Tag: keralahighcourt

-Report by Anjana C

The case of M.P. Ramani Vs. State of Kerala & Anr. deals mainly with the forgery of a cheque leaf. Dissatisfied with the order of the Kerala High Court, the petitioner filed an appeal which was ultimately allowed.

FACTS

The appellant, as a de facto complainant, filed a complaint alleging that a cheque from Canara Bank, Payyanur Branch, had been dishonestly acquired and forged with the appellant’s signature for drawing a number of Rs. 3,50,000.  This cheque was presented in the Federal Bank, Payyanur Branch, through the account that was maintained by the respondent. It is also alleged that the cheque that was allotted to the appellant by Canara Bank was over 30 years old and was not in use as a new MCRI number was awaited. Based on the above allegations, a complaint was filed under Sections 420, 46, and 472 of the Indian Penal Code. Post the investigations, the final report was filed before the High Court under Section 173 of the Code of Criminal Procedure, wherein the respondent was accused of committing the alleged crimes. A petition was filed under Section 482 before the High Court by the appellant for the quashing of the final report.

The allegations against the respondent were fraudulent procurement of the cheque, forgery, and, therein, attempting to obtain the amount of Rs. 3,50,000 from the appellant. The final report for the following was filed under Sections 420, 465, 468, and 472 of the Indian Penal Code. 

However, on inquiry, it was revealed that the cheque belonged to the de facto complainant and contained his very own signature. The allegation in the final report was that the respondent managed to threaten the complainant by using the cheque. Due to the absence of this issue raised by the complainant, the aforementioned final report was quashed, stating that it was an abuse of the court process.

CONTENTIONS OF PARTIES

Aggrieved by this order, the appellant appeared before the High Court “assailing the said order.” 

The Counsels of both parties scrutinized the appeal papers that indicated the specific allegations made by the appellant that the 30-year-old cheque leaf that was said to have not been in use that the respondent procured in order to extract a sum of Rs. 3,50,000 from the appellant. Based on these, the final report was submitted under Section 173 of the Code of Criminal Procedure. This revealed that the investigating officer cited 15 witnesses that led the charge against the respondent with the intention to commit the crime. Therefore, his actions can be considered a punishable offense under Sections 465, 468, and 472 of the IPC. It was noted that the order of the Court was brief and cryptic; the Court had neither paid attention to the facts of the case nor the nature of the allegations. The only observation noted
was of the ownership of the cheque leaf being that of the appellant but was wrongful in the possession of the respondent and that the instrument contained the appellant’s signature, and that there was no allegation of threat.

COURT’S DECISION

The High Court decided to quash the final report as they deemed it suitable to restore the petition and enable the parties to put forward their contentions to facilitate the High Court to take a comprehensive decision after taking all matters of fact and law into consideration. This enables a fresh start and decision, and the contentions are left open to both parties. The appeal was allowed, and all pending applications regarding this matter stood disposed off.

-Report by Zainab Khan

A single bench of Justice Kauser Edappagath hearing the matter of criminal appeal in the case of CHANDRAKUMAR vs State of Kerala reduced the sentence of the appellant from 7 years of imprisonment to 5 years and also reduced the fine from Rs.50,000 to 5000.

FACTS

The appellant was charged u/s -304 of IPC for killing his mother-in-law named Santhamma. On 4th March 2012, the appellant beat Santhamma by grabbing her hair and beating her head with a torch, and on the next morning, she died because of the injuries. On 22nd September 2017, an additional district and session Judge found the appellant guilty u/s 304 of IPC on the basis of facts, evidence, and witnesses. He sentenced him to 7 years of imprisonment and
imposed a fine of Rs.50,000. The appellant thus filed an appeal against his conviction in the Kerala High court.

Petitioner contentions

The learned counsel Adv. Reji R appeared for the appellant. He contended that the appellant has undergone a Substantive period of his imprisonment and the remaining period should be reduced to the sentence already undergone. He also argues that the appellant is the only earning member in his family and his family depends upon him and he also can’t afford to pay the whole amount of the fine. He can only afford up to Rs 5000.

COURT’S DECISION

Justice Kauser Edappagath while disposing of this criminal appeal upheld the decision of the district and session Judge-IV with a modification that imprisonment reduces to the period already undergone ( i.e 5 years 6 months and 1 day as on 16th July 2022) by the appellant. The amount of the fine was reduced to Rs.5000. The appellant shall be released as and when he pays the fine.

–Report by Ojas Bhatnagar

The Kerela High Court dismissed a writ appeal in the case of Dr. R. SURESH vs ATHURASRAMAM N.S.S.HOMEO MEDICAL COLLEGE, wherein it was pleaded by respondents that restoration of the lecturer’s seniority cannot be done and his demotion is permanent in nature. The judgment was passed by JJ P.B Suresh Kumar and C.S Sudha.

Petitioner’s Contention

The petitioner contended that his seniority should be restored. The advocates on behalf of the petitioner stated that restoration of the seniority is the petitioner’s right and there is no such provision that states that his seniority cannot be restored. The provisions the respondents have used to refer to this are not applicable to the petitioner. The statutes mentioned by the respondents (under Chapter 4 Statute 35 B of the Mahatma Gandhi University Statutes, 1997) only apply to the non-teaching staff of the college and the petitioner does not fall under this category. If any action were to be taken, it should have been taken under Statute 73 of Chapter 45. And this does not even mention that the seniority list is permanent in nature. The petitioner, therefore demands that his seniority be restored to the original position that he was holding at the time he was punished as 6 months have passed.

Respondent’s Contention

The respondent contends that the arguments given by the petitioner are unarguable. The advocates on behalf of the defendant argued that the statute mentioned by the respondent (Statute 73 of Chapter 45) does not specify that
the punishment of reduction in seniority is temporary in nature or it is restored after the passing of 6 months. The first respondent (College Chairman) also says that if the reduction in rank is not permanent, it does not seem like a
punishment at all.

DECISION OF THE COURT

The issue found by the court was whether the reduction in rank is permanent or temporary in nature. The court found that none of the given provisions by both sides solves this question. The court then refers to Mahatma Gandhi University Act, 1985 (The Act) and the Statutes. The order under which the lecturer was demoted was passed under Statute 35 B(v) in Part III in Chapter 4 of the Statutes and in that there is no mention of a definite term for a reduction in seniority ranks. But a proviso to clause (v) says that the term of reduction is permanent in nature. However, this only applies to the non-teaching staff of the college. Chapter 45 Part D of the statutes deals with disciplinary action against teachers of private colleges but Statute 73 of this chapter does not specify whether the reduction in rank is permanent or for a fixed period. In Section 99, sub-sections (1) and (2) tell us that the Kerela University Act, 1974 ceases to apply where the jurisdiction of Mahatma Gandhi University extends. The provisions of the Kerela University Act apply to those areas where there are no provisions and it continues to apply until new provisions are not brought about.

Since the statutes do not mention the period of the penalty imposed, the Kerela University Act, 1974 is referred to. Chapter 3, Statute 16 deals with disciplinary procedures against teachers of universities. Chapter 4 deals with the terms and conditions of non-teaching staff and there it clearly mentions that the reduction in ranks should not be less than 6 months if the period is not specified. The esteemed judges convey that Statute 73 in Chapter 45 of the statutes which
applies to teachers does not specify the duration.

The court observed:

“…..Statute 73(iv) in Chapter 45 of the Statutes, applicable to teachers does not specify the period for which the penalty of reduction can be imposed. This makes it apparent that as per the scheme of the Act and the Statutes, the disciplinary authority has been given the discretion to limit the reduction to a particular term or to make it permanent. Here the disciplinary authority has exercised its discretion”

The writ appeal was found to be without merits and hence dismissed.

–Report by Nistha Sahoo

Kerala High Court on Monday approved the bail in the case of Vishnu vs the State of Kerala. Justice Bechu Kurian Thomas delivered a bail order for Vishnu sanctioning conditions in accordance with it. The petitioner was charged with the crime of rape against a minor.

PETITIONER’S CONTENTION:

The petitioner contented the entire prosecution’s allegations of rape to be fallacious and the incident to be fictitious.
The learned counsel, Sri Manu Harshakumar lashed out against the allegations by putting forth the disapproval of calling the victim a minor. He also added that the victim herself admitted the fact that her workplace i.e., the spa center encouraged illicit activities.

Defending one’s own client, petitioner counsel submitted that, on the verge of this matter, the accused is being the scapegoat. He solicited that further detention of the petitioner is inequitable.

RESPONDENT’S CONTENTION:

The respondent contended that the petitioner is alleged to have committed a heinous crime against a minor and
he ought not to be dismissed on bail. The learned Public Prosecutor, Smt. M.K. Pushpalatha claimed that releasing the petitioner on bail would be a prejudice against the legitimate investigation. She exclaimed that there is the probability of intimidation of witnesses and the possibility of the petitioner influencing them as well.

DECISION OF THE COURT

The High Court examined the victim’s statement as well as the medical report. With due regard to the circumstances stated under Section 164 of Cr.P.C., Hon’ble Justice Bechu was satisfied with the contentions raised by the petitioner’s counsel. It was approved that the continued detention of the petitioner was unwarranted. The investigation has reached a final terminal therefore the petitioner is entitled to be released on bail. The court put forth some conditions:

1. Petitioner shall be declared on bail provided a bond for Rs50000/-.
2. The Petitioner must confront the Investigating Officer on demand.
3. The Petitioner ought not to try to intimidate the witnesses; nor shall he tamper with the available evidence or contact the victim or her family members.
4. Petitioner must not commit any similar offense while he is on bail.
5. Petitioner should not leave India without the permission of the Court having jurisdiction.

The bail application was allowed.

–Report by Monishka Allahbadi

Kerala High Court rejected a bail application in MONSON MAVUNKAL V. STATE OF KERALA & ANR considering the gravity of the accusations against him and his criminal record. Justice Bechu Kurian Thomas ruled that the prosecution’s worries that the accused would influence victims and witnesses and tamper with the evidence were justified and that his release on bail could hurt the prosecution’s case.

The prosecution has filed that the victim, in this case, had been raped by the petitioner. The victim who was a staff of the accused was raped on different dates from 11th January 2020 to 24th September 2021 in the house of the petitioner.

The petitioner contended that he has been in custody for a long period of time and the case of rape cannot be prima facie made against him. There can be a possibility of consensual sex. It was further contended that the victim was questioned earlier regarding the petitioner before even registration of the rape case, during which the victim did not mention anything about rape. This conduct shows falsity in the survivor’s case.

The prosecution opposed the bail application by saying that the nature of the offense is serious and that on release, the petitioner can influence the victim as well as witnesses. The witnesses, in this case, are the mother and brother of the victim who was also employees of the petitioner.

The court observed that although the contentions of the petitioner can be appreciated the fact that the petitioner was admittedly involved in several crimes, including three rape instances cannot be ignored. A Trial for raping a minor is already underway. The said minor has also been alleged to be raped even after turning 18, and this crime is connected to the alleged obnoxious behavior. The court found merit in the arguments of the prosecution. The court observed:
“The criminal antecedents of the petitioner also stare against him in granting bail. Several cases are alleged to have
been committed by him and therefore, such antecedents cannot be ignored while considering the application for bail.”

The court further relied on the case of P.Chidambaram v. Directorate of Enforcement [(2020) 13 SCC 791] and Prahlad Singh Bhati v. NCT, Delhi and Another [(2001) 4 SCC 280], wherein it has been held that each case has to be decided based on the circumstances of the case. The circumstances, in this case, lean against the petitioner and it was observed:

“There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and
circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. The nature of accusation and the severity of the punishment, apprehension of the prosecution about influencing the witnesses, the circumstances that are peculiar to the accused and the larger interest of the public all lean against the grant of bail to the petitioner.“

The bail was denied as there was no merit in the application.

–Report by Monishka Allahbadi

The Kerala High Court recently ruled that a Magistrate/Court must use its discretion when exercising the powers granted to it by Section 156(3) of the Code of Criminal Procedure (Cr.PC). According to Justice Kauser Edappagath, courts should not simply forward all complaints they receive like a post office when taking cognizance of offenses or ordering an investigation into any cognizable case. As a result, it was emphasized that the powers granted under Section 156(3) must be exercised with caution and discretion. “The Magistrate/Court also has a duty to protect the accused’s interests because, under S.156(3) Cr.Pc., the accused has no right of hearing during the investigation or forwarding of the complaint to the police.”

In JIBIN JOSEPH VS. UNION TERRITORY OF LAKSHADWEEP & ANR., an Additional Public Prosecutor of a District and Sessions Court in Lakshadweep had petitioned the High Court to quash a Sessions Court order which directed the police investigation into a complaint filed against him under the POCSO Act and the Juvenile Justice Act. The 2nd respondent, in this case, is a lawyer who practices in Lakshadweep and was representing an accused in another POCSO case in which a minor girl was kidnapped and sexually assaulted.

Initially, the 2nd respondent posted on Facebook that the petitioner was constantly contacting the minor survivor and was involved in her disappearance. A case, however, was filed against the second respondent for revealing the survivor’s identity in the post.

Following that, the second respondent filed a slew of complaints alleging the same thing. The Station House Officer, however, did not file a report. Soon after, a private complaint was filed before the Sessions Court which was forwarded to the SHO for Section 156 inquiry (3). The petitioner in this case is contesting this order. The petitioner’s attorney, S. Rajeev, stated that the Sessions Court merely submitted the complaint automatically without giving it any thought. He claimed that the 2nd respondent’s complaint was intentionally filed with the intent to “wreak personal vengeance” on the petitioner.

However, Attorney Vijin Karthik for the 2nd respondent contended that the Magistrate was not compelled to undertake a roving inquiry regarding all of the claims in the complaint at the time of transferring the same to the police for investigation in accordance with Section 156 (3).

The Court emphasized that the accused must have sexual intent and actual control or charge over the minor in order to commit the offence specified in Section 75 of the JJ Act. The SHO’s report, which said that the inquiry had determined the charges to be without merit, was also looked at by the Judge. It was observed:

“It is settled that the powers under S.156(3) of the Cr.PC cannot be exercised casually or mechanically but are required to be exercised judiciously…….The Magistrate/Court is not merely functioning as a “post office” in forwarding anything and everything filed in the form of a complaint. The Magistrate/Judge should certainly scrutinize the allegations in the complaint to satisfy himself that it discloses the necessary ingredients of the offence for which investigation is intended to be ordered and to find out whether it is a matter to be forwarded to the police to collect materials for a successful prosecution against the accused.”

The High Court quashed the order of the sessions court to prevent sheer abuse of the process of law.

–Report by Ishika Sehgal

The Kerala High Court stated on Tuesday that based on Supreme Court precedents, a partition deed signed by a Muslim mother acting as the guardian of her minor children is invalid.

According to the Division Bench of Justices P. B. Suresh Kumar and C. S. Sudha, even though there is nothing in personal law that forbids it, the Muslim mother cannot be the guardian of her minor child’s person or property, with the exception of movable property. It has been established by the various precedents.

CONTENTIONS OF APPELLANT

Invoking the Hadiths, the appellants made the case that a woman has been acknowledged as the guardian of both her husband’s home and his wards. These Hadiths were never taken into account in any of the rulings that found that a mother cannot serve as a minor’s guardian. Furthermore, there is nothing in the Quran that prevents a mother from serving as a guardian

CONTENTIONS OF RESPONDENTS

The renowned attorney for the respondents, however, stated that neither the Quran nor the Hadith mentions a mother becoming a guardian. She holds that one cannot infer something from the Quran or Hadith that is not there. The Quran and the Hadith both permit widows to remarry after the “iddah” time if they so choose and demand that the man bequeaths for the widow a year’s maintenance and residence without turning them out, therefore the mother was never supposed to be a guardian. Further, she made reference to Sita Ram v. Amir Begam (1886) ILR 8 All 324 case, wherein it has been decided that even though the appellant’s children were minors, she was ineligible to act as their guardian in these situations and hence could not exercise any power of disposition over their property.

JUDGEMENT

The Kerala High court stated that “There is nothing in the Qur’an or the Hadith prohibiting or barring women from being considered as guardians of their minor offsprings…Be that as it may, this court is bound by the decisions of the Hon’ble Supreme Court.”

The court further observed that it is undoubtedly true that the arguments put out by the knowledgeable appellants’ attorney, in this case, were never brought before the Hon’ble Supreme Court in any of the rulings. But According to the ruling in Ballabhadas Mathurdas Lakhani, the High Court cannot disregard a ruling by the Supreme Court if it believes that “the relevant clauses were not brought to the Court’s attention.” In the Shayara Bano case, it was decided that the Muslim personal law system, or Shariat, cannot be forced to comply with the laws outlined in Part III of the Indian Constitution, in accordance with Article 13 of the Constitution. Similar to this, the Apex Court has ruled in a number of decisions that Muslim mothers are not permitted to act as guardians of their underage children or property. The Court ruled that, in conformity with Article 14 of the Constitution, it is bound by past rulings.