sexually provocative
Case BriefsDistrict Court


Court of Sessions, Kozhikode: In an interesting case, S. Krishna Kumar, Sessions Judge granted bail to 74 years old Malayali activist and writer Civic Chandran in a sexual assault case. While releasing the accused on bail, the Court remarked,

“The defacto complainant herself was dressed in sexually exposing and provocative clothes. Hence Section 354A will not prima facie stand against the accused.”

Factual Background

The incident in question is said to have occurred on 08-02-2020, when the defacto complainant attended a camp convened by the accused and others at Nandi beach. It was her case that when the participants were returning, the accused caught hold of her hand and forcefully took her to a secluded place; where he made her lie on his lap, pressed her breast, and tried to outrage her modesty.

An FIR was filed against the accused for offences under Sections 354-A (2) 341 and 354 of the Penal Code, 1860. The defacto complainant contended that it is the habit of the accused to molest lady poets and the instant case is the second crime registered against him; moreover, more persons are ready to file complaints against him.

Application for Bail

The case of the defacto complainant was contested on the following grounds:

  • It was a false case cooked up by enemies to seek vengeance against the accused.

  • The alleged offence was said to have commenced on 08-02-2020, while the case was registered on 29-07-2022, without offering any explanation regarding the delay.

  • The defacto complainant, being an educated lady, was well aware of the consequences of sexual assault. Hence, her reluctance to file a complaint had to be explained by her.

  • The accused is aged 74 years and holds a good reputation in society.

Pointing at the social media post of the defacto complainant, the accused contended that she had gone to the place of occurrence with her boyfriend, the invitation letter revealed that they had gone to ‘Kedal Veedu' which was owned by one Noorudheen. Further, there were many people at the time of the alleged incident yet no one pointed out any complaint against the accused.

Observations of the Court

The Court noted that it is the settled legal position that long delay in filing FIR must be properly explained. The offences alleged against the accused had occurred after the amendment to Sections 354A to E were incorporated.

The Court observed that there must be an assault or use of criminal force on a woman with an intention to outrage her modesty to establish an offence under Section 354. Further, in order to attract Section 354A, there must be physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours, and there must be sexually coloured remarks.

Pointing at the photographs produced by the accused along with the bail application, the Court opined that the defacto complainant herself was dressed in sexually exposing and provocative clothes. Hence Section 354A will not prima facie stand against the accused. The Court expressed,

“Even admitting that there was a physical contact, it is impossible to believe that a man who is aged 74 years and is physically disabled can forcefully put the defacto complainant in his lap and sexually press her breast.”


Consequently, the Court concluded that the accused could be released on bail. Accordingly, the bail application was allowed. The authorities concerned were directed to release the accused on bail on executing a bond for Rs. 50,000.

[Civic Chandran v. State of Kerala, Cr. Misc. No. 1303 of 2022, decided on 12-08-2022]

Advocates who appeared in this case :

P.V. Hari and Sushama M., Advocates, for the Accused;

Public Prosecutor, for the State.

*Kamini Sharma, Editorial Assistant has put this report together.

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Let’s have a look at the most interesting legal stories reported this week on the SCC Online Blog from High Courts, Foreign Court to District Court.

“Islam is not about turban and beard.”

— Federal Court of Putrajaya

Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

Read more, here.

To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

In Nadha Raheem v. C.B.S.E2015 SCC OnLine Ker 21660, Kerala High Court’s Single Judge Bench in the year 2015 dealt with petitions by two female students belonging to the Muslim community contending that the dress code prescribed by the Central Board of Secondary Education (C.B.S.E) of wearing half sleeve kurta/salvar would prejudice them, as their religious custom mandates them to wear a headscarf and also full sleeve dresses.

Read more, here.

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

In this case, a work rule was introduced, as per which all the employees had to wear a hard hat at a particular work site, but Bhinder a Sikh employee refused to comply with the said rule because his religion did not allow the wearing of headgear other than the turban.

Read more, here.

Did You Know? What Bombay High Court held when a Muslim girl raised the issue that asking her not to wear a “headscarf” in school violates her fundamental right under Article 25 of the Constitution of India?

“A girl student not wearing the head scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.”

Read more, here.

Did you know that 3 minor Muslim boys were expelled from school for not following dress code and for wearing “Serban” (turban) in Malaysia?

“…in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos.”

Read more, here.

Whether prohibition of ‘purdah’ is an infringement of constitutional right? What the Supreme Court of Kuala Lumpur (Federal Court of Malaysia) decided

“…there seem to be a myth or misconception by certain groups of Muslim in Malaysia regarding the wearing of purdah which covers the entire face except the eyes. They believe that it is one of the Islamic injunctions which must be followed strictly.”

Read more, here.

Uphaar Case | Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public? Read Del HC’s decision

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar Case, Subramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Read more, here.

If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’? Kerala HC elaborates

Expressing that, “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”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

Read more, here.

Teacher administering moderate and reasonable force to enforce discipline in classroom, can be exposed to criminal prosecution? Kerala HC answers

While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

Read more, here.

If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

Read more, here.

Expression of a victim’s trauma or experience is his/her fundamental right which can only be curtailed if it falls under 4 broad categories: Read on to know categories | Alleged sexual harassment case of a ScoopWhoop employee

Patiala House Court, while addressing the alleged case of sexual harassment against the CEO of ScoopWhoop, wherein it sought an interim injunction, Court expressed that,

Expression of a victim’s trauma or experience is his / her fundamental right which can only be curtained it is falls under four broad categories i.e. “libel, slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security or tends to overthrow the State”. 

Read more, here.

Kerala High Court
Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following three Advocates as Judges in Kerala High Court:

1. Smt. Shoba Annamma Eapen,

2. Smt. Sanjeetha Kalloor Arakkal, and

3. Shri Aravinda Kumar Babu Thavarakkattil.

Supreme Court of India

[Collegium Statement]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., heard the instant PIL whereby, MLA Ramesh Chennithal had approached the Court for seeking issuance of directions to the Election Commission of India (ECI) to ensure that fake/multiple entry voters in the electoral roll for the election to the Kerala Legislative Assembly were not permitted to vote. The Bench directed,

“Election Commission should also ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election.”

 The petitioner contended that there were multiple entries of the voters in various places, which according to the petitioner was about 3,24,441 double votes and 1,09,601 bogus votes in the final electoral roll published on 20-01-2021, spreading over 131 Assembly Constituencies, and in total 4,34,042 double/fake votes in the final electoral rolls. The petitioner further submitted that though complaints were made to the Election Commission to correct the electoral roll, no steps had been taken and the voting is scheduled on 06-04-2021.

Assessing the seriousness of the matter, the petitioner had sought for a mandamus, directing the respondents to take immediate actions, and rectify the electoral roll by deleting or freezing fake/multiple votes and also to ensure that those fake/multiple entry voters were not permitted to vote in the election in any polling booths.

To substantiate his allegations, the petitioner submitted a computerized printout of the voters of 134 Thiruvananthapuram Central Constituency and CDs. On perusal of the same, the Bench observed that while the photographs of the voters being the same, names, booth numbers and serial numbers were different.

The Bench asked the Election Commission of India, whether it had any mechanism to find out the chances of multiple entry, in case of absence/shifting or for any other reason. The Bench stated,

“We are of the prima facie view that there are discrepancies in the final voters list published by the Election Commission.”

 Agreeing with the argument of the petitioner that the presence of multiple entries in the voters list would facilitate a voter to cast twice, which is not permissible in law, the Bench directed the ECI to ensure that there was no double voting by any voter. ECI was further directed to ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election. Lastly, the Bench stated,

To implement the above, steps should be taken on war footing basis. Orders of this Court should be implemented in letter and spirit, without any room for compliant.”

[Ramesh Chennithala v. Election Commission of India, 2021 SCC OnLine Ker 1613, decided on 29-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court:

For the Petitioner: Adv. T. Asaf Ali,

For the Respondents: Adv. Deepu Lal Mohan

Kerala High Court
Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Murali Purushothaman (ii) Ziyad Rahman Alevakkatt Abdul Rahiman (iii) Karunakaran Babu and (iv) Dr. Kauser Edappagath, to be Additional Judges of the Kerala High Court.

Read more about Judges:

Murali P., LL.B., was enrolled as an Advocate on 09.03.1991. He has 28 years of experience, practicing in High Court of Kerala from 11.03.1991 to 16.07.2019 in Election Law, Family Law, Labour Law, Cooperative Society Law, Contract Law, Constitutional Law and Service Law. He has specialisation in Election and Service Law. He was Standing Counsel for the State Election Commission, Delimitation  Commission of Kerala, Admission and Fee Regulatory Committee for Self Financing Professional Colleges and as Government Pleader in the High Court of Kerala in 2001.

Ziyad Rahman A.A, BA, LL.B., has 22 years of experience, practicing in the High Court of Kerala and also appeared before in Subordinate Courts, Tribunals in Constitutional, Civil, Land Laws, Electricity Criminal, Banking, Motor Vehicles, Insurance, Labour, Company, Consumer, Administration, Municipality, Taxation, Rent Control law matters and has specialisation in Electricity Laws, Motor Vehicle Laws, Insurance Act, Employees Compensation Act, Constitutional matters.

Shri K. Babu, M.A (Economics), LL.B, LL.M., joined Judicial Service on 21.05.2009 as Additional District Judge-I and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District Judge, Thiruvanthapuram in addition appointed as Chairman of the Administrative Committee of Sree Padmanabha Swamy Temple by the Hon ‘ble Supreme Court of India w.e.f. 19.11.2018.

Dr. Kauser Edappagath, BA (Law), LL.B, LL.M, Ph.D., joined Judicial Service on 21.05.2009 as Additional District and Sessions Judge and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District and Sessions Judge/ State Transport Appellate Tribunal, Ernakulum since 08.01.2018.

Link to the notification: Order of Appointment

Ministry of Law and Justice

[Notification dt. 22-02-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Instant writ petition was registered suo motu, taking note of the menace of drug consumption and trade in State. The Bench of S. Manikumar, CJ., and A.M. Shaffique, J., observed the difficulties faced by Police officials while using “Abon Kits” to spot cases drug consumption. The Bench suggested,

“Efforts have to be taken to identify whether any ‘user-friendly’ device, at the same time ‘less expensive’, is available, and if so, to cause it to be procured and make the same available to the Police, Excise, and such other departments for extensive use.”

 Ramachandran, former District Police Chief, addressed a letter to Judges of High Court highlighting various aspects of drug abuse in Kerala. The letter had thrown light on increasing rate of crimes committed by youths under the influence of drugs and its alarming growth in children/students of both genders. Pursuant to the letter and observing that issues concerning rampant drug abuse were recently reported in the editorials of major newspapers, the Court had registered suo moto petition in the matter.

The Bench observed reports of various organizations on this matter. International journal of community medicine and public health had reported that 31.8% of Kerala youth abuse any one of the substances-alcohol, smoking, pan chewing, narcotics— irrespective of time and frequency in lifetime. Report of the State Special Branch,  suggested that around 400 institutions in the State were affected by drug abuse and out of the education institutions, 74.12% are schools,  20.89% are colleges and professional institutions, and 4.97% are other institutions viz., ITI, Polytechnics etc. The report of NCRB had noted that in 2017 Kerala’s incidence rate for NDPS cases (cases per lakh people) was 16.6 percent, second only to Punjab’s 20.2 per cent.

The report also revealed that a range of drugs from Ganja, Hashish to Synthetic Drugs were used by the student community. The report further revealed that in most of the cases detected in the college campuses, the seizure was below 1 kg of ganja, which was bailable, and this encourages a person to engage in drug abuse.

“Apart from the narcotic and synthetic drugs usage being rampant among the student community, inhaling of Noxious chemicals like whitener, ink, fevicol, varnish solution used for repairing tyre puncture, were being used by the students for getting intoxication.

Noticing that the above substances did not come under the purview of NDPS Act, no legal action could be initiated; the Bench suggested three main strategies for drug prevention:

  • Mass media campaigns to inform and warn the public of the dangers of drug use.
  • Educating children at school about drugs.
  • Efforts to raise awareness and change the attitude in targeted groups, such as vulnerable and disadvantaged young people.

In Binu v. Union of India, 2011 SCC OnLine Ker 4151, this Court had expressed, nobody ha a right to expose the gullible population to the perils of drug abuse and push them into a condemned world of no return. The deleterious effects of these toxins on the human system have been scientifically proved.

Narcotic drugs and psychotropic substances have a sure tendency to depersonalize those who consume them and reduce them to worthless freaks of nature. Some of these drugs are so potent that even the first dose produces addiction with a craving for excess. Adolescents constitute the first causality among the vulnerable sections.”

Considering the entire material on record, the Bench issued following directions be complied with strictly, in letter and spirit, in accordance with law, within a period of three months:

  1. State should to adopt a method of establishing Campus Police Units, to conduct regular checking inside educational institutions. Measures should also be taken to make it easier for the police personnel to enforce NDPS Act, 1985, in the educational institutions.
  2. State was also directed to convene a meeting of all the key officials from the Department of Home Affairs, Excise, Health, Law, Education and representative of State Mental Health authority, Department of Social Justice, and chalk out programmes, to ensure reduction in the incidence of Substance abuse among teenagers and youth and for the implementation of the suggestions made above.
  3. The Universities/Colleges/School authorities should be provided with guidelines as a charter of duties and responsibilities, to make the campuses of the educational institutions, drug free.
  4. Police officials should seek the services of Student Police Cadets, NCC, NSS etc., to tide over the situation that the students are unaware of the legal repercussions of the usage and trafficking of drugs, and the health and career hazards caused due to the usage of drugs.
  5. Police was also directed to introduce a special scheme to ensure that the premises of the educational institutions and Universities are drug free and should initiate steps to conduct anti-drug programmes in the institutions, propagate health awareness campaigns, and use the assistance of social media.
  6. Police Chief was further directed to establish counselling and rehabilitation mechanisms, to save the students who were already using drugs and addicts, and for that purpose, the co-operation of University authorities, affected students, and their parents be elicited.[Suo Motu v. State of Kerala,  2021 SCC OnLine Ker 665, decided on 10-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., while partly allowing the instant petition held that offence under Section 185 of Motor Vehicle Act, 1988 would be attracted only when alcohol content is detected through breath analyser test or in any other test including a laboratory test.

The petitioner was an accused of offences under Sections 279 and 337 of IPC and Section 185 of the MV Act. Allegation against the petitioner was that he had driven his car in a rash and negligent manner so as to endanger human life and had dashed against another car, resulting in the driver and passenger of the other car sustaining injuries. The petitioner was arrested and subjected to medical examination, upon which the doctor opined that the petitioner smelled of alcohol.

Contention of the petitioner was based on the ground that the offence under Section 185 would be attracted only if alcohol content was detected through breath analyser test.  The petitioner, while relying on Sagimon v. State of Kerala, 2014 SCC OnLine Ker 12726, contended that no such test having been conducted, the entire prosecution was illegal.

Noticing that the doctor’s certificate was with regard to the injuries sustained by the petitioner and others as a result of the accident and no mention was made about breath analyser test or any other test conducted for the purpose of finding the alcohol content in the petitioner’s blood the Court clarified as per Section 185, whoever, while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser or in any other test including a laboratory test, is liable for punishment. Therefore, in order to attract the offence under Section 185(a), the accused should have been subjected to a breath analyser or any other test including a laboratory test to ascertain that his blood found to contain alcohol exceeding 30 mg per 100 ml. Therefore, it was held that the petitioner could not be prosecuted and the petition was allowed to the limited extent of quashing further proceedings against the petitioner under Section 185 of the MV Act. [Manoj Kumar K. v. State of Kerala, Crl. MC. No. 4820 of 2020(B), decided on 08-01-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court:  N. Nagaresh, J., addressed the petition seeking to direct the State to implement International Arrest Warrant and to handover the accused to the Government of Dubai as per the provisions of the Extradition Act, 1962.

The petitioner was an NRI businessman in Dubai; the accused befriended him on the pretext of being a business partner of a well known Hotel in Dubai. The accused borrowed an amount of Six Million UAE Dirhams from the petitioner and promised to repay the said amount before 10-06-2015. But, before the said stipulated date, the accused absconded to India without repaying the amount. Counsel for the petitioner,  T.K. Vipindas submitted that the accused had borrowed money from several banks and other individuals in UAE and had absconded from UAE to India without discharging his debts. There were 8 criminal cases registered against him by Dubai Police and the Dubai Court had convicted the accused for imprisonment for a term of two years. Also, an International Arrest Warrant was issued against the accused on 16-05-2018. The petitioner contended that, Government of India has executed the Extradition Treaty with the Government of United Arab Emirates. As per Article 2 of the said Treaty, a person sentenced by the court of the requesting State with the imprisonment for six months in respect of an offence, is liable to be extradited.

The respondent submitted that in the case of extradition of an Indian national from India to UAE, the provisions contained in Article 5 of the Extradition Treaty would be applicable. Article 5 of the Extradition Treaty reads as follows:

“The nationals of the Contracting States shall not be extradited to the other Contracting State provided that the requested State shall submit the case to its competent authorities for prosecution if the act committed is considered as an offence under the laws of both Contracting States.”

 The respondent relied on Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551, wherein the Supreme Court had held that, arrest of a fugitive criminal can be made at the instance of Central Government only when request to this effect is received from foreign country and not otherwise.

 The Court observed that, it was evident that nationals of Contracting States should not be extradited unless there was a request made by the State concerned. Since no such request had been received from the Government of UAE seeking extradition of the accused; therefore, going by the Extradition Treaty, the accused could not be extradited. Article 8 of the Extradition Treaty had prescribed that the request for extradition should be made in writing and dispatched through the diplomatic channels with supporting documents and particulars. Therefore, the Court dismissed the instant petition, holding that an International Arrest Warrant by itself would not suffice to arrest an accused and extradite him to UAE. [Rakhul Krishnan v. Union of India,  2020 SCC OnLine Ker 8409, decided on 21-12-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G. Arun J., while disallowing the present petition of transfer, observed, “When the question is one of transfer of a criminal case on the ground of judicial bias, mere allegation of apprehension of bias is not enough, the court has to see whether such apprehension is reasonable or not.”


The Special Public Prosecutor appointed by the State and the de facto complainant/victim seek transfer of the case to another court, on the apprehension that the Special Judge before whom the trial is being conducted is biased against the prosecution.

      The case originated from a complaint filed by the victim, a film actor of repute, stating that, while traveling from Thrissur to Ernakulam on 17-02-2017, she was abducted and subjected to sexual assault and that the sexually-explicit act was recorded. This resulted in Crime no. 297 of 2017 being registered at the Nedumbassery Police Station. After the investigation, the final report was filed alleging commission of offences under Sections 120A, 120B, 109, 342, 366, 354, 354B, 356, 376D, 506(1), 201, 212 read with 34 of the Penal Code, 1860 and Sections 66E and 67A of the Information Technology Act, 2000. The gist of the findings in the final report was that the crime was committed at the instance of the 8th accused, another film actor, pursuant to a conspiracy hatched by him with the other accused. After completion of necessary formalities, the case was committed to the Principal Sessions Court, Ernakulam and numbered as S.C.No.118 of 2018. While so, the victim approached the present Court seeking transfer of the case to a court presided by a lady judicial officer. After due deliberation, the instant Court, vide its judgment in OP(Crl) 344 of 2018, transferred the case to the court of the Special Judge (SPE/CBI-III), Ernakulam, finding it to be the only court in Ernakulam District, competent to try the case.

                    According to the petitioners, the manner in which the Special Judge is proceeding with the trial, her reluctance to pass orders on petitions filed by the prosecution, and the unwarranted and derogatory comments made against the Special Public Prosecutor and the investigating agency, are reasons for the apprehension of bias.


In addition to the mentioning of events depicting bias by the Special Judge, the counsel for the petitioner cited, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, to highlight the duty bestowed on trial courts to ensure that victims of sexual assault are not harassed during cross-examination. Emphasis was laid on Para 22 of the said judgment, which reads as, “There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

Reliance was further placed on Sakshi v. Union of India, (2004) 5 SCC 518 to reiterate that, rules of procedure are handmaidens of justice and Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441, wherein the right to fair trial was held to apply to the accused as well as the victim, as embodied under Article 21 of the Constitution. Moreover, the case of Abdul Nazar Madani v. State of Tamil Nadu, (2000) 6 SCC 204 and Satish Jaggi v. State of Chhattisgarh, (2007) 3 SCC 62 were cited in support of the proposition that Section 407, Code of Criminal Procedure, 1973 clothe the High Court with the power to transfer cases, when it is made to appear that a fair and impartial inquiry cannot be had in any criminal court subordinate to it. The counsel lastly said that in the present facts and circumstances, it would have been fair and proper for the Special Judge to have recused herself from the case.


The Court, in pursuance of its decision, made the following observation;

  1. Clarifying the meaning of term ‘bias’ and the underlying principle, the Court said, “The dictionary meaning of the word ‘bias’ is ‘inclination or prejudice for or against one person or group, especially in a way considered to be unfair’. The foundational principle with regard to Judicial Bias ‘nemo debet esse judex in causa propria sua’, precludes a person from being a Judge in his or her own cause.”
  2. The Court considered the following cases, namely;
    • Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, wherein it was held that, “assurance of a fair trial is the first imperative of the dispensation of justice, and the central criterion for the court to consider, when a motion for transfer is made, is not the hyper sensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous, if the court is to exercise its power of transfer.”
    • State of West Bengal v. Shivananda Pathak, (1998) 5 SCC 513, where the Supreme Court defined judicial bias and touched upon its various facets in the following words,

 “Para 25. Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.

Para 26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.”

  • K.Anbazhagan v. Superintendent of Police, (2004) 3 SCC 767,  the Supreme Court observed that the question is not whether the judge is actually biased but whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner.
  • Satish Jaggi v. State of Chhattisgarh, (2007) 3 SCC 62, was a case in which transfer was sought on the ground that the presiding officer was the brother of a sitting MLA, who was a close associate of one of the prime accused. In that factual background, the prayer for transfer was allowed with the following observation, ““We are sure that the present Sessions Judge would have acted in the true sense of a judicial officer. But nevertheless to ensure that justice is not only done, but also seen to be done and in the peculiar facts of the case, we feel that it will be appropriate if the High Court transfers the case to some other Sessions Court in Raipur itself. We make it clear that the transfer shall not be construed as casting any aspersion on the learned Sessions Judge.” The present Court said that the present case ought to be examined in the aforementioned legal backdrop. It went on to say that, “When the question is one of transfer of a criminal case on the ground of judicial bias, mere allegation of apprehension of bias is not enough, the court has to see whether such apprehension is reasonable or not. The moot question here is whether the instances pointed out by the petitioners are sufficient to hold the apprehension of bias to be reasonable.”
  • The Court further referred to the observation held In re: Linahan, 138 F. 2nd 650 (1943), which gives an insight into mental makeup of Judges in the words, “If, however, `bias’ and `partiality’ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions. Much harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.”
  • Moreover, the Court found it apposite to reproduce the words of Mr. Justice Frankfurter in Public Utilities Commission of the District Columbia v. Franklin S. Pollak, 343 US 451 (1952) 466, “The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.”


While rejecting contention of the petitioners, Court refrained from transferring the case emphasizing the conjoint duty of the Court and the prosecution in the administration of justice, in the words, “…unless the court and the prosecutor work in sync, it will result in either the guilty escaping from the clutches of law or the innocent being punished.”[Victim X v. State of Kerala, 2020 SCC OnLine Ker 5504, decided on 20-11-2020]

Sakshi Shukla, Editorial Assistant has put this story together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shircy V. J., while allowing the present petition against the original petition filed in the family court, reiterated, “In matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.”


The present petition is filed by the respondent in the original petition no. 557 of 2020, to seek transfer of the said petition from Family Court, Attingal to Family Court, Chavara.

It is submitted by the counsel for the petitioner that the petitioner is currently residing at Puthukkad which is hardly 6 km from the Family Court, Chavara where two cases were pending. Now she has to undertake a long journey to contest her case as the Family Court at Attingal is situated 64 km away from her place of residence. Such being the case, it will become extremely difficult for her to attend the court proceedings before the Family Court, Attingal with her child.


Upon observing the facts and circumstances of the present case, the Court acknowledged the genuineness of the prayer sought and further said that the factum of convenience tilts in the favour of the wife. It was further specified by the Court that, “…in matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.” Reliance was placed over, Sumita Singh v. Kumar Sanjay, (2002) KHC 1889, Sailaja V v. V. Koteswara Rao, (2003) KHC 3105 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237 against the same.


While concurring with the settled precedents upon the said premise, the Court allowed the petition for transfer in the interests of justice and good conscience.[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Kerala High Court
Appointments & TransfersNews

President appoints the following Additional Judges as Permanent Judges:

S/Shri Justices (i) V.G. Arun (ii) N. Nagaresh (iii) T.V. Anilkumar, and (iv) N. Anil Kumar, Additional Judges of the Kerala High Court, to be Judges of the Kerala High Court with effect from the date they assume charge of their respective offices.

Read the notification, here: NOTIFICATION

Ministry of Law and Justice

[Notification dt. 11-09-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy and A.K. Jayasankaran Nambiar, JJ. allowed a civil writ petition praying for a direction to use only eco-friendly materials for the purpose of advertisement during the ongoing election campaign in Kerala.

The instant PIL was filed seeking prohibition on the usage of Poly Vinyl Chloride (PVC) flex boards in the upcoming Lok Sabha elections, by political parties/ candidates. Submission of learned counsel Mr M.Kannan, appearing for the petitioner, was that PVC is a major pollutant and its use for flex boards would negate the Environment (Protection) Act 1986, Plastic Waste Management Rotes, 2016, and also the rights of citizens to a clean and safe environment under Articles 21 and 48-A of the Constitution of India.

Learned counsel Mr Murali Purushothaman representing the Election Commission of India produced a copy of communication dated 26-02-2019, whereby all recognised National/State political parties were directed to make the forthcoming election eco-friendly, and opt for the elimination of single-use plastic materials in the election campaign.

The Court took note of submissions on behalf of both the counsels and also noted that this Court, in a separate proceeding, had issued direction for removal of unauthorised PVC flex boards within the limits of various local authorities in the State. In view thereof, the Court directed all candidates and National/State political parties to strictly adhere to the guidelines of the Election Commission and not use PVC flex boards and other such non-bio-degradable material during the election campaign.[B.S. Syamkumar v. State of Kerala, WP(C) No 7193 of 2019 (S), Order dated 11-03-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Hrishikesh Roy, CJ. and Jayasankaran Nambiar, J., framed suggestions with regard to fixing of compensation for flood-affected victims of the State of Kerala.

The writ petition by way of PIL was filed with regard to the absence of any specific and uniform criteria for ascertaining the adequate amount of compensation to be granted by the respondent to the flood-affected victims of the State. It has been highlighted that the Kerala State Legal Services Authority would act as a catalyst to this process by enhancing effective and equitable distribution of compensation among the victims.

The orders issued by the respondent under the Disaster Management Department marks for the preliminary compensation amount with respect to affected residential houses based on the level of inundation with respect to every individual house.

Henceforth the Court suggested that a uniform formula that takes into account such factors that are applicable in common to the different categories of persons must be applied. These factors shall include the level of inundation, the extent of holding of a person in that area and improvements made in the said holding etc. and shall be applied irrespective of nature of holding of the victim or his income level. The minimum compensation that was common to all victims shall be paid to the identified victim solely based on his claim presented with response to the published formula devoid of any further scrutiny as to its genuineness by the respondent. Further the victims shall be compensated with respect to their individual losses determined on case to case basis backed by a proof as to the amount of loss sustained by each victim and as a result it would ensure greater transparency with regard to this additional compensation plus the victims would be spared from running behind authorities for the same. Also, this additional compensation has to be decided to keep in consideration different categories of flood victims i.e. householders, businessman, farmers etc. based on nature and extent of the loss suffered by them.

Accordingly, the method to be adopted by the respondent in deciding the amount of compensation shall be submitted to the court within 10 days from the date of judgment.[P.K. Firoz v. State of Kerala, W.P (C) No. 29127 of 2018, order dated 04-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ, allowed an appeal pertaining to an FIR filed against the petitioner’s in regard to a song named “Manikya Malaraya Poovi” been picturised in a manner that offends the sentiments of a particular community.

The present petition was filed by the actor, producer and director of the movie “Oru Adaar Love” in regard to a prayer being placed saying that no FIR should be entertained or any criminal complaint under Section 200 IPC for the picturization of the song “Manikya Malaraya Poovi”.

The contention as submitted before the Court by the petitioners was that the song is a traditional Muslim song of Kerala and they cannot be made liable for the same. The allegation in regard to the song was that it offends the sentiments of a particular community and that is the reason an FIR against it was filed under Section 295A. Further, it was submitted that the issue is not the song, it is the manner in which it has been picturized.

The bench while giving due consideration to the submissions of the parties along with the facts of the case, concluded its decision for the appeal by stating that on referring to Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, it is clear that the above-stated Section 295 A IPC would not get attracted in the present matter. Further, the Court stated that solely because of the ‘wink’ picturization in the song would not amount to attempting to insult the religion or religious beliefs of a class of citizens and certainly the petitioners had no calculated intention to do the same. Therefore, the appeal was allowed with direction of no further FIRs to be entertained for the stated matter. [Priya Prakash Varrier v. State of Telangana, 2018 SCC OnLine SC 1289, Order dated 31-08-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Circuit Bench of NGT at Kochi has directed that no diesel vehicle aged more than 10 years shall be allowed to ply in major cities of Kerala like Thiruvananthapuram, Kollam, Kochi, Thrissur, Kozhikode and Kannur. In addition, the tribunal also temporarily banned registration of new diesel vehicles over 2,000CC and only vehicles for public transport and those to be used by local authorities have been exempted in the order. NGT issued the said interim order while hearing a petition filed by Lawyers’ Environmental Awareness Forum. “We direct that all the diesel vehicles whether light or heavy which are more than 10 years shall not be permitted to ply on the roads in the major cities like Thiruvananthapuram, Kollam, Kochi, Thrissur, Kozhikode and Kannur,” NGT noted. The Tribunal further added that upon expiry of 30 days from May 23, 2016, i.e. the date of issuance of the said interim order, if any vehicle is found to be violating this direction, it shall pay Rs. 5000 as environmental compensation and this will be collected by traffic police or pollution control board. “The State Pollution Control Board shall maintain a separate account in this behalf. The Fund so collected shall be spent only for betterment of environment in these cities (where the ban would be in force),” the Tribunal directed. In its order, NGT also referred to orders passed by its larger bench in Vardhman Kaushik v. Union of India, 2014 SCC OnLine NGT 2365, by which all vehicles aged over 15 years were banned from the roads in Delhi. While concluding the order, NGT directed the State of Kerala to inform the availability of CNG gas for running of vehicles in the entire State. [Lawyers’ Environmental Awareness Forum v. State of Kerala, 2016 SCC OnLine NGT 163, dated: May 23, 2016]