1. Death penalty awarded to man accused of rape and murder.
The Kerala High Court commuted death sentence awarded to a man accused of rape and murder of a 15-year-old. The division bench comprising of Justices AM Shaffique and P Somarajan affirmed the conviction recorded by the trial court. The court said instead of death penalty, the punishment of life imprisonment would meet the ends of justice. But taking into account the gravity of the offence, the bench ordered that no remission shall be granted to the accused for a period of 25 years.
(Case : Rajesh Kumar v. State of Kerala, Crl. A. No. 88 of 2014, judgement dated 8 January 2019)
2. Banks liable for unauthorised withdrawals even if customers did not respond to SMS Alerts.
The case filed by the plaintiff was that a total sum of Rs. 2,40,910.36 was withdrawn from his SBI NRE account between 22.3.2012 and 26.03.2012 through the ATMs at different places in Brazil. He filed a suit against the bank seeking refund of the amount along with interest.
Though the bank said that it had no liability in connection with the unauthorised transactions as the customer did not respond to the SMS alerts it had sent to him.
Justice PB Suresh Kumar, Kerala High Court said that a bank cannot be exonerated from liability for the loss caused to its customers on account of the unauthorised withdrawals made from his account merely on the ground that the customer has not responded promptly to the SMS alerts given by the bank.
(Case : State Bank of India v. PV George, RSA No. 1087 of 2018, judgement dated 9 January 2019)
3. Kerala HC quashes government order that allowed premature release of 209 prisoners.
The full bench of the High Court comprising Chief Justice Hrishikesh Roy and Justices Abraham Mathew and Jayasankaran Nambiar, quashed the 2011 state government order which directed premature release of 209 prisoners who had then completed 10 years or more in jail.
In 2011, the Government of Kerala invoking his powers under Article 161 of the Constitution of India had ordered premature release of 209 Prisoners who completed 10 years imprisonment and above. Many writ petitions were filed challenging this move by the state government.
The court directed that the proposal for premature release of 209 Prisoners shall be examined afresh within a period of 6 months from then.
"We make it clear that if no decision is taken by the functionaries under article 161 within the said period of six months, it will be deemed that there is no exercise of power under article 161 in favour of prisoners concerned and steps shall be taken to re incarcerate such prisoners for serving out the remainder of their sentence.", the court added.
(Case No : WP(C) No. 14628 of 2011, judgement dated 11 January 2019)
4. Compact Disc (CD) admissible in evidence in family court even without section 65B(4) certification.
The single bench of the High Court held that a compact disc(CD) is admissible in evidence in proceedings in Family Court even without certification under Section 65B(4) of the Indian Evidence Act. The Division Bench of Justices C K Abdul Rehim and N Anilkumar held so based on Section 14 of the Family Courts Act, which relaxes application of Indian Evidence Act to proceedings in Family Court.
The court added, " the purported voice of respondent extracted in the CD in our opinion has to be proved in the same manner as a tape recorded conversation. The petitioner can succeed in proving the alleged riotous dialogue in the CD only when the identity of the speaker is also proved"
(Case : Pramod EK v. Louna VC, OP(FC) No. 513 of 2018, judgement dated 14 January 2019)
5. A person's right as a devotee cannot be stopped citing his criminal background.
The petitioner had approached the High Court claiming that he has been visiting the Sabarimala Temple for the past 15 years and that he is being denied entry for 'darsan' at Sabarimala citing his criminal background. The Kerala High Court bench comprising Justices P R Ramachandra Menon and N. Anil Kumar said, "In so far as the petitioner's right as a devotee cannot be prevented, or stalled but for imposing reasonable restrictions to the requisite extent, we find it appropriate to permit the petitioner to have the 'darsan' at Sabarimala on the basis of the assurance and undertaking given by the learned counsel that the petitioner will not get involved in any offence punishable under any provisions of law, nor will he cause any act of threatening or intimidating anybody; whether it be the traders or others."
(Case : Rameshan v. State of Kerala, WP(C) 1004 of 2019, judgement dated 16 January 2019)
6. No sales tax can be levied on medicines, implants, surgical tools used in medical procedures.
The full bench of the Kerala High Court, Justices K. Vinod Chandran, A. Muhamed Mustaque and Ashok Menon ruled that medicines, implants and other materials used during procedures at hospitals do not constitute sale of goods and hence sales tax cannot be levied. The court added, sale of drugs, implants and other consumables form a part of the service rendered by the hospitals.
The court opined that it is not the absence of a contract between the hospital and patient that takes away the administration of drugs, implants and consumables from the definition of sale of goods. The reigning factor, it said, was the fact that "it is an integral, indivisible part of the composite transaction rendering medical treatment and care, which is a service rendered".
(Case : Sanjose Parish Hospital v. The Commercial Tax Officer, W.A No. 1896 of 2012, judgement dated 18 January 2019)
7. LMV licence holder can drive transport vehicle having a gross weight below 7500 kgs.
The single judge of the High Court Justice K Surendra Mohan held, a person holding a license to drive light motor vehicle(LMV) can drive transport vehicle which has less than 7500 kilograms as its gross weight, without any special authorisation.
In this case the petitioners before the High Court were all holders of LMV driving licenses. They wanted to have endorsements in their driving licences authorising them to drive transport vehicles. However, the RTO authorities refused to issue them authorisation on the grounds that they have not passed 8th standard. As per Motor Vehicle Rules, pass in 8th standard is a condition for having a license to drive transport vehicles. Aggrieved by this condition, the petitioners approached the High Court.
The court held, " a transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7,500 kg would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7,500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7,500 kg or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7,500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above.
Applying this dictum, the HC allowed the writ petitions, "declaring that the petitioners are all entitled to drive transport vehicles also, provided the gross vehicle weight does not exceed 7500 kg"
(Case : Noorumon v. The RTO, WP(C) No. 9392 of 2012, judgement dated 28 January 2012)
8. Violation of mandatory formalities under NDPS Act a 'reasonable ground, to grant bail.
The Court was dealing with the regular bail application of two persons, who were accused of offences under Sections 22(c), 8(c), 20(b)(ii)A and 29 of NDPS Act for possessing one cover each of ganja and charas, and 23 LSD stamps.
The single bench of High Court Justice Raja Vijayaraghavan held that violation of mandatory formalities under the NDPS Act, including the search procedure under Section 50 of the Act, constitute "reasonable grounds" under Section 37(1)(b)(ii) to grant bail.
While allowing the bail application the court observed, "when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial. I am of the view that it would result in failure of justice to force the applicants to be in custody till the trial is complete. The court's satisfaction within the meaning of sub-section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 235 of the Cr.P.C"
(Case : Basanth Balram v. State of Kerala, Bail Appl. No. 8553 of 2018, judgement dated 1 February 2019)
9. Complaint not maintainable against trustee for dishonor of cheque under section 138 of NI Act.
The single bench of the High Court, Justice B Sudheendra Kumar, held that no prosecution is possible against a trust and its trustees for dishonour of cheque invoking section 141 of the Negotiable Instruments Act, 1881. Section 141 deals with the liability of companies in case of dishonour of cheques.
As per the facts of the case, the petitioners, who were the trustees of a trust along with the trust, were arraigned as the accused persons in a complaint filed by a person before the Magistrate Court for an offence under Section 138 of the NI Act. The petitioners approached the High Court seeking to quash the complaint filed against them.
The Court concluded that a trust is not a body corporate or association or individuals and that it does not fall within the meaning of 'company' under section 141 of the NI Act. Therefore, the Court held that no prosecution is possible against the petitioner trust and trustees invoking section 141 and quashed the complaint invoking powers under section 482 of CrPC.
(Case : Crl. M. C. No. 3799, 3801, 3804, 3827, 3832, 3843, 3844, 3847, 3852 of 2018, order dated 6 February 2018)
10. Grievance redressal mechanism for kerala floods; permanent lok adalat shall be treated as Second Appellate Authority.
The division bench comprising Chief Justice Hrishikesh Roy and Justice AK Jayasankaran Nambiar directed that Permanent Lok Adalat in the state shall be treated as the final level appellate authority in the Grievance Redressal Mechanism put in place by the state, for persons affected by flood/landslides, in relation to the benefits announced for them through the various Government orders.
The court said that the Permanent Lok Adalat shall function as second appellate authority, in the hierarchy of authorities constituted for the purposes of redressing grievances. The court issued this direction after it found that the two tier Grievance Redressal Mechanism conceived by the State does not culminate in an appellate proceeding before an independent authority wielding judicial powers. Therefore, the court directed that the state should notify the services provided in connection with relief rehabilitation measures to flood/landslide victims as a Public Utility Service. But considering the delay that might occur to bring such notification, the bench had issued the above directions.
The state government had constituted the first level authority comprising of Additional District Magistrate/Deputy Collector. Second Level Authority consists of District Collector, who is also the Chairman of District Disaster Management Authority.
(Case:WP(C)Nos.28093,28198,28496,29127,29146,29427,30251,30810,32487,37931 & 40859 OF 2018, order dated 14 February 2019)
11. Educational officers have no disciplinary control over teachers in CBSE schools.
The division bench comprising Justices Chitambaresh and Narayana Pisharadi, held that the educational officers under the Kerala Education Act and Rules made thereunder have no disciplinary control over teachers in the schools affiliated to CBSE.
The bench observed that such educational officers have no jurisdiction to order reinstatement in service of teachers in the school affiliated to CBSE and the management is not obliged to honour the same.
A school affiliated to CBSE neither gets any aid from the State Government nor does it require any recognition from the State Government for it to be termed as 'private' or 'recognised'. Only a No Objection Certificate is required to be issued by the State Government for permission to affiliate such school to CBSE as per the executive orders issued by the State Government, the court noted.
(Case No. WP(C)Nos. 17398 & 21369 of 2017, order dated 21 February 2019)
12. Girls have equal freedom as boys. The Kerala High Court strikes down discriminatory girls' hostel rules.
The case was regarding the striking down of a stipulation in Hostel Rules which barred girls boarders from going for the first and second show movies.
Justice A Muhamed Mustaque, struck down the Rules of girls' hostel attached to Sree Kerala Varma College noting that there is no such restriction in the boys' hostel. The court added the college can fix timing for return in the evening but the same should also be reasonably fixed.
The court said " A girl is having equal freedom similar to a boy."
(Case : Anjitha K Jose & Anr. v. State of Kerala, WP No. 14319 of 2018 judgement dated 21 February 2019)
13. Auction sale cannot be held 3 Years after the end of financial year in which recovery certificate was issued by DRT.
The division bench of Chief Justice Hrishikesh Roy and Justice AK Jayasankaran, set aside an auction sale held for recovery of arrears due to a bank on the ground that it was done beyond the period of three years from the end of financial year in which recovery certificate was issued by the Debts Recovery Tribunal(DRT).
The court held so, on the basis of Section 29 of the Recovery of Debts Due to Banks and Financial Institutions Act,1993(RDDBFI) read with Rule 68B of Second Schedule of the Income Tax Act,1961.
(Case : Ratheesh M.N v. The Debt Recovery Tribunal, WP(C) No. 30651 of 2017, judgement dated 19 February 2019)
14. Mere possession of sexually explicit photos without circulation not a crime under Indecent Representation of Women (Prohibition) Act.
The single judge bench of the Kerala High Court, Justice Raja Vijayaraghavan quashed criminal proceedings against two persons in his order by saying that the mere possession of sexually explicit photos in private custody without circulation or publication will not amount to a crime under Indecent Representation of Women (Prohibition) Act 1986.
The court added that the prosecution had no case that petitioners had advertised or circulated the private pictures found in caeras which were in their possession.
(Case : Smitha v. State of Kerala, Crl.MC Nos. 4504/2018 & 6637/2018, order dated 26 February 2019)
15. Sale agreement executed during pendency of suit hit by 'lis pendens'.
The full bench of the High Court comprising of Justices K Harilal, A Muhamed Mustaque and Annie John, held that an agreement of sale executed by a party to lis during the pendency of suit will be hit by the doctrine of lis pendens under section 52 of the Transfer of Property Act.
The reference arose when a division bench doubted the correctness of an earlier division bench decision in Wellingdon B and others v D Shyama Prasad and others 2014(3) KHC 560 which had held that such an agreement of sale will not be hit by Section 52, on the reasoning that sale agreement by itself did not create any right, title or interest in the property.
The Court endorsed the view expressed by the view expressed in Kubra Bibi v Khudaija Bibi AIR 1917 Oudh 193 that creation of a contract capable of specific performance, though not an alienation by itself, is a mode of dealing with property, pregnant with the mischief, which Section 52 seeks to obviate. The Court also held the decision in Wellingdon B to be not good law.
(Case : V.T. Vijayan v. U. Kuttappan Nair, RFA No. 657 of 2015, judgement dated 1 March 2019)
16. Tenant cannot question choice of landlord to live in a 'hut like structure'.
The division bench comprising Justices K Harilal and N Nagaresh observed that a tenant cannot question the choice of a landlord to live in a 'hut like structure'.
The court said, if the desire of the landlords to live in a particular area of their choice is found genuine, it has to be respected. The High Court bench was considering the contention taken in the revision petition filed by the tenant (challenging concurrent eviction order) that the building is a hut like structure and that the landlord could not reside in such a structure.
(Case : AP Sreedhari Sivaraj v. Arjun Radhakrishnan, RCRev. No. 397 of 2013, judgement dated 18 March 2019)
17. Mere statement against government or military no sedition.
The division bench of the Kerala High Court, Justices AM Shaffique and Ashok acquitted all five persons who were convicted by the Special Court of National Investigation Agency (NIA) in 2016 for allegedly organizing a meeting of the banned party Students Islamic Movement India (SIMI) in 2006.
The court noted that SIMI was included in the schedule of unlawful organizations under UAPA from February 2013 and further the court also noted that, "If any person is holding any publication, pamphlets or leaflets, which are published or printed prior to the effective day, such persons cannot be treated as person continuing to be members of SIMI. "
(Case : P.A. Shaduly & Ors. v. State, Crl. Appeal No. 12/16 & conn. cases, judgement dated 12 April 2019)
18. The burden of proof lies on the insurer to prove that cancellation of policy has been intimated to the vehicle owner.
The single bench of the Kerala High Court Justice PB Suresh Kumar set aside the award of a Motor Accidents Claims Tribunal, which had exonerated the insurer from liability in a motor accident claim.
The court held that the insurer could not discharge the burden that it had intimated the cancellation of policy to the owner. The court further observed, "At the outset, it has to be noted that the premium of the policy was only about Rs.1000/- and under normal circumstances, there is no reason for a person who issues a cheque for the said amount, that too, for obtaining a policy of insurance for his vehicle, to cause the same to be dishonoured. As such, the possibility of the owner not being aware of the bouncing of the cheque issued to the insurer for the said purpose cannot be ruled out".
(Case : Smt. Prasanna v. Kabeer P.K and Ors., MACA No. 2017 of 2013 judgement, dated 21 May 2019)
19. Compelling students who do not want to continue in a particular college, will only affect their future and career.
The single bench of the High Court, Justice PV Asha, held that compelling the students who do not want to continue in a college will only affect the future and career of the students.
The petition was from engineering students, who were aggrieved by the refusal on the part of the Principal to recommend their application for inter-college transfer to other Self Financing Colleges. The petitioners had submitted that the college miserably failed to provide the amenities; most of the teaching staff resigned from the college on account of the nonpayment of salary and teaching and non-teaching staff were on continuous strike for 3 months and that the teaching faculties were not qualified for teaching Engineering students.
The court rejected the argument of the respondent college that the mass transfer of students would affect the running of the respondent-College and directed the Principal of the College to recommend the applications of the petitioners for inter-college transfer within three days of the judgment so as to enable the students to process the same in accordance with the same.
(Case : Jisin Jijo v. APJ Technical University of Kerala, WP(C) No. 14156 of 2019, judgement dated 31 May 2019)
20. Immovable property can be subject matter of offence of criminal breach of trust under section 405 IPC.
The single bench of the High Court, Justice R. Narayana Pisharadi held, immovable property can be the subject matter of commission of an offence of criminal breach of trust which is defined under section 405 IPC.
In this case one of the offences alleged against the accused is criminal breach of trust i.e. under Section 405 IPC. and the subject matter of the offence is an immovable property. One of the issues raised in the petition filed under Section 482 CrPC before the High Court was whether immovable property can be the subject matter of an offence of criminal breach of trust which is defined under Section 405 IPC.
Referring to the IPC provisions, the court observed that the operation of section 405 is not restricted to 'movable property.'
(Case : Damodara Panicker v. State of Kerala, Crl.MC.No.2255 of 2013, judgement dated 6 June 2019)
21.Removal from voters list without hearing the person is arbitrary and illegal.
The single bench held by Justice Shaji P Chaly, Kerala High Court held that a person should be given reasonable opportunity of hearing before removing his name from voters list.
The petition was filed on challenging the removal of the petitioner's name from the voters list in a general election. Even though the Election commission stated that the petitioner had not raised any objections to the draft voter list published, the court said that it casts a duty on the electoral officer to hear a person before removing his name from the list.
(Case : A Subair v. Chief Election Commissioner of Kerala, WP(C) No. 13684 of 2019, judgement dated 10 June 2019)
22. Kerala HC tells Government to consider writing off loan taken for treating Endosulfan Victim.
The single bench of the High Court Justice Devan Ramachandran urged the Government of Kerala to consider writing off a loan availed to treat an endosulfan victim. The father of the victim had availed a personal loan to treat his son, who was an endosulfan victim. The treatment however did not bore fruitful results and the victim passed away in the meanwhile.
The court held prima facie that the petitioner further cannot be troubled with the payment against a loan availed to treat his son, a victim of endosulfan, which unfortunately went in vain.
(Case No. WP(C) No. 23398 of 2018, order dated 12 June 2019)
23. Kerala HC initiates suo moto proceedings over snapped power line claiming two lives.
The High Court of Kerala took suo moto notice of the tragic death of two persons due to electrocution from a broken power line and registered a writ petition to ensure that the Kerala State Electricity Board comes up with "concrete proposals" for preventing such mishaps in future.
Based on media reports of the incident, Justice Devan Ramachandran directed the High court registry to register a suo moto writ petition arraying the State of Kerala represented by Chief Secretary and the State Electricity Board as essential respondents to the case. The court further ordered that the paper reports of the incident be appended to the writ petition and be placed before the Chief Justice for appropriate orders / further consideration in this context.
The court further made it clear that though it did not contemplate to cause any investigation to the incident or to the events that led to the horrific accident, it wanted the State electricity board to come up with concrete proposals to ensure such mishaps do not occur in future.
The Court said that the proceeding was "vital and pertinent" as the state was facing monsoons.
24. Information commission is expected to be autonomous and resistant to any pressure from the executive under RTI.
The single bench of the High Court Justice Devan Ramachandran observed that State Information Commission is expected to be autonomous and resistant to any pressure from the Executive.
In this case, the petitioner who is an information activist, had preferred an application to the Government under Right to Information Act.The information pertained to certain data on inter state matters.The Government issued an order stating that such information cannot be disclosed citing 'state interests'.
Terming the said order as 'disquieting' and affront to the provisions of R.T.I Act, the court deprecated the practice and attempt of Government to dictate terms on the types of information that could be dispensed to the public.
The court made it abundantly clear that the Officials considering the application under R.T.I Act should consider them without being influenced or trampled by the contents of the aforementioned Government order.The court also directed that the Public Information officers,appellate authorities, and State Information Commission to consider such applications strictly in accordance with the provisions of the R.T.I Act alone, de hors the aforementioned Government order.
(Case : Adv. D.B. Binu v. The State Public Information Officer, WP(C) No. 11202 of 2019, judgement dated 25 June 2019)
25. 'Demo cars' kept by dealers need to be registered.
The single bench of the High Court of Kerala, Justice Anil Narendran, held that demo cars which are kept by dealers to demonstrate a vehicle model to a prospective buyer, require registration under the Motor Vehicles Act.
The petition was filed by Kerala Automobile Dealers Association and Rajasree Motors against a directive issued by the Transport Commissioner to the Road Transport Officers to take steps to ensure that demo cars kept by the dealers were registered.
The court added, " A 'demo vehicle' purchased by an automobile dealer at a special cash discount or otherwise, which is not intended for sale to the customer, cannot be included in the stock list, in order to make it appear that it is a vehicle bonafide in possession of that dealer, in the course of his business, which can be driven in any public place or any other place under the authorisation of a trade certificate granted under the CMV Rules.", the Court added while dismissing the writ petition."
(Case : Kerala Automobile Dealers Association & Anr. v. State of Kerala, WP(C) No. 32847 of 2019, judgement dated 2 July 2019)
26. Rs. 1 lakh compensation to man who was illegally detained on suspicion of being a 'maoist'.
The division bench of the Kerala High Court, Chief Justice Hrishikesh Roy and Justice AK Jayashankaran Nambiar, dismissed the appeal filed by the Kerala Government against the 2015 judgement of the single bench which had ordered Rupees 1 lakh compensation to man who was illegally detained on suspicion of being a maoist. The court said, "we have no hesitation in holding that, in view of the primacy that is accorded under our Constitution to a person's fundamental right to privacy and personal liberty, the action of police authorities in detaining and interrogating the petitioner and thereafter searching his residence, without following the procedure under the Code of Criminal Procedure was wholly unjustified"
The petition was filed on the basis of illegal arrest, search and seizure which had caused agony to the petitioner and tarnished his reputation and violated his personal liberty and right to privacy under Article 21 of the Constitution.
(Case : Shyam Balakrishnan v. State of Kerala, WA No. 1330 of 2015, judgement dated 8 July 2019)
27. Foreign banks cannot engage recovery agents in India.
The division bench of the Kerala High Court, Justices K Vinod Chandran and VG Arun, held that foreign banks or financial institutions cannot engage recovery agents in India to realize loan amounts defaulted by expatriates.
The court added, it was open for the foreign bank or financial institution to initiate legal action for recovery, which can even be in pursuance of a judgment which the bank has obtained from the foreign country. If failure on the part of the borrower to pay back the amount due to the bank amounts to a criminal offence in a foreign country, the bank can initiate criminal action against the borrower through the diplomatic channel.
The court further said, " The engagement of recovery agents by foreign banks and financial institutions for realising the defaulted amount through threat, coercion and duress cannot, under any circumstances, be permitted".
The court also mentioned about the guidelines and master circulars issued by the Reserve Bank of India, where it mandates that recovery agents shall be engaged by banks only after a process of due diligence. Whenever recovery is entrusted with an agency, the bank should inform the borrower the details of the recovery agency. The need for appropriate training to the recovery agents is also highlighted in the guidelines.
(Case : Susheela v. The Director General of Police & Ors., WP(C) N0. 4715 of 2017, judgement dated 16 July 2019)
28. Kerala HC dismisses PIL challenging Pope's authority over church properties in India.
The division bench of Justices Hrikesh Roy and AK Jayasankaran Nambiar dismissed the PIL sought to declare the 'Code of Canon' giving the Pope of Catholic Church powers over church properties in India as 'unconstitutional and opposed to the sovereignty of India.'
When the petitioner raised the argument that the Church properties are public trusts and their alienation can be done only with the permission of the jurisdictional civil court as per Section 92 of the Code of Civil Procedure. The Court refused to examine this argument by stating that it was not the appropriate forum for it. The aggrieved party has to approach a civil court and not the High Court by way of Public Interest Litigation to raise grievance pertaining to Section 92 of the Code of Civil Procedure, the bench added.
Finding the petition to be frivolous, cost of Rs.25,000 was imposed by the Court.
(Case : Anoop MS v. State of Kerala, WP(C) No. 20144 of 2019, judgement dated 29 July 2019)
29. Burden is upon complainant to prove alternation of name of payee was made by accused himself.
In this case, the name of the payee written as "Kousthubhan" [name of the accused] in the cheque was seen struck off and the name of the complainant was written in the cheque as the payee. Referring to Section 87 of the Negotiable Instruments Act and also the evidence on record, the Court agreed with the First Appellate Court that, when the cheque contained a correction with regard to the name of the payee, which was not even attested by the signature of the accused, it is highly improbable that the complainant would have accepted it.
Justice R. Narayana Pisharadi, single bench of the High Court of Kerala held that when there is an alteration in the cheque with regard to the name of the payee, the burden is upon the complainant to prove that such alteration was made by the accused himself or that it was made with the consent of the accused. The court also observed that the filing of a complaint under Section 138 of the Act through the power of attorney holder is perfectly legal and competent.
(Case : Geemol Joseph v. Kousthabhan, Crl.A.No. 2535 of 2008, judgement dated 29 July 2019)
30. In offences committed outside India, Central Government's sanction is not required to arrest an accused during investigation.
The single judge bench, Justice Alexander Thomas held that the bar under Section 188 of the Code of Criminal Procedure does not affect the power of arrest and detention available to the Police authorities in cases where the allegations pertains to commission of offences allegedly committed outside India, even when the sanction of the Central Government has not been obtained.
The case was on behalf of the accused was that, since almost all the alleged incidents narrated in FIS had happened in Dubai, outside the territorial limits of the Union of India, the mandatory provisions contained in Sec.188 of the Cr.PC. would regulate the scenario and that by virtue of the proviso appended to the operative portion of Sec.188 of the Cr.PC, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
The court further observed,
"It is a matter of common knowledge that such cases involving offences committed outside India will not be very few and there could be many such cases in many States in India and if the view canvassed by the petitioner is accepted, then it would amount to holding that after registration of the FIR, even for arrest of the accused where it is found necessary, would have to wait until the Central Government takes a decision on the question of sanction as per the proviso to Sec. 188 of the Cr.P.C. , etc. and if such a view is taken it will be placing enormous and unrealistic burdens on the Central Government to take decisions on the question of sanction in each and every case, which may arise in various parts of the country, even before the arrest of the accused is affected in such cases.
It has to be borne in mind that the question of sanction in respect of all such cases which arise in any part of the country, be it in the various States or the Union territories, will have to be decided by the Central Government and to place such a heavy burden on the Central Government is impractical and rather imprudent."
(Case : Mohammed Shameer Ali v. State of Kerala, Bail Appl. No. 5055 of 2019, judgement dated 2 August 2019)
31. Kerala HC sets aside single bench direction for CBI probe into Shuhaib murder.
The division bench of the High Court Justice AK Jayasankaran and Chief Justice Hrishikesh Roy set aside the judgment of a single bench which handed over to CBI the investigation of the killing of Shuhaib, a Youth Congress worker, in Kannur district in February 2018.
The court observed, "there was hardly any material available before the writ court that could have led it to assume that the investigation was inherently unfair or biased in any manner." The order for CBI probe issued by single judge Justice B Kemal Pasha (since retired) within three weeks of the crime was termed as a 'hasty direction' by the division bench.
(Case : CP Mohammed v. State of Kerala, WA No. 628 of 2018, judgement dated 2 August 2019)
32. Demanding information about bank accounts and income tax returns without statutory backing, violates right to privacy.
The Kerala High Court division bench comprising of Justices CK Abdul Rehim and Narayana Pisharady, said information about one's bank accounts and income tax returns constitute personal and private information. The judgement was given on the basis of writ appeals filed by several petroleum outlet retailers against the insistence of oil marketing companies to furnish details of bank accounts and income tax returns for dealership agreements.
The court added, " Income tax returns or the bank account statements of a person would contain many other information. It will not be possible to segregate the details regarding the dealership of the appellants from such records and to furnish them to the second respondent."
The court held that the companies "have got no right to require the appellants to furnish their income tax returns and the bank account statements , as a condition for continuing the petroleum retail dealership granted to them."
(Case : Raju Sebastian & Ors. v. Union of India, WA No. 2112 of 2018, judgement dated 4 September 2018)
33. Right to access internet is part of the right to privacy and right to education.
In the landmark judgement of the High Court of Kerala given by a single bench of Justice PV Asha in the petition filed by a student challenging the restrictions on usage of mobile phones in a girls' hostel, the court said that the right to access the internet is a fundamental right forming part of the right to privacy under Article 21 of the Constitution of India. The court further added that it also forms part of the right to education.
The court also said that the fact that parents have consented to the restrictions will not make them valid, as students who have attained majority have decisional autonomy.
(Case : Faheema Shirin v. State of Kerala, WP(C) No. 19716 of 2019, judgement dated 19 September 2019)
34. Kerala HC quashes UAPA and sedition charges on failure to comply with prescribed time limit by sanctioning authority vitates sanction.
The single bench of the High Court, Justice Raja Vijayaraghavan, discharged alleged Maoist leader Roopesh of charges under UAPA and sedition under Section 124 A of the Indian Penal Code on the ground of irregularities in the order granting sanction for prosecution.
The court said the time limit prescribed under Section 45(2) of the UAPA read with Rules (3) and (4) of the Recommendation Rules 2008 were not followed by the sanctioning authority while granting sanction to prosecute Roopesh in three cases.
The court held that the sanction granted to prosecute the petitioner was "vitiated or non compliance with the mandatory provisions in the Act and Rules and, therefore, the taking of cognizance by the court below for the offences under Sections 20 and 38 of the UAP Act is vitiated."
It was added that Sessions Judge had no jurisdiction to take cognizance of the offence under Section 124A of the IPC without a valid sanction order under Section 196(1) of the Cr.P.C
(Case : Roopesh v. State of Kerala, Crl. Rev. Pet. No. 732 of 2019 judgement dated 20 September 2019)
35. Kerala HC orders CBI probe into twin murders of Youth Congress workers.
The single bench of the High Court handed over the investigation of murders of two Youth Congress workers- Kripesh (19) and Sharat Lal (24)- to the CBI from the state police. The court ordered the CBI probe allowing the petition filed by the parents of the slain youth, who were killed at Periya in Kasargod district on the night of February 17, 2019.
Observing the investigation completed by the Crime Branch of the state police was a "sham", the Court set aside the final report filed in May 20 arraying 10 CPM workers as the accused. The Court observed that the involvement of top party leaders in the conspiracy for the crime was not probed by the police, and that the chances of conviction on the basis of the final report was very bleak.
(Case : Krishnan v. State of Kerala, WP(C) No. 10265 of 2019, judgement dated 30 September 2019)
36. CCTV Footage not material object; accused entitled to digital copy.
The single bench comprising of Justice Raja Vijayaraghavan held that CCTV footage of a crime is not a 'material object' and therefore the accused is entitled to receive a copy of it as per Section 207 of the Code of Criminal Procedure.
The petition was filed by Jisal Razaq, an accused in the Abhimanyu murder case, challenging the order of the Magistrate that rejected his application for copies of the CCTV footage.
The court said, "CCTV footage in the instant case is "data" as defined under S.2(o) of the Information Technology Act, 2000 and it is an electronic record as defined under S.2(t) of the I.T. Act. If that be the case, the electronic record produced for the inspection of the Court has to be regarded as documentary evidence. In that view of the matter, I am unable to accept the logic of the prosecution in producing the CCTV footage as a material object and in refusing to supply a copy of the same to the accused."
The court added, Electronic records are created with every day actions of individuals and in criminal offences, it is extensively used to establish the guilt of the accused.
(Case : Jisal Rasak v. State of Kerala, Crl.MC.No. 4148 of 2019, judgement dated 30 September 2019)
37. Complaint under section 420 IPC cannot be quashed on the sole ground of undue delay.
The High Court of Kerala led by single bench Justice R. Narayana Pisharadi said, when no limitation is prescribed for filing a complaint, it cannot be quashed on the sole ground of delay.
In this case, the transaction alleged by the complainant was on 10.04.2007. The cheque allegedly given by the accused to the complainant was dated 16.05.2007. The complaint under section 420 IPC against the accused was filed only on 29.03.2019.
The court said, Even if a person has been tried and dealt with for the offence punishable under Section 138 of the Negotiable Instruments Act, on similar facts, he can be subsequently tried for an offence punishable under Section 420 IPC. The reason is that the ingredients of the two offences are different.
(Case : Sindhu S.Panicker v. A.Balakrishnan, Crl.MC. No.2345 of 2015, judgement dated 24 October 2019)
38. Further investigation can be conducted even after the trial has commenced without permission from the court.
The single bench of Justice R. Narayana Pisharadi of the Kerala High Court observed that it is not necessary for the investigation to officer to seek any permission from the court to conduct further investigation. He also observed that there is no restriction on the power of the investigating officer to conduct further investigation after the commencement of the trial of the case.
The court said, "The fact that further investigation is being conducted to cure some procedural or technical irregularities in the charge sheet already filed before the court, cannot be a sufficient ground to issue a direction to the investigating officer to drop such investigation."
(Case : Mariamma John v. Deputy Superintendent of Police & Anr., OP(Crl.).No.483 OF 2019, judgement dated 4 November 2019)
39. Kerala HC denies bail to students arrested for alleged Maoist Links.
The division bench of Justices A Hariprasad and N Anil Kumar denied bail to Allan Shuhaib and Thwaha Fazal who were arrested by Kerala police under UAPA for alleged links with banned Maoist organization.
Allan and Thawaha, activists of Communist Party of India (Marxist), were arrested by Kozhikode police on November 2 on suspected Maoist links and have been under custody since then.
The court added, "The investigating agency apprehends that the accused persons, if released on bail, may not only meddle with the investigation, but also flee from justice. We are not persuaded to ignore these apprehensions." The court further observed, the words "associated" and "professes to be associated" occurring in Section 38 of the UAPA are employed in a "broad sense and with a specific purpose.
The court contended, "Anybody indulging in such activities will normally do so clandestinely or surreptitiously. Contextually therefore, not only overt actions, but covert actions may also at times satisfy the ingredients of the Section, provided they were done knowingly or consciously for the objectives mentioned in the Section. At this inceptive stage of the investigation, the State Attorney contends, it may be difficult for the investigating agency to place all the materials before the court to satisfy the ingredients of the offence, particularly when the materials recovered from the accused contain electronic gadgets and writings in a code language. We find merit in this submission. For establishing these aspects, we are of the definite view, the investigation has to progress."
(Case : Thwaha Fasal and Anr. v. State of Kerala, Crl.Appeal Nos.1300 & 1301 of 2019, judgement dated 27 November 2019)
40. Power to appreciate evidence cannot be relegated to Advocate Commission.
The division bench of the Kerala High Court comprising of Justices K Harilal and Annie John dismissed the application filed seeking the appointment of an Advocate Commission to examine the contents of a CD and report the same to the court. The court said that the power to appreciate cannot be relegated to Advocate Commission.
The court added, "the respondent herself admitted her participation in the programme in the CD and it would amount to an admission by the party to the extent of participation only and nothing could be proved beyond it. According to Section 58 of the Indian Evidence Act, facts admitted need to be proved. There is no illegality and impropriety in the impugned order."
(Case : Nishad and Anr. v. Najma, OP(FC) No. 238 of 2019, judgement dated 26 November 2019)