land Acquisition Act Payable For Acquisitions Made Under National Highways Act: Kerala High Court Reiterates

Case Title: Shiji v. The Project Director, National Highway Authority of India & Ors.

Citation: 2023 LiveLaw (Ker) 275

The Kerala High Court recently rebuked the National Highway Authority of India for 'unnecessarily burdening the courts' with litigations even in the face of settled principles of law.

The Court made the above observation while reiterating that provisions of the Land Acquisition Act 1894 relating to solatium and interest contained in Sections 23(1-A) and (2) and interest payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act 1956.

The Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha, observed that in spite of the decision of the Apex Court in Union of India & Anr v. Tarsem Singh & Ors. (2019) which declared as unconstitutional Section 3J of the National Highways Act to the extent it excludes solatium and interest as per Land Acquisition Act to acquisitions done under the NH Act, the NHAI had been challenging the grant of the benefits under the 1894 Act.

Kerala High Court Closes Woman's Habeas Corpus Plea Seeking Release Of Lesbian Partner From Parental Custody

Case Title: Sumayya Sherin v. Director General of Police & Ors.

Citation: 2023 LiveLaw (Ker) 276

The Kerala High Court closed the habeas corpus petition filed by a 21 year old woman seeking the release of her lesbian partner from the custody of her family.

The Division Bench comprising Justice P.B. Sureshkumar and Justice Shoba Annamma Eapen closed the petition on taking note of the petitioner's partner's/ the alleged detenu's statement that she wished to go with her parents.

The petitioner had averred in her plea that both herself and her partner, who belong to Muslim families had been friends since early school days, and had fallen in love with each other by Class 12. It was submitted that they had been residing together for a while. She stated that a lower court had permitted the two women to live together, and added that the parents and brother of the detenu had, on May 30, 2023, forcefully taken her away.

A Mother May Be Morally Bad In Societal Sense But She May Be Good For Child's Welfare: Kerala High Court

Case Title: XXX v. XXX

Citation: 2023 LiveLaw (Ker) 277

The Kerala High Court recently held that in matters of child custody, the welfare of the child alone is to be considered. A mother may be 'morally bad in the societal sense', but that does not mean the mother is bad for the welfare of the child, the Court observed.

A division bench comprising Justice Muhamed Mustaque and Justice Sophy Thomas observed,

“In a matter related to the child's custody, the welfare aspect alone has to be considered first. A man or woman may be bad for someone in a contextual relationship, that does not necessarily mean that the person is bad for his/her child. A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned. The so called morality is created by society based on their own ethos and norms and should not necessarily reflect in a contextual relationship between a parent and child.”

Whether Higher Qualification Would Subsume Lesser Qualification To Be Decided By Employer Based On Its Assessment & Requirements: Kerala High Court

Case Title: Navaneeth Mohanan K.P. & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 278

The Kerala High Court held that whether a higher qualification would subsume a lesser qualification or whether one qualification is equivalent to another are matters to be decided by the employer, based on their assessment and requirements.

The Single Judge Bench of Justice N. Nagaresh observed:

"Whether one qualification is equivalent to another or whether one qualification would subsume another lesser qualification are factors within the realm of academics and in the matter of recruitment to services, it is for the employers to, based on their assessment and requirements, decide such matters. In the absence of patent illegality, perversity or proven legal mala fide, courts will not enter in that arena which is best left to the employer".

[Kerala Anti-Social Activities (Prevention) Act] Externment Order Vitiated If Reasons For Imposing Maximum Period Not Disclosed: High Court

Case Title: Ashraf Ali v State of Kerala

Citation: 2023 LiveLaw (Ker) 279

The Kerala High Court recently observed that when issuing an externment order with the maximum period of punishment for one year under Section 15(1)(a) of Kerala Anti-Social Activities (Prevention) Act, 2007, the reasons for passing such an order must be stated.

A division bench of Justice P B Suresh Kumar and Justice C S Sudha observed:

“As Section 15(1)(a) of the Act makes a serious inroad on the personal liberty of citizens guaranteed under Article 19(1)(d) of the Constitution, it is an extraordinary power, to be exercised under extra ordinary circumstances. An externment order would certainly deprive a citizen concerned of his fundamental right of free movement throughout the territory of India. At times, it would also prevent a citizen from residing in his house with his family during the subsistence of the order.”

GST Act Has An Inbuilt Mechanism And Impliedly Excludes The Application Of The Limitation Act: Kerala High Court

Case Title: Penuel Nexus Pvt. Ltd. Versus The Additional Commissioner Headquarters (Appeals)

Citation: 2023 LiveLaw (Ker) 280

The Kerala High Court has held that Section 107 of the CGST Act is an inbuilt mechanism and has impliedly excluded the application of the Limitation Act.

The bench of Justice C.S. Dias has observed that the Limitation Act will apply only if it is extended to the special statute. It is also rudimentary that the provisions of a fiscal statute have to be strictly construed and interpreted.

[Kerala Headload Workers Act] Employer Is Free To Engage Skilled Persons Under Section 9A If Special Assistance Is Required: High Court

Case Title: M/S Jatan Constructions Pvt Ltd V. Station House Officer

Citation: 2023 LiveLaw (Ker) 281

The Kerala High Court recently held that if the work of loading and unloading requires assistance of skilled persons, an employer can engage persons with the requisite skill or machinery and this right of the employer is protected under the proviso to Section 9A of the Kerala Headload Workers Act, 1978.

A single bench Justice N Nagaresh observed,

“The proviso to Section 9A would make it clear that in respect of works which require assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works can be done by an employer by engaging persons having such skill or by the machinery as the case may be. It is the specific case of the petitioner that the Transformer in question is being unloaded using a machinery. The transportation of machinery requires due diligence and it has to be done by the skilled workers. In view of the proviso to Section 9A, the petitioner has a right to get the work done by using machinery and skilled workers.”

Kerala High Court Says It Has Power To Initiate Disciplinary Proceedings Against District & Subordinate Court Judges In Lakshadweep

Case Title: K Cheriya Koya V. U T Administration of Lakshadweep

Citation: 2023 LiveLaw (Ker) 282

The Kerala High Court held that the control over district court and subordinate courts of the Union Territory of Lakshadweep including the power of disciplinary proceedings against the presiding officers of such courts vests with the High Court of Kerala by virtue of Article 235 of the Constitution.

A single bench of Justice P V Kunhikrishnan held,

“In the light of Article 235 of the Constitution of India, it is declared that the control over the district court and courts subordinate thereto mentioned in Article 235 of the Constitution of India includes the power of disciplinary proceedings against the presiding officers of district court and courts subordinate thereto. Since the district court and subordinate courts in Lakshadweep are under the supervision of the High Court of Kerala, it is declared that the High Court of Kerala has got the power to initiate disciplinary proceedings against the presiding officers of the district court and courts subordinate thereto in the Lakshadweep Islands. I also clarify that the 1st respondent is free to frame Rules in tune with Article 235 of the Constitution of India, if necessary.”

Mother Can Avail Child Care Leave For Third Child If It Wasn't Availed For Elder Children: Kerala High Court

Case Title: The Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr.

Citation: 2023 LiveLaw (Ker) 283

The Kerala High Court recently upheld the Administrative Tribunal order which stated that Child Care Leave (CCL) facility cannot be said to be restricted to the two 'eldest' surviving children alone, particularly when such facility had not been availed in respect of the first two children.

Interpreting Section 43-C of the Central Civil Service (Leave) Rules 1972, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran said,

"CCL benefit is available for 'two children', no matter whether they are 'eldest' or not. The only stipulation is that the Rule is available 'upto two children'."

'Period Spent By Teacher To Pursue PhD Can Be Counted As Teaching Experience' : Kerala High Court Allows Priya Varghese's Appeal

Case Title: Priya Varghese V Dr. Joseph Skariah

Citation: 2023 LiveLaw (Ker) 284

The Kerala High Court set aside the order of the Single Judge that directed the Kannur University to re-examine the credentials of Priya Varghese to be appointed as Associate Professor at Kannur University. Priya Varghese is the wife of K.K. Ragesh, private secretary to Chief Minister Pinarayi Vijayan.

In November 2022, a Single Bench of Justice Devan Ramachandran had held that Priya Varghese did not possess the requisite teaching experience, to be appointed as Associate Professor at the Department of Malayalam at Kannur University and directed the competent authority of the University to reconsider her credentials and decide whether she should continue on the Rank List. Dr.Joseph Skariah, who was ranked after Varghese in the Rank List, had filed the writ petition challenging the inclusion of Varghese in the List stating that she was not qualified for the post of Associate Professor as she did not have the prescribed 8 years of teaching experience prescribed.

In an appeal by Priya Varghese, a division bench of Justice A K Jayasankaran Nambiar and Justice Mohammed Nias C P set aside the order of the single bench and held that the period spent by Priya Varghese on pursuing her Ph.D. degree under the Faculty Development Programme could not be excluded while considering the period of teaching experience.

[Koodathayi Murder] Kerala High Court Refuses Interference With Order Allowing Examination Of Notary Who Attested Will Forged By Jolly Joseph

Case Title: Jollyamma Joseph @ Jolly V. State Of Kerala

Citation: 2023 LiveLaw (Ker) 285

The Kerala High Court has dismissed the petition filed by Jolly Joseph, prime accused in the Koodathyi Murder case, challenging an order of the Sessions Court that allowed the notary who had attested the Will forged by her, to be examined as a witness.

Jolly had filed the petition contending that the notary was earlier arrayed as the 5th accused in the case and hence could not be examined as a witness, even though the proceedings against him were later quashed by the High Court.

A Single Bench of Justice Raja Vijayaraghavan V held that since the notary is no longer an accused, there is no embargo in the prosecution summoning and examining him. The Court relied on the decision of the Apex Court in Varsha Garg v. State of Madhya Pradesh [2022 SCC OnLine SC 986] to observe,

“the scope and ambit of the powers under Section 311 of the Cr.P.C. has held that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person, even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by the exigency of the situation. Fair play and good sense appear to be the only safe guides, and only the requirements of justice command the examination of any person, which would depend on the facts and circumstances of each case.”

Excess Payment Negligently Granted Cannot Be Recovered When Employee Has No Knowledge That Payment Is More Than What Is Entitled: Kerala High Court

Case Title: State of Kerala & Ors. v. Seena M.

Citation: 2023 LiveLaw (Ker) 286

The Kerala High Court held that excess payment that was carelessly or negligently granted to an employee by an employer cannot be recovered, particularly when the employee had no knowledge that the amount that was paid was more than what (s)he was entitled to.

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran, on considering the case of an applicant teacher who was paid excess increment based on a Government Order, ascertained that the situation was covered within the ambit of clause (v) of the situations summarized in paragraph 18 of State of Punjab & Ors. v. Rafiq Masih (White Washer Case) (2015). The said clause states that recoveries of excess payment by employers, would be impermissible in law where the recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

Use Of AI Cameras For Detecting Road Violations Cannot Be Discouraged Due To Corruption Allegations: Kerala High Court

Case Title: Mohanan V.V State Of Kerala

Citation: 2023 LiveLaw (Ker) 287

The Kerala High Court held that the 'innovative venture' of using AI (Artificial Intelligence) cameras for detecting road violations cannot be discouraged merely because of allegations of corruption in implementation of the project.

A single bench of Justice P V Kunhikrishnan observed there may be objections regarding transparency of the project and even corruption allegations. However, those are to be dealt with separately.

“An innovative system is introduced in the State to detect the violation of the provisions of the Motor Vehicles Act and Rules by installing AI surveillance Cameras on the roads. We have to appreciate the government and its Motor Vehicle department for introducing the same. There is no criticism from any part against the installation of AI Cameras, even from opposition parties in the state. They also wholeheartedly accept the new venture. “

'Privacy Is The Core Of Human Dignity': Kerala High Court Orders Online Images Of Woman Facing Humiliation And Cyber Attacks Be Removed

Case Title: XXX. V State of Kerala

Citation: 2023 LiveLaw (Ker) 288

The Kerala High Court directed the Director General of Police to take steps to remove online images and details of a woman who is a victim of offences under the Immoral Traffic (Prevention) Act, 1956.

The Petitioner had approached the High Court for removal of online content having her name and images circulating on social media, which had resulted in humiliation and cyber attacks on her.

Taking note of the submission of the Petitioner that circulation of such content on social media is violating her right to privacy, a single bench of Justice K Babu observed that:

“Privacy is the ultimate expression of the sanctity of the individual. There cannot be dignity to an individual without privacy. It is a constitutional value founded on fundamental rights. Privacy with its attended values assures dignity to the individual. Dignity is the core which unites fundamental rights. Privacy is the constitutional core of human dignity.”

'Safe Sex' Education Need Of The Hour: Kerala High Court Suggests Govt To Constitute Committee To Address Issue

Case Title: XXX v Union of India

Citation: 2023 LiveLaw (Ker) 289

Stressing on the need for proper 'safe sex education' among the youth, the Kerala High Court on Friday suggested the Government to consider constituting a committee and introducing 'safe sex education' in school and college curriculums. The Court asked the Chief Secretary to take appropriate action in this regard.

The Court made this observation while considering a plea by a father to medically terminate the pregnancy of his minor daughter impregnated by his minor son. A single bench of Justice P V Kunhikrishnan observed that such incidents take place due to lack of knowledge about safe sex:

“It is the duty of our society to keep these parents close to get over from this trauma. Nobody can blame the parents. But, we the society is responsible for this. Sibling incest may take place in the context of a family system that does not provide a safe environment for its members. But it may also happen because of the lack of knowledge about safe sex. I am of the considered opinion that the Government should seriously think about the necessity of proper 'sex education' in schools and colleges.”

Prosecutrix Was Married Yet Maintained Sexual Relations With Another Married Man: Kerala High Court Quashes Rape FIR

Case Title: Kripesh Krishnan v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 290

The Kerala High Court quashed criminal proceedings against a married man, who was alleged to have committed rape on a married woman.

Justice K. Babu observed that in the present case, the prosecutrix (2nd respondent herein) was a married woman with children, and aware that the petitioner accused was also married. The Court noted that despite the same, she maintained sexual relations with the petitioner on many occasions.

"It is difficult to conclude that the prosecutrix had not given consent for the sexual relationship with the petitioner under any misconception of facts so as to hold that the petitioner is guilty of having committed rape within the meaning of Section 375 of IPC," the Court thus noted.

Case Title: Vijaya K Vs. Muraleedharan K G

Citation: 2023 LiveLaw (Ker) 302

The Kerala High Court recently held that an award passed by a Lok Adalat must contain all the characteristics of a decree to make it enforceable. The Court observed that Order 20 Rules 6 (1) and (9) of the Civil Procedure Code, 1908 which deals with the contents of a decree, must be adhered to.

A division bench of Justice Muhamed Mustaque and Justice Sophy Thomas observed that

“To execute an award, it must have all the characters of a decree to enforce it. If the award is blank and only refers to the obligation without referring to the nature of the obligation to be performed, it become in-executable. The award passed by the Lok Adalat is based on the agreement between the parties. The officers, presiding over such Adalat must apply their mind while passing the award to ensure that such award is executable. They must refer to Order 20 Rules 6 (1) and (9) of the Civil Procedure Code which refers to the contents of decree.”

Case Title: Ambika B. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 303

The Kerala High Court quashed the detention order of a person who had been detained under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 on the ground of unreasonable delay on the part of the detaining authority in seeking additional particulars from the sponsoring authority. The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha on taking note of the factual circumstances of the case held that the time consumed by the detaining authority for seeking additional particulars in the case could not be said to be reasonable, thereby justifying the delay.

Case Title: Govindarajan @ Govind v. Vidya & Anr.

Citation: 2023 LiveLaw (Ker) 304

The Kerala High Court recently reiterated that an application for amendment can be permitted by a Family Court despite the absence of provisions for amendment in the Code of Criminal Procedure (Cr.P.C.). The Single Judge Bench of Justice V.G. Arun relied upon various precedents and proceeded to observe that technicalities would not have any place in maintenance cases under Section 125 of Cr.P.C.

S.482 CrPC Can Be Invoked To Secure Justice Despite Availability Of Revisional Remedy: Kerala High Court

Case Title: Shamir T.J v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 305

The Kerala High Court has recently held that inherent powers under Section 482 CrPC can be invoked to secure justice and to prevent abuse of court process despite the availability of a revisional remedy under Section 397. Justice Ziyad Rahman A.A disagreed with the findings in Bayyarapu Suresh Babu v. State of Andra Pradesh & Ors (2021) and observed that the availability of a revisional remedy is not an absolute bar from the Court exercising its inherent powers on a matter.

Kerala High Court Warns Prison Authorities Against Unnecessary Delay, Detention Of Lawyers Visiting Clients in Jail

Case Title: Thushar Nirmal Sarathy v. State of Kerala

Citation: 2022 LiveLaw (Ker) 306

The Kerala High Court recently highlighted the vital role of lawyers as officers of the court in criminal cases and observed that when lawyers visit their clients in prison, it is the duty of prison officials to respect their professional duties and avoid unnecessary delays or detentions. Justice P.V. Kunhikrishnan expressed shock after a lawyer who was forced to approach the Court to obtain the signature of his client convicted in a criminal case lodged at Central Prison. The Judge made it clear that any unwarranted obstacles faced by lawyers in meeting their clients in jail will be viewed seriously by the Court going forward.

Order XLIII CPC | Conditional Orders Allowing Restoration Of Suits And Imposing Penalties Are Appealable: Kerala High Court

Cheriyathoda Cheriyakoya & Ors v. Cheriyathoda Kunni Kunni & Ors

Citation: 2022 LiveLaw (Ker) 307

The Kerala High Court has held that an order allowing the restoration of a dismissed suit for non-prosecution or setting aside an ex-parte decree, when accompanied by a conditional order imposing a penalty or cost, is an appealable order under Order XLIII of the CPC. Justice P. Somarajan reasoned that non-compliance with the condition will effectively result in rejection of the restoration application and such order is thus, appealable.

Prima Facie False Implication Of Tribal Youth In Wildlife Offence: Kerala High Court Refuses Anticipatory Bail To Accused Forest Officers

Case Title: V. Anilkumar & Ors. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 308

The Kerala High Court recently dismissed the appeal preferred by certain forest officers against the refusal of anticipatory bail in a case pertaining to false implication and torture of a tribal youth in connection with an alleged wildlife offence. Justice V.G. Arun passed the order on finding prima facie materials to attract the offence under Section 3(p) (Punishment for instituting false, malicious or vexatious suit or criminal or other legal proceedings against a member of SC/ST) of the SC/ST (Prevention of Atrocities) Act, 1989.

S.36A NDPS Act | Presence Of Accused Mandatory While Hearing Extension Application, Mere Notice Not Sufficient: Kerala High Court

Case Title: Justin T.J v. State of Kerala

Citation: 2022 LiveLaw (Ker) 309

The Kerala High Court recently held that the accused must be produced either physically or virtually while considering the application for extension of remand filed under Section 36A(4) of the NDPS Act and that neglect of the same goes beyond a simple procedural violation. Justice Raja Vijayaraghavan V pointed out that failure to do so would be equivalent to legally stripping the accused of their right to claim default bail.

Kerala High Court Quashes FIR Against Beauty Parlour Owner In Fake Drugs Case

Case Title: Sheela Sunny v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 310

The Kerala High Court quashed the FIR against Sheela Sunny, the owner of a beauty parlour in Chalakudy, who had been accused of possessing 0.106 grams of the drug LSD stamp. Sunny had sought the case to be quashed on the ground that the case was false and that the chemical analysis report was negative and no LSD had been detected in the stamp. Justice Kauser Edappagath passed the Order.

KAAPA | Delay In Initiating Proceedings Doesn't Invalidate Restraint Order If Nexus To Anti-Social Activity Not Severed: Kerala High Court

Case Title: Harikrishnan v. State of Kerala & Ors.

Citation: 2022 Livelaw (Ker) 311

The Kerala High Court recently held that a delay in initiating proceedings under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 does not always severe the live link between prejudicial activity and the initiation of legal action. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that an accused engaging in yet another prejudicial activity shortly after receiving such an order bolsters the necessity of the order.

Judges Can't Succumb To Wild Allegations Of Bias: Kerala High Court Rejects Plea By Advocate Facing Contempt For Recusal Of Justice Sophy Thomas

Case Title: Suo Motu v. Yeshwanth Shenoy

Citation: 2023 LiveLaw (Ker) 312

The Kerala High Court recently rejected the application moved by Advocate Yeshwanth Shenoy, seeking recusal of Justice Sophy Thomas from hearing the suo motu contempt proceedings initiated against him for alleged misbehaviour in Court. The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas rejected the application.

'Intent To Foster Personal Interaction' Essential Ingredient Of Stalking, Mere Threat Or Abuse Doesn't Attract S.354D IPC: Kerala High Court

Case Title: Jayaprakash P.P v. Sheeba Revi

Citation: 2022 LiveLaw (Ker) 313

The Kerala High Court has recently held that a mere threat or abuse by a man towards a woman would not attract the offence of stalking under Section 354-D of IPC. Justice K. Babu added that to qualify as stalking, a man must have repeatedly followed a woman and made contact or attempted to contact her, despite clear indications of disinterest from the woman, particularly demonstrating sexual interest or lewd behaviour by the man.

Kerala High Court Grants Interim Police Protection To Lesbian Couple Amid Alleged Threats From Family

Case Title: Afeefa C.S & Anr v. Director General of Police & Ors.

Citation: 2023 LiveLaw (Ker) 314

The Kerala High Court on Wednesday passed an interim order granting police protection to a lesbian couple who alleged that they were being targeted by their parents and henchmen. This comes less than a month after a Division Bench closed a habeas corpus petition filed by one of the women (Sumayya) seeking the release of her lesbian partner Afeefa from the custody of her family. While directing the police to provide the couple with adequate protection, Justice P.V. Kunhikrishnan also issued notice to the concerned authorities of the State police and to Afeefa's parents.

Jurisdictional Court Cannot Deny Accused's Right To Surrender If Permitted By CrPC: Kerala High Court

Case Title: Joseph Thomas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 315

The Kerala High Court recently held that a Magistrate cannot conclude that the accused was not in the custody of the Court when he voluntarily surrenders to its jurisdiction; it should take such accused in custody and deal with him as per law. Justice K. Babu added that when CrPC permits an accused to surrender before the Court having jurisdiction over the subject matter, the jurisdictional court cannot refuse permission.

Prima Facie Evidence Of Long Cohabitation: Kerala High Court Says Refusing Alleged Father's DNA Test May Brand Child As 'Bastard', Mother 'Immoral'

Case Title: XXX v. YYY & Anr.

Citation: 2023 LiveLaw (Ker) 316

The Kerala High Court held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside.

"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as 'bastard' and 'immoral'," the Single Judge Bench of Justice Mary Joseph observed.

S.361 IPC | Minor's Consent Immaterial, Guardian's Consent Determining Factor In Kidnapping Cases: Kerala High Court Reiterates

Case Title: State of Kerala v. Arumugham and connected matters

Citation: 2022 LiveLaw (Ker) 317

The Kerala High Court reiterated that a minor's consent is irrelevant for the offence of kidnapping under Section 361 of the Indian Penal Code (IPC) and that it is the guardian's consent that determines whether the act falls within its scope.

Justice K Babu added that the use of force or fraud is not necessary; even persuasion by the accused that leads to the minor willingly leaving the legal guardian's custody is sufficient to invoke the section. If the minor is moved out of the guardian's custody with their consent, without any fraud, force, or deceit, it still constitutes an offence under Section 361.

'Gift' Under Mohammedan Law Not Valid In Absence Of Delivery Of Possession To Donee: Kerala High Court

Case Title: Abdul Jabbar v. Khadeeja Beevi & Ors.

Citation: 2023 LiveLaw (Ker) 318

The Kerala High Court declared as invalid a gift deed under Mohammedan law where the donee was only allowed to enjoy half a cent from a total of 3 cents of the schedule property, and there was no positive assertion by the donor that possession of the rest of the property is handed over to the donee.

Justice P.G. Ajithkumar observed: "...on a conjoint reading of the whole of the recitals in Ext.A1 (gift deed) does not enable to find or infer that possession of 2½ cents of property was delivered over to the appellant. Such a recital is totally lacking in Ext.A1, whereas, there is a positive assertion that the donor would continue to enjoy the property. From the above the possible deduction is that, the donor did not intend to hand over the possession of 2½ cents of property to the donee immediately".

Section 294 CrPC Intended To Expedite Trials, Avoid Delay Caused By Recording Irrelevant Evidence: Kerala High Court

Case Title: Smrithy George v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 319

The Kerala High Court observed that the object of Section 294 of CrPC was to expedite trials and avoid unnecessary delay by recording irrelevant evidence. Section 294 provides that no formal proof is required for certain documents filed before any court.

Justice Raja Vijayaraghavan V also added that endorsement of admission or denial of such document by the defence counsel or the Public Prosecutor, as the case may be, is sufficient for compliance with Section 294.

"The object of Section 294 of the Code is to accelerate the pace of the trial by avoiding the time being wasted by the parties in recording unnecessary evidence. Where the genuineness of any document is admitted or its formal proof is dispensed with, the same may be read in evidence. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 of the Code personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence on the document filed by the prosecution or on the application/report with which the same is filed is sufficient compliance of Section 294 of the Code."

KAAPA | Detention Order Can't Be Issued Without Determining Sufficiency Of Bail Conditions Already Imposed On Accused: Kerala High Court

Case Title: K. Suresh Kumar v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 320

The Kerala High Court set aside a detention order which was issued by the detaining authority without determining the nature of the bail conditions already imposed on the detenu.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed,

"It is trite that when an accused in a criminal case, who is enlarged on bail with conditions is sought to be detained in preventive detention, it is incumbent on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities and despite the conditions, if the detaining authority still considers that the detenu is required to be detained, the detaining authority is at liberty to pass an order of detention. In other words, the duty of the detaining authority is that he should pointedly consider the order passed by the court granting bail to the detenu and the conditions thereof and after due application of mind, pass orders, either to detain or not to detain the detenu."

Foreign Matrimonial Judgments Valid In Indian Courts If Parties Consented To Jurisdiction Abroad: Kerala High Court Reiterates

Case Title: Arun A. v. Marriage Officer

Citation: 2023 LiveLaw (Ker) 321

The Kerala High Court reiterated that foreign judgments can be accepted as conclusive in India where the parties voluntarily and effectively submit to the jurisdiction of the foreign court and consent to the grant of the relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

Justice P.V Kunhikrishnan observed that in such circumstances, it was allowed to stray from the general rule that foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court and the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married.

LIFE Mission Case: Sivasankar Withdraws Plea For Bail On Medical Grounds After Kerala High Court Expresses He Should Approach Supreme Court

Case Title: M. Sivasankar v. Directorate of Enforcement & Anr.

Citation: 2023 LiveLaw (Ker) 322

Case Title: Suo Motu v. Nipun Cherian

Citation: 2023 LiveLaw (Ker) 325

The Kerala High Court on Thursday sentenced 'V4 Kochi' President, Nipun Cherian, to four months imprisonment and a fine of Rs. 2,000 in the suo motu contempt case for his statements against a sitting judge of the High Court.

The contempt case pertains to a speech made by Cherian before farmers, fishermen, and representatives of the local people of Chellanam where he had levelled 'allegations of corruption' against a sitting judge of the High Court. The speech was live streamed and uploaded in the Facebook page of 'V4 Kochi' on October 25, 2022.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. refused to accept Cherian's request to stay the sentence so that he could approach the Supreme Court in appeal. The Court clarified that the appeal could be filed even while serving the sentence.

Kerala High Court Grants Bail To Litigant Who Vandalized Family Court Judge's Car

Case Title: Jayaprakash v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 326

The Kerala High Court granted bail to a litigant who had made headlines for vandalising the car used by a Thiruvalla Family Court Judge.

Justice Ziyad Rahman A. A granted bail to the petitioner considering that he had been in custody since mid-June without entering any findings on the merits of the case.

Can't Include New Categories In PSC Recruitment Notifications Unless Allowed By Existing Rules: Kerala High Court

Case Title: Varghese Vijesh v. State of Kerala & connected matters

Citation: 2022 LiveLaw (Ker) 327

The Kerala High Court has held that new categories or posts for appointments cannot be included in State services in the absence of existing enabling recruitment rules prescribing such inclusion.

Justice N. Nagaresh reiterated that the rights and obligations of individuals employed by the Union and the States are derived from the governing rules that regulate their service.

"The law is therefore clear that the rights and obligations of the persons serving the Union and the States are to be sourced from the Rules governing their service. As the petitioners were not eligible for appointment as Assistant Engineers till 30.01.2023, the PSC cannot be directed to consider the candidature of the petitioners in any selection process conducted prior to 30.01.2023."

Complainant U/S 138 NI Act Does Not Come Within Ambit Of 'Victim' U/S 2(wa) CrPC: Kerala High Court

Case Title: Paulose v. Baiju & Anr.

Citation: 2023 LiveLaw (Ker) 328

The Kerala High Court held that the complainant in a prosecution under Section 138 of the Negotiable Instruments Act would not fall within the ambit of the word 'victim', as defined under Section 2(wa) Cr.P.C.

Section 2(wa) Cr.P.C. defines victim as "a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir".

Justice V.G. Arun arrived at the said finding by relying upon the decision in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors. (2019). The Apex Court had held therein that Section 378(4) is to be confined to an order of acquittal passed in a case instituted upon a complaint, and had further went on to clarify that the word 'complainant' as defined in Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate and has nothing to do with the lodging or registration of an FIR.

Financial Transactions With Co-Accused Alone Not Sufficient To Impose Embargo U/S 37 NDPS Act: Kerala High Court

Case Title: Amal E & Anr v. State of Kerala

Citation: 2023 LiveLaw (Ker) 329

The Kerala High Court held that mere reliance on financial transactions and the confession of a co-accused should not be considered sufficient grounds for imposing an embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.

While refraining from making a conclusive finding at this stage, Justice Ziyad Rahman A.A held that the absence of substantial evidence raises reasonable doubt regarding the petitioners' involvement in the case.

"From the perusal of the case records, it can be seen that, apart from the aforesaid (financial) transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the accused, there is nothing."

Kerala High Court Directs KIRTAD To Hear BCom Student Seeking Community Certificate On Basis Of Mother's Caste

Case Title: Rebeka Mathai v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 330

The Kerala High Court set aside the reports prepared by the Kerala Institute for Research Training and Development (KIRTAD) recommending against grant of community certificate to a 19 year old B.Com student born to an inter-religious couple.

Petitioner's mother belonged to 'Paniya' community, a recognized Scheduled Tribe community and father to Orthodox Syrian Christian. She claimed to be raised within the cultural bounds of the Paniya Tribe as her paternal family was estranged to them.

Single Judge Bench of Justice Viju Abraham, found that the reports by the authority was prepared without adverting to the relevant facts and circumstances of the particular case. It thus directed KIRTAD to reconsider her case after providing an opportunity of hearing.

Murder Case: Kerala High Court Grants Interim Bail To Minor To Visit His Ailing Mother

Case Title: X v. State of Kerala

Citation: 2023 LiveLaw (Ker) 331

The Kerala High Court recently granted interim bail to a minor, accused of murder among other offences, to enable him to visit his ailing mother and consult his lawyer.

Justice P.V Kunhikrishnan noted that the petitioner is already serving a prison sentence in another case, while granting one week of interim bail to him.

"It is an admitted fact that the petitioner is convicted in another case and is undergoing imprisonment. It is also submitted that the petitioner will get parole if one week bail is granted in this case. I do not want to make any observation about the same. Considering the facts and circumstances of the case, I think one week bail can be granted to the petitioner. The local police is free to make surveillance as far as the petitioner is concerned for one week," said the bench.

S.29A(4) Arbitration Act | Courts Can Extend Arbitrator's Mandate Without Parties' Consent: Kerala High Court

Legal Heirs Of Deceased Original Plaintiff Need Not Be Separately Impleaded In Counter Claim: Kerala High Court

Case Title: Sholly Lookose v. V.I. Joseph

Citation: 2023 LiveLaw (Ker) 333

The Kerala High Court recently held that legal heirs of the deceased original plaintiff need not be separately impleaded as counter claim defendants, in order for the counter claim not to stand abated.

Justice P. Somarajan explained that a counter claim ought to be treated as a plaint and governed by the rules applicable to plaints by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C..

"Necessarily, the plaintiff/plaintiffs in the suit would stand in the status of a defendant/defendants as against the counter claim, when treated as a plaint. When the original plaintiff passed away and legal heirs were brought on record by impleadment as supplementary plaintiffs, they would stand stepped into the shoes of the original plaintiff and necessarily would acquire the character of defendants as against the counter claim raised. Hence, there is no need to implead them once again separately as counter claim defendants could be raised only against the plaintiff in the suit and that it would not be permissible to implead any other person in the suit for the purpose of counter claim," the Court explained.

'No Deceitful Intention': Kerala High Court Quashes Cheating Case Against Cancer Patient Who Failed To Clear Loan Taken Against Sister's Property

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

Citation: 2023 LiveLaw (Ker) 334

The Kerala High Court quashed criminal proceedings initiated by a woman against her brother and a relative (the 1st and 2nd accused, respectively), who failed to repay a loan taken against her property for the 1st accused person's cancer treatment.

Justice A. Badharudeen observed that accused-petitioners failure to fulfil the terms of the contract to repay the amount and to discharge the liability would only amount to 'breach of contract' and not the offence of cheating.

The Court emphasized that mere breach of contract would not constitute an offence of cheating and that 'deceitful intention' to get wrongful gain to the accused and corresponding loss to the victim ought to be established at the very inception in order to constitute the offence of cheating.

"It is true that, if accused Nos.1 and 2 failed in fulfilling the terms of the contract to repay the amount and to discharge the liability, then, the said act would attract only breach of contract and the same shall not come under the purview of cheating. That is to say, mere breach of contract by itself, would not constitute an offence of cheating and cheating as an offence shall be established by the ingredients hereinabove extracted and by establishing deceitful intention to get wrongful gain to the accused and corresponding loss to the victim at the very inception," Justice Badharudeen observed.

Lack of Awareness Or Communication Not A Valid Ground To Challenge Lok Adalat Award: Kerala High Court

Case Title: Sajitha & Anr v. Baldbose & Anr

Citation: 2023 LiveLaw (Ker) 335

The Kerala High Court recently held that being unaware of the contents of a Lok Adalat award or not being communicated of the same is not a valid ground to challenge the award.

Holding so, Justice Mohammed Nias C.P. dismissed a petition challenging the award issued by the Lok Adalat in a divorce and maintenance case.

"The ground that she was not aware of the contents of the compromise and that she was not communicated about the same by her counsel cannot be accepted. At any rate, the same cannot be a ground to challenge the award of the Lok Adalat."

Right Of Lateral Support Available To Neighbouring Owner Only So Long As He Keeps His Land In Its Natural State: Kerala High Court

Case Title: Asokan v. Krishna Ezhuthassan & Ors.

Citation: 2023 LiveLaw (Ker) 336

The Kerala High Court was recently faced with the question as to whether the removal of soil by a landowner, subsequent to the institution of a suit, would disentitle such landowner from raising a claim for easement right of lateral support from his neighbour's land.

The Single Judge Bench of Justice P.G. Ajithkumar took the view that if the unexcavated portions of the plaint schedule property are left as such, the lateral support to the landowner's property, which is retained in its original level can be ensured. The Court however, added that if the landowner also lowered the level of his respective properties, he would then be precluded from claiming natural right of lateral support in view of Section 7 of the Indian Easement Act, 1882 ('Easements restrictive of certain rights').

Kerala High Court Warns Religious, Political Bodies Against Obstructions On Public Roads

Case Title: Narayanankutty K v. Special Devaswom Commissioner & Ors

Citation: 2023 LiveLaw (Ker) 337

The Kerala High Court recently urged religious and political organisations in the State to strictly comply with its earlier directives preventing obstruction of pedestrian and traffic movement on public roads during festivals and protests.

In the earlier judgment, a Division Bench of Justice Anil K Narendran and Justice P.G Ajithkumar had highlighted the need to maintain roads constructed according to prescribed standards and guidelines without any encroachment on pedestrian facilities.

"Footpaths are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions to free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances," Court had said.

Road Accident Death Unfortunate, Will Be Equally Unfortunate If Innocent Auto Driver Who Tried To Help Is Made Accused: Kerala High Court

Case Title: Marykutty Kurian & Anr. v. Babu Joseph & Anr.

Citation: 2023 LiveLaw (Ker) 338

The Kerala High Court recently observed that when a person who attempts to help a road accident victim lying unattended for several hours is falsely implicated as an accused, they would think twice before extending a helping hand.

Justice Sophy Thomas made the observation in a case wherein an auto rickshaw driver who attempted to help a road accident victim by taking him to the hospital was implicated as an accused.

"True, it was unfortunate that a young man lost his life in a road traffic accident by falling down from his bike. It will be equally unfortunate, if an innocent person, who tried to help the injured by taking him to hospital in his autorickshaw, was made an accused in a criminal case," the Court observed.

Kerala High Court Directs Police To Serve Section 41A CrPC Notice To Shajan Skariah Before Arrest In Cases Against Him

Case Title: Shajan Scariya v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 339

The Kerala High Court directed that Shajan Skaria, editor of YouTube channel Marunadan Malayali, shall not be arrested without first issuing a notice under Section 41A Cr.P.C. or a notice intending to arrest stating a non-bailable offence against him. The Court further directed that such notice shall grant Skaria 10 days' time.

The Court passed the order while considering the plea filed by Skaria seeking directions to be issued to the State Police Chief not to arrest him without granting him sufficient opportunity to explain his stand, or without issuing notice under Section 41A Cr.P.C. The petitioner further sought necessary directions to be issued to the Home Secretary to to issue necessary directions in light of the Apex Court decision in Kumar Antil v. Central Bureau of Investigation & Ors. (2022), wherein it had been held that the accused would be entitled to be in case of any non-compliance of Section 41 and 41A Cr.P.C..

Justice P.V. Kunhikrishnan orally asked why Skaria was sought to be arrested without issuing notice.

"Supreme Court also passed an order in this regard...now you're behind this man. Don't arrest him without any notice. He should be given an opportunity to content his case as per law. I will make it clear that if there is any ground to arrest, after complying with Section 41A, you can arrest," the Court orally remarked.

'Not Providing Free Medical Relief': Kerala High Court Dismisses Lisie Hospital's Plea Seeking Building Tax Exemption

Case Title: M/S Lisie Medical Institutions v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 340

The Kerala High Court recently dismissed the Appeal preferred by Lisie Hospital, claiming building tax exemption in respect of one of its buildings constructed in the year 2013.

The Apex Court in February 2023, had remanded the matter to the High Court for decision on the factual aspects of the case, after clarifying that the term 'charitable purposes' in Section 3(1) of the Kerala Building Tax Act (hereinafter, 'the Act') would not be limited to "free medical relief" alone.

Lisie Hospital had sought tax exemption relying on tax exemption for 'buildings used principally for religious, charitable or educational purposes or as factories or workshops'.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. in the writ appeal before it, found that the building in question was not used 'principally' for providing free medical relief for inclusion under the definition of 'charitable purpose'.

"...we find that it is not in dispute that the building of the appellant was not principally used for providing free medical relief as required under the statutory provision for inclusion under the definition of charitable purpose. It is also not the case of the appellant that it rendered in the said building, any of the other services that qualify as charitable purpose under Section 3 of the Act. We therefore cannot see how the appellant's building would qualify for the exemption under Section 3 of the Act in respect of the medical relief provided in the building in question," the Court observed.

[Transfer Of Possessory Rights] Sub-Registrar Can't Refuse Registration For Lack Of Prior Documents: Kerala High Court

Case Title: Balachandran v. Sub Registrar and connected matters

Citation: 2023 LiveLaw (Ker) 341

The Kerala High Court recently reiterated that the inability of persons transferring possessory rights to produce prior documents is not a valid reason for the Sub Registrar to refuse registration.

Justice Gopinath P thus emphasised that possessory rights can be transferred without any legal barriers, emphasising that the Sub Registrar should not inquire into the nature of possession, whether based on lease or title and only the rights possessed by the petitioner could be conveyed to the transferee.

"The persons executing the document can only transfer the right that they have and merely because they are purporting to transfer possessory rights and they are not been able to produce any prior documents cannot be a ground for the Sub Registrar to refuse registration."

TN State Transport Corporation Not Exempted From Toll Fees In Kerala, Reciprocal Agreement No Basis For Exemption: Kerala High Court

Case Title: Tamil Nadu State Transport Corporation v State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 342

The Kerala High Court recently observed that the Tamil Nadu State Transport Corporation's (TNSTC) vehicles are not exempted in Kerala from paying toll fees as per the Toll Act and operating based on a reciprocal agreement does not exempt them from paying the fees.

Justice Mohammed Nias C.P thus added that the contractor responsible for toll collection has the right to demand payment of toll fees from TNSTC.

"The agreements were produced as Exts.R4(a) and R4(b). The buses of the Petitioner Corporation were never exempted. Even as per Toll Act amended in 1990 only those motor vehicles belonging to the Government of Kerala or the Government of India and any stage carriage operated by the KSRTC were exempted. It is clear from Ext.R4(a) list that the petitioner's vehicles are not exempted from paying the toll. Nothing produced by the petitioner enables them to get any exemption from payment of toll."

Kattakkada Christian College Elections Row: Kerala High Court Grants Bail To Former Principal, SFI Leader

Case Title: Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 343

The Kerala High Court granted bail to the former Principal of Christian College, Kattakada, G.J. Shyju, and Student Federation of India (SFI) leader Visakh A in the case related to alleged impersonation, falsification of documents and misrepresentation during the college elections held in May 2023.

The Single Bench of Justice Ziyad Rahman A.A. took note of the period of detention already undergone by the petitioners and the fact that there was substantial progress in the investigation during which necessary recoveries were already affected.

'Some Legal Battles Not Worth Winning': Kerala High Court Awards ₹8 Lakh Compensation To Man Injured After Railway Constable Misfires Service Gun

Case Title: Manaf M v Union of India

Citation: 2023 LiveLaw (Ker) 344

The Kerala High Court granted over ₹8 lakhs as compensation to a man who sustained a gunshot injury from a misfired service gun by a Railway Constable more than a decade ago.

Justice P.V Kunhikrishnan expressed disappointment with the Railway and took the view that in situations like this, it ought to have risen to the occasion and redressed the petitioner's grievance without asking him to lead a legal battle.

"All legal battles are worth fighting, but some are not worth winning," the Court added.

No Single Litmus Test To Distinguish Licence From Lease: Kerala High Court Encourages Examining Parties' Intentions, Full Agreement

Case Title: Ashok Harry Pothen v. Premlal

Citation: 2023 LiveLaw (Ker) 345

The Kerala High Court has reiterated that to distinguish between a lease and a license one has to consider the agreement between parties as a whole and the intentions of the parties involved rather than the nomenclature used in the document and reading a few isolated provisions.

A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar observed that there was no single litmus test to decide the nature of a document.

"It is thus the settled law that the nature of a document has to be understood not by its nomenclature or by interpreting one or two clauses in it in isolation, but by interpreting the document as a whole. Going by the principles laid down by the Apex Court as well as this Court, there cannot be a single litmus test to decide whether the transaction in Ext.P1 is a lease or licence."

Anticipatory Bail Not Available For Offences Under UAPA Under Any Circumstance: Kerala High Court

Case Title: Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr

Citation: 2023 LiveLaw (Ker) 346

The Kerala High Court held that exclusion of application of Section 438 CrPC to cases under the Unlawful Activities (Prevention) Act, 1967 is absolute and thus no application for anticipatory bail is permissible for offences punishable under the UAPA under any circumstances.

A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that if it were interpreted differently and anticipatory bail was allowed, it would create an absurd situation where accused individuals could get anticipatory bail unconditionally, while regular bail would be subject to specific conditions.

"If the scheme of the UAP Act is that no person accused of an offence punishable under Chapter IV and VI of the UAP Act shall be released on bail unless the twin conditions referred to in subsection (5) of Section 43D are satisfied, there cannot be any doubt that the Statute does not contemplate grant of anticipatory bail to accused under any circumstance whatsoever, for if the provision is interpreted to hold that the Statute does not bar absolutely the application of Section 438 of the Code, in the absence of any restriction in the Statute in the matter of granting anticipatory bail, it would lead to an anomalous and absurd position that anticipatory bail can be granted to a person accused of an offence punishable under the UAP Act unconditionally and restrictions would apply only in the matter of claiming regular bail."

[Kerala Land Reforms Act] Legal Fiction Of Section 7E Deems Purchasers As 'Tenants', Not 'Cultivating Tenants': High Court

Case Title: Diamond Crushers v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 347

The Kerala High Court observed that the legal fiction created by Section 7E of the Kerala Land Reforms Act, 1963 (KLR Act) makes the purchaser a tenant, and the term 'tenant' has a wider definition, which includes a deemed tenant.

Justice T.R Ravi added that the Section starts with a non-obstante clause, which means it prevails over any other provision in the Act.

"As per Section 7E, the fiction created is to deem a purchaser as a tenant. The purchase can be of land of any nature. There is no requirement that the land should be paddy land where cultivation is being carried out. The fiction does not create a “cultivating tenant” as sought to be contended by the respondents based on the Certificate of Title."

'No One Else Can Give To Ward All That A Mother Can': Kerala High Court Unites Differently Abled Child With Mother

Case Title: Santha Kumari v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 348

No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".

Case Title: Sumesh v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 349

The Kerala High Court recently held that if a Magistrate forwards a complaint involving both cognizable and non-cognizable offences to the police, and the police investigation reveals only a non-cognizable offence, the Magistrate is legally authorised to proceed with the trial for that offence.

Justice A. Badharudeen reiterated that if a case involves both cognizable and non-cognizable offences, the police can investigate and file a charge sheet for all the offences as per Section 155(4) of CrPC.

"...if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) [of Section 155] provides that even a noncognizable case shall, in that situation, be treated as cognizable."

"Since the law is settled in the facts of the given case, though the Magistrate forwarded a complaint involving offences cognizable and non-cognizable in nature to the police and the police files a report finding that non-cognizable offence was committed, the Magistrate is legally empowered to proceed with the trial."

Tanur Boat Accident: Kerala High Court Grants Bail To Chief Surveyor And Senior Port Conservator

Case Title: Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 350

The Kerala High Court granted bail to Chief Surveyor of the Kerala Maritime Board, Sebastian Joseph, and the Senior Port Conservator, Baypore, Prasad V.V., who had been arrested in connection with the tragic Tanur boat accident that claimed 22 lives, including 15 children in Malappuram district.

Justice Ziyad Rahman A.A. passed the order on noting that substantial progress had been made in the investigation and further incarceration of the petitioners was not required.

The petitioners had been arrested on June 11, 2023, and have been in judicial custody ever since.

"...now the petitioners have been in judicial custody since 11.6.2023, and as on the date, more than 40 days have elapsed since the date of their arrest. Even though the learned ADGP highlighted that there are high chances of the evidence being tampered with and the witnesses being influenced, if the petitioners are released on bail, I do not find any justifiable reason to accept the contention. It is reported that, both the petitioners are already under suspension, and therefore, I do not find any possibility of them tampering with the evidence. Moreover, it is evident from the report of the investigating officer that the records kept in the office of the petitioners in connection with the incident were already seized," the Court observed while allowing the bail applications.

Ingredients Of 'Criminal Breach Of Trust' & 'Misappropriation' Must To Establish Offence U/S 13(1)(c) Prevention Of Corruption Act: Kerala High Court

Case Title: Enose v. State of Kerala

Citation: 2023 LiveLaw (Ker) 351

The Kerala High Court recently upheld the conviction of a Lower Division Clerk (L.D. Clerk) working on deputation in the Directorate of Higher Secondary Education, Thiruvananthapuram, under the Prevention of Corruption Act, 1988, for embezzlement of certain amount and forgery of document in that regard.

Justice Kauser Edappagath observed that an amount of ₹74,789/- that had been entrusted with the appellant-accused was misappropriated by him.

"To attract the offence of criminal breach of trust, the prosecution has to prove that there was entrustment of property with the accused and he has dishonestly misappropriated the same for his personal use. Once the entrustment is established by the prosecution, the burden shifts to the accused to account for the property entrusted. It is settled that if the entrustment is proved and the explanation given by the accused is not satisfactory, then it can be presumed that the accused has committed the offence of criminal breach of trust and misappropriation. The modus operandi of the accused, how he committed the misappropriation etc. need not be proved by the prosecution. The fraudulent intention of the accused can be inferred from the attending circumstances. The same ingredients of criminal breach of trust and misappropriation have to be proved by the prosecution for establishing the offence under section 13(1)(c) of the PC Act as well," the Court explained while finding the accused guilty of the offence.

Corroborative Evidence Necessary To Prove Guilt Of Accused, Mere Recovery Statement Insufficient: Kerala High Court

Case Title: Kochu Mani & Anr v. State of Kerala

Citation: 2023 LiveLaw (Ker) 352

The Kerala High Court recently held that merely recovering the object does not establish guilt unless there are other materials connecting the accused to the commission of the offence.

Observing so, Justice Ziyad Rahman A held that the trial court's reliance on the disclosure statements without sufficient corroborative evidence was unjustifiable.

"...apart from the aforesaid disclosure statement, there is nothing to connect the accused persons with the commission of the offences, and since I have found that the disclosure statements are inadequate for holding the appellants guilty, the only irresistible conclusion possible is that the prosecution miserably failed in establishing the guilt of the accused."

Discrepancies In Witness Statements Can Be Fatal To Prosecution In Politically Charged Situations: Kerala High Court

Case Title: Kallantavide Ramesan v State of Kerala

Citation: 2023 LiveLaw (Ker) 353

The Kerala High Court recently observed that glaring discrepancies in the witness statements become significant in politically charged situations and that they cast doubt on the credibility of the prosecution case.

Justice Ziyad Rahman A added that a mere strong or probable suspicion, not supported by proper and positive evidence, is inadequate to prove the guilt of the accused as it fails to establish the truth beyond doubt.

"....as all of the independent witnesses including the victim belong to a particular political party, and the accused belong to the rival political party, the evidence has to be scrutinized with care and caution. In such circumstances, the discrepancies and contradictions as mentioned above have to be given much more emphasis...in the light of the principles laid down by the Hon'ble Supreme Court, it appears to be fatal to the prosecution case."

"...suspicion, however strong or probable it may be, is not sufficient to hold the accused guilty. The distance “may be true” to “must be true” has to be covered by the prosecution by adducing proper and positive evidence."

Vehicle Cannot Be Seized By Customs On Mere Apprehension That It May Be Used For Transporting Smuggled Goods: Kerala High Court

Case Title: Safir P. v. Commissioner of Customs (Preventive)

Citation: 2023 LiveLaw (Ker) 354

The Kerala High Court held that a vehicle cannot be seized by customs on an apprehension that it may be used as a means of transporting smuggled goods.

Justice Bechu Kurian Thomas observed that under Section 115 of the Customs Act, 1962, which provides for 'Confiscation of conveyances', the power of confiscation can only arise if the vehicle was actually used or is being used for smuggling goods and not for apprehended use or future use.

The Court was of the opinion that the words 'used as a means of transport' in section 115(2) of the Act can only be interpreted as 'already used as a means of transport' or as 'presently being used as a means of transport', and a possible 'future use' could not be brought within its purview.

"If a possible future use of a vehicle as a means of transport for smuggling goods confers a power of confiscation of such a vehicle, that power will be unbridled, absolute and unregulated. The discretion to seize or not to seize a vehicle for apprehended future use as a means of transport of smuggled goods will confer an unregulated discretion devoid of any clarity for its exercise. Such conferment of vast and unguided powers will even fall foul of Article 14 of the Constitution of India," the Court observed.

Kerala High Court Quashes Proceedings Against Aster Medcity, Doctors Accused Of Flouting Organ Transplantation Protocol

Case Title: Aster Medcity & Ors. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 355

The Kerala High Court quashed the criminal proceedings against Aster Medcity and nine doctors who had been accused of violating the provisions of the Transplantation of Human Organs and Tissues Act, 1994.

Justice Ziyad Rahman A.A. passed the order.

If Anticipatory Bail Is Denied By High Court, Successive Application Should Also Be Filed Before HC, Not Sessions Court: Kerala High Court

Case Title: Bipin Sunny v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 356

The Kerala High Court recently observed that if the High Court denies anticipatory bail to a person, the successive applications citing change in circumstances should also be filed before the High Court and not before the Sessions Court.

Justice A. Badharudeen deprecated the practice of filing of subsequent anticipatory bail applications before the Sessions Court, after dismissal of the anticipatory bail plea by the High Court, by suppressing such adverse order. The Court opined that the said practice could not be justified.

"Therefore, in order to keep judicial discipline in tact, in cases where the High Court rejected anticipatory bail plea, second or successive anticipatory bail applications, pointing out change in circumstances, have to be filed before the High Court and not before the Sessions Court," it held.

Registered Trademark Owner Can't Seek Prohibitory Injunction If Opposite Party's Mark Is Also Registered, May Sue For Passing Off: Kerala High Court

Case Title: M/S Mariyas Soaps and Chemicals & Anr. v. M/S Wipro Enterprises Ltd. & Anr.

Citation: 2023 LiveLaw (Ker) 357

The Kerala High Court recently set aside a District Court order restraining M/S Mariyas Soaps and Chemicals from using their registered trademark 'Chandra' for being prima facie similar to Wipro's soap range 'Chandrika'.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed it is settled law that an owner of a registered trademark cannot sue for infringement of his registered trademark if the opposite party also has the trade mark which is registered.

The bench was however quick to add that an aggrieved party may bring action for passing off. It observed,

"The rights granted by the registration in the form of exclusivity are not absolute but are subject to the provisions of the Act. Section 28(3) of the Trade Marks Act provides that the rights of two registered proprietors of identical or nearly resembling trademarks shall not be enforced against each other. However, they shall have the same rights as against the third parties. Further, the rights in passing off are emanating from the common law and not from the provisions of the Act and they are independent of the rights conferred by the Act."

Panchayats Can't Claim Expertise Over Competent Statutory Bodies And Stop Legally Permissible Entrepreneurial Projects: Kerala High Court

Case Title: Sinoj Thomas v. Balal Grama Pachayat & Anr.

Citation: 2023 LiveLaw (Ker) 358

The Kerala High Court recently observed that Panchayats should only wield their designated powers and not assume the role of enforcers in all public interests, particularly in areas where other competent statutory authorities hold expertise and decision-making authority.

Justice N. Nagaresh added that citizens pursuing start-ups and projects should be able to rely on clearances from these specialised bodies without additional hurdles from local self government institutions.

"When such specialised and expert statutory bodies are created, Panchayat Committees, who cannot claim expertise in those areas, cannot take a view contrary to that of other competent statutory authorities. Citizens who opt for start ups and entrepreneurships should be able to rely on the decisions and clearances given by specialised statutory bodies and go ahead with their projects. Local Self Government Institutions cannot take a view different from the views of other statutory bodies and stop or create hurdles for the entrepreneurs in going ahead with projects which are permitted under laws."

"The Panchayat institutions but can exercise only those powers conferred on and vested with them by legislature. The Panchayats cannot act as if they are protectors and enforcers of all public interests and exercise powers not vested with them."

Customised Software Designed For Specific User Remains Taxable As 'Goods': Kerala High Court

Case Title: State of Kerala v. V.C Vinod and connected matters

Citation: 2023 LiveLaw (Ker) 359

The Kerala High Court recently reiterated that software customised for a specific user and not sold to other users still falls under the category of 'goods' defined under Article 366(12) of the Constitution for the purposes of levy of sales tax under the Kerala General Sales Tax Act (KGST Act).

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P added that customised software satisfies the attributes of 'goods' as it possesses utility, and can be bought, sold, transmitted, transferred, delivered, stored, and possessed.

"even a customised software will satisfy the definition of 'goods' for, it is evident that it has the attributes having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. Once the said attributes are seen satisfied in the software in question, then whether the software is treated as customised or non-customised, it would nevertheless be categorised as 'goods' for the purposes of levy of tax... We are therefore of the view that merely because the software developed by the respondent/assessee in the instant case was customised for a particular user and was not sold to other users, the charges collected from the customer cannot escape the levy of sales tax under the KGST Act."

Case Title: Raju v. State of Kerala

Citation: 2023 LiveLaw (Ker) 360

The Kerala High Court recently observed that the evidence provided by a prosecutrix under Section 376 IPC should not be discredited merely because the sexual abuse began when she was a child but she did not disclose it until she was much older.

A Division Bench of Justice P.B Suresh and Justice C.S Sudha added that the credibility of the prosecutrix evidence in such cases would differ from case to case.

"A child who was subjected to sexual assault by her father, not disclosing the same to anyone during her childhood, is no reason to think that what is spoken to by her at a matured age is false. The question whether the evidence tendered by such a person is reliable, is to be decided having regard to the facts and circumstances of each case."

Kerala High Court Orders CBI Probe Into Alleged Embezzlement Of ₹12.5 Crore By PNB's Former Senior Manager

Case Title: Punjab National Bank & Anr. v. Central Bureau of Investigation & Ors.

Citation: 2023 LiveLaw (Ker) 361

The Kerala High Court has directed the Central Bureau of Investigation (CBI) to take over the investigation of a case involving Punjab National Bank's former senior Manager, accused of cheating and defrauding the Bank of an amount of more than twelve and a half crore rupees.

The present case was registered at the instance of the current Senior Manager of the Bank alleging the commission of offences under Sections 409 ('Criminal breach of trust by public servant, or by banker, merchant or agent') and 420 ('Cheating and dishonestly inducing delivery of property') of IPC against the former official.

Case Title: The Oriental Insurance Company Ltd v. Abdul Khader

Citation: 2023 LiveLaw (Ker) 362

The Kerala High Court recently held that while computing compensation in motor accident cases, the multiplier method proposed by the Supreme Court in Sarla Verma v. Delhi Transport Corporation remains applicable even if the accident resulted in serious injuries instead of death.

Justice C. Jayachandran clarified that the purpose of adopting the multiplier method was to achieve uniformity and consistency in compensation assessments, regardless of the nature of the injury.

"The very purpose of adopting the multiplier method in Sarla Verma (supra) is to do away with the considerable variation and inconsistency in assessing compensation and also to bring uniformity and consistency....the Honourable Supreme Court (has) opined that following the multiplier method will subserve the cause of justice, avoiding unnecessary contentions before the Tribunals and Courts. If this be the logic for adopting the multiplier method, can any change in the legal position be conceded for the reason that the result of the accident is an injury - especially in cases of serious injuries - instead of a death? The answer to the above question is surely negative, in the estimation of this Court, having regard to the logic and purpose behind adopting the multiplier method."

Case Title: S. Surendran v. State of Kerala and K. Sudhakaran v. State of Kerala

Citation: 2023 LiveLaw (Ker) 363

The Kerala High Court allowed the anticipatory bail applications filed by former DIG S Surendran and MP, President of Kerala Pradesh Congress Committee K. Sudhakaran, in the case pertaining to their alleged involvement in the cheating case involving controversial antique dealer Monson Mavunkal.

The Single Judge Bench of Justice Ziyad Rahman A.A. made its interim order granting them anticipatory bail absolute.

CMDRF Misappropriation: Kerala High Court Refuses To Interfere With Lokayukta's Decision Referring Complaint Against CM, Others To Full Bench

Case Title: R.S. Sasikumar v. State of Kerala

Citation: 2023 LiveLaw (Ker) 364

The Kerala High Court dismissed the plea against order of the Lok Ayukta referring the case against Chief Minister Pinarayi Vijayan and the former Ministers for alleged misuse of Chief Minister Disaster Relief Fund (CMDRF), to a Full Bench comprising the Lok Ayukta and both the Upa-Lok Ayuktas.

The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun observed that considering that a difference of opinion had arisen between the Lok Ayuktha and Upa Lok Ayuktas, the only option would be to refer the matter in order to decide the same by three members, whereby the decision of the majority would prevail.

"In view of the above, we do not find any reason to interfere in this matter. The application is dismissed," the Court thus held.

Summons By Criminal Court Affects Image In Society, Suppressing Civil Proceedings To Pursue Criminal Complaint Is Harassment: Kerala High Court

Case Title: Mohandas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 365

The Kerala High Court recently held that approaching a criminal court and filing a criminal complaint subsequent to filing of a civil suit, suppressing the pendency of the civil suit is a form of harassment.

Justice Sophy Thomas, while quashing criminal proceedings pending before a Magistrate Court in Thiruvananthapuram observed thus:

“As he had already approached the civil court resorting to the civil remedy, the subsequent criminal complaint filed by him, suppressing pendency of the civil suit, can be viewed only as a weapon of harassment".

State Should Amend Kerala Victim Compensation Scheme And Enable POCSO Victims To Claim Compensation For 'Sexual Harassment': High Court

Case title: Kerala State Legal Services Authority v. state of Kerala

Citation: 2023 LiveLaw (Ker) 366

The Kerala High Court considered whether victims of sexual harassment can claim compensation under the Kerala Victim Compensation Scheme, 2017 (amended in 2021). The issue arose for the reason that 'sexual harassment' punishable under Section 11 of the POCSO Act is not included as an 'injury' under the schedule of Kerala Victim Compensation Scheme.

Justice Kauser Edappagath, while upholding the compensation given to the sexual harassment victims held that a beneficial legislation or scheme must not distinguish between victims. The Court opined that the existing schemes are inadequate for compensating victims of sexual abuse under the POCSO Act and held thus:

“….it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (As amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard forthwith.”

Quarrying Outside Permissible Limits Warrants Police Investigation For Theft: Kerala High Court

Case Title: Dotty Shiby v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 367

The Kerala High Court recently took the view that police investigation is necessary in a case involving quarrying of granite stones outside the permissible limits of the quarry area.

State Authorised To Integrate Police Services Unless Unfair To Appointments Made Pre-Integration: Kerala High Court

Case Title: Shaju A.N v Rahoof P.K and connected matters

Citation: 2023 LiveLaw (Ker) 368

The Kerala High Court recently affirmed the State's authority to validly integrate different services under the Public Service Commission and held that such integration is usually legally sound as long as it is derived from its source of power.

A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that the order of integration can only be challenged if there is a lack of fair play, but this applies only to those appointed to different streams before the integration took place.

"The authority of the state to integrate different services cannot be questioned, especially, when it is found out that the order of integration is valid, referable to its source of power. The order of integration can be questioned only when there is no fair play but that would be applicable only to those who have been appointed to different streams prior to the integration."

DGFT Circular Providing 4% of SAD Refund Published On The Official Website Amounts To Public Notice: Kerala High Court

Case Title: M/S. Elite Green Pvt Ltd Versus Under Secretary

Citation: 2023 LiveLaw (Ker) 369

The Kerala High Court has held that a circular issued by the Directorate General Of Foreign Trade (DGFT) providing 4% of the Special Additional Duty (SAD) refund published on the official website amounts to public notice.

The bench of Justice Dinesh Kumar Singh noted that when the Circular itself provides that if any exporter claims a refund of 4% SAD, the amount should have been paid in cash. The petitioner did not pay the amount in cash but in scrips. Therefore, under the provisions of the Circular, he was not entitled to the refund of 4% SAD on the Bills of Entries for the year 2014–2015.

Subsequent Bail Plea Cannot Be Filed In Routine Manner, Material Change In Facts Or Law Sine Qua Non: Kerala High Court

Case Title: Suresh K M v. State of Kerala

Citation: 2023 LiveLaw (Ker) 370

The Kerala High Court has reiterated that a material change in fact situation or law is sine qua non for the Court to entertain a second application for pre-arrest bail.

Single bench of Justice Kauser Edappagath held,

“Even though there is no absolute embargo in filing the subsequent application for pre-arrest bail, it can be entertained only if there is a substantial change in the facts and circumstances of the case, which requires the earlier view be interfered with or where, the earlier finding has become obsolete. Ordinarily, the grounds canvassed in the earlier application cannot be permitted to be reurged in the subsequent application.”

Devaswom Boards Should Provide Adequate Facilities For Devotees: Kerala High Court Reiterates Amid 'Naalambala Darshanam'

Case Title: Suo Motu v. State of Kerala

Citation: 2023 LiveLaw (Ker) 371

The Kerala High Court recently reiterated that the Devaswom Boards and temple managements have a statutory duty to provide adequate facilities and arrangements for devotees during 'Naalambala Darshanam', as per the relevant provisions of the Travancore-Cochin Hindu Religious Institutions Act. 'Naalambala Darshanam' involves visiting four temples and it is an important pilgrimage for many devotees.

A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar accordingly issued directions to ensure compliance with these statutory obligations and protect the rights of the devotees.

Once Party Enters Agreement To Convey Property, It Cannot Take Defence Of 'Defective Title' In Suit For Specific Performance: Kerala High Court

Case Title: P.K.Abdul Salam v. Abdul Jabbar (Deceased)

Citation: 2023 LiveLaw (Ker) 372

The Kerala High Court recently considered as to whether a vendor who enters into agreement for sale of property can take the defence of absence of conveyable title in a claim of specific performance.

Justice Sathish Ninan held,

“Having entered into an agreement to convey the same, it is not open for him to defend the claim for specific performance contending that he does not have a conveyable title. It is for the purchaser to opt whether he is willing to take whatever right the vendor has.”

Principle Of Merger Should Not Be Applied Absolutely In Contempt Cases: Kerala High Court Overrules 2011 Decision

Case Title: Amod Mathew v. A.P.M Mathew & Ors

Citation: 2023 LiveLaw (Ker) 373

The Kerala High Court held that the principle of merger is not universally applicable to contempt cases and that its application varies depending on the nature of the appellate or revisional order and the statutory provisions conferring jurisdiction.

A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that applying it absolutely could lead to anomalies.

"The principle of merger is not a principle of rigid and universal application and its application depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. If this principle is applied absolutely, it will lead to anomalous situations."

Order XXI Rule 90 CPC | Stranger To Suit Can Challenge Sale If Entitled To Share In Rateable Distribution Of Assets: Kerala High Court

Case Title: Nirmala & Ors v. Sundaresan & Ors

Citation: 2023 LiveLaw (Ker) 374

The Kerala High Court clarified that a person, including a stranger to the suit apart from the judgment debtor or those claiming derivative title from the judgment debtor, is competent to challenge a sale of property under Order XXI Rule 90 of the CPC if their interests are affected by the sale.

A Division Bench of Justice Anil K Narendran and Justice A Badharudeen added that the categories covered by this rule include the decree-holder, the purchaser, anyone entitled to share in a rateable distribution of assets, and any person whose interests are affected by the sale.

"Going by the facts of the case with particular mention with regard to status of Sundareshan as a person, who obtained decree and applied for execution of the decree, he could very well challenge the sale by filing application under Order XXI Rule 90 of the CPC and his stature is that of “any other person entitled to share in a rateable distribution of assets”. This position has been clarified by this Court in Govindan Master v. Janaki V. & others [2011 (3) KHC 581]. Therefore, it has to be held that a person, who could claim rateable distribution of assets of the judgment debtor/s, has competence to challenge the sale by invoking Order XXI Rule 90 of the CPC, though he is not a party to the Suit."

Disciplinary Authority Cannot Take Upon The Role Of Enquiry Officer: Kerala High Court

Case Title: Bhaskaran KP v Kerala State Electricity Board Ltd.

Citation: 2023 LiveLaw (Ker) 375

The Kerala High Court recently quashed the orders in a disciplinary proceeding because the disciplinary officer took upon himself the role of the enquiry officer, found the petitioner guilty and quantified an amount as personal liability.

Justice Devan Ramachandran, held thus:

“This is because, once the 'Investigating Team' had found liability against the petitioner, the matter should have gone back to the Enquiry Officer for completing the disciplinary proceedings because, as I have said above and as is conceded in all pleadings and documents, said Authority had found the charge to be inconclusive for want of proper inputs. Instead of doing so, the Disciplinary Authority took upon himself the role of the Enquiry Officer also, thus to find the petitioner guilty and to finally conclude that the afore figure should be reckoned as his 'personal liability'. “

Paddy Land Act - 25 Cents To Be Excluded To Compute Conversion Fee Under Section 27A : Kerala High Court

Case Title: State of Kerala & Ors. v. Moushmi Ann Jacob

Citation: 2023 LiveLaw (Ker) 376

As per a recent Kerala High Court decisions, properties in excess of 25 cents can be converted from paddy land as per Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act by paying by the fee for the land in excess of 25 cents.

The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun passed the Order in an appeal filed by the Government challenging the Single Judge's order in this regard. The Court noted that the Single Judge had issued the said directive in terms of the statutory provision, Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act and the schedule of fees thereunder, and thus found no reason to interfere with the same.

Case Title: National Insurance Co Ltd v. Jareesh & Ors

Citation: 2023 LiveLaw (Ker) 377

The Kerala High Court recently upheld the right of insurance companies to recover compensation amounts from the insured (vehicle owner) if the driver involved in the motor accident did not have a valid driving license, as long as the insurance company proves its defence under Section 149(2) of the Motor Vehicles Act.

Justice C. Jayachandran emphasised that the insurer must establish a clear breach of policy conditions by the owner to be entitled to reimbursement and that the insured was guilty of negligence and failed to exercise reasonable care in ensuring that the driver had a valid driving license at the time of the accident.

"Insofar as the insurer's claim for reimbursement from the insured, all what is required is to establish a clear breach of a policy condition in terms of Section 149(2)(a)(ii). This Court will further clarify that, if the findings/stipulations in Clauses (iii), (iv) and (vi) are satisfied, the insurer will be entitled to seek complete exoneration of the liability, that is to say, even as against third party; else, the insurer will be duty bound to own the claim as against the third party, but in which case he will have the liberty to seek reimbursement from the insured upon establishing a clear violation of a condition of the policy."

Kerala High Court Directs Commissioner Of Entrance Exams To Consider Medical Aspirant's Request For KEAM Allotment

Case Title: Zulu Haris v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 378

The Kerala High Court recently directed the Commissioner for Entrance Examinations to consider the case of a student who had qualified the National Eligibility Cum Entrance Test (UG)-2023 (NEET), but whose name was not included in the final category list of KEAM-2023 on the ground that she did not upload her NEET (UG) Scorecard.

Justice P.V. Kunhikrishnan directed the said authority to pass appropriate orders in the case within a period of one week.

No Consent For Sexual Act When Victim Was Semi Conscious: Kerala High Court Refuses Anticipatory Bail To Accused Under SC/ST Act

Case Title: Deepak K. Balakrishnan v State of Kerala

Citation: 2023 LiveLaw (Ker) 379

The Kerala High Court refused anticipatory bail to a college student accused of committing rape upon her junior, after intoxicating her.

While the accused claimed they were in a consensual relationship, Justice A Badharudheen noted that prosecutrix, who is a member of a Scheduled Caste community, had alleged that accused forcefully fed her a cake and some water after which she felt her eye sight was diminishing and she reached a semi unconscious stage.

In this backdrop the bench held that a prima facie case under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter, the Act) is made out, barring anticipatory bail.

It therefore dismissed the accused person's appeal stating,

“In this case the specific case of the defacto complainant is that she was subjected to rape after giving her a cake and a bottle of water by the accused and later she felt that her eye sight was diminishing and when she was at a semi conscious stage. In such a case, it cannot be held that the overt act alleged by the defacto complainant is one arose out of consent. Therefore, the prosecution allegations are well made out prima facie and as such anticipatory bail cannot be granted in view of the specific bar under Section 18 and 18A of the SC/ST Act.”

State Vigilance and Anti-Corruption Bureau Can Investigate Corruption Offences Against Central Govt Employees: Kerala High Court

Case Title: State of Kerala v. Navaneeth Krishnan and other connected matters

Citation: 2023 LiveLaw (Ker) 380

The Kerala High Court recently held that the Vigilance and Anti-Corruption Bureau (VACB) has the authority to register the crime and investigate offences under the Prevention of Corruption Act, 1988 that are allegedly committed by Central Government employees.

A Single Judge Bench of Justice Kauser Edappagath noted that there was no special provision in the Prevention of Corruption Act (hereinafter, 'PC Act') or the Delhi Special Police Establishment Act, 1946 (hereinafter, DSPE Act') excluding or preventing the State police or a Special Agency of the State from investigating cases relating to the corruption of the Central Government employees.

"None of the provisions of the P.C Act or DSPE Act authorizes CBI or Central Vigilance Commission or any other Central Government Agency alone to investigate in matters relating to the Central Government employees. In the absence of a specific provision in the DSPE Act or PC Act divesting the power of the regular police authorities to investigate into the offences under any other competent law, it cannot be said that the power of the State police or a Special Agency of the State to register a crime and investigate into the offence allegedly committed by the Central Government employees in their State is taken away. For these reasons, I hold that the VACB, being a specially constituted body to investigate into the bribery, corruption and misconduct mainly under the P.C. Act is always clothed with the authority to investigate offences involving corruption that take place within the State, whether it is committed by a Central Government employee or a State Government employee," the Court observed.

Preventive Detention Orders Under KAAPA Issued For Maintenance Of Public Order, Not As Punishment: Kerala High Court

Case Title: Luciya Francis v State of Kerala

Citation: 2023 LiveLaw (Ker) 381

The Kerala High Court has reiterated that preventive detention orders under Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA) are issued for maintenance of public order and not as a penal measure.

A division bench comprising Justice A Muhamed Mustaque and Justice Sophy Thomas held thus:

“The preventive detention law cannot be used as a punitive measure and as a substitute of criminal trial. What cannot be achieved through a trial cannot be achieved through preventive detention. It can be invoked only for maintenance of public order when activities of a person become threat or adverse to the society. The detaining authority failed to address the issue keeping the perspective of the objectives to be secured under the KAA(P)A. In such circumstances, we order that the detention order is illegal and the detenue is set at liberty. He shall be released forthwith.”

'Genital Reconstructive Surgery Without Consent Violates Child's Rights' : Kerala High Court Calls For Regulating Sex Selective Surgeries

Case Title: XXX & Anr. v. The Health Secretary & Ors.

Citation: 2023 LiveLaw (Ker) 382

The Kerala High Court directed the Government to constitute a State Level Multidisciplinary Committee consisting of experts to examine requests for performing sex-selective surgeries on intersex children.

The Committee is to comprise of a Pediatrician/Pediatric Endocrinologist, Pediatric Surgeon and Child Psychiatrist/Child Psychologist.

The Single Judge Bench of Justice V.G. Arun also called upon the Government to issue an order for regulating sex selective surgeries on infants and children within three months. The Bench clarified that until such order has been issued, such surgeries shall be conducted only on the opinion of the State Level Multidisciplinary Committee that the same would be essential to save the life of the child.

'Gender' & 'Sex' Distinct Concepts; Right To Choose Gender Is Vested With The Individual : Kerala High Court

Case Title: XXX & Anr. v. The Health Secretary & Ors.

Citation: 2023 LiveLaw (Ker) 382

The Kerala High Court embarked upon an elaborate medico-legal discussion on the two concepts of 'gender' and 'sex', in an interesting decision raising the question as to whether the parents of a child with ambiguous genitalia would have the right to decide the gender of the child without the latter's consent and ignorant of the child's orientation.

The Single Judge Bench of Justice V.G. Arun observed that while the terms 'gender' and 'sex' were often used interchangeably in casual conversation, they were, in actuality, two distinct concepts.

"Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary," the Court observed.

Panchayat Vicariously Liable For Acts Of Upper Division Clerk Done In Course Of Employment: Kerala High Court

Case title: Poongottil Prasad v Melattur Grama Panchayat

Citation: 2023 LiveLaw (Ker) 383

The Kerala High Court recently observed that the Panchayat can be held vicariously liable for the acts of the Upper Division Clerk (UDC) committed during the course of the employment.

Holding the panchayat vicariously liable for the security deposit collected by the UDC, Justice N. Nagaresh observed thus:

“In view of the law on Vicarious Liability as discussed above, if any UDC employed by the respondent-Panchayat accepts money and issue the receipts in the course of his employment, the respondents are liable to refund that amount, if the amount accepted is refundable. The fact that a vigilance case is pending and action has been taken against the fraudulent activities of the UDC cannot be an excuse to deny the amounts duly deposited by the petitioner on the basis of the receipts issued on behalf of the Panchayat. The Panchayat is vicariously liable.”

Can't Bypass Remedies Under PMLA Unless Entirely Ill-Suited: Kerala High Court Dismisses Santiago Martin's Plea Against ED Attachments

Case Title: Santiago Martin & Anr v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 384

The Kerala High Court dismissed 'lottery king' Santiago Martin's petition challenging ED's attachment orders freezing his and his company's movable assets under the Prevention of Money Laundering Act, 2002 (PMLA).

Justice Bechu Kurian Thomas held that PMLA provides a comprehensive three-tier remedy for such grievances and that the petitioners ought to have exhausted their alternative remedies rather than bypassing them, unless they are unsuitable for the situation.

"a three-tier remedy is provided under the PMLA itself, as fora to alleviate the grievances of those aggrieved. When such a scheme is provided for under the PMLA, petitioners do have an efficacious alternative remedy. These remedies, available under the statute, cannot be circumvented unless they are entirely ill-suited to meet the demands of the situation. Considering the timelines provided and the nature of authorities created under the PMLA, the alternative remedies cannot be regarded as ill-suited to meet the exigency. Any prejudice caused on account of the provisional attachment order can be remedied through the scheme of the Statute itself."

High Level Competency Expected From Public Prosecutors, 3 Yrs Practice Experience For Assistant Prosecutor Appointment Not Arbitrary: Kerala HC

Case Title: Rahib K.Y. & Anr. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 385

The Kerala High Court has held that government's decision to stipulate three years practice in criminal courts as an essential condition for appointment as Assistant Public Prosecutors cannot be said to be arbitrary.

Justice N. Nagaresh dismissed a plea challenging a notification issued by the Kerala Public Service Commission ('Kerala PSC') in this regard. The bench observed that Assistant Public Prosecutors are expected to prosecute criminal cases and aid the delivery of criminal justice in the State, and that in any case, it is for the appointing authority to decide and fix qualifications of candidates for appointment.

"Public Prosecutors and Assistant Public Prosecutors serve as State's representatives tasked with upholding the interest of the State and of the general public. They have to carry out prosecutions on behalf of the State effectively. They have a duty to ensure that false accusations against any accused do not result in unfair punishment. It is their prime duty to ensure that justice is served. They have to help the Court to identify relevant facts. They are Officers of the Court who assist in the administration of justice. They must be unbiased, just and truthful. A high level of competency is expected from Public Prosecutors and Assistant Public Prosecutors. The Government therefore will be justified in insisting that they should have a minimum Court experience in conducting cases," the Court observed.

Wooden Stick Can Be Considered As 'Weapon' Under Section 326 IPC: Kerala High Court

Case Title: Vineesh v State of Kerala

Citation: 2023 LiveLaw (Ker) 386

The Kerala High Court recently decided whether 'wooden stick' can be considered as a 'weapon' to attract Section 326 (voluntarily causing grievous hurt by dangerous means or weapons) of the IPC.

Justice Ziyad Rahman A.A. held that the expression “any instrument which is used as a weapon” in the provision gives a broader scope to Section 326. Here, the Court noted that 'wooden stick' may not be considered as a weapon in its original form, but it can be considered as an instrument of weapon if it was used to cause grievous hurt. The Court held thus:

"The expression “any instrument which is used as a weapon”, gives a significantly broader scope to the said provision, capable of taking within it, any instrument which does not have the characteristics of a weapon under normal circumstances, provided the same was used as a weapon to cause grievous hut. Thus, the emphasis is on any “instrument which used as a weapon” and it is not necessary that the instrument as such should be a weapon in its original form.”

Students Can't Be Discriminated From Other Passengers While Boarding Bus, Merely For Availing Student Concession Rates: Kerala High Court

Case title: Joseph John v State of Kerala & Connected matters

Citation: 2023 LiveLaw (Ker) 387

The Kerala High Court directed the State Police Chief to issue directions to ensure that law and order problems are not created between students and bus owners/employees, regarding student concession rates.

The Court held that students cannot be discriminated from other passengers while boarding the bus, merely for availing student concession rates.

Justice P.V.Kunhikrishnan noted thus:

“But as long as the student concessions are in force, the owners and the employees of a bus cannot take a discriminative stand against the students while boarding buses, only because they are paying the concession rate. Students and other passengers are on an equal footing. It is the duty of the police to see that there is no law and order problem in connection with the same. The State police chief will issue necessary directions to all its subordinates to avert all such law and order problems because of this rift between the students and the employees of the buses.”

Parole May Be Refused Even To An Eligible Prisoner For Cogent Reasons: Kerala High Court

Case Title: Sandhya v Secretary & Ors.

Citation: 2023 LiveLaw (Ker) 388

In an important ruling, the Kerala High Court held that prisoners do not have an inherent right to claim parole or leave and that the right to seek temporary release is contingent on meeting the statutory conditions under the Prisons Act and Rules and the discretion to grant or deny such release lies with the competent authority.

A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that even in a case where a convicted prisoner satisfies the eligibility conditions, the authority is entitled to refuse leave for cogent reasons, clarifying that Rule 397 does not provide an absolute entitlement for leave and that such an interpretation would be incomprehensible as it would prioritise the Rules over the Act.

"For example, if there exists a real threat of a potential breach of peace and tranquility in the locality, or to the safety and security of the prisoner himself as envisaged in subrule (h) to Rule 397, the authority can refuse leave. The same is the case for a convicted prisoner with a high proclivity or propensity to commit crimes. An interpretation otherwise, construing Rule 397 as an absolute entitlement for leave, would amount to the Rules assuming paramountcy over the Act, which is incomprehensible."

Convicts Can't Invoke Section 389 CrPC To Seek Interim Suspension Of Sentence For Short Term Release: Kerala High Court

Case Title: Sandhya v Secretary & Ors.

Citation: 2023 LiveLaw (Ker) 388

The Kerala High Court recently held that Section 389 of the CrPC does not contemplate an interim suspension of sentence and release of the prisoner for short-term requirements such as disease or marriage, while clarifying that such release should be sought under the Prisons Act and Rules through the process of leave or parole.

A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the provision is meant for suspending the execution of the sentence during the pendency of an appeal on its merits.

"Enabling release under Section 389 for short-term requirements is neither statutory, nor conducive, besides being subversive and in disregard of the special provisions of the Prisons Act and Rules."

S.5 Criminal Procedure (Identification) Act | Magistrate Can Order Accused To Give Handwriting Sample Even In Absence Of Arrest: Kerala HC

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

Citation: 2023 LiveLaw (Ker) 389

The Kerala High Court recently held that until specific provisions are enacted in CrPC, Magistrates are empowered to order the collection of handwriting samples of accused for investigation purposes and that such orders do not inherently violate Article 20(3) of the Constitution (right against self-incrimination).

Justice Raja Vijayaraghavan added that Magistrates have the jurisdiction to pass orders for the collection of measurements and specimen handwriting under Section 5 of the Criminal Procedure (Identification) Act, 2022, even in the absence of the accused's formal arrest, which was further supported by the incorporation of Section 311A into CrPC.

"If a Magistrate believes it is necessary for any investigation or legal proceeding under the Code of Criminal Procedure or any other law, the Magistrate can issue an order directing a person to provide measurements under this Act. The person must comply with the order and allow the measurements to be taken according to the specified directions."

"When an accused person is called upon by the court or any other authority holding an investigation to give a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness giving ...specimen writings by way of identification are not included in the expression 'to be a witness'. It would be pertinent to note that the above observations were made prior to the incorporation of Section 311A and Section 5 of the Act 2022 in the Statute Book."

KVAT Act | Electricity Excluded From 'Goods'; Assessment Order Invalid Unless Compliant With Section 25(1): Kerala High Court

Case Title: M/S Srinivasa Builders v. Commercial Tax Officer & Ors.

Citation: 2023 LiveLaw (Ker) 390

The Kerala High Court recently reiterated that electricity is excluded from the definition of 'goods' as per the Kerala Value Added Tax Act (KVAT Act) and even if electricity were deemed taxable based on its inclusion in the 1st Schedule, an assessment order would not be sustainable unless all the conditions under Section 25(1) [Assessment of escaped turnover] were fulfilled.

Justice Anu Sivaraman added that in such circumstances, the charge against the petitioner would be limited to an inaccurate return filing rather than concealing taxable turnover or tax evasion.

"Even if the contention of the revenue that electrical energy is included in the 1st Schedule is accepted, there would be no element of escaped assessment since the inclusion of electricity is in the 1st Schedule and no tax is payable. Therefore, the charge against the petitioner could, at best, be one of filing of an incorrect return and not of suppression of taxable turnover or attempt to evade tax. In the above circumstances, the essential ingredient under Section 25(1) would not be available to sustain an order of assessment on best judgment"

Mandatory For Magistrate To Examine Approver Before Committal Of Case: Kerala High Court

Case title: Suo Moto v State of Kerala

Citation: 2023 LiveLaw (Ker) 391

The Kerala High Court recently held that it is mandatory for the Magistrate to examine an accused who was tendered pardon under section 306(4)(a) of CrPC, prior to committing the case to the Sessions Court.

Section 306 of the Code deals with tendering pardon to an accomplice, who turns approver. An approver is also an accused in the crime, but has now agreed to provide details regarding the crime to aid the criminal proceedings in return of being tendered pardon. Section 306(4)(a) provides that an approver shall be examined as a witness by the Magistrate as well as in the subsequent trial.

Justice Bechu Kurian Thomas, held thus:

“Without examining the person accepting the tender of pardon as a witness, the Magistrate could not have committed the case to the Sessions Court, excluding that person from the array of accused. Such a process is without authority and is irregular…If any of the accused was accepted as an approver, then that person should have been examined before committing the case to the Sessions Court treating him as an approver.”

Payment Of Child's Educational Expenses If Reimbursed By Employer Can't Be Treated As Maintenance U/S 125 CrPC: Kerala High Court

Case title: Abdul Mujeeb v Suja

Citation: 2023 LiveLaw (Ker) 392

The Kerala High Court considered whether educational expenses paid to the children which were later reimbursed by the father's employer shall be reckoned as payment towards maintenance allowance under Section 125 CrPC.

The provision stipulates payment of compensation to wife, children and parents.

Justice VG Arun stated that educational expenses paid to children which were later reimbursed cannot be treated as maintenance allowance and held thus:

“It is not in dispute that the petitioner had not paid any amount to the first respondent/wife and payments to the other respondents (children) were towards tuition fees and other educational expenses. The object of Section 125 being to prevent destitution and vagrancy by ensuring reasonable allowance towards maintenance, payment of educational expense, which was later reimbursed, cannot be treated as the maintenance allowance contemplated under Section 125.”

Video Reflects Secular Views, FIR Appears Motivated: Kerala High Court Grants Anticipatory Bail To Shajan Skaria In Priest Humiliation Case

Case Title: Shajan Scariya v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 393

The Kerala High Court allowed the anticipatory bail plea moved by Shajan Skaria in the case alleging that he interacted with a priest through his YouTube channel 'Marunadan Malayali' with the intention to insult a religion.

Case Title: Sajith N.K. v. Jishabai Puthukudi & Anr.

Citation: 2023 LiveLaw (Ker) 398

The Kerala High Court recently considered the question as to whether an aggrieved party can file a private complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate in relation to offence of perjury (enumerated in Section 195(1)(b) Cr.P.C.) and answered the same in the negative.

Thus in this case where the aggrieved party approached the Magistrate Court with a private complaint under Section 200 of CrPC, instead of approaching the Family Court where the false evidence had been given, the Single Judge Bench of Justice Kauser Edappagath, observed,

"A party who is aggrieved by the inaction on the part of the court, where offences enumerated in Clause (b) of Sub Section (1) of Section 195 Cr.P.C. was committed, in initiating action under Section 340 of Cr.P.C. ('Perjury') can only move to such court with an application under Section 340(1). He cannot directly move the jurisdictional Magistrate Court with a private complaint under Section 200 of Cr.P.C".

Rule 198 Kerala Co-operative Societies Rules | Managing Committee Not Exclusive Authority To Issue Memo Of Charge: Kerala HC Full Bench

Case title: Mattanur Co-operative Rural Bank Ltd. v The Co-operative Arbitration Court

Citation: 2023 LiveLaw (Ker) 399

The Kerala High Court overruled the decision of the division bench in Kodanchery Service Co-operative Bank Ltd. v. Joshy Varghese (2020), which dealt with the interpretation of Rule 198 of the Kerala Co-operative Societies (KCS) Rules.

A Full Bench comprising Justice Alexander Thomas, Justice C Jayachandran and Justice Shoba Annamma Eapen thus revised the interpretation of Rule 198 and held that appointing authority is not the sole and exclusive authority for framing and issuing memo of charges to the delinquent employees.

“...it is to be held that the view taken by the Division Bench in Kodanchery's case supra [2020 (4) KLT 129], as if the appointing authority (Managing Committee) is the sole and exclusive authority for framing and issuing memo of charges to the delinquent employees, covered by Rule 198 of the KCS Rules, does not reflect the correct legal position.”

Merely Because PSC Issued Hall Ticket Unaware Of Defective Application, Candidate Has No Right To Appear For Exam : Kerala High Court

Case Title: Adv. Hasna Mol N.S. v. Secretary, Kerala Public Service Commission & Ors.

Citation: 2023 LiveLaw (Ker) 400

The Kerala High Court dismissed the plea by a candidate who sought to be appointed to the post of Assistant Public Prosecutor, and had also been issued a Hall-Ticket by the Kerala Public Service Commission (PSC) aspirant but was denied the opportunity to take the examination at the examination hall on the ground of her original application being defective.

Justice Devan Ramachandran observed that since the petitioner herself had conceded that her application did not contain her name or the date on which it was taken, it was thus legally defective.

"The said application, therefore, is legally defective and could never have been acted upon by the PSC; and hence merely because the petitioner was issued a Hall Ticket based on the same by the PSC, being unaware of the said defect, it would not obtain to her any right to write the examination," the Court observed.

KSRTC Can't Use Employees' Pension Contributions To Meet Its Financial Obligations: Kerala High Court Upholds Single Bench Decision

Case Title: Managing Director, KSRTC & Anr. v. S.A. Suneesh Kumar & Ors.

Citation: 2023 LiveLaw (Ker) 401

The Kerala High Court recently dismissed an appeal filed by the Kerala State Road Transport Corporation (KSRTC) challenging the Single Judge decision directing KSRTC to deposit both the employees' and employer's contributions to the National Pension Scheme (NPS), and the contributions to State Life Insurance Policy and Group Insurance Accounts within six months.

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran found no infirmity in the decision of the Single Judge and upheld the same.

“The primary aspect which weigh with us, is the fact that the appellant-Corporation had effected deduction from the salary of the employees' towards their contribution to the National Pension Scheme, the non-remittance of which could not be justified on any legal premise. As rightly held by the learned Single Judge, once such deductions are effected, the Corporation is statutorily bound to remit the same to the Contributory Pension Scheme. Non-remittance of the said funds, after effecting the deduction, could obviously indicate diversion of the same for some other purposes of the Corporation, which action can hardly be justified. The Corporation inheres no right to meet its financial obligation by utilizing the employees' contribution to the National Pension Scheme,” the Bench observed.

Non-Conduct Of Test Identification Parade Fatal When Witnesses Not Familiar With Accused: Kerala High Court

Case title: Pauly v State of Kerala

Citation: 2023 LiveLaw (Ker) 402

The Kerala High Court that reliance on the identification testimony without conducting a test identification parade was fatal if the witnesses were not familiar with the accused at the time of occurrence.

Justice A Badharudeen added that when the witness is not familiar with the accused, a test identification parade corroborates the testimony of the witnesses.

“It is true that if a witness, who doesn't know the accused at the time of occurrence, had an occasion to see the accused, not as a fleeting glance so as to imprint his face and body structures on his mind with certainly and thereafter identifies the accused at the dock, there is no reason to hold that his testimony in the matter of identification could not be relied on for want of corroboration, by way of test identification parade. But the situation is different when the witness identifies the accused, who is not familiar to him, at the dock and he did not give statement before the police regarding the identity of the accused and the manner in which such identification was imprinted in his mind with certainty, in such cases corroboration by test identification parade should have been resorted to and in such cases, non conduct of test identification parade (TIP) is fatal.”

Relief Under Article 226 Discretionary, Subject To Public Interest: High Court Dismisses Plea Challenging 'Encroachment' By Kochi Metro Rail

Case Title: Ciby George v. Kochi Metro Rail Ltd.

Citation: 2023 LiveLaw (Ker) 403

The Kerala High Court recently dismissed a writ petition filed by a resident of an apartment developed by the Army Welfare Housing Organisation (AWHO) challenging land occupation by the Kochi Metro Rail Limited (KMRL) observing that the plea had potential adverse effects on public interest.

Justice Gopinath P acknowledged that while it is not disputed that KMRL's occupation of private land without due acquisition process is unlawful, granting relief under Article 226 is discretionary in writs of certiorari and mandamus.

"That KMRL could not have occupied any land belonging to private parties (here, the AWHO / Apartment Owners) without subjecting the said land to a process of acquisition is not in dispute. However, in the peculiar facts of this case, the said finding does not mean that this Court must grant relief to the petitioner since the grant of relief under Article 226 is discretionary, and even if the applicant for a writ has made out a case for grant of the relief sought it can be withheld."

Overlooking Difference Between Murder And Culpable Homicide Could Lead To Miscarriage Of Justice: Kerala High Court

Case Title: Gopi v State of Kerala

Citation: 2023 LiveLaw (Ker) 404

The Kerala High Court recently emphasised the objective nature of determining the legal distinction between murder and culpable homicide not amounting to murder under the Indian Penal Code, unrelated to the offender's intention.

A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that neglecting the difference between the two can lead to a miscarriage of justice.

"It is trite that if the distinction between murder and culpable homicide not amounting to murder is overlooked, it would result in miscarriage of justice."

Nepotism Allegations: Kerala High Court Dismisses Director Lijeesh's Appeal Against Grant Of State Awards For Malayalam Films In 2022

Accused Avoid Arrest For Years On Strength Of Interim Order In Anticipatory Bail Plea, Courts Must Ensure Disposal Within Six Weeks: Kerala HC

Case Title: M A Mohanan Nair v State of Kerala

Citation: 2023 LiveLaw (Ker) 406

The Kerala High Court stated that time bound disposal of anticipatory bail applications is significant for completion of effective investigation.

Justice A Badharudeen directed the Registrar (Judicial) to ensure posting of anticipatory bail applications where 'not to arrest' interim orders were passed before appropriate benches for its timely disposal.

The direction was made after the Court noted hundreds of cases, in which after filing anticipatory bail applications and on getting interim protection 'not to arrest' the bail applicants avoided arrest in many cases where very serious offences are alleged to be committed by them. It observed,

"It is disgust to note that in view of the interim order passed by this court 'not to arrest', the hands of the Investigating Officer have been chained and therefore, proper investigation of serious crimes, where custodial interrogation, recording of statement of the accused, recovery of weapon-facts, at their instance were curtailed and in such a way the possibility of conviction in serious crimes has been given a go-bye as a result of ineffective investigation."

Classification Of Dr.Reddy's Senquel-AD As A Mouthwash Or A Medicament: Kerala High Court Remands The Matter Back

Case Title: Dr. Reddys Laboratories Ltd. Versus The Commissioner Of Commercial Taxes

Citation: 2023 LiveLaw (Ker) 407

The Kerala High Court has remitted the issue of the classification of Dr.Reddy's Senquel-AD as a mouthwash or a medicament for fresh consideration.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. has directed the authority to follow the decision of the Supreme Court in the case of Collector of Central Excise v/s CIENS Laboratories, in which it was held that if a product's primary function is "care" and not "cure," it is not a medicament. Cosmetic products are used to enhance or improve a person's appearance or beauty, whereas medicinal products are used to treat or cure some medical conditions. A product that is used mainly for curing or treating ailments or diseases and contains curative ingredients, even in small quantities, is to be branded as a medicament.

Legal Heirship Certificate Cannot Be Issued In Absence Of Valid Adoption & Supporting Evidence: Kerala High Court

Case Title: Prameela L. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 408

The Kerala High Court recently upheld a Single Judge's finding that a Legal Heirship Certificate cannot be issued in favour of a person in the absence of a valid legal adoption and documents evidencing the adoption, so as to enable them to claim compassionate appointment upon the death of the alleged adoptive parent.

A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the lack of any evidence supporting the adoption on record justifies denying the requested relief, upholding the Single Judge's order.

"In the absence of a valid and legal adoption, and in any case, in the absence of documents evidencing the factum of adoption, albeit not in terms of law, we cannot find fault with the respondent authorities in not issuing a Legal Heirship Certificate in favour of the petitioner. More than the absence of a legal document evidencing a legal adoption, what weigh with us to refuse the relief sought for is the complete dearth of evidence suggesting an inference as to the factum of adoption from the materials on record."

Party Pleadings Become Public Documents U/S 74(2) Evidence Act Once Submitted To Court: Kerala High Court

Case title: Usha Kumari v Santha Kumari

Citation: 2023 LiveLaw (Ker) 409

The Kerala High Court has recently held that pleadings of parties filed in a court partake the nature of a public document under Section 74(2) of the Indian Evidence Act.

Justice Sathish Ninan clarified that private party pleadings, upon submission to the Court, transform into public records due to Court custody and association with a public office, falling within the purview of Section 74 (2).

“Though pleadings of a party are private in character, once filed in Court, the Court is to retain custody of the same. Therefore, it becomes a record maintained by the Court which is a public office. Records held by a public office partake the character of public records. Therefore pleadings, which are private documents, once filed in Court, form part of public records kept in the Court, thus attracting clause 2 of Section 74 of the Act.”

Article 227 Can't Be Invoked To Interfere With Lower Court Proceedings Merely On Parties' Requests For Out-Of-Turn Hearings: Kerala High Court

Case Title: B.K. Shyamala Kumari v. Ragi Rajendran & Ors.

Citation: 2023 LiveLaw (Ker) 410

The Kerala High Court has held that although it possesses the authority to ensure that lower courts and tribunals adhere to their prescribed jurisdiction and functions in accordance with the law, this power granted under Article 227 of the Constitution does not grant the High Court the right to intervene in the proceedings of other courts or tribunals merely based on the request of parties to prioritise their case over previously pending matters.

Justice C.S. Dias relied on Shiju Joy.A v. Nisha (2021) and Prema Joy v. John Britto [2023 LiveLaw (Ker) 235] to add that 'out-of-turn' hearings can cause injustice to other litigants and disrupt the order of cases already listed for trial.

"Deviation from the seniority, on the basis of the date of filing, shall be permitted only in exceptional cases and for genuine reasons. Merely because a litigant has the means or resources to approach this Court, with a prayer to expedite his case, he shall not be permitted to jump the queue or steal a march over other litigants, and get an undue advantage," the Bench reiterated.

KeLSA Empowered To Grant Compensation Under Victim Compensation Scheme Without Court Recommendation Except Under POCSO: Kerala High Court

Case Title: X v. State of Kerala

Citation: 2023 LiveLaw (Ker) 411

The Kerala High Court held that the Kerala State Legal Services Authority (KeLSA) is empowered to grant compensation to victims under the amended Kerala Victim Compensation Scheme without a court recommendation.

Justice Kauser Edappagath added that the amended scheme however did not extend this benefit to minor victims under the POCSO Act, who still require Special Court recommendation to seek compensation.

"Even though till 20/2/2021, DLSA/KeLSA did not have the jurisdiction to grant compensation to the victim suo moto or on application made by or on behalf of the victim except for the claim under sub-section (4) of Section 357A of Cr.P.C., after the introduction of Chapter II in the Scheme, the compensation, interim as well as final, as the case may be, can be awarded by the DLSA/KeLSA either suo moto or on application by the victim or the jurisdictional Station House Officer in respect of the offences covered by the said Chapter...the minor victims under POCSO Act cannot file an application directly to the DLSA/KeLSA seeking compensation. They can claim compensation only on the recommendation or direction from the Special Court."

Decade Passed But Police Unable To Collect Incriminating Material: Kerala HC Grants Relief To Woman Booked For Obtaining Passport On False Docs

Case Title: Minimol v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 412

The Kerala High Court recently quashed the proceedings against a woman accused of traveling abroad in violation of the provisions of the Indian Passport Act, 1962.

The petitioner was alleged to have furnished false documents to procure the passport, and crime had thus been registered against her in the year 2014. Thereafter, pursuant to her application, she was granted permission to travel abroad for a period of five years by the Magistrate in 2021.

Justice Raja Vijayaraghavan V., while quashing the proceedings against the petitioner, observed that the police had not been able to collect the materials linking the petitioner with the crime, despite the passage of a decade.

"The petitioner's rights to travel abroad are being impeded by the pendency of the crime. She is a mother of two children and her contention is that the pendency of the UN report is impeding her ability to secure better employment as the reference to the crime in the order passed by the learned Magistrate deters her prospective employers from accommodating her in a better job", the Court noted.

Kerala High Court Quashes Proceedings Against Advocate Saiby Jose For Allegedly Cheating Client In 2013

Case Title: Saiby Jose Kidangoor v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 413

The Kerala High Court quashed the proceedings against Advocate Saiby Jose Kidangoor, former President of the Kerala High Court Advocates Association, accused of collecting Rs. 5 Lakh from a client's husband for settling the matrimonial dispute between the parties.

Justice Raja Vijayaraghavan V. observed that the complainant had filed the complaint in a highly belated manner, and had waited 10 years to file the complaint against the petitioner.

"The complainant cannot plead ignorance to the fact that the petitioner was not representing his wife since 2014. If that be the case, nothing stood in the way of the complainant approaching the police or the court to seek a refund of a sum of Rs 5 lakhs, which by no stretch of imagination can be said to be a merger amount. It is difficult to believe that the complainant did not attempt to move even his little finger to try and get back the amount. The 10-year wait and lack of clarity in the complainant's stance clearly reveal that the objective of the complainant is something else," the Court noted.

Best Marks Obtained To Be Considered When Students Appears For Supplementary Exams In Both 11th &12th Grades: Kerala High Court

Case Title: Jagankumar K. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 414

Case title: Nandakumar N v State of Kerala

Citation: 2023 LiveLaw (Ker) 415

The Kerala High Court recently held that there must be strict implementation of the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act, as majority of such cases coming before it involve young persons, adversely impacting the potential growth of the country.

Justice Ziyad Rahman A.A pointed that stringent conditions are stipulated by the legislature for grant of bail under Section 37 of the NDPS Act. It observed that even for Section 302 of the IPC where death penalty is prescribed as the maximum punishment, no conditions as contained in section 37 of the NDPS Act is stipulated for grant of bail. The Court held that bail is not easily given for offences involving NDPS Act for preventing drug consumption and drug trafficking in the society, which is a menace to the society and is now spreading like an infectious disease.

The bench reasoned,

“This is evidently because of the huge impact of drug abuse and drug trafficking on Society as a whole, as the said impact is not confined to any individual or individuals or his/their family. It is something affecting the society as a whole, by corrupting the minds of the young generation. The consumption of drugs, trafficking thereof and their ill effects are like a contagious disease eating up the youth of the country, thereby causing severe adverse impacts on the potential of the country as such. There is a rampant increase in drug trafficking cases nowadays, and not a single day passes without reports of the detection of drug trafficking cases.”

When Statute Enables Withdrawal Of Voluntary Retirement, Employers Shouldn't Act With Undue Haste & Refuse It: Kerala High Court

Case Title: Faziludeen v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 416

The Kerala High Court recently laid down that a request for withdrawal of an application for voluntary retirement that is made within five days of submitting such application, as enabled by Rule 48-A(4) of the CCS (Pension) Rules, 1972, cannot be refused on any premise.

Rule 48-A (4) precludes withdrawal of a notice seeking voluntary retirement except with the specific approval of the appointing authority, provided that such request for withdrawal is made before the intended date of his retirement.

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran observed that although the petitioner-applicant had sought for waiver of the notice period of three months while submitting his request for voluntary retirement at the first instance, it was axiomatic that the respondent authorities had acted with undue haste, without arriving at a proper satisfaction required as per statute, to waive the notice period.

The Court added that the very purpose behind affording a notice period in the statute itself is to enable the applicant to take a well considered decision about his career and reiterate his decision to take voluntary retirement, so that the same is not actuated by any extraneous feelings or emotions, at the spur of a moment.

"That precisely should be the reason for an enabling provision to withdraw a request for voluntary retirement, before the retirement is to take effect in accord with the statute. In the given facts, we are not in the least hesitant to observe that the purpose of notice period is frustrated. We are of the view that the respondents, being representatives of an entity under the Union Government, ought to have acted with all fairness, as a model employer, guided not merely by the letter of the Rules but by its spirit as well, with a topping of compassion and humane considerations, wherever it deserves," the Court observed in this regard.

Mere Lack Of Motive In Absence Of Proof Of 'Legal Insanity' Will Not Attract Exception Of Unsoundness Of Mind U/S 84 IPC: Kerala High Court

Case title: Rejis Thomas @Vayalar V State of Kerala

Citation: 2023 LiveLaw (Ker) 417

The Kerala High Court held that every person who is mentally diseased is not ipso facto exempted from criminal responsibility. Court added that mere lack of motive will not bring a case within the ambit of Section 84 of the IPC to take general exception of unsoundness of mind.

A Division bench comprising of Justice P.B. Suresh Kumar and Justice C.S. Sudha held that intent and act must concur for constituting a crime, but in the case of insane persons, no culpability can be fastened on them as they have no free will. Court added that the benefit of unsoundness of mind is available only if it is proved that during the commission of the offence, the accused due to defect of reason and disease of the mind was unable know the nature and quality of the act he was doing or that it was contrary to law.

It observed thus:

“It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. The law recognises nothing but incapacity to realize the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to comprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot, in the absence of a plea and proof of legal insanity, bring the case within this section.”

Case title: Rajesh V State of Kerala

Citation: 2023 LiveLaw (Ker) 418

The Kerala High Court held that Antiquities and Art Treasures Act, 1972 (Antiquities Act) does not restrict a person's right to hold any antiquity such as an idol, irrespective of its age.

Justice Bechu Kurian Thomas held thus:

“….it is evident that the Antiquities Act does not restrict the right of a person to own or possess an art, artifact or an antiquity. If an antiquity is owned or possessed by a person, law restricts that antiquity from being taken out of the country. If there is any antiquity in the possession of a person which has an age of more than 75 years, it is required to be registered with the Director of Archaeological Survey. However, if in case such registration is not done, no consequence is envisaged under the Antiquities Act. Further, if in case the Central Government wants to possess and own an antiquity, they will have to acquire it by paying compensation. In view of the above analysis of the statutory provisions of the Antiquities Act, it is evident that a person is entitled to possess any idol, irrespective of its age.”

Kerala Education Rules | Employees Facing Disciplinary Action For Unauthorised Absence Cannot Rejoin Duty: High Court

Case title: Sreelatha P. T. V State of Kerala

Citation: 2023 LiveLaw (Ker) 419

The Kerala High Court recently held that an employee who has been in unauthorized absence from service and against whom disciplinary proceedings have already been formally initiated cannot be allowed to rejoin the duty.

Justice Viju Abraham added that disciplinary proceedings are considered initiated only upon the issuance of the memo of charges and in such cases, it might impact the eligibility of the employee for immediate reinstatement.

“Therefore, I am of the view that the request of the petitioner to permit her to rejoin duty, pending disciplinary proceedings cannot be accepted.”

Employee Leaving Service On Retirement Or Resignation Has No Right To Claim Leave Encashment Unless Enabled By Statute: Kerala High Court

Case Title: National Insurance Co. Ltd. & Ors. v. S. Sudeep Kumar

Citation: 2023 LiveLaw (Ker) 420

The Kerala High Court recently held that an employee who leaves his service either on retirement, voluntary or otherwise, or on resignation, would have no vested or inherent right to claim leave encashment, unless it is otherwise enabled by the statute, rules, or norms regulating the conditions of service.

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran, made the above observation while considering an appeal preferred by the National Insurance Company seeking to set aside the Single Judge's order directing the Company to disburse leave encashment to the employee on the ground that the same is part of the salary.

Three Agencies Including CBI 'Blotched-Up' Investigation: Kerala High Court Acquits Jyothikumar Sentenced To Life For Patricide

Case Title: B.W. Jyothikumar v. Central Bureau of Investigation

Citation: 2023 LiveLaw (Ker) 421

The Kerala High Court recently set aside the conviction and sentence of B.W. Jyothikumar who had been accused of patricide back in 2007.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha lamented the 'blotched-up' manner in which the investigation was conducted as a result of which the culprit would 'scot-free'.

"Inspite of three agencies conducting the investigation they have been unable to give an answer to the question, 'whodunit'. Even the CBI seems to have been groping in the dark with no definite leads or clue leading them to the culprit. The CBI has established some points to suspect the accused. Suspicion, however grave, is not sufficient to find the accused guilty of the offences alleged against him. The links in the chain of circumstances leading to the hypothesis that it is the accused and no one else who has committed the crime, has not been established. The chain of evidence is not complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and show that in all human probability the act must have been done by the accused and accused alone. Hence in these circumstances we are afraid we will have to give the accused the benefit of doubt. The trial court, in our opinion, went wrong in relying on the aforesaid unsatisfactory evidence to conclude that the guilt of the accused has been established beyond reasonable doubt," the Court observed, while allowing the appeal.

Court Where Cheque Is Presented For Collection Has Jurisdiction To Entertain Dishonour Complain U/S 138 NI Act: Kerala High Court

Case title: Alfa One Global Builders Pvt. Ltd v. Nirmala Padmanabhan

Citation: 2023 LiveLaw (Ker) 422

The Kerala High Court has held that the word 'delivered' used in Section 142(2)(a) of the Negotiable Instruments Act, 1881 ("NI Act") has no significance for the purpose of determining jurisdiction. Rather, significance must be given to the text 'for collection through an account'. That is to say, delivery of the cheque takes place where the cheque was issued and presentation of the cheque will be through the account of the payee or holder in due course, and the latter place is decisive to determine the question of jurisdiction.

The Bench comprising Justice A. Badharudeen while dismissing the writ petition has observed that when an issue of jurisdiction arises, the challenge upon jurisdiction has to be raised before the same court and it cannot be a subject matter of writ petition.

Mere Retention Of Blank Signed Cheques Without Misappropriation Does Not Attract Criminal Breach Of Trust: Kerala High Court

Case name: K.O. Antony V State of Kerala

Citation: 2023 LiveLaw (Ker) 423

The Kerala High Court recently held that mere retention of blank signed cheques by the entrusted person without any misappropriation cannot fall within the ambit of criminal breach of trust under Section 405 of the IPC.

Justice Raja Vijayaraghavan V held added that for attracting the offence of criminal breach of trust, the entrusted person must misappropriate or dishonestly use the property entrusted to him for his own use. The Court held thus:

“There is no case for the prosecution that the petitioner has dishonestly misappropriated property entrusted to him contrary to the terms of an obligation imposed. Admittedly, except for retaining blank cheques in his possession, the petitioner has neither dishonestly used nor disposed of the same.”

"Frivolous Litigation": Kerala High Court Upholds Dismissal Of Criminal Complaint Against 48 High Ranking Bureaucrats, Police Officials

Case title: Asif Azad V State of Kerala

Citation: 2023 LiveLaw (Ker) 424

The Kerala High Court upheld the order of a Magistrate dismissing a vexatious compliant filed against 48 high ranking bureaucrats and police officials of the State.

Justice Bechu Kurian Thomas, while dismissing the revision petition, noted that the petitioner had filed the complaint by extracting various statutory provisions with vacuous allegations without any material to substantiate them. The Court held thus:

“As pointed out by the learned Public Prosecutor, the complaint filed by the revision petitioner is undoubtedly an abuse of the process of the court. On an appreciation of the circumstances arising in the case, this Court is of the view that the learned Magistrate was justified in dismissing the complaint, nipping off, at the threshold itself, a frivolous litigation.”

Temple & Its Affairs Can Only Be Administered By Trustee: Kerala High Court Affirms Devaswom Board's Authority In Temple Land Dispute

Case Title: Kshetra Upadeshaka Samiti & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 425

The Kerala High Court, in a dispute pertaining to the encroachment of 65 cents of land of Kootholikavu Sree Bhagavathy Temple, laid down that the Travancore Devaswom Board would not be barred from taking action for repossession of the property, although the said parcel of land had not been handed over to the Board, pursuant to the change of trustee of the Temple.

The Division Bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar reasoned that a temple and its affairs can only be administered by a human agency, which is the trustee of the Deity.

"A Temple and its affairs can be administered only by a human agency, be it private or public; incorporated or unincorporated. Such agency is the trustee of the Deity. When the Travancore Devaswom Board assumed the Kootholikavu Temple, its legal effect is that in place of the earlier trustee of the Deity the Travancore Devaswom Board came in as the new trustee. In law, what all properties, both tangible and intangible, the Deity had would continue to be with the Deity. The Travancore Devaswom Board as the new trustee of the Deity becomes the authority in the management of all such properties of the Deity," the Bench observed.

Govt Cannot Take Advantage Of Its Own Delay Or Inaction: Kerala High Court

Case title: State of Kerala V Varghese MA

Citation: 2023 LiveLaw (Ker) 426

The Kerala High Court recently held that the Government cannot exploit its delay to take action to its advantage and to the detriment of the employee.

A division bench of Justice Alexander Thomas and Justice C Jayachandran came to the conclusion while considering the proposal for sanctioning and regularising the post of a part-time sweeper, to which he was otherwise entitled.

“A subsequent change of the Krishi Bhavan to another premises, the sweeping area of which is allegedly less than 100 sq.m., would not disentitle the sanctioning of the post and the consequent regularisation of the applicant, to which he was otherwise entitled to, as on the date of Annexure-A2 G.O., as evident from Annexure-A3. Inasmuch as the Government chose to sat over the proposal and delayed the same, the Government cannot be permitted to take advantage of its own inaction.”

Husband's Girlfriend Or Woman Who Has Sexual Relations With Him Outside Marriage Cannot Be Prosecuted U/S 498A IPC: Kerala High Court

Case title: Chandhini T.K. V State of Kerala

Citation: 2023 LiveLaw (Ker) 427

The Kerala High Court recently held that the term 'relative' appearing in Section 498A of IPC would not include husband's girlfriend, or a woman with whom a man has sexual relationship outside of marriage.

Section 498A, IPC defines and provides punishment for cruelty committed by the husband or relative of the husband of a woman.

Justice K. Babu added that Section 498-A being a penal provision, has to be construed strictly. The Court held thus:

"The specific language of the Section and the Explanation thereof lead to the conclusion that the word 'relative' would not include a woman with whom a man has had sexual relations outside of the marriage. By no stretch of imagination, a girlfriend or even a woman who maintains sexual relations with a man outside of marriage in an etymological sense would be a 'relative'. The word 'relative' brings within its purview a status. Such status must be conferred either by blood or marriage, or adoption. If no marriage has taken place, the question of one being relative of another would not arise. S.498A, IPC being a penal provision, would deserve strict construction, and unless a contextual meaning is required to be given to the statute, the said statute has to be construed strictly.”

Flawed Investigation, Lack Of Evidence: Kerala High Court Acquits 7 RSS Workers Booked For Murder Of CPI(M) Activist

Case title: Naveen v State of Kerala

Citation: 2023 LiveLaw (Ker) 428

The Kerala High Court acquitted seven members of the RSS who were allegedly involved in the murder of CPI(M) activist, Shihab.

A division bench comprising of Justice P.B. Suresh Kumar and Justice C.S. Sudha stated that they were constrained to acquit the accused not because they are were not the real culprits, but because of flawed investigation and lack of evidence. It held thus:

“…we are constrained to acquit the accused not because we find that they are not the real culprits in the case, but because of the flawed investigation and lack of evidence. We do not find fault with the investigating officer in proceeding with the investigation in the case on the premise that on the facts of this case, the activists of the rganization, RSS must have committed the crime. Our anguish on the other hand, is with regard to the manner in which he jumped into the conclusion without collecting sufficient materials that it is the accused who committed the crime.”

In A First, Kerala High Court Orders Appointment Of Independent Counsel To Represent Child In Custody Case

Case Title: X v. Y

Citation: 2023 LiveLaw (Ker) 429

In an unprecedented move, the Kerala High Court directed the appointment of an independent counsel for rendering pro bono legal services to represent a child in a custody battle between its parents.

While passing the order, the Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that often, the best interests of children are not properly represented in the 'wrangle' between the mother and father.

'Cannot Rule Out Possibility Of Genuine Fatherly Affection': Kerala HC Grants Bail To 77-Year-Old Accused Of Inappropriately Touching, Kissing Girl Child

Case Title: Rajayyan v. State of Kerala

Citation: 2023 LiveLaw (Ker) 430

The Kerala High Court granted bail to a 77-year-old man alleged to have inappropriately touched a 10 year old girl, and kissed her cheeks.

The Single Judge Bench of Justice Ziyad Rahman A.A. expressed doubt as to whether the alleged acts had been committed by the petitioner with sexual intention.

"...on going through the contents of the statement, there is some doubt as to whether the said acts were committed by the petitioner with any sexual intention or not. While considering this question, the fact that, the petitioner is a person aged 77 years, is very much relevant, as a possibility of a genuine fatherly affection cannot be ruled out. Anyhow, it is a matter to be investigated and proved, I am not intend to adjudicate on the said question. However, since there is some shadow doubt as to the intention of the petitioner, I am of the view that, a lenient view is required to be taken in this matter," the Court observed.

Police Officer Who Registered Suo Moto Case Can't Be Asked To Compensate Accused U/S 250 CrPC Upon Acquittal: Kerala High Court

Case title: S Sukumaran Chettiyar V State of Kerala

Citation: 2023 LiveLaw (Ker) 431

The Kerala High Court recently held that a police officer who registered a a suo moto case cannot be asked to compensate the accused after acquittal under Section 250 of CrPC.

Justice Bechu Kurian Thomas held that under Section 250 CrPC, compensation can only be ordered when a case was instituted upon a complaint or upon information given to a police officer. It held thus:

“The said provision contemplates specific instances when such compensation can be ordered. The provision commences with the words “instituted upon complaint or upon information given to a police officer or to a Magistrate”. The intention of the legislature is very clear from the words used, since the code has defined the terms 'complaint' in Section 2(d) Cr.P.C., as excluding a police report.”

Consider If Further Conditions Warranted For Permitting Use Of Forest Land For Non-Forest Purposes Like Film Shoot: Kerala HC To Govt

Case title: Angels Nair V The Principal Secretary

Citation: 2023 LiveLaw (Ker) 432

The Kerala High Court directed the State government to consider if further conditions have to be issued while granting permission to use forest land for non-forest purposes like shooting movies, so as to ensure that no damage is caused to the forest and wildlife.

Justice Viju Abraham, held thus,

“The respondents are also directed to consider whether any further additional conditions need be imposed in the matter while granting permission to use the forest for non-forest activities like the one done in the present case, so that no damage is caused to the forest and wild life. With the above said direction WP(C) No.7107 of 2020 is disposed of.”

Speedy Trials Spirit Of Article 21: Kerala High Court Quashes 12 Yrs Old Cruelty Case Against Husband

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

Citation: 2023 LiveLaw (Ker) 441

The Kerala High Court has held that bar on grant of anticipatory bail for certain rape offences, as indicated under Section 438(4) of CrPC, will not be attracted if such offences are prima facie not made out from the material placed on record or the allegations appear to be false.

Section 438(4) bars anticipatory bail to an accused allegedly involved in offences punishable under Sections 376(3) (rape of woman under 16 years of age), 376 AB (rape on woman under twelve years of age), 376 DA (Gang rape on a woman under sixteen years of age) and 376 DB (Gang rape of a woman under 12 years of age).

Single Bench of Justice Ziyad Rahman A.A. observed that merely because any of the offences under Sections 376 (3), 376 AB, 376 DA and 376 DB are incorporated amongst other offences in the FIR, the valuable rights of the accused cannot be denied if a prima facie case is not made out.

"When there are no convincing reasons to find out such a prima facie case as to the said offences, the prohibition contained in the said provision should not be brought into force automatically, without any application of mind, thereby denying the personal liberty of a person, which is a fundamental right under the Constitution of India. When there are reasonable and valid grounds to suspect the veracity of the allegations, the court should not hesitate to pass appropriate orders to protect the personal liberty of the person against whom such accusations are made," the Bench noted.

'Parental Custody Preferred': Kerala High Court Refuses To Interfere With UK Court Order Removing Child From Grandmother's Custody In India

Case Title: Lalamma John V Jijo Varghese

Citation: 2023 LiveLaw (Ker) 442

The Kerala High Court refused to interfere with an order passed by a competent Family Court in the UK directing a minor child to be brought back from India to England, where her parents reside.

The child was residing with her maternal grandmother in India following a dispute between her parents. She was brought to India by her mother and the UK Court is seized with a plea moved by her father and grandfather, seeking her custody. The mother had given an undertaking that she would produce the child before the UK Court.

A division bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that before honouring a competent foreign court's order in child custody matters, it has to ensure that the welfare of the child will be protected.

In the present case, it observed that the UK court had noted the measures to protect the welfare of the child. Thus it said,

“Parental custody is always preferred as the parents are competent to protect the welfare of the child. We are not persuaded to accept the arguments of the learned counsel for the petitioner, as the UK court had noted the measures to protect the welfare of the children. When the competent court of jurisdiction in UK has already taken measures, the comity of courts demands to respect that order unless such order is passed without any jurisdiction.”

'Nothing To Suggest Sexual Intent': Kerala High Court Grants Pre-Arrest Bail To Youth Accused Of Holding Minor's Hand To Outrage Modesty

Case Title: Anu v. State of Kerala

Citation: 2023 LiveLaw (Ker) 443

The Kerala High Court granted anticipatory bail to a 21-year-old who has been accused of catching hold of a 15-year-old girl's hand, with an intention to outrage her modesty.

The prosecution case against the petitioner-accused was that he, along with the second accused in the case, came on a bike, and caught hold of the minor girl's hand intending to outrage her modesty. The duo has been booked under Section 354 IPC ('Assault or criminal force to woman with intent to outrage her modesty'), and Sections 8 ('Punishment for sexual assault') r/w 7 ('Sexual assault') and 16 ('Abetment of an offence') of the POCSO Act.

Justice Kauser Edappagath observed that the First Information Statement did not reveal that the said act was done by the applicant with 'sexual intent' or with the intention to outrage the modesty of the victim.

“The only allegation is that the applicant came in a bike and caught hold of the hand of the victim. There is nothing to suggest in the F.I.S. that, the said act was done by the applicant with sexual intent or with the intention to outrage the modesty of the victim. The applicant has no criminal antecedents. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary. For these reasons, it is a fit case where pre-arrest bail can be granted to the applicant,” the Court observed.

Kerala Education Act | Aided School's Properties Cannot Be Mortgaged Without Obtaining Permission From Educational Authorities: High Court

Case title: Swaroop V State of Kerala

Citation: 2023 LiveLaw (Ker) 444

The Kerala High Court held that an aided school's properties cannot be mortgaged without obtaining permissions from concerned authorities under the Kerala Education Act and Rules.

Justice Basant Balaji observed thus:

“A duty is cast on a Manager, and the Manager should submit a statement of movable and immovable properties to the educational authorities. Without the permission of the educational authorities, the Manager cannot mortgage, sell, or lease the property.”

S.142 NI Act | Third Party Cannot Prosecute Drawer For Dishonour Of Cheque: Kerala High Court

Case Title: Arvind Singh Rajpoot v. M/S Intersight Holidays Pvt. Ltd. & Ors.

Citation: 2023 LiveLaw (Ker) 445

The Kerala High Court recently laid down that a third party cannot prosecute the drawer of cheque for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

Section 138 of the NI Act stipulates the penalty for dishonour of cheque for insufficiency of funds in the account.

Perusing Section 142(a) of the Act which provides that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, the Single Judge Bench of Justice A. Badharudeen proceeded to observe:

"...Therefore, a complaint alleging commission of offence punishable under Section 138 of the NI Act shall be filed either by the 'payee' or by the 'holder in due course' of the said cheque and no other person entitled to lodge a complaint and the court shall take cognizance acting on a complaint in writing filed by the 'payee' or 'holder in due course'".

Kerala High Court Grants Anticipatory Bail To 18-Yr-Old In Consensual Sexual Relationship With 17-Yr-Old

Case title: Maheen Ali V State of Kerala

Citation: 2023 LiveLaw (Ker) 446

The Kerala High Court granted pre-arrest bail to an 18 year old boy under Section 438 of CrPC who was alleged to have kidnapped and raped a 17 year old girl. The Court held that the applicant and victim were having consensual sexual relationship and that she went voluntarily with him as they were involved in a romantic relationship.

Justice Kauser Edappagath, while allowing the anticipatory bail application observed thus:

“The reading of FIS would show that, the applicant who was aged 18 years and the victim who was aged 17 years, got acquainted through Instagram two years back and they were in romantic relationship. The FIS would further show that, on 09.04.2023, the victim voluntary went along with the applicant to his friend's house. On 15.07.2023 also, the victim voluntarily went to the house of the applicant. An over all reading of the FIS shows that the alleged sexual act was consensual in nature.”

Use Of Technology For 'Secretive' Drug-Related Transactions Relevant Consideration While Deciding Bail Plea U/S 37 NDPS Act: Kerala High Court

Case Title: State of Kerala v. M/s Sathyam Audios and connected matters

Citation: 2023 LiveLaw (Ker) 463

In a significant ruling, the Kerala High Court recently held that the tax under the KVAT Act applied not to the transfer of goods but to the transfer of the right to use goods.

A division bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias CP added that the taxable event occurs when the contract for goods delivery is executed, irrespective of whether the transfer is exclusive.

"...in a contract for the transfer of the right to use the goods, the taxable event is the execution of the contract for delivery of the goods, and if that has taken place, it was immaterial whether the transfer was exclusively or to the exclusion of all others."

Electricity Tariff: Kerala High Court Strikes Down Regulation Imposing KSEB Pension Liability On Consumers

Case Title: Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association & Ors. v. Kerala State Electricity Regulatory Commission & Ors.

Citation: 2023 LiveLaw (Ker) 464

The Kerala High Court has held that electricity tariff charged from consumers will not include the amount allocated to the Master Trust, pension fund of Kerala State Electricity Board employees.

Single Bench of Justice Murali Purushothaman struck down Regulation 34 (iv) of the the Kerala State Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff) Regulations, 2021 (the Final Tariff Regulations). With this verdict, the electricity tariff shall be reduced by 17 paise per unit for the consumers.

Kerala High Court Upholds Rape Conviction Of Man Spotted And Identified By Minor Victim In Public Place 1.5 Months After Incident

Case title: Anil Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 465

The Kerala High Court held that conviction for rape can be made on the sole testimony of the prosecutrix and no corroboration such as test identification parade would be required if the evidence of the victim was reliable and inspires the confidence of the Court.

Justice A. Badharudeen observed thus,

“PW5 [prosecutrix] had enough time to have an imprint of the face and features of the accused, who had subjected her to sexual intercourse, despite her resistance and later identified the accused as the culprit while he was sitting in an autorickshaw, by chance, and later identified him at the dock also. In such a case, there is no reason to disbelieve the identity, as argued by the learned counsel for the appellant, and the said contention is found to be unsustainable.”

Kerala High Court Upholds Rape Conviction Of Man Spotted And Identified By Minor Victim In Public Place 1.5 Months After Incident

Case title: Anil Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 466

The Kerala High Court has held that while issuing summons to show cause under provisions of bond for peace keeping, etc., the Magistrate has to follow the procedure laid down under Section 111 of CrPC.

Justice A. Badharudeen observed thus:

“it is the mandate that whenever a Magistrate intents to proceed acting under section 107, section 108, section 109, or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required and without furnishing such details, the order will be non-est. Therefore, the order is liable to be set aside.”

Temple Premises Cannot Be Used For Conducting Mass Drill, Weaponry Training: Kerala High Court

Case Title: G. Vyasan & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 467

Case name: Vasu v. Narayanan

Citation: 2023 LiveLaw (Ker) 468

The Kerala High Court has held that even if an ex parte decree is passed in a suit for specific performance, the Court has to take a liberal view to advance justice by condoning the delay of defendant and affording the party an opportunity to defend the suit.

Justice P Somarajan observed that a party can be penalized for the delay by imposition of cost but, court should not curtail the party's right to defend the suit for specific performance.

“In the matter of condonation of absence of party, especially in a suit for specific performance, the court has to take a liberal view so as to advance justice and not to defeat, unless the negligence is so grave to the extent of outweighing the benefit that can be obtained by the party by prosecuting or defending the suit. It is permissible to penalize the party in terms of money for the laches, not by curtailing the valuable right to proceed with the suit or to defend the suit, especially in the matter of specific performance.”

Kollam Doctor Murder: Accused Sandeep Withdraws Bail Plea From Kerala High Court

Case Title: Sandeep v. State of Kerala

Citation: 2023 LiveLaw (Ker) 469

Kerala Municipality Act | Property Tax To Be Paid Only From Date Of Issuance Of Occupancy Certificate: High Court

Case Title: M. Baiju v. The Secretary, Kozhikode Municipal Corporation & Anr.

Citation: 2023 LiveLaw (Ker) 470

The Kerala High Court recently held that property tax is liable to be paid only from the period of issuance of the occupancy certificate, and not prior to the same.

The Court reasoned that since tax can only be levied on a building which becomes capable of being used for residential purposes as per Section 233 (2)(a) of the Kerala Municipality Act, 1994, and since it is only on the issuance of occupancy certificate that a building would get numbered and get electricity, water, and gas, tax would hence be leviable from the date of issuance of such certificate.

Section 233 provides for 'Property Tax', and sub-section (2)(a) defines the buildings on which the property tax can be levied.

"If subsection 2 (a) of Section 233 is read in proper perspective, it could mean that the tax can be levied on the building which becomes capable of use for residential purposes or other purposes which is defined under Subsection 2(a). It is not in dispute that without occupancy certificate, the building would not get numbered and electricity, water and gas connections would not be provided to such building. If these facilities are not provided, the building does not become capable of being used for residential purposes or other purposes as defined in Subsection 2(a)," the Single Judge Bench of Justice Dinesh Kumar Singh observed.

Indian Army Can Grant Family Pension To Ex-Serviceman's Second Wife Even If First Marriage Not Legally Dissolved: Kerala High Court

Case title: N.Sarojini Nambramcheri V Union of India

Citation: 2023 LiveLaw (Ker) 471

The Kerala High Court recently held that there was no impediment for the Indian Army in granting family pension to the second wife of a deceased serviceman even if the first marriage was not dissolved legally, as long as the first wife was not interested in the pension.

Justice Devan Ramachandran observed that the Indian Army could consider the claim of the second wife since their marriage was recognised by the Indian Postal Department. It observed thus:

“Even if it is taken that the divorce as reflected in Ext.P2 is not legally valid, it would cause no prejudice to the Indian Army, as long as Smt.K.T.Chandralekha does not stake a claim to the family pension. This is more so because, the marriage of late K.V.Venugopalan and the petitioner appears to have been accepted by the Indian Postal Department, which is evident from Exts.P7 and P8, and hence it would only be in furtherance of such that the Indian Army also considers their marriage to be valid.”

S.227 CrPC | Notarised Affidavit By Complainant Not Sufficient To Discharge Accused: Kerala High Court

Case Title: Vishnu K.B. v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 472

The Kerala High Court recently held that a notarised affidavit signed by the de facto complainants exonerating the accused person cannot be taken in isolation to discharge the accused.

Justice N. Nagaresh explained that to discharge an accused person under Section 227 of the CrPC, the Court ought to determine if there are sufficient grounds to proceed against them. If such grounds are found, an order of discharge cannot be passed and the accused would have to face trial.

"The purpose of Section 227 of the Code is to ensure that the Court should be satisfied that the accusations made against the accused is not frivolous and that there is some material for proceeding against the accused. If there is sufficient ground for presuming that the accused has committed an offence, an order of discharge cannot be passed and the accused has to face trial... A notarised affidavit subsequently signed by the de facto complainants cannot be taken in isolation by the Court so as to discharge the accused."

Privately Watching Porn Video Without Exhibiting It To Others Will Not Attract Offence Of Obscenity U/S 292 IPC: Kerala High Court

Case title: Aneesh V State of Kerala

Citation: 2023 LiveLaw (Ker) 473

The Kerala High Court quashed criminal proceedings initiated against a man who was arrested by the Police from roadside for watching pornography on his mobile phone.

Justice P.V.Kunhikrishnan stated that "privately" watching obscene photos or videos on one's phone without distributing or publicly exhibiting it will not attract the offence of obscenity under IPC. It added that watching such content is a person's private choice and the Court cannot intrude into his privacy.

"The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy," Court observed.

Instead Of Ordering From Swiggy And Zomato, Let Children Enjoy Delicious Food Cooked By Mothers: Kerala High Court Advises Parents

Case title: Aneesh V State of Kerala

Citation: 2023 LiveLaw (Ker) 473

The Kerala High Court emphasized on importance of home-cooked meals for children and advised parents to deter from ordering food from restaurants via online delivery platforms Swiggy and Zomato.

Justice PV Kunhikrishnan was dealing with a case concerning access to pornography via few clicks of a hand-held mobile phone when he ventured into the arena of modern parenting where children are handed mobile phones so that parents can "complete their daily routine works in their house".

He implored parents to rather send their children for outdoor activities and welcome them back to home with the "mesmerizing smell of mother's food". He remarked,

“Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future. Instead of purchasing food from restaurants through 'swiggy' and 'zomato', let the children taste the delicious food made by their mother and let the children play at play grounds at that time and come back home to the mesmerizing smell of mother's food. I leave it there to the wisdom of the parents of minor children of this society”

[Kerala Rent Control Act] Payment Of Arrears During Pendency Of Appeal No Ground For Setting Aside Eviction Order U/S 12(3): High Court

Case Title: Subeesh v. Vichathran

Citation: 2023 LiveLaw (Ker) 474

The Kerala High Court held that payment of the admitted arrears of rent during the pendency of an appeal against an order of eviction under Section 12(3) of the Kerala (Buildings Lease and Rent Control) Act (hereinafter, 'the Act'), would not be a ground to set aside such an order or to grant an opportunity to the tenant to contest the Rent Control Petition.

Section 12(3) provides that upon the failure of a tenant to pay or deposit the rent or arrears of rent as declared to be paid by the Rent Control Court within a prescribed time period, the Court or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice P.G. Ajith Kumar explained the scope of Section 12 of the Act as follows:

"The object of the provisions of Section 12(1) of the Act ('Payment or deposit of rent during the pendency of proceedings for eviction') is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. The obligation is not merely dependent on an order under Section 12(1) of the Act, but it is statutory".

Baptism Certificate Cannot Be Given Primacy Over Official Documents Like Aadhar Card To Ascertain Date Of Birth: Kerala High Court

Case name: Tony Francis Padiyappuram V State of Kerala

Citation: 2023 LiveLaw (Ker) 475

The Kerala High Court has held that baptism certificate cannot be given primacy over official documents like SSLC Certificate, Aadhaar Card, PAN Card and driving license to ascertain the date of birth of a person belonging to Christian community.

Justice Murali Purushothaman observed thus:

“A baptism certificate is issued by the Church to record the baptism of a person. No primacy can be accorded to baptism certificate when public documents are available indicating the date of birth.”

Kerala High Court Directs State To Inform All Registering Authorities That Marriages Can Be Registered Through Video Conferencing

Case Title: Theresa Davis v. State of Kerala

Citation: 2023 LiveLaw (Ker) 476

The Kerala High Court has directed the State Government to inform all registering authorities that marriages can be registered by securing the presence of the parties by video conferencing.

Justice Devan Ramachandran directed the State Government to comply with the direction within two weeks so that parties would not have to approach the Court each time with the same request.

“I also deem it necessary to direct the State of Kerala to make sure, through its competent Authority, that all Registering Authorities are informed of the afore precedent through appropriate means, so that parties will not have to approach this Court every time they require the benefits as granted therein. This shall be done in full compliance; and a report to that effect produced before this Court within a period of two weeks from the date of receipt of a copy of this judgment.”

Kerala High Court Rejects Plea To Erect Saffron Flags At Temple; Says Temple's Sanctity Shouldn't Be Diminished By Political Acts

Case Title: R. Sreenath & Anr. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 477

The Kerala High Court recently held that in order to maintain the sanctity and tranquility of the temples, it cannot permit putting up of saffron flags and festoons on temple premises.

Justice Raja Vijayaraghavan V., while refusing the plea by two devotees of the Muthupilakkadu Sree Parthasarathy temple to permit them to erect flags without any obstruction, observed:

"Temples stand as beacons of spiritual solace and tranquility, their sanctity and reverence being of paramount importance. Such hallowed spiritual grounds must not be diminished by political maneuverings or attempts at one-upmanship".

Non-Compliance With Centre's MSME Framework Does Not Nullify An NPA Declaration Under SARFAESI Act: Kerala High Court

Case Title: N.P. Abdul Nazer v. Union Bank of India & Anr.

Citation: 2023 LiveLaw (Ker) 478

The Kerala High Court recently held that the 'Framework for Revival and Rehabilitation of Micro, Small and Medium Enterprises' issued by the Centre in 2015 is only optional and that its non-compliance does not render an NPA declaration void.

The said Framework outlines a procedure for banks to follow before declaring an MSME's account as an NPA (Non-Performing Asset).

Justice Bechu Kurian Thomas added that the Framework does not prevail over the statutory provisions of the SARFAESI Act in the matter of recovery of loans.

"... failure to abide by the terms of the notification of 2015 cannot render the declaration of the account as NPA void or bad in law. The words in the notification do not provide for a mandatory procedural requirement. No consequence is provided for non-compliance with the Framework... Hence the failure of the Banks to abide by the terms of the Framework cannot be condemned as fatal," the Court observed.

[Order 32 Rule 15 CPC] Few Irrational Answers Insufficient To Qualify One As Mentally Unfit, Enquiry Should Be Pragmatic: Kerala HC

Case name: Gopakumar v. Madhusoodanan Nair

Citation: 2023 LiveLaw (Ker) 479

The Kerala High Court while considering the scope of the term 'enquiry' by the Court under Order 32 Rule 15, observed that the courts cannot merely find a person to be suffering from a mental disorder based on a few irrational answers given by him.

Justice P. Somarajan added the courts should adopt a more practical approach and seek medical evidence or expert opinion to determine their mental state to decide if they should be represented by a next friend or guardian in a suit.

“Hence, the court should adopt a pragmatic approach and if it is found necessary, call for further evidence including medical evidence, instead of jumping into a conclusion merely on the ground that some of the answers which were given by the person were found to be not convincing or rational. The procedure, then available, is to refer the parties to a Medical Board so as to obtain a report regarding any mental ailment, retardation or disorder or any impairment of mental ability to take a rational decision pertaining to his affairs or to protect his interest.”

'Punishment Before Conviction Anti-Thesis Of Rule Of Law': Kerala High Court Grants Bail To Managing Director In Popular Finance Scam

Case Title: Thomas Daniel v. Enforcement Directorate & Ors.

Citation: 2023 LiveLaw (Ker) 480

The Kerala High Court granted bail to the Managing Director of Popular Finance, Thomas Daniel, who is alleged to have committed offences under the Prevention of Money Laundering Act, 2002 (PMLA).

Daniel had been accused of cheating several depositors by collecting fixed deposits without authority, after promising to pay interest and thereafter failing to pay the interest and the amounts collected. It was further alleged that amounts so collected by Daniel were used as untainted money for the acquisition of property. He was thus alleged to have committed the offence of money laundering under Section 3 of PMLA.

Justice Bechu Kurian Thomas observed that when there is only a remote possibility of conviction sometime later in the future, the liberty of the individual must be given preference.

"The constitutional courts are entrusted with the solemn function of protecting the liberty of the individual, which manifests as fundamental rights. Punishment before conviction is the antithesis of the rule of law. When the liberty of an individual is pitted against the remote possibility of a conviction much later, the scales of balance must lean in favour of the former".

S.24 PMLA | No Presumption Of Guilt Of Accused For Predicate Offences Alleged Against Him: Kerala High Court

Case Title: Thomas Daniel v. Enforcement Directorate & Ors.

Citation: 2023 LiveLaw (Ker) 480

Res Judicata | Civil Court Cannot Grant Liberty To File Fresh Suit On Same Cause Of Action While Drawing Decree On Merits: Kerala High Court

Case Title: Karlose v. Stella Lasar & Ors.

Citation: 2023 LiveLaw (Ker) 481

The Kerala High Court recently declared that it would be impermissible for a civil court to grant liberty to file a fresh suit on the same cause of action while drawing a decree on its merits, or to remove any statutory bar in instituting a fresh suit on the same cause of action.

Justice P. Somarajan, explained that liberty to file a fresh suit could be granted only under Order XXIII Rule 1 and 2 C.P.C., when an application is submitted under that provision seeking permission to withdraw the suit.

Hepatitis-B Patients Can't Be Denied Civil, Public Employment: Kerala High Court Seeks Protocols Against Discrimination

Case Title: Shaik Zakir Ahmed v. Fertilizers and Chemicals Travancore

Citation: 2023 LiveLaw (Ker) 482

The Kerala High Court has recently held that a person cannot be denied employment opportunities in the civil or public sector merely on account of Hepatitis- B or HIV infection.

Justice Devan Ramachandran declared that the denial of employment to an infected person was discriminatory and that such practice in this era shocks the collective conscience of the society.

“One can certainly not countenance, particularly in this age and time, that a person be kept out of Civil/Public employment solely because he is suffering from “Hepatitis B” or “HIV” infection. This is contrary to ethos of the times and militates against the collective conscience of the civilized world.”

Order VIII Rule 6 CPC | Can't Reject Counter Claim If Omissions Pointed Only At Appellate Stage, Not During Trial: Kerala High Court

Case title: Anil Kumar V Sunil Kumar

Citation: 2023 LiveLaw (Ker) 483

The Kerala High Court has held that counterclaims have to be filed in accordance with the procedure prescribed under Order VIII Rule 6A-6G of CPC and any omissions in form and content of counterclaims has to be pointed by the opposite party at the trial stage itself.

Justice A. Badharudeen observed that if the omissions in counterclaims are pointed out at the appellate stage after the trial, then it will not be grounds to reject the counterclaims and such omissions shall be ignored by the Appellate Court.

“It is true that when the statute mandates the form and content of a counter-claim, the counter-claim shall be in the said format and any omission in complying the rules in the form and content of the counter-claim, that should be raised before the trial court by the adverse party so as to get the defect cured, since the same is a curable irregularity. If omissions of such a nature are pointed out after a full-fledged trial before the first or second appellate court, the same shall not be a ground to reject the counter-claim and such omission to be ignored in the interest of justice.”

Hereditary Trustees Can Be Employed In Temples Upon Relinquishing Trusteeship: Kerala High Court

Case Title: Hariharan P v. Malabar Devaswom Board & Ors

Citation: 2023 LiveLaw (Ker) 484

The Kerala High Court ruled that a hereditary trustee or a member of the family with a hereditary right of trusteeship is not barred from being appointed as an employee in the temple as long as they relinquish their claims to trusteeship before applying.

A division bench of Justice Anil K Narendran and Justice P.G Ajithkumar discussed the social reality that hereditary trusteeship often does not provide financial security, leading individuals to seek employment in the temple, and pointed out that there is no legal bar under the Hindu Religious and Charitable Endowments Act for hereditary trustees or their family members to apply for temple employment.

"For many, hereditary trusteeship is just an ornamental post, and often then not it would not save one from even starvation. In such cases, it may be totally unjust and inappropriate to deny one from applying for an employment in a temple for the reason that he is or may have a chance on a remote future to become a hereditary trustee of the temple. No doubt, if there is a provision in the statute denying such a right, that will hold the field. There is no such provision in the HR&CE Act. In such circumstances, if a hereditary trustee abandons his right to continue, cannot be denied his right to apply for an employment in the temple."

Kerala High Court Quashes Sexual Harassment Case Against Actor Unni Mukundan Based On Settlement Between Parties

Case Title: Unni Mukundan v. State of Kerala

Citation: 2023 LiveLaw (Ker) 485

The Kerala High Court quashed the proceedings against Malayalam film actor Unni Mukundan where he was facing prosecution for offences under Sections 354 (Assault of criminal force to woman with intent to outrage her modesty) and Section 354-B (Assault or use of criminal force to woman with intent to disrobe) of the IPC, based on a settlement between the parties.

Justice P. Gopinath observed thus:

“The learned Counsel appearing for the petitioner would submit that the entire issue between the petitioner and the de facto complainant have been settled. It is submitted that at the instance of the petitioner certain complaints were filed against the de facto complainant and those proceedings have also been terminated on the ground of settlement between the petitioner and the de facto complainant. It is submitted that the this is a fit case where the further proceedings against the petitioner can be terminated on the ground of settlement.”

Second Appeals Can't Be Admitted On Equitable Grounds Merely To Refer Parties To Mediation: Kerala High Court

Case title: Gokuldas V Gopalakrishnan

Citation: 2023 LiveLaw (Ker) 486

The Kerala High Court recently held that a Court cannot admit and maintain a second appeal merely to refer parties to mediation, if there is no substantial question of law involved in the second appeal.

Justice A. Badharudeen observed that a second appeal shall not be heard on equitable grounds and reiterated that it is mandatory to formulate substantial questions of law.

“The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory.”

Kerala High Court Asks Govt To Issue Necessary Health Advisories To Sabarimala Pilgrims Amid Nipah Virus Outbreak In Kozhikode

Case Title: Suo Moto v. State of Kerala

Citation: 2023 LiveLaw (Ker) 487

Amid outbreak of Nipah virus in Kerala's Kozhikode, the High Court has directed the Health Secretary to issue advisories, if necessary, to Sabarimala Pilgrims visiting the temple during Kannimasa Pooja.

Total virtual queue booking for the pooja from September 17 has already reached 34,860.

The Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas was hearing a suo moto case registered on the report filed by Sabarimala's Special Commissioner, calling for advisories from the Directorate of Health Services.

Paddy Land Act | Authority Must Consider Feasibility Of Paddy Cultivation While Deciding Plea To Delete Property From Data Bank: Kerala High Court

Case Title: Aparna Sasi Menon v. The Revenue Divisional Officer

Citation: 2023 LiveLaw (Ker) 488

The Kerala High Court recently laid down that when a Form-5 application under Rule 4(4D) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 is considered by the competent authority for exclusion of certain land from the Data Bank, the predominant factor for consideration ought to be whether the land is one where paddy cultivation is possible and feasible.

"In very small plots of land which are surrounded by commercial or residential buildings, though such land is described as paddy land in the revenue records and though it may be technically possible to cultivate the land with paddy, still such cultivation will not be ordinarily possible and financially feasible. In the case of lands having any extent, the factor whether there are proper irrigation facilities making the land suitable for paddy cultivation would be important. Even if the land is of a comparatively larger extent, if there are no irrigation and other requisite facilities, it cannot be said that the land is suitable for paddy cultivation, merely because it was once cultivated with paddy and it is described as paddy land in revenue records," Justice Nagaresh observed.

Acid Attack: Kerala High Court Orders Legal Services Authority To Consider Enhancing Compensation Paid To Victim Mother, Minor Son

Case name: Master A (Minor) V District Legal Service Authority

Citation: 2023 LiveLaw (Ker) 489

The Kerala High Court has ordered the District Legal Services Authority at Thalassery to consider paying higher compensation to two acid attack victims, based on law of reparation and the nature of injuries suffered by them.

Justice Devan Ramachandran, observed thus:

“The law relating to reparation is now well-settled. It has to be adequate and commensurate to the detriment caused to the parties. A specific finding to this effect, based on all necessary and crucial aspects ought to have found place in the orders impugned; but to that extent, I am of the view that it is wanting. I do not propose to speak any further because, am certainly of the view that the entire matter requires to be reconsidered by the DELSA in its true perspective.”

Legislature Should Bring Proper Punishment For Defamatory Posts In This Era Of 'Social Media Mania': Kerala High Court

Case Tite: Fr. Geevarghese John @Subin John v. State of Kerala

Citation: 2023 LiveLaw (Ker) 490

The Kerala High Court has observed that there is no proper legislation providing punishment for defamatory posts circulated on social media. Bench of Justice PV Kunhikrishnan thus urged the legislature to seriously look into this aspect.

The order stated,

“Defamatory Facebook posts continue to do the rounds on Facebook and other Social Media platforms. There is no proper punishment for such defamatory statements and posters on Facebook. The legislature must look into this aspect seriously, especially in the backdrop of this new era of technology and Social Media mania in existence in our society.”

Kerala High Court Refuses Legal Heirship Certificate To Kin Of Man Missing Since 2002, Says Legal Presumption/ Assessment Of His Death Must

Case Title: Suseela & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 491

The Kerala High Court recently refused to grant Legal Heirship Certificate to the wife and daughters of a man who had gone missing in the year 2002, and could not be found since.

Justice Devan Ramachandran observed that a Legal Heirship Certificate could only be granted if there is a legally sanctioned presumption possible, or if it is factually assessed that the missing person is no more. It thus observed that an enquiry was required to be done by the Police to ascertain the same, which did not happen till date.

"This Court is persuaded to say as afore because, it is certainly possible that Sri.Rajendran is still available somewhere, perhaps being without the capacity to contact the petitioners for some reason; and it is, therefore, in their interest also that he is traced out, if possible," it observed.

Can't Invoke Article 226 To Impose Penalties U/S 20 RTI Act Against Information Officers: Kerala High Court

Case title: Sanoj V K V Bharat Petroleum Corporation Ltd.

Citation: 2023 LiveLaw (Ker) 492

The Kerala High Court has recently held that writ jurisdiction under Article 226 cannot be invoked to impose penalties against the Information Officers under the Right to Information Act, 2005 (RTI).

Justice Murali Purushothaman ruled that the Central Information Commission or the State Information Commission was the competent authority under section 20 of the Act to order penalties against the Information Officers.

“...the authority competent to impose penalty as contemplated under Section 20 of the Act on the Central Public Information Officer or the State Public Information Officer is the Central Information Commission or State Information Commission, as the case may be and the petitioner cannot approach this Court invoking its jurisdiction under Article 226 of the Constitution of India.”

SC Community Status, Physical Disability No Grounds To Remain In Infinite Possession Of Kiosks Allotted By State's Development Authority: Kerala HC

Case Title: Kashyap Saigal v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 493

The Kerala High Court recently held that no person could seek to remain in possession of a commercial enterprise under the Greater Cochin Development Authority (GCDA) ad infinitum, irrespective of their credentials.

Justice Devan Ramachandran held so while hearing a petition filed by a handicapped person belonging to the Scheduled Caste community seeking to retain his possession of the Kiosk allotted to him by the GCDA for a year, despite the expiration of his license to conduct the same.

"No person can – whatever be his credentials or attributes - seek to remain in possession of a commercial enterprise under the GCDA ad infinitum. The said Authority is expected to conduct its affairs as per law and to abide by tendering processes with respect to the allotment of its stalls and 'Kiosks'."

DNA Tests Cannot Be Conducted To Clear A Mere Suspicion Regarding Child's Paternity In The Absence Of Specific Denial Of Paternity : Kerala High Court

Case title: Sujith Kumar S V Vinaya V S

Citation: 2023 LiveLaw (Ker) 494

The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.

Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child.

“It has to be held further that when DNA test cannot be resorted to clear a suspicion regarding the paternity of the child, in the absence of specific denial of paternity of the child. In view of the above legal position, the dismissal of the application put in by the petitioner to conduct DNA test with a view to clear his suspicion/doubt regarding the paternity of the child, can only be justified.”

GST - Input Tax Credit Cannot Be Denied To Purchaser Merely Because Seller Didn't Record Transaction In GSTR-2A Form: Kerala High Court

Case Title: Diya Agencies v. State Officer & Ors.

Citation: 2023 LiveLaw (Ker) 495

The Kerala High Court recently held that Input Tax Credit (ITC) cannot be denied to a purchaser merely on ground of non-reflection of the transaction in the GSTR-2A Form.

Remanding the matter back to the Assessing Officer to give opportunity to the purchaser who is the petitioner herein, Justice Dinesh Kumar Singh observed:

"If on examination of the evidence submitted by the petitioner, the assessing officer is satisfied that the claim is bonafide and genuine, the petitioner should be given input tax credit. Merely on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of the input tax credit".

Registration Act | Inadmissibility Of Unregistered Documents Has To Be Raised When Marked In Evidence During Trial: Kerala High Court

Case title: Ratheesh V v. S Mary

Citation: 2023 LiveLaw (Ker) 496

The Kerala High Court recently held that a document which was to be compulsorily registered under Section 17 and 49 of the Registration Act, if unregistered, then it cannot be admitted in evidence.

Justice A. Badharudeen also clarified that if the parties have not raised objection to the unregistered document while it was marked as evidence during the trial stage, then they cannot raise objection stating that the document was unregistered during the appellate stage.

"When a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document would be tendered in evidence. Once the court rightly or wrongly decided to admit the document in evidence, so far as the parties are concerned, the matter is closed," the bench reiterated citing Supreme Court's decision in Javer Chand and Others v. Pukhraj Surana (1961).

Sales Tax Officer And Not District Collector Empowered To Permit Payment Of Sales Tax Dues In Instalments: Kerala High Court

Case title: S Mangalan V The District Collector

Citation: 2023 LiveLaw (Ker) 497

The Kerala High Court has made it clear that under the Kerala General Sales Tax Act 1963 and Rules, the assessing authority empowered to permit payment of sales tax dues in instalments is the Sales Tax Officer.

Justice Dinesh Kumar Singh observed thus:

“The Kerala General Sales Tax Acts and Rules empowers the assessing authority ie.,the Sales Tax Officer to grant 6 instalments as per the provisions of Rules 30(B) of the KGST Rules.”

Kerala High Court Dissolves 38 Yrs Old Marriage, Says Retaining Marriage Even After Irretrievable Break Down Amounts To Cruelty

Case Title: Ramanadhan v. Raji

Citation: 2023 LiveLaw (Ker) 498

The Kerala High Court reiterated that retaining a marriage that has irretrievably broken down would amount to cruelty to both parties, and no meaningful purpose would be served by the same.

Bar On Anticipatory Bail U/S 438(4) CrPC In Cases Of Rape Of Minors Not Absolute: Kerala High Court

Case Title: XXX v. State of Kerala & Ors. and connected matter..

Citation: 2023 LiveLaw (Ker) 499

The Kerala High Court reiterated that Section 438(4) of the Code of Criminal Procedure (CrPC) does not create an absolute bar in the grant of anticipatory bail to an accused alleged of raping a minor girl when no prima facie materials exist warranting the arrest of the accused.

Section 438(4) excludes the grant of pre-arrest bail to offences under Sections 376(3), 376-AB, 376-DA or 376-DB of the IPC, which pertain to the offence of rape or gang rape with a minor woman under the age of twelve or sixteen years.

Justice Kauser Edappagath, while noting that the grievous nature of the afore offences certainly warranted and justified the exclusion of pre-arrest bail, however, added that where such cases were patently false or motivated allegations, such exclusion would not come into play.

"If the exclusion of the provision for pre-arrest bail embodied in Section 438(4) of Cr.P.C. is treated as absolute, there will be no protection available to innocent persons against whom false and motivated accusations are made. Protecting the innocent is equally important, like convicting the guilty. The criminal justice system needs to strike a balance between punishing the guilty and protecting the innocent. Thus, the exclusion clause cannot, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. Limiting the exclusion to genuine cases is essential to protect the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India," the Court observed.

Kerala High Court Dismisses Lottery King Santiago Martin's Appeal Against ED Attachments

Case Title: Santiago Martin v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 500

Writ Courts Can't Hear Appeals Against Municipality Decisions Granting/ Refusing Licence To Occupy Public Place In Absence Of Malafide: Kerala HC

Case title: Archa Unni V State of Kerala

Citation: 2023 LiveLaw (Ker) 501

The Kerala High Court has held that writ jurisdiction cannot be invoked under Article 226 of the Constitution to challenge the decisions issued by the Municipality, especially on grant or refusal of a licence or permission to occupy a public place, unless the order was illegal or bad in law.

Justice Bechu Kurian Thomas further held that the Municipal Authorities are empowered to make such decisions considering the interests of both the Municipality and the public.

“This Court cannot sit in appeal over the decisions of the authorities, especially when it relates to the grant or refusal of a licence or a permission to occupy a public place.The Municipal authorities who are vested with the powers of control and administration of public places would necessarily have to take decision on the basis of the best interests of not only the Municipality but also of the people. Therefore, in the absence of any perversity or any malafides being attributed or shown to exist in issuing the impugned order, there is no cause for any interference under Article 226 of the Constitution of India.”

Mother Can't Be Denied Child's Custody Merely Because She Is Relocating Abroad For Better Job: Kerala High Court

Case Title: Jisha Mohan v. Vishal V.M.

Citation: 2023 LiveLaw (Ker) 502

The Kerala High Court has held that a mother cannot be denied sole guardianship and custody of a minor child merely on the ground that she is relocating to another country for better job opportunities and fortune.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that merely because there is a parental battle for custody of the child, the same did not mean that the parties would have to remain locally without relocating elsewhere, in order to retain the custody of the child.

“If the relocation of the appellant is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection. If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child,” the Court observed.

Withholding Mutual Consent For Divorce In A Failed Marriage Is Cruelty: Kerala High Court

Case title: Sreedharan v. Ahsa

Citation: 2023 LiveLaw (Ker) 503

The Kerala High Court has said that withholding mutual consent to dissolve a failed marriage amounts to cruelty.

A Division Bench comprising Justice A.Muhamed Mustaque and Justice Sophy Thomas relied on the concept of "no fault divorce" to state people are starting to realise that there is a "sensible way" of parting on mutually agreed terms.

Patriarchal To Deny Pension To Divorced Daughter Of Deceased Freedom Fighter Citing Affluent Brothers: Kerala High Court

Case title: Neena T V State of Kerala

Citation: 2023 LiveLaw (Ker) 504

The Kerala High Court recently held that the benefit of the Kerala Freedom Fighter's Continuous Pension (KFFCP) cannot be denied to the divorced daughter of a deceased freedom fighter solely on the ground that her brothers were earning and financially settled.

Justice Devan Ramachandran remarked that the reason cited for the rejection of pension, that that the petitioner would be taken care of by her brothers, was based on outdated patriarchal notions:

“I am afraid that the submissions of the learned Government Pleader smack archaic patriarchal notions. Merely because the petitioner has two brothers, an automatic assumption drawn that she would be taken care of by them for her life, can only be seen to be one solely on account of the afore notions and nothing else.”

Motor Accidents | Legal Representatives Entitled To Compensation Even If Not Dependents Or Legal Heirs: Kerala High Court

Case Title: Royal Sundaram Alliance Insurance Co. Ltd. v VS Sujatha & Ors

Citation: 2023 LiveLaw (Ker) 505

The Kerala High Court recently held that in motor vehicle accidents, the legal representatives of the deceased are entitled to compensation even if they are not legal heirs of the deceased.

Justice Murali Purushothaman added that this rule remains true even if there is no loss of dependence and clarified that the compensation would go to the estate of the deceased.

"Even if there is no loss of dependency, if the claimant is a legal representative of the deceased, he would be entitled to compensation. The compensation payable goes to the 'estate' of the deceased...The compensation constitutes part of the estate of the deceased and as a result, the legal representative of deceased would inherit the estate even if he was not dependent on the deceased and even if he is not a legal heir."

Kerala High Court Grants Time To State's Tug Of War Association To File Objection To Show Cause Notice By Tug Of War Federation Of India

Case Title: Kerala State Tug of War Association v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 506

The Kerala High Court granted liberty to the Kerala State Tug of War Association (hereinafter, 'Association') to file their objections within a limited time frame to the order issued by the Tug of War Federation of India (hereinafter, 'Federation'), dissolving the Executive Committee of the Association and deaffiliating the same from their membership.

The Federation had issued a show cause notice to the Association on August 1, 2023, for which the latter sought time to reply. The Federation at this juncture, proceeded to dissolve the Executive Committee of the petitioner Association, and de-affiliate it from their membership, noting that the Association was in a 'sorry state of affairs', and that 'immediate remedial steps' were required to be taken to save the sport of Tug of War in Kerala.

Justice Devan Ramachandran, observed in this regard that apart from generic statements, the only tenable reason that one could find in support of the Federation's decision to dissolve the Executive Committee of the petitioner Association was that the latter had not replied to the former's show cause notice. The Court noted that the Federation had taken the decision to deaffiliate and dissolve the Executive Committee without considering the petitioner's request for a month's time to offer explanation for the notice, in its proper perspective.

Adoption Of Technology By Courts Not A Matter Of Choice, It's An Obligation: Kerala HC Asks Govt To Assist KAT Earnakulam To Introduce Hybrid Mode

Case title: The Kerala Administrative Tribunal Ernakulam Advocates Association V State of Kerala

Citation: 2023 LiveLaw (Ker) 507

The Kerala High Court, while hearing a plea submitted by an association of lawyers and advocates seeking for introducing Hybrid Mode at Kerala Administrative Tribunal (KAT), Ernakulam, stated that adopting technological means for hearing and disposal of cases was not a choice anymore, but an obligation mandated by the Supreme Court of India.

Justice Devan Ramachandran observed thus:

“There can be no doubt, going by the afore rival positions – which, in fact, are not rival but virtually supplementing each other – that adoption of technology by Courts is not one as a matter of choice, but is now more an obligation, going by the requirements of time and the directions of the Honourable Supreme Court.”

Petroleum Rules | District Authority Can't Deny NOC For Fuel Outlet On Ground That Site Location Not Covered By Notification: Kerala High Court

Case Title: Jayarajan B.C. v. Lakshmi Mallya & Ors.

Citation: 2023 LiveLaw (Ker) 508

The Kerala High Court has made it clear that under the Petroleum Rules, 2002, the District Authority is not empowered to reject No Objection Certificate (NOC) for fuel outlet on the ground that the proposed site is different from that mentioned in the notification.

Rule 144 of the Petroleum Rules, 2002 stipulates the grant of NOC.

The application for NOC by the Indian Oil Corporation was rejected by the Additional District Magistrate on noting that the proposed site location for establishment of a petroleum outlet was different from the one mentioned in the notification issued by the Company. The Single Judge Bench, on perusing Rule 144 had held that it was not within the domain of the Additional District Magistrate to interpret the notification and reject the NOC.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, in the appeal before it, perused the scope of Rule 144, and noted that the nature of power under the Petroleum Act and Rules, 2002 lays down that the insistence upon NOC is for the purpose of protecting public interest and public safety.

Kerala High Court Issues Directions To Ensure Fairness In Selection Of Melsanthies Of Sabarimala, Malikappuram Temples

Case title: Suo Moto V State of Kerala

Citation: 2023 LiveLaw (Ker) 509

The Kerala High Court 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.

Writ Courts Need Not Interfere With Statutory Proceedings Under SARFAESI Act Except In Extraordinary Circumstances: Kerala High Court

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.”