Judicial Vision August 2021

In this Issue
Latest decisions
Civil law
Motor accident claims
Family law
Criminal law
Extension of limitation
At a glance…
Glossary of legal and administrative terms
Important Statutes/Government Orders/Notifications
Kerala Judicial Academy news
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Judicial education programmes in July 2021
Programmes at the Kerala Judicial Academy in August, 2021
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August 2021 Judicial Vision Issue # 8
LATEST DECISIONS
CIVIL LAW
Sesh Nath Singh v. Baidyabati Sheoraphuli Cooperative
Bank Ltd- AIR 2021 SC 2637
Limitation Act- Sec. 5
SUPREME COURT
1. Is an application mandatory to condone the delay
under Sec. 5 Limitation Act?
2. Would the proceedings under SARFAESI Act qualify
for exclusion under Sec. 14 Limitation Act?
3. What is the meaning of “court” in Sec. 14 (2)
Limitation Act?
4. Are Sec. 5 and Sec. 14 Limitation Act mutually
exclusive?
The link to read the judgment: Sesh Nath Singh v.
Baidyabati Sheoraphuli Co-operative Bank Ltd.
HIGH COURT
SUPREME COURT
Venigalla Koteswaramma v. Malampati Suryamba-
(2021) 4 SCC 246
TP Act-Sec. 40; CPC-O. 8 R. 2 & 8, O. 6 R.2, O. 7 R. 11,
O. 18 R. 2 & 3, Evidence Act-Sec. 101 to 103
1. What are the main issues with which the court is
concerned in a suit for partition?
2. Where one of the defendants in a suit for partition
has raised a plea in the written statement that his
predecessor in interest had executed a deed with
respect to a portion of the undivided property, is it
necessary for the plaintiff to amend the plaint to
incorporate a prayer for declaration with respect
to the said portion?
3. Is it necessary for the plaintiff to implead the legal
heirs of a defendant who died while appeal was
pending?
The link to read the judgment:Venigalla
Koteswaramma v. Malampati Suryamba
Thomas Daniel v. Rajan- 2021 (4) KLT 146
CPC O.21 R. 58, 97, 99, 101 & 103; C.F. Act
Sec. 37(1) & (2)
1. Is it permissible to execute a simple decree for
partition and separation against a third person for
getting possession?
2. What is the difference in the nature of suits covered
under Sec. 37(1) & (2) of Kerala Court Fees and Suits
Valuation Act?
3. Is it permissible to exhaust the remedy under Rule
97 of Order 21 CPC in a simple decree for partition
and separation?
4. Is there any change in the legal position, if the
decree is not a simple decree for partition and
separation, but also for possession?
5. Is there any scope for filing a claim petition either
under Rule 97 or under 101 of Order 21 CPC by a
third person/obstructor/resistor?
6. Whether an obstructor or resistor can maintain an
application under Order 21 Rule 97 CPC?
7. If not, what is the remedy available to him and what
would be the effect of bar under Rule 101 after the
amendment of Rule 103 of Order 21 CPC?
HIGH COURT
Velayudhan Pillai S. v. Chellath Franklin - 2021(4)
KHC 50
NI Act-Sec. 138, 141
Can a person described under Sec. 141(1) or (2) N.I.
Act be prosecuted without the company being
impleaded as an accused?
The link to read the order:Velayudhan Pillai S. v.
Chellath Franklin
HIGH COURT
Rafeek v. K. Kamarudeen - 2021 (4) KHC 34 (DB)
KBLR Act- Sec. 18, 20; Limitation Act-Sec. 5
1. What should be the approach of the courts dealing
with application under Sec. 5 Limitation Act?
2. How should the order condoning delay under Sec.
5 of Limitation Act be drafted?
The link to read the order:Rafeek v. K. Kamarudeen
The link to read the judgment:Thomas Daniel v.
Rajan
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August 2021 Judicial Vision Issue # 8
MOTOR ACCIDENT CLAIMS
United India Insurance Co. Ltd. v. Satinder Kaur -
2020 (3) KHC 760: AIR 2020 SC 3076: 2021(4) KLT
SN 10(C.No.8) (SC)
MV Act-Sec. 166
SUPREME COURT
Can compensation be awarded for loss of love and
affection as a separate head when loss of
consortium has been awarded?
The link to read the judgment:United India Insurance
Co. Ltd. v. Satinder Kaur
Uttar Pradesh State Road Transport Corporation v.
National Insurance Co. Ltd - C.A No. 18490/2017
MV Act-Sec. 166
SUPREME COURT
If an insured vehicle is plying under an agreement with
the corporation on the route as per permit granted in
favour of the Corporation and in case of any accident
during that period, whether the Insurance Company
would be liable to pay compensation or would it be the
responsibility of the corporation or the owner?
The link to read the judgment:Uttar Pradesh State Road
Transport Corporation v. National Insurance Co. Ltd.
FAMILY LAW
HIGH COURT
P.P. Rajesh v. Deepti P.R.- Mat Appeal No. 632 of
2018 dated 16.07.2021
Family Courts Act-Sec. 7
1. Should the court insist upon documentary
evidence in matrimonial proceedings to prove
exchange of gold ornaments at the time of
marriage?
2. Does the Family Court have jurisdiction to
adjudicate claim for damages on account of
matrimonial cruelty?
HIGH COURT
Rajeeve v. Sarasamma -2021 (4) KLT 171: 2021(4)
KHC 87(DB)
HMA-Sec. 7; Sec. 50 Evidence Act
1. How should a marriage solemnized under Sec. 7 of
Hindu Marriage Act be proved?
2. What is the scope and effect of Sec. 50 Evidence
Act?
The link to read the judgment:Rajeeve v. Sarasamma
The link to read the judgment:P.P. Rajesh v. Deepti P.R
CRIMINAL LAW
HIGH COURT
Sunil Kumar v. State of Kerala - 2021(4) KLT 51
P.C. Act-Sec. 13(1)(d) (ii)
1. Can a quasi-judicial exercise of power result in
a criminal prosecution under Sec. 13 (1) (d) (ii) of
the Prevention of Corruption Act?
2. Would presumption under Sec. 20 of the P.C.
Act apply to an offence under Sec. 13(1)(d) (ii) of
the Act?
The link to read the order: Sunil Kumar v. State of
Kerala
HIGH COURT
Muhammed Faizal M.T.P. @ Faizal v. Inspector of
Police, Kasaragod - 2021(4) KHC 13(DB)
Evidence Act-Sec. 27, 142, 154
1. How should contradictions in the statement of
witnesses be marked?
2. How should the court appreciate the evidence of
a hostile witness?
The link to read the judgment: Muhammed Faizal
M.T.P. @ Faizal v. Inspector of Police, Kasaragod
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August 2021 Judicial Vision Issue # 8
HIGH COURT
PoCSO Act-Sec. 5 (f)
CRIMINAL LAW
Alex P.V. v. State of Kerala -Crl. A. no. 416/2021 dated 13.07.2021
1. Can the evidence of a victim in a sexual offence be discarded on the ground that she had not spoken about
repeated sexual assaults or that there are embellishments in her version?
2. Would penetrative sexual assault committed by a Sunday school teacher become punishable under Sec. 5 (f) of
PoCSO Act?
3. Can the extract of admission register of a school, which is not the school first attended by the victim, be accepted
as proof of age of the victim?
The link to read the judgment:Alex P.V. v. State of Kerala
Suo motu v. State of Kerala - WP(C) no. 11316/2021 dated 06.08.2021
General- Extension of interim orders
during lockdown
Important- Unreported
in major law journals
Order for extension of interim orders & stays granted by the Hon’ble High Court till 27.08.2021. Suo motu writ petition
is disposed, granting liberty to the petitioners to file extension of application of interim orders from 31.08.2021.
The link to read the order: Suo motu v. State of Kerala - WP(C) no. 11316/2021 dated 06.08.2021
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1. Supreme
Court
Sayyed Ayaz Ali v.
Prakash G. Goyal
CA No 2401-
2402 of 2021
CPC- Sec.
2(2), Sec. 96,
O. 7. R. 11(b),
(c) & (d)
The definition of “decree” in Section 2(2) “shall be
deemed to include the rejection of a plaint”. Hence, the
order of the Trial Court rejecting the plaint is subject to
a first appeal under Section 96 of the CPC. The writ
petition filed by the appellant was liable to be rejected
on that ground. (Para 12)
Order 7 Rule 11 proviso deals with a situation where
time has been fixed by the Court for the correction of
the valuation or for supplying of the requisite stamp
paper. Under the proviso, the time so fixed shall not be
extended unless the court, for reasons to be recorded,
is satisfied that the plaintiff was prevented by a cause of
an exceptional nature from complying within the time
fixed by the court and that a refusal to extend time
would cause grave injustice to the plaintiff. The proviso
evidently covers the cases falling within the ambit of
clauses (b) and (c) and has no application to a rejection
of a plaint under Order 7 Rule 11(d). (Para 13)
2 Supreme
Court
Ajaykumar alias
Bittu v. State of
Uttarakhand
(2021) 4 SCC
301
CrPC-Sec. 319 The principles for exercise of power under Section 319
Cr.P.C. by Criminal Court are well settled. The
Constitution Bench of this Court in Hardeep Singh
versus State of Punjab and others, (2014) 3 SCC 92, has
elaborately considered all contours of Section 319
Cr.P.C. This Court has held that Power under Section 319
Cr.P.C. is a discretionary and extra-ordinary power
which has to be exercised sparingly. This Court further
held that the test that has to be applied is one which is
more than prima facie case as exercised at the time of
framing of charge, but short of satisfaction to an extent
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that the evidence, if goes unrebutted, would lead to
conviction. (Para 5)
The view of the High Court which is recorded in
following words: - “…this court is of the view that no
simultaneous challenge to the impugned order dated
17.08.2019 summoning the revisionists under Section
319 of Cr.P.C. would be tenable before this Court till the
order dated 18.09.2019, passed in the proceedings at
the behest of present revisionist, subsist.” cannot be
said to be the correct view. (Para 12)
3 Supreme
Court
V.N. Patil v. K.
Niranjan Kumar
(2021) 3 SCC
661
CrPC-Sec. 311 The object underlying Section 311 CrPC is that there
may not be failure of justice on account of the mistake of
either party in bringing the valuable evidence on
record or leaving ambiguity in the statements of the
witnesses examined from either side. The
determinative factor is whether it is essential to the just
decision of the case. The significant expression that
occurs is “at any stage of any inquiry or trial or other
proceeding under this Code”. It is, however, to be
borne in mind that the discretionary power conferred
under Section 311 CrPC has to be exercised judiciously,
as it is always said “wider the power, greater is the
necessity of caution while exercise of judicious
discretion.” (Para 15)
The aim of every Court is to discover the truth. Section
311 CrPC is one of many such provisions which
strengthen the arms of a court in its effort to unearth the
truth by procedure sanctioned by law. At the same time,
the discretionary power vested under Section 311 CrPC
has to be exercised judiciously for strong and valid
reasons and with caution and circumspection to meet
the ends of justice. (Para 18)
It is not necessary that in every case, it is required to
record elaborate reasons but since the matters are
carried forward to this Court, the reasons, albeit brief
may be, have to be recorded to facilitate this Court to
understand as to what weighed with the Ld. Judge while
passing the impugned judgment, moreover, when the
finding of reversal has been recorded by the Ld. Judge
in its impugned judgment. (Para 24)
4 Supreme
Court
N. Vijayakumar v.
State of Tamilnadu
(2021) 3
SCC 687
PC Act-Sec. 7 Mere recovery by itself cannot prove the charge of the
prosecution against the accused. Reference can be
made to the judgments of this Court in the case of C.M.
Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3
SCC 779 and in the case of B. Jayaraj v. State of Andhra
Pradesh (2014) 13 SCC 55. In the aforesaid judgments of
this Court while considering the case under Sections 7,
13(1)(d)(i) and (ii) of the Prevention of Corruption Act,
1988 it is reiterated that to prove the charge, it has to be
proved beyond reasonable doubt that accused
voluntarily accepted money knowing it to be bribe.
Absence of proof of demand for illegal
gratification and mere possession or recovery of
currency notes is not sufficient to constitute such
offence. In the said judgments it is also held that even
the presumption under Section 20 of the Act can be
drawn only after demand for and acceptance of illegal
gratification is proved. It is also fairly well settled
that initial presumption of innocence in the criminal
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jurisprudence gets doubled by acquittal recorded by
the trial court. (Para 12).
5 Supreme
Court
Compack
Enterprises India
(P) Limited v.
Beant Singh
(2021) 3 SCC
702: AIR
2021 SC
2821
CPC-Secs.
151, O. 23 R.3,
Consent decrees are intended to create estoppels by
judgment against the parties, thereby putting an end to
further litigation between the parties. Resultantly, this
Court has held that it would be slow to unilaterally
interfere in, modify, substitute or modulate the terms of
a consent decree, unless it is done with the revised
consent of all the parties thereto. (Gupta Steel Industries
v. Jolly Steel Industries Pvt. Ltd. & anr., (1996) 11 SCC 678;
Suvaran Rajaram Bandekar & ors. v. Narayan R. Bandekar
& ors., (1996) 10 SCC 255). (Para 18)
However, this formulation is far from absolute and does
not apply as a blanket rule in all cases. This Court, in
Byram Pestonji Gariwala v. Union Bank of India &ors.,
(1992) 1 SCC 31, has held that a consent decree would
not serve as an estoppel, where the compromise was
vitiated by fraud, misrepresentation, or mistake. Further,
this Court in the exercise of its inherent powers may also
unilaterally rectify a consent decree suffering from
clerical or arithmetical errors, so as to make it conform
with the terms of the compromise. (Para 20)
6 Supreme
Court
Union of India v.
K.A. Najeeb
(2021) 3
SCC 713
CrPC-Sec. 439 “It must be emphasised at the outset that there is a vivid
distinction between the parameters to be applied while
considering a bail application, vis--à--vis those
applicable while deciding a petition for its
cancellation…. Ideally, no person ought to suffer
adverse consequences of his acts unless the same is
established before a neutral arbiter. However, owing to
the practicalities of real life where to secure an effective
trial and to ameliorate the risk to society in case a
potential criminal is left at large pending trial, Courts
are tasked with deciding whether an individual ought to
be released pending trial or not. Once it is obvious that
a timely trial would not be possible and the accused has
suffered incarceration for a significant period of time,
Courts would ordinarily be obligated to enlarge them
on bail (Para 16)”
7 Supreme
Court
Joydeep
Majumdar v.
Bharati Jaiswal
Majumdar
(2021) 3
SCC 742
HMA-Sec.
13(1) (ia)
For considering dissolution of marriage at the instance
of a spouse who allege mental cruelty, the result of such
mental cruelty must be such that it is not possible to
continue with the matrimonial relationship. In other
words, the wronged party cannot be expected to
condone such conduct and continue to live with his/her
spouse. The degree of tolerance will vary from one
couple to another and the Court will have to bear in
mind the background, the level of education and also
the status of the parties, in order to determine whether
the cruelty alleged is sufficient to justify dissolution of
marriage, at the instance of the wronged party. In Samar
Ghosh v. Jaya Ghosh (2007) 4 SCC 511, this Court gave
illustrative cases where inference of mental cruelty
could be drawn even while emphasizing that no uniform
standard can be laid down and each case will have to be
decided on its own facts. (Para 10)
Here the allegations are levelled by a highly educated
spouse and they do have the propensity to irreparably
damage the character and reputation of the appellant.
When the reputation of the spouse is sullied amongst his
colleagues, his superiors and the society at large, it
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would be difficult to expect condonation of such
conduct by the affected party. (Para 13)
8 Supreme
Court
The High Court of
Judicature at
Madras rep by its
Registrar General
v. M.C.
Subramaniam
AIR 2021 SC
2662
CPC-Sec. 89
The provisions of Section 89 of CPC must be understood
in the backdrop of the longstanding proliferation of
litigation in the civil courts, which has placed undue
burden on the judicial system, forcing speedy justice to
become a casualty. As the Law Commission has
observed in its 238th Report on Amendment of Section
89 of the Code of Civil Procedure 1908 and Allied
Provisions, Section 89 has now made it incumbent on
civil courts to strive towards diverting civil disputes
towards alternative dispute resolution processes, and
encourage their settlement outside of court (Para
2.3). These observations make the object and purpose
of Section 89 crystal clear – to facilitate private
settlements, and enable lightening of the overcrowded
docket of the Indian judiciary. This purpose, being
sacrosanct and imperative for the effecting of timely
justice in Indian courts, also informs Section 69A of the
1955 Act, which further encourages settlements by
providing for refund of court fee. This overarching and
beneficent object and purpose of the two provisions
must, therefore, inform this Court’s interpretation
thereof. (Para 12)
Section 89 of CPC shall cover, and the benefit of Section
69A of the 1955 Act shall also extend to,
all methods of out of court dispute settlement
between parties that the Court subsequently finds to
have been legally arrived at. This would, thus, cover the
present controversy, wherein a private settlement was
arrived at, and a memo to withdraw the appeal was filed
before the High Court. In such a case as well, the
appellant, i.e., Respondent No. 1 herein would be
entitled to refund of court fee. (Para 21)
9 Supreme
Court
Nathu Singh v.
State of Uttar
Pradesh
2021 KHC
6282
CrPC - Sec.
438
Even when the Court is not inclined to grant
anticipatory bail to an accused, there may be
circumstances where the High Court is of the opinion
that it is necessary to protect the person apprehending
arrest for some time, due to exceptional circumstances,
until they surrender before the Trial Court. For example,
the applicant may plead protection for some time as
he/she is the primary caregiver or breadwinner of
his/her family members, and needs to make
arrangements for them. In such extraordinary
circumstances, when a strict case for grant of
anticipatory bail is not made out, and rather the
investigating authority has made out a case for custodial
investigation, it cannot be stated that the High Court has
no power to ensure justice. It needs no mentioning, but
this Court may also exercise its powers under Article
142 of the Constitution to pass such an order. (Para 24)
However, such discretionary power cannot be exercised
in an untrammelled manner. The Court must take into
account the statutory scheme under Section 438, CrPC,
particularly, the proviso to Section 438(1) CrPC, and
balance the concerns of the investigating agency,
complainant and the society at large with the
concerns/interest of the applicant. Therefore, such an
order must necessarily be narrowly tailored to protect
the interests of the applicant while taking into
consideration the concerns of the investigating
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authority. Such an order must be a reasoned one. (Para
25)
10 Supreme
Court
New India
Assurance v.
Urmila Shukla
C. A No.
4634/2021
MV Act- Sec.
168
The discussion on the point in Pranay Sethi was from the
standpoint of arriving at “just compensation” in terms of
Section 168 of the Motor Vehicles Act, 1988. (Para 10)
If an indicia is made available in the form of a statutory
instrument which affords a favourable treatment, the
decision in Pranay Sethi cannot be taken to have limited
the operation of such statutory provision specially when
the validity of the Rules was not put under any
challenge. The prescription of 15% in cases where the
deceased was in the age bracket of 50-60 years as
stated in Pranay Sethi cannot be taken as maxima. In the
absence of any governing principle available in the
statutory regime, it was only in the form of an indication.
If a statutory instrument has devised a formula which
affords better or greater benefit, such statutory
instrument must be allowed to operate unless the
statutory instrument is otherwise found to be invalid.
(Para 11)
11 Supreme
Court
Nagabhushan v.
State of Karnataka
(2021) 5
SCC 222
Evidence Act-
Sec. 32(1)
The decisions of this Court in the cases of Nallam Veera
Stayanandam v. Public Prosecutor (2004) 10 SCC 769;
Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343;
and Ashabai v. State of Maharashtra (2013) 2 SCC 224 are
required to be referred to. In the aforesaid decisions,
this Court had an occasion to consider the cases where
there are multiple dying declarations. In the aforesaid
decisions, it is held that each dying declaration has to
be considered independently on its own merit as to its
evidentiary value and one cannot be rejected because
of the contents of the other. It is also held that the Court
has to consider each of them in its correct perspective
and satisfy itself which one of them reflects the true state
of affairs. When there are multiple dying declarations,
each dying declaration has to be separately assessed
and evaluated on its own merits. (Para 10)
12 Supreme
Court
Sunil Kumar @
Sudhir Kumar v.
The State of Uttar
Pradesh
Crl A No.
526/2021
dated
25.05.2021
CrPC-Sec.
31(1)
Section 31(1) CrPC vests complete discretion with the
Court to order the sentences for two or more offences at
one trial to run concurrently having regard to the nature
of offences and the surrounding factors. Even though it
cannot be said that consecutive running is the normal
rule but, it is also not laid down that multiple sentences
must run concurrently. There cannot be any straitjacket
approach in the matter of exercise of such discretion by
the Court; but this discretion has to be judiciously
exercised with reference to the nature of the offence/s
committed and the facts and circumstances of the case.
However, if the sentences (other than life imprisonment)
are not provided to run concurrently, one would run
after the other, in such order as the Court may direct.
(Para 10).
For what has been provided in Section 31(1) CrPC read
with the expositions of this Court, it follows that the
Court of first instance is under legal obligation while
awarding multiple sentences to specify in clear terms as
to whether they would run concurrently or
consecutively. (Para 11)
If the Court of first instance does not specify the
concurrent running of sentences, the inference,
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primarily, is that the Court intended such sentences to
run consecutively, though, as aforesaid, the Court of first
instance ought not to leave this matter for deduction at
the later stage. Moreover, if the Court of first instance is
intending consecutive running of sentences, there is yet
another obligation on it to state the order (i.e., the
sequence) in which they are to be executed. (Para 12)
13 High Court Arun Baby v. State
of Kerala
2021(3) KHC
406
CrPC -Sec.
317
The normal rule is that evidence in a case shall be taken
in the presence of the accused. However, even in the
absence of the accused, evidence can be taken but then
his counsel must be present in the Court, provided the
accused has been granted exemption from attending
the Court. If the progress of the trial can be achieved
even in the absence of the accused, the Court can
certainly take into account the magnitude of the
sufferings which a particular accused person may have
to bear with in order to make himself present in the
Court. However, one precaution which the Court should
take in such a situation is that the said benefit need be
granted only to an accused who gives an undertaking to
the satisfaction of the Court that he would not dispute
his identity as the particular accused in the case, and
that a counsel on his behalf would be present in Court
and that he has no objection in taking evidence in his
absence (See Bhaskar Industries Limited v. Bhiwani
Denim and Apparels Limited (2001 KHC 714)). (Para 10)
The decisions referred to above would show that, if the
Court is satisfied that, in the interests of justice, the
personal attendance of an accused before it need not
be insisted on, then the Court has the power to dispense
with his attendance. If a Court feels that insisting on the
personal attendance of an accused in a case would be
too harsh, the Court can grant appropriate relief to him.
(Para 12)
14 High Court Riljin V. George v.
State of Kerala
2021(4) KLT
13
IPC-Sec. 353
To attract Section 353 IPC, one of the main ingredients is
that the assault or criminal force should be to deter the
public servant who was discharging his official duty.
Admittedly, the defacto complainant was attending an
enquiry based on a complaint filed by a lawyer. At no
stretch of imagination, it can be said that the defacto
complainant was in lawful discharge of his duty as a
public servant, at the time of the alleged incident.
Simply because he is in uniform, Section 353 IPC will not
attract.
15 High Court Ahmed Kabeer v.
State of Kerala
2021(4) KLT
27: 2021 (3)
KHC 427
CrPC-Sec.
167(2)
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Only in the case when a charge sheet is not filed and
investigation is kept pending, the benefit of the proviso
appended to sub-section (2) of S.167 of the Code would
be available to an offender; once, however, a charge
sheet is filed, the said right ceases. On a reading of the
provisions contained in S.167(2) of the Code, it can be
found that the only contingency under which the
accused gets right to be released on bail under that
provision is the non - filing of the final report by the
investigating officer within the period of sixty / ninety /
one hundred and eighty days, as the case may be. Once
the charge sheet is filed within the stipulated period, the
right of the accused stands extinguished. I am of the
view that such a right, does not get revived merely for
the reason that the Court has not taken the case on file
and assigned a number. The duty of the prosecution to
complete the investigation on time end with the filing of
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16 High Court Aravindan v.
Udayakumar
2021(4) KLT
76
Easements
Act-Sec. 52
the final report. The rest is for the Court to do. Nowhere
is it said that the cognizance has to be taken forthwith.
Hence the fact that the court remanded the accused
without assigning a number to the case, will not revive
the right to seek statutory bail. Once the final report is
filed, the indefeasible right to seek statutory bail
without going into the merits of the case comes to an
end. Thereafter, the accused is entitled to seek bail on
merits. (Para 5)
Merely because other modes of eviction are available to
the plaintiff, the remedy by way of mandatory injunction
cannot be denied. The owner of immovable property on
termination of the license is entitled to maintain a suit
for mandatory injunction against the licensee to vacate
the property. In Rajappan v. Veeraraghava Iyer (1969 KLT
811), a learned Single Judge of this Court held that when
the owner of immovable property terminates a licence,
he can sue for mandatory injunction directing the
licensee to vacate the property without praying for
possession since the licensee's possession cannot in the
eye of law exclude the owner's possession. (Para 15)
17 High Court T.O. Sooraj v. State
of Kerala
WP(C) NO.
12672 OF
2021 dated
23.07.2021
PC Act-Sec.
17A
A close scrutiny of the provisions contained in Section
17A of the Act would reveal the following: (1) The bar
under Section 17A of the Act operates against a police
officer (2) It prohibits a police officer from conducting
any enquiry or inquiry or investigation into any offence
alleged to have been committed by a public servant
under the Act without the previous approval of the
prescribed authority (3) The bar under the provision
operates or applies only when the offence allegedly
committed by a public servant under the Act relates to
any recommendation made or decision taken by such
public servant in discharge of his official functions or
duties (4) The authority competent to grant previous
approval for enquiry or inquiry or investigation is the
Central Government in the case of a person employed
in connection with the affairs of the Union (5) The
authority competent to grant previous approval for
enquiry or inquiry or investigation is the State
Government in the case of a person employed in
connection with the affairs of the State (6) The authority
competent to grant previous approval for enquiry or
inquiry or investigation in the case of any other person
is the authority competent to remove the public servant
from his office (7) The provision also applies in case of
a retired public servant. The previous approval
envisaged under Section 17A of the Act is necessary
even if the public servant has retired from service (8)
Section 17A of the Act does not apply to cases involving
arrest of a person on the spot on the charge of accepting
or attempting to accept any undue advantage for
himself or for any other person (9) The time which shall
be taken by the authority concerned to convey its
decision on granting of approval is three months (10)
The authority may, for reasons to be recorded in writing,
extend the above time by a further period of one month.
(Para 11)
18 High Court P.K. Gopi v.
Gopinathan
RSA No.463
OF 2021
CPC- Sec.
151, O.2.R.2
Sub-rule (1) to Rule 2 of Order 2 Rule 2 of the C.P.C.
deals with the frame of the suit and enables the plaintiff
to abandon or relinquish a part of his claim before filing
his plaint. The provisions of Order 2 Rule 2 indicate that
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if a plaintiff is entitled to several reliefs against the
defendant in respect of the same cause of action, he
cannot split up the claim so as to omit one part of the
claim and sue for the other. If the cause of action is the
same, the plaintiff has to place all his claims before the
court in one suit as Order 2 Rule 2 is based on the
cardinal principle that the defendant should not be
vexed twice for the same cause. One of the objects of
Order 2 Rule 2 is to avoid multiplicity of suits. (Para 11).
Where the plaintiff is aware of his relief and yet omits to
claim in the previous suit, a subsequent suit for such
relief is barred. To make the Rule applicable, the
defendants must satisfy three conditions, namely, (i) the
previous and second suit must arise out of the same
cause of action; (ii) both the suits must be between the
same parties; and (iii) the earlier suit must have been
decided on merit. (Para 12)
19 High Court Jabeen Ihsan v.
Noushima
Basheer
2021 (4)
KHC 78 (DB)
CPC-O. 23
R.1(3) and
Family Courts
Act-Sec. 7
As per Order XXIII Rule 1(3) of Civil Procedure Code
(for short "the Code"), the plaintiff can seek permission
to withdraw from the suit with liberty to file fresh suit in
respect of the same subject matter of the suit, on any of
the two grounds: (1) the suit would fail by reason of
some formal defect (2) there are sufficient ground for
allowing the plaintiff to institute a fresh suit in respect of
the same subject matter. The Court can allow the
application under Order XXIII Rule 1(3) only on
satisfaction of either of these conditions. The word
"formal defect" appearing in Rule 1 sub-clause (3) of
Order XXIII of the Code means the defect which does
not affect the merits of the case whether that defect is
fatal to the suit or not. There is no case for the petitioner
that there is any such formal defect. The learned
counsel for the petitioner submitted that there are
sufficient grounds for allowing the petitioner to institute
a fresh suit for the subject matter of the suit and hence
the Court below ought to have allowed Ext.P3
application. In support of his argument, the learned
counsel has relied on a latest judgment of this Court in
Sabu Issac v. Antony Chacko (2020 KHC 682). It was held
therein that the expression "sufficient grounds"
occurring in clause (b) of Rule 1(3) of Order XXIII of the
Code is not to be read ejusdem generis with the
expression "formal defect" occurring in clause (a). It
was further observed that there is no requirement that
"sufficient ground" pleaded by the plaintiff for seeking
permission to withdraw the suit with liberty to institute
fresh suit shall be analogous to a formal defect. (Para 5)
It is settled that the subject matter of the suit which is
sought to be instituted afresh shall be the same as that
of the suit which is sought to be withdrawn. The subject
matter mentioned in clause (3) of Rule (1) includes the
cause of action as well. Thus, no permission can be
granted if the suit sought to be instituted is in respect of
different subject matter. Sub-rule (3) is not intended to
permit a plaintiff to withdraw one suit and to institute
any suit as he likes. (Para 6)
20 High Court P.K. Abdul Sathar
v. State of Kerala
WP(C) no.
30716/2017
dated
07.07.2021
CrPC- Sec.
178(8)
When some fresh facts come to light leading to
inculpating and exculpating certain persons, arriving at
the truth and doing substantial justice in a criminal case
are more important than avoiding further delay being
caused in concluding the criminal proceeding, as
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observed by the Apex Court in Vinubhai Haribhai
Malaviya v. State of Gujarat (2019(5) KHC 352: AIR 2019
SC 5233). (Para 14)
21 High Court Johny v. State of
Kerala
Crl.A. no.
1190/2016
dated
07.07.2021
CrPC- Sec.
173,
As per section 173(1) of CrPC, every investigation under
Chapter XII of Cr.P.C shall be completed without
unnecessary delay. Sub section (1-A) of section 173
provides that, investigation in relation to an offence
under sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D,
376-DA, 376-DB or 376-E of Indian Penal code shall be
submitted within 60 days. Section 173(3) provides that
as soon as the investigation is complete, a police report
in the prescribed manner is to be forwarded to a
Magistrate, who is competent to take cognizance
thereof. As per the above provisions, no time limit is
prescribed for completing the investigation, with
respect to the offences other than those mentioned in
section 173(1-A)). As the offence under section 302 of
IPC is not among the offences mentioned in section
173(1-A), the time limit prescribed therein is not
applicable. The provision applicable in this case is s.
173(1), which provides for completion of the
investigation, without “unnecessary delay”. So, the
question to be considered is whether there is
unnecessary delay in completing the investigation. It is
true that the proviso to section 167 (2) of Cr.P.C
stipulates a period of 90 days for completing the
investigation. The period prescribed in section 167 (2)
is a statutory stipulation affecting the detention of the
accused and in no manner, it curtails the right of the
police to investigate. This is particularly so, as the
period of investigation is governed by section 173 of
Cr.P.C, and it does not provide for any time limit for
offences other than those mentioned in section 173(1-
A). The only stipulation therein is that the investigation
has to be completed without unnecessary delay. Of
course, section 468 of Cr.P.C provides for a period of
limitation for taking cognizance of certain offences.
However, section 468 does not prescribe any period of
limitation for the offences punishable with
imprisonment for life. This being a case involving an
offence punishable with imprisonment for life, what is
applicable is section 173(1) and thus, the police were
only under an obligation to complete the investigation
and submit the charge sheet without unnecessary delay.
(Para 6)
The expression “unnecessary delay” is subjective in
nature, as it depends upon various factors and it may
vary from case to case, depending upon the factual
scenario, of each case. (Para 7)
The existence of enmity by itself cannot be taken as a
ground to disregard the evidence of a witness, if it is
found in a scrutiny that the said evidence is otherwise
convincing and consistent. (Para 17)
22 High Court Yasir v. Director or
Vigilance and
Anticorruption
Bureau
2021 (4) KLT
369
PC Act- Sec.
13(1)(b),
13(1)(e) & 13
(2), CrPC-
Secs. 154 to
173
The cause of an affected accused cannot be agitated by
next friends or close relatives unless the accused is
incapacitated to take recourse to legal remedy (See
Romila Thapar v. Union of India: AIR 2018 SC 4683).(Para
13)
It is for the investigating agency to submit final report in
the court concerned after full and complete
investigation. The investigating agency may submit a
report finding the allegations substantiated. It is also
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open to the investigating agency to submit a report
finding no material to support the allegations made in
the first information report. When the investigation is in
progress, it is not for this Court to comment on the
tentative view of the investigating agency. (Para 16)
The investigation of an offence is the domain of the
police. The power to investigate into cognizable
offences by a police officer is ordinarily not impinged
by any fetters. The manner and the method of
conducting the investigation are left entirely to the
investigating officer. As far as the steps taken by the
investigating officer are legal and proper, the Court has
no power to interfere with the same. The formation of
the opinion, whether there is sufficient evidence or
reasonable ground of suspicion to justify the forwarding
of the case to the competent court or not, as
contemplated by Sections 169 and 170 of the Code, is to
be that of the investigating officer. The investigation
under the Code, takes in several aspects and stages,
ending ultimately with the formation of an opinion by
the police as to whether or not, on the materials
collected, a case is made out to send the accused for
trial before the competent court. The submission of the
final report is dependent on the nature of the opinion so
formed. The formation of the said opinion, which is the
final step in the investigation, is to be taken only by the
investigating officer and by no other authority. (Para 16)
Ordinarily, an accused has no right to seek change of
investigating officer (See Visakhmon v. Director General
of Police: 2020 SCC Online Ker 2150). If that be the legal
position, the petitioners, who are close relatives of the
accused and who are third parties, cannot be heard to
say that the case shall be investigated by an officer of
their choice other than the third respondent. (Para 21)
23 High Court State of Kerala v.
Muneer
Crl MC no.
4004/2020
dated
28.10.2020
2021(4) KLT
SN
13(C.No.10)
CrPC-Sec.
167 (2)
The indefeasible right of a remanded accused to be
released on bail by the operation of proviso to Section
167(2) of the Cr.P.C. is on the occurrence of default on
the part of the Investigating Agency to complete the
investigation and file final report within the time
allowed (60 days or 90 days as the case may be), and
the said right is enforceable by the remanded accused
only from the date of default till the date of filing of final
report/charge sheet and it cannot be enforced if the
final report/charge sheet has been filed before the
remanded accused has made his default bail plea, even
though the said final report has been filed after the
default period. In other words, even if the Investigating
Agency has not filed the final report/charge sheet
within the default period prescribed in Section 167
Cr.P.C. (60 days or 90 days as the case may be, from the
day of remand) so long as the Investigating Agency,
thereafter, files the final report but before the remanded
accused has made his plea to be released on statutory
default bail, then the said right which would have
accrued after the default period, would get
extinguished at the time when the final report is filed,
and in view of the said extinguishment, the belated plea
of the remanded accused to be released on default bail,
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which is made after the filing of final report will not be
of any benefit to him. (Para 8)
In paragraph Nos.22 to 24 of the final order dated
02.09.2019 in Crl.M.C. No.4826/2019, this Court has
held that the court below has its duty and obligation to
examine the final report immediately after its filing and
to note the defects and to return the same to the
Investigating Officer for curing the defects and for resubmission,
especially in those cases where the
remanded accused is likely to put up a claim for default
bail plea and that such a statutory duty is cast on the
court going by the statutory provisions contained in the
aforementioned Rules 67 & 68 of the Criminal Rules of
Practice, Kerala, 1982, which has been dealt with in
paragraph No.15 of the order in Crl.M.C. 4826/2019.
This Court held therein that in a case where the final
report/charge sheet is filed either within the default
period or immediately thereafter, but before filing of the
statutory default bail plea by the accused, is defective
as on the date of filing of the said bail plea, then the
accused could put up the plea for statutory bail plea. But
in a case where the investigating agency has diligently
completed the investigation and has filed the final
report/charge sheet within the default period or
thereafter, but before the filing of the statutory bail plea
by the remanded accused, then the court is also having
a duty to alert the investigating agency to cure the
defects and still if the investigating agency has not
cured the subsisting defects as on the date of filing of
the statutory bail plea, then the right of the accused has
to be respected. But, at the same time, if the
investigating agency has been able to diligently cure
the defects and resubmit the final reports before the
abovesaid bail plea made by the accused, then
certainly the earlier accrued right, if any, will get
extinguished and the omission on the part of the court
to immediately notify the investigating agency in a case
like that to cure the defects, cannot be the substantial
basis to hold that the accused in such a case will still get
the indefeasible right to be released on default bail and
if such an approach is made, it would be rather too
hyper technical and without upholding and due regard
to the public interest.(Para 10)
Abbreviations
1. IPC- Indian Penal Code, 1860
2. CrPC-Code of Criminal Procedure, 1973
3. CPC-Code of Civil Procedure, 1908
4. KBLR Act- Kerala Building (Lease and Rent Control) Act, 1959
5. PoSCO Act - Protection of Children from Sexual Offences Act,
2012
6. PC Act-Prevention of Corruption Act, 1988
7. NI Act-Negotiable Instruments, 1881
8. MV Act- Motor Vehicles Act, 1988
9. TP Act -Transfer of Property Act, 1882
10. HMA- Hindu Marriage Act, 1955
Glossary of legal and administrative terms
De facto - വതാപരം
De jure - നിയമപരം
Demobilisation - പിരിവിടൽ
Delusion - മിഥ, മം
Demarcation
Defaulter
Demeanour
- അതിർി നിർയം
- വീ വയാൾ
- ഭാവേചകൾ; െപമാ രീതി
Demurrage – കാലവിളംബ ചും; കാലതാമസ നപരിഹാരം
De novo trial - പുനർ വിചാരണ
Delimitation - അതിർി പുനർ നിർയം
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August 2021 Judicial Vision Issue # 8
Important Statutes/Government Orders/
Notifications
Important Circulars/Official Memoranda of
the Hon’ble High Court of Kerala
Kerala Epidemic Diseases Act, 2021.
Kerala Disaster and Public Health Emergency
(Special Provisions) Ordinance, 2021 (2021 (4)
KHC S1)
Kerala Dowry Prohibition (Amendment) Rules,
2021-G.O.(P) No.13/2021/SJD dated 13.07.2021
Kerala Registration of Births & Deaths
(Amendment) Rules- G.O. (P) No. 29/2021/
LSGD dated 14.07.2021
Sec. 138 NI Act- Speedy trial -Practice Directions –
High Court Official Memorandum no. D1-
3/24938/2020 dated 26.07.2021
Supply of KHC & KLD to Judicial officers – High
Court Official Memorandum no. D8-97130/20 dated
8.07.2021 & 29.07.2021.
Reference u/s 3H (4) of National Highways Act,
1956- nomenclature-assigning of - High Court
Official Memorandum no. D1-31879 /2019 dated
3.08.2021
Kerala Judicial Academy News
1. The mandatory two months training for the newly appointed three District Judges has commenced on 2 nd
August 2021.
2. The newly appointed 37 Munsiff Magistrate of 2020-2021 batch have been included in the Judicial
Mentoring programme. Meeting of mentors and mentees was conducted on 7 th and 8 th July 2021 to review
the current programme and to initiate new mentors and mentees into the programme.
PHOTO CORNER
“The trial Judge has a duty under the Constitution and the CrPC, to identify and
dispose of frivolous litigation at an early stage by exercising, substantially and
to the fullest extent, the powers conferred on him”
-Krishna Lal Chawla v. State of U.P., AIR 2021 SC 1381(*Mohan M. Shantanagoudar, R. Subhash Reddy JJ)
Hon'ble Mr. Justice A. Hariprasad addressing
the participants of the Knowledge
Enhancement Training (KET) on Civil Appeals
held on 02.07.2021.
Hon'ble Mr. Justice R. Narayana Pisharadi
addressing the participants of the Skill
Enhancement Training (SET) on Adjudication
of cases involving offences under Sec.138 NI
Act held on 03.07.2021.
Hon'ble Mr. Justice C.S. Dias addressing the
participants of the Skill Enhancement Training
(SET) on Compassionate approach to
resolution of family disputes and adoption
held on 24.07.2021.
Hon'ble Mr. Justice Anil K. Narendran
addressing the participants of the Skill
enhancement training on Determination of
just compensation in motor accident claims
held on 31.07.2021.
Dr. Arun B. Nair addressing the participants of
the Skill Enhancement Training (SET) on
Compassionate approach to resolution of
family disputes and adoption held on
24.07.2021.
Dr.Jaseem Koorankot addressing the
participants of the Skill Enhancement Training
(SET) on Compassionate approach to
resolution of family disputes and adoption
held on 24.07.2021.
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August 2021 Judicial Vision Issue # 8
Kerala Judicial Academy News
Judicial education programmes in July 2021
Topic Date Participants* Faculty
1 Knowledge Enhancement Training (KET)
on Civil Appeals
2
3
Skill Enhancement Training (SET) on
Adjudication of cases involving offences
under Sec.138 NI Act
Pre-examination Training for SC-ST
candidates of Kerala Judicial Subordinate
Service Main (written examination)
4 Skill Enhancement Training (KET) on
Execution of decrees and orders
02/07/2021
03/07/2021
05/07/2021
to
09/07/2021
16/07/2021
&
17/07/2021
District Judges
(62)
Magistrates
(52)
SC-ST
candidates
(12)
Munsiffs
(50)
Hon’ble Mr. Justice A. Hariprasad,
Former Judge, High Court of Kerala
Hon’ble Mr. Justice
R. Narayana Pisharadi
Judge, High Court of Kerala
Directors of Kerala Judicial
Academy, High court of Kerala
Directors of Kerala Judicial
Academy, High Court of Kerala
5 Skill Enhancement Training (SET) on
Compassionate approach to resolution
of family disputes and adoption
23/07/2021
&
24/07/2021
Family Court
Judges
(24)
Dr. Jaseem Koorankot,
Assistant Professor & Head
Department of Clinical Psychology,
Institute of Mental Health &
Neuroscience Govt. Medical
College, Calicut,
6
Skill Enhancement Training (SET) on
Determination of just compensation in
motor accident claims
31/07/2021
District Judges
dealing with
motor accident
claims
(35)
Dr. Arun B. Nair,
Assistant Professor,
Govt. Medical College,
Thiruvananthapuram
&
Hon’ble Mr. Justice C.S. Dias
Judge, High Court of Kerala
Hon’ble Mr. Justice
Anil K. Narendran
Judge, High Court of Kerala
*The number of participants of each programme is shown in brackets.
Programmes at the Kerala Judicial Academy in August, 2021
Sl.No Date Training Participants
1 06/08/2021
&
07/08/2021
2 02/08/2021
onwards
Skill Enhancement Training (SET) on Judgment writing and
appreciation of evidence in sessions trial
Mandatory in-service induction training programme (at Academy)
Assistant Sessions Judges
District Judges (Direct recruit)
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Editorial support team:
1. Sri. Elias P.Y., Assistant Registrar
2. Sri. Ratheesh Kumar P.C., Librarian
3. Smt. Lavanya V., Reference Librarian
4. Sri. Rajesh Madhavan U.V, Section Officer
5. Smt. Anitha C.M, Personal Asst. to Judge
6. Sri. Renjan M.R., Computer Assistant
7. Sri. Rajesh Kumar T.G., Attender
All programmes of the academy, except
the training for direct recruit district
judges are being conducted online
using Google Meet.
Disclaimer: This publication is for exclusive circulation among judicial officers. The Kerala Judicial Academy has taken every effort to provide accurate
information in the newsletter. Various links are provided after verification ” by the Academy. However, the readers are advised to verify the full text of
judgments from the website of the appropriate court or forum. The Kerala Judicial Academy, its directors, officials, or any person connected with it shall
not be liable for any mistake, omission or error in this publication or any risk associated with the links provided or for any action taken or omitted to be
taken or advice rendered or accepted based on this publication.
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