XXX Vs State of Kerala and Ors on 05 July 2022

Posted on August 8, 2022 by ShadesOfKnife

A single judge bench of Kerala High Court held as follows:

From Para 13,

13. I do not propose to go into the details of this case any further because, through the various interim orders already issued, the petitioner has
obtained relief – including DNA analysis of the foetus she was carrying, under the provisions of the Code of Criminal Procedure (Cr.PC). In fact, the learned counsel for the petitioner – Sri.Dheeraj Rajan, affirmed that no specific orders are now required and that a Final Report has also been filed by the Police.

From Para 14, (Invitation for views)

14. However, the trauma, which the petitioner has experienced and which may be forced upon victims in future, makes this Court to think in terms of having a Protocol for the purpose of empowerment of the victim – being gender neutral – to approach the law enforcement agencies and obtain succor and support in the initial stages of extreme fear, terror and despondency faced.
15. With the afore intent, I threw open discussions in this matter to the Bar, calling for suggestions from anyone who is interested in addressing this Court; and am glad that I did so because, I have had the benefit of the views and inputs from very eminent lawyers, both senior and junior.
16. The principles and imperative requirements of ‘Victim Protection Protocols’ are inexorably attracted whenever a sexual assault occurs; and I, therefore, requested the learned counsel appearing for the parties and who are assisting this Court upon the aforementioned invitation, as also the
learned Special Government Pleader – Smt.Ambika Devi, to offer their suggestions.

From Para 32, (Protocols follow)

Consequently, I order this writ petition, directing that protocols below are scrupulously followed in the case of a complaint regarding sexual attack or child abuse without exception:
a) The Government will, in addition to the steps taken earlier by it, continually publicize the Toll Free Number ‘112’ as an Emergency Support System to be known to every citizen, so that the victim of a child abuse or sexual assault can access it whenever required.
b) Every victim of sexual assault and child abuse must be encouraged to access the afore Toll Free Number or the Police Control Room Number ‘100’; and on such intimation being received, it will be fed into a digital system, to be then brought to the notice of the jurisdictional Police Station, for necessary steps under Section 154 of the Cr.P.C. In this regard, I record the undertaking of the State that a system as afore has already been put in place under the Emergency Response Support System (ERSS) Project.
c) This Court records the further undertaking of the State that calls made to the aforementioned Toll Free Numbers of ‘112’ and ‘100’ will only be
attended and responded to by well sensitized and trained personnel, who will make sure that the victim is given sufficient support from the inception, until the time she/he requires it thereafter.
d) On intimation of a sexual assault or child abuse being received by the afore Toll Free Numbers, the Police Control Room or the jurisdictional Police Station, will take immediate steps to contact the victim either personally or through phone without, however, summoning him/her to the Police Station.
e) While taking the statement of the victim, mandatory provisions of Section 157(1) of the Cr.P.C., namely, that same be recorded at his/her
residence or in the place of his/her choice and as far as practical, by a Police Officer in the presence of his/her parents/guardian/near relatives or social worker, shall be scrupulously complied with.
f) On the FIR being so registered, the investigating officer will forthwith assign a ‘Victim Liaison Officer’ in terms of the applicable circulars issued by the State Police Chief, who shall then contact the victim immediately so that he/she will feel safe and protected, being sure of such support.
(g) Simultaneous to the registration of the FIR or at the time when the Victim Liaison Officer is so assigned, the investigating Officer will disclose to the victim the numbers of the ‘One Stop Crisis Centre’ and that of the ‘VRC’, so that they can involve themselves and ensure that the victim suffers no further traumatisation and obtains the best psychological support and succor which, indubitably, is the sine qua non for the reparatory process of the victim’s psychological trauma.
(h) The Authorities concerned will ensure that the victim has constant access to the Victim Liaison Officer and to the ‘One Stop Crisis Centre/VRC’, as the case may be; and that this is made available 24 hours a day, at any time the victim requires it during his/her most difficult times.
(i) The ‘One Stop Crisis Centre’/’VRC’ is directed to offer not merely psychological assistance to the victim, but also legal support as may be required and will actively promote his/her return to normal life, through every possible facilitation as may be warranted. This shall continue as long as the victim requires, or until such time as the trial is completed.
(j) It is further ordered that the victim Liaison Officer (VLO), as also the ‘One Stop Crisis Centre’/’VRC’, shall make available every assistance necessary to the victim for the processes under Section 164A of the Cr.PC, and must actively guide and instruct, advising her/him of her/his rights under it, thus being able to exercise it diligently and with confidence.
The afore are, of course, not exhaustive; and I, therefore, leave liberty to any person, including the learned counsel for the parties or the members of the Bar, to seek any clarification from this Court, if so found necessary; in which event, more effective protocols for victim protection can certainly be thought of and incorporated.

XXX Vs State of Kerala and Ors on 05 July 2022

Gopika Jayan and Anr Vs Faisal on 22 Jun 2022

Posted on June 29, 2022 by ShadesOfKnife

A division bench of Kerala High Court, issued notices to Police and Judicial officers, in a Contempt Case against them.

From Para 1,

1. The afore captioned Contempt of Court case has been instituted alleging patent and flagrant violation of the directives and guidelines issued by the Apex Court in the Celebrated case Arnesh Kumar Vs. State of Bihar (2014(8) SCC 273)=2014 (3) KLJ 330.

From Para 6,

The case papers produced in this contempt petition do not show any application of mind. On the other hand, Annexure A1 FIR and Annexure A8 FIS were registered on 21.01.2022 at 8 pm on the premise of a mere man missing report in regard to the first petitioner. No allegation of deliberate abandonment or desertion of the child has been made even in Annexure A8 email. It was later that false allegations were raised that the first petitioner had deliberately abandoned the child and the respondent Police Officer has without any application of mind and without satisfying himself on the basis of any objective enquiry has sought for the arrest and remand of the petitioners. When the petitioners were called to the Police Station,
they were on the bonafide belief that the FIR was registered only as a man missing report under Section 57 of the Kerala Police Act. The respondent Police Officer had never properly apprised the petitioners that the offence has been duly altered and the records do not show as to how the respondent Police Officer was satisfied that the case involves deliberate and premeditated abandoning of the child in the facts and circumstances of this case. Further, neither the mother of the first petitioner, nor the Police authorities have any case that the 1st petitioner has at any prior point of time abandoned the child on any previous occasion. From the abovesaid aspects apprised to us by the learned Counsel for the petitioners, we see that a 22 year old young working lady and her colleague have been arrested and remanded at the instance of the respondent Officer. Prima facie, we would also observe in the same breadth that though, the first petitioner had given a statement before the learned Magistrate in terms of Annexure A6, the learned Magistrate has not taken into consideration those aspects regarding the harassment said to have been meted out to her by her so called step father and has not cared to make any proper satisfaction as to whether the case of deliberate and premeditated abandonment of the child is made out. This we say so in view of the first proviso to Section 75 of the JJ Act. Direction no.8 in Paragraph 14 of Arnesh Kumar’s case (supra) would also concede that authorizing detention without recording proper reasons as aforesaid by the Judicial Magistrate concerned shall also be liable for Departmental action by the appropriate High Court etc. It is by now, well established as an elementary proposition of criminal jurisprudence as can be seen from a reading of Arnesh Kumar’s case (supra), D.K.Basu Vs. State of West Bengal, [AIR 1997 SC 610], as well as Jogindar Kumar V. State of UP & Ors. [(1994) 4 SCC 260], that no arrest can be made merely because it is lawful for the Police Officer to do so and the existence of the power to arrest is one thing and justification of the exercise of it is quite another and no arrest shall be made without reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief that both as per the person’s complicity and even as to the necessity to arrest that person and denial of liberty is a serious matter, etc. These aspects of the matter have also been referred to in the celebrated decisions of the Apex Court in D.K. Basu’s case [AIR 1997 SC 610] and Joginder Kumar Vs. State of UP [AIR 1994 SC 1349].

From Para 8, Conclusion.

8. Accordingly, it is ordered that the Contempt of Court case will stand admitted. Issue notice to the respondent Officer, which shall be served on him through the Commissioner of Police, KochiCity. In case the respondent Officer is not available in the abovesaid address, then notice process shall be duly completed by affixture, in the presence of witnesses and report in that regard shall be duly given to this Court within three days.

From Para 9,

9. The Registrar General will forthwith call for a report from the learned Judicial First Class Magistrate, who has rendered Annexure A7 remand order dated 03.02.2022 on Crime No.44/2022 of Elamakkara Police Station, Ernakulam, as to how he could reach reasonable satisfaction, based on the parameters laid down by the Apex Court in the aforesaid decisions and the applicable legal principles and as to why the arrest and remand of both these accused persons was highly imperative. So also, it shall be explained as to how he has ordered that A1 (1st petitioner) is remanded to the District Jail, Kakkanad and A2 (2nd petitioner) is remanded to the Judicial custody to Borstal School, Kakkanad.
10. The Registrar General will forward a copy of the memorandum of this Contempt Petition with all the Annexures thereto as well as the additional documents to the learned Magistrate, who shall submit his explanation within two weeks from the date of receipt of a communication in that regard by the Registrar General.

Gopika Jayan and Anr Vs Faisal on 22 Jun 2022

Bar Council of Kerala Vs T.Koshy on 12 Apr 2018

Posted on April 24, 2022 by ShadesOfKnife

A division bench of Kerala High Court (Order written by Chief Justice!) upon a writ appeal from here) held that Bar Council (of any State or India) do not have power to prescribe any fee for the enrolment, either in the form of enrolment fee or special fee. This was eventually taken to Supreme Court where the Bar Council failed to convince the Apex Court here.

From Para 7,

7.Thus the surviving question is whether the fixation of special fee is encompassed by the conditions which the Bar Council is entitled to prescribe in the rules made by it in view of section 24(1)(e) and section 28(2)(d). As we have already seen and as found by the learned single Judge, in section 24(1)(f), the Legislature itself has prescribed the enrolment fee payable by a candidate applying for enrolment with a Bar Council of a State. Once the legislature has prescribed enrolment fee, another fee, be it called a special fee or anything else, can legitimately be prescribed by a State Bar Council or any other authority only if there is an express legislative sanction therefor. In so far as section 24(1)(e) is concerned, all that it empowers the State Bar Council is to specify in the rules made by it under Chapter III of the Act the other conditions that a candidate should fulfill for enrolment. That rule making power also finds reflection in section 28(2)(d) which provides for the power of the Bar Council to make rules prescribing the conditions subject to which a person could be admitted as an advocate on its rolls. These provisions, in our view, only deal with the eligibility conditions and those conditions do not empower the Bar Council to prescribe any fee for the enrolment, either in the form of enrolment fee or special fee. Therefore, the prescription of special fee as done by the Bar Council of Kerala is totally ultra vires its powers as conferred under the Advocates Act, 1961.

2018-04-12 The Bar Council of Kerala Vs T.Koshy on 12 Apr 2018

Citations :

Other Sources :

https://www.casemine.com/judgement/in/5b59b5e74a93261b1dbe8e49

Index of Bar Council Antics here.

Bar Council of Kerala Vs T.Koshy on 30 Nov 2016

Posted on April 24, 2022 by ShadesOfKnife

A wonderful judgment from a single judge bench of Kerala High Court held as follows:

2016-11-30 The Bar Council of Kerala Vs T.Koshy on 30 Nov 2016

Citations :

Other Sources :

This decision was upheld by a division bench of Kerala High Court here and Supreme Court refused to consider the SPLs filed by Bar Council of Kerala here.

Beena MS Vs Shino G Babu on 04 Feb 2022

Posted on February 28, 2022 by ShadesOfKnife

A Division bench of Kerala High Court held the following in a Divorce Matter, wherein one party is withholding the consent in a irretrievably broken-down marriage.

From Para 5,

5. The husband attributes this conduct as a behavioural disorder. The wife denies the same. We are not able to discern ourselves to classify this as
behavioural disorder or not. There are various types of personality disorders. In the absence of any medical evidence before us, we may not be able to classify this behaviour as a personality disorder. But, we are sure unstable emotions and relationships existed between the parties as revealed from Exts.A2 to A4 e-mail chatting reports and Ext.A5 whatsapp message. If one of the spouses is unable to adjust to such behaviour, that party cannot be found fault with. The obsessive nature of the character possessed by the wife would have led to a deteriorating relationship between the parties from the initial phase of life itself. Chasing happiness based on schedules instead of living in the moment, appears to be the vowed daily life routine adopted by her. She was not realistic to the fact that the secret of marital harmony lies in accepting the life as it unfolds and not becoming a stickler of the schedules or routines. Compulsive obsessiveness is also considered as a disorder. Though we are not sure about attributing the appellant as a person who suffers from such disorder, on going though the evidence, we are certain such attitude and behaviour was unbearable to the husband. If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce. If the parties cannot mend their ways, the law cannot remain oblivious to those who suffer in that relationship. In any matrimonial relationship, spouses may have a different outlook on the marriage based on faith, perceptions, outlook, attitudes, social ethos, etc. Fearing divorce is repugnant to his or her notion, one would refrain from the divorce based on mutual consent. The court cannot leave the life of a spouse to the mercy of the opposite spouse. Human problem requires resolution consistent with the notion of justice. The husband wants to get out of the misery and agony of the relationship; though, what was portrayed before the court is the fault of the wife, the husband also failed in building the relationship. We made an attempt for conciliation. The said attempt failed. There is no scope for reviving the dead marriage. The Apex Court in Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558], opined that if the parties cannot live together on account of obvious differences, one of the parties is adamant and callous in attitude for having divorce on mutual consent, such attitude can be treated as the cause of mental cruelty to other spouses.

From Para 6,

6. The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. If the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as ‘cruelty’ is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce.

Beena MS Vs Shino G Babu on 04 Feb 2022

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Posted on February 21, 2022 by ShadesOfKnife

Law point held by Kerala High Court is: The principle of locus standi is alien to criminal jurisprudence

From Para 2,

2. Petitioner is the wife of the injured in a road traffic accident. It is alleged that on 16.10.2021, petitioner’s husband Thankachan, a carpenter by avocation, sustained injuries while proceeding to the place of work travelling on the pillion seat of the motor cycle bearing Registration No.KL-32/Q-0114 ridden by the accused, through Elamakkara-Puthukkalavattom Road; in front of Skyline Apartments, due to the rash and negligent riding as to endanger human life, since he had abruptly twisted, the vehicle capsized and her husband fell down and sustained grievous injuries. He was immediately rushed to the MAJ Hospital, Edappally. Ext.P1 indicates that Thankachan was taken there at 9.20 am on 16.10.2021 with the alleged history of road traffic accident. Ext.P2 discharge summary indicates that on the same day, he was taken to the Department of Orthopaedics and Rehabilitation, Lisie hospital where he was admitted with the history of pain and swelling on left ankle following alleged history of road traffic accident. Diagnosis was fracture trimalleolar left ankle for which he underwent surgery on 19.10.2021 and was discharged on 21.10.2021. The grievance of the petitioner is that despite Ext.P1 intimation given by the CMO, MAJ Hospital to the Sub Inspector, Elamakkara Police Station, crime was not registered. It is alleged that on 11.11.2021, petitioner lodged a complaint before the City Police Commissioner, Ernakulam which also was not acted upon and thus, on 19.1.2022, she approached the Judicial First Class Magistrate-II, Aluva. It is specifically averred that after sustaining grievous injuries, her husband is in immobile stage and is under complete rest and thus, she approached the court alleging offences under Sections 279, 337
and 338 IPC. But astonishingly enough, the complaint was returned stating that ‘the petition was filed by the wife of the complainant’. The most disturbing aspect is that a note seen put on the last page of the complaint, as follows:-
“19/01/22
Verified within the jurisdiction. Receipt of complaint at Commissioner Office is not seen produced. Hence for orders.
Id/-
Petition filed by wife of the complainant. Hence may be returned, for orders.
Id/-
Returned
sd/-”
It is clear that the signed order was passed by the Magistrate. It is pointed out that the Magistrate has returned the complaint on the premise that it was filed by the wife of the complainant which is illegal.

From Para 4,

4. I have no doubt that the order passed by the Magistrate is illegal and unsustainable. It is the settled proposition of law that criminal law can be set in motion by any person. Here, on the ground that after sustaining grievous hurt, her husband is unable to move out and hence, she has taken initiative to prefer the complaint. The principle of locus standi is alien to criminal jurisprudence.

From Para 5,

5. More disturbing is the Court acting upon office notes put up by the ministerial staff. This Court takes strong exception to such a conduct. In judicial matters, the staff members cannot make any note or suggestion. The learned Magistrate has not applied his mind before returning the complaint. The reason stated is illegal. The order is quashed and the Magistrate is directed to entertain the complaint and pass orders, in accordance with law, within a period of seven days from today.

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Shanavas Vs Raseena on 10 Dec 2010

Posted on August 2, 2021 by ShadesOfKnife

Single-bench of Kerala High Court held as follows,

From Para 6,

6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2) of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section 31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violence Act, the petition filed by the first respondent under Section 12 of Protection of Women from Domestic Violence Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed.

Shanavas Vs Raseena on 10 Dec 2010

Citations : [2014 KERLT 1 579], [2014 RCR CRIMINAL 2 6], [2014 AWC SC 3 2190], [2014 SCC 9 176], [2014 RD 123 594], [2014 ALR 103 723], [2010 SCC ONLINE KER 5136], [2014 KLT 1 579]

Other Sources :

https://indiankanoon.org/doc/1357466/

https://www.casemine.com/judgement/in/56095a0ce4b01497112a882f

Adv KG Suresh Vs UOI and Ors on 30 Mar 2021

Posted on July 23, 2021 by ShadesOfKnife

A division bench of Kerala High Court struck down Sec 17 of Senior Citizens Act 2007 as it was ultravires with Sec 30 of Advocates Act 1961.

From Para 57,

57. As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force, from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961.
In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/ Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.

Adv KG Suresh Vs UOI and Ors on 30 Mar 2021

Citations :

Other Sources :

https://thedailyguardian.com/advocates-entitled-to-appear-in-maintenance-tribunals-bar-on-legal-representation-unconstitutional-kerala-high-court/

https://www.legalservicesindia.com/law/article/1924/39/Advocates-Entitled-To-Appear-In-Maintenance-Tribunals;-Bar-On-Legal-Representation-Unconstitutional-Kerala-HC

Sethi P V and Shansa Ramesh Vs Nil on 26 Feb 2021

Posted on July 20, 2021 by ShadesOfKnife

Citing various caselaws, Division bench of Kerala High Court held that a General Power of Attorney Holder can ask as an agent of the witness in a Court and depose on his behalf.

Sethi P V and Shansa Ramesh Vs Nil on 26 Feb 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/143432928/

XXXXX Vs XXXXX on 31 May 2021

Posted on June 7, 2021 by ShadesOfKnife

The Husband filed this appeal when his divorce petition was dismissed. Division bench of Kerala High Court relying on landmark judgments, held that the baseless accusation of the wife regd the alleged erectile dysfunction of the husband caused mental cruelty and therefore, granted the Divorce on the ground of cruelty.

XXXXX Vs XXXXX on 31 May 2021

Citations:

Other Sources:

Shades of Knife

True Colors of a Vile Wife

Category: High Court of Kerala Judgment or Order or Notification

XXX Vs State of Kerala and Ors on 05 July 2022

Gopika Jayan and Anr Vs Faisal on 22 Jun 2022

Bar Council of Kerala Vs T.Koshy on 12 Apr 2018

Bar Council of Kerala Vs T.Koshy on 30 Nov 2016

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Shanavas Vs Raseena on 10 Dec 2010

Adv KG Suresh Vs UOI and Ors on 30 Mar 2021

XXXXX Vs XXXXX on 31 May 2021