CRL.A NO. 1191 OF 2005

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ## **`CRL.A NO. 1191 OF 2005`** ``` AGAINST THE JUDGMENT DATED 17/11/2004 IN CRA 127/2002 OF SESSIONS ``` ``` COURT, KOZHIKODE ``` ``` ST 550/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERAMBRA ``` ## **`APPELLANT/2ND RESPONDENT/COMPLAINANT:`** ``` THE SECRETARY PERAMBRA GRAMA PANCHAYATH, PERAMBRA. ``` ``` BY ADV MILLU DANDAPANI ``` ## **`RESPONDENTS/APPELLANT & 1ST RESPONDENT/ACCUSED & STATE:`** ``` 1SANTHOSH SEBASTIAN S/O SEBASTIAN, KODUVAKULANGARA, P.O. KALLANODE, KOORACHUNDU. 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` S ``` ``` BY ADVS. P.V.ANOOP SR.PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN SRI.P.V.KUNHIKRISHNAN PHIJO PRADEESH PHILIP(K/1150/2010) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1191 OF 2005 ``` 2 ## **`CR`** ## **`JUDGMENT`** `T` he issue is pertaining to initiation of prosecution under Section 210 of the Kerala Panchayat Raj Act, 1994 (for short, 'the new Act') in accordance with Rule 27 of Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules 1996 (for short, 'the new Rules'). Initially, an order was passed convicting the accused and levying fine in accordance with the mandate under Rule 27 of the new Rules. In appeal, it was set aside and remanded back to the trial Magistrate. The trial Magistrate then again found the accused guilty and convicted and imposed a fine of Rs.2,05,447/-, in default to undergo simple imprisonment for two months, against which an appeal was preferred. In appeal, the first appellate court set aside the order of conviction and acquitted the accused. ``` CRL.A NO. 1191 OF 2005 ``` 3 It is against that order of acquittal, the Panchayat, the defacto complainant, came up in appeal. 2. Prima facie, it appears that the first appellate court has exercised its jurisdiction in violation of the settled principles of law and it is evident from the mere perusal of the impugned judgment. The trial Magistrate had relied on the legal position settled by two Division Bench of this Court in **Executive** **Officer v. Suresh Babu (1992 (1) KLT 291)** and **Suresh v. Executive Officer (1995 (2) KLT 75)** while rendering a judgment of conviction, but the first appellate court did not even refer or take note of the abovesaid two decisions relied on by the trial court, but passed an order of acquittal. It is the duty of the first appellate court to refer the decisions relied on by the trial court especially when the judgment is set ``` CRL.A NO. 1191 OF 2005 ``` 4 aside. 3. The order of acquittal was passed by the first appellate court on the sole reason that no distraint proceedings were initiated before the initiation of prosecution under Section 210 of the Kerala Panchayat Raj Act (the new Act) and found that the prosecution is vitiated. 4. Going by the legal position settled in the abovesaid two decisions – **Suresh Babu** 's case and **Suresh** 's case (supra), it is clear that the decisions were rendered based on the old Act and Rules viz., Kerala Panchayat Act, 1960 (for short, the old Act) and Panchayats (Taxation and Appeal) Rules, 1963 (Kerala) (for short, the old Rules), which were subsequently substituted by the new enactment viz., Kerala Panchayat Raj Act, 1994 and Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules 1996. The corresponding provision of Section 74 of the Old Act is Section 210 of the new Act. Both the provisions ``` CRL.A NO. 1191 OF 2005 ``` 5 are pari materia except the substitution of word in the second proviso - “the Secretary” instead of “the executive authority”. In fact, “executive authority” stands for the “Secretary” as far as the new legislation is concerned. 5. Section 210 of the new Act, which is pari materia with that of Section 74 of the old Act is extracted below for reference: _“ —_ _**210. Recovery of arrears of tax, cess etc.** Any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force:_ _Provided that the Secretary of a Village Panchayat may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed:_ _Provided further that, if for any reason the distraint or a sufficient distraint of a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate.”_ _(emphasis supplied)_ **==> picture [376 x 12] intentionally omitted <==** Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 was inserted for recovery of tax, warrant fee etc. by issuance of distraint. In the old ``` CRL.A NO. 1191 OF 2005 ``` 6 Rules, provisions were also incorporated in Rules 13 and 14 to recover such amount by issuance of distraint. Rule 27 of the new Rules is the provision dealing with the procedure to be adopted in a prosecution under the second proviso to Section 210 of the Act, which is also extracted below for reference: _“_ _**27. Magistrate to recover tax, warrant fee etc.—** (1) Any person subjected to prosecution under the second proviso to Section 210, if proved to the satisfaction of the Magistrate to have wilfully defaulted payment of the amount due or have wilfully obstructed the distraint or sufficient distraint, shall - be liable to pay,_ _(a) the tax and warrant fee if any; and_ _(b) the distraint fee, if distraint has taken place, the expenses, if any, incurred on account of the detention and sale of the property distrained and fine not exceeding twice the amount that is due from him._ _2) Whenever any person is convicted of an offence under sub-rule (1), the Magistrate shall, in addition to any fine which may be imposed, by summary disposal recover amounts, if any, due under the items specified in clauses (a) and (b) of - sub rule (1) and also recover such amounts as may be fixed by him, if any,_ ``` CRL.A NO. 1191 OF 2005 ``` 7 ## _as costs of the prosecution pro_ _`ceedings and pay the same to the panchayat.`_ `”` (emphasis supplied) 7. A mere perusal of Section 210 of the new Act with the Rule framed viz., Rule 27 of the new Rules, it is clear that issuance of a distraint warrant is not a condition precedent to launch or to initiate prosecution under the second proviso to Section 210 of the new Act. The wording used 'impracticable' in the second proviso to Section 210 is used to denote the subjective satisfaction of the concerned officer, the Secretary of the Panchayat and when it is found that no property, either movable or immovable is available so as to issue a distraint warrant or if it is found that issuance of distraint warrant is impracticable, there is no meaning in issuing such a distraint and it would fall within the mischief of compliance of an empty formality. The provision ``` CRL.A NO. 1191 OF 2005 ``` 8 incorporated in the Act, Section 210 in the new Act and 74 in the old Act are intended to speedy recovery of the amount due free from the cumbersome procedure to be complied with in a civil litigation and the legislative intention was upheld by the Division Bench of this Court in the abovesaid two decisions. When properties, either movable or immovable are available with the defaulter, issuance of a distraint may acquire the character of a mandate to be complied with, but depends on the subjective satisfaction of the officer concerned as to the availability of the property with the defaulter. Necessarily, it cannot be brought under the purview of a condition precedent for the initiation of prosecution under Section 210 of the new Act before a Magistrate. The very same legal position can also be gathered from the construction of Rule 27, wherein in sub-rule (1) it is stated that on satisfaction that the ``` CRL.A NO. 1191 OF 2005 ``` 9 person has 'wilfully defaulted' payment of amount due or has 'wilfully obstructed' the distraint or the sufficient distraint would reveal that on satisfaction of either of the two, it is permissible to initiate prosecution before a Magistrate. The abovesaid two decisions are dealing with the question of speedy recovery proceedings and legislative competence pertaining to the provisions incorporated in the old Act – Section 74, which is pari materia with the provision incorporated, Section 210 in the new Act. Hence, it is not at all mandatory that there should be issuance of distraint warrant as a condition precedent so as to initiate prosecution under the second proviso to Section 210 of the new Act. On the other hand, it will destruct the very purpose for which the abovesaid provisions were incorporated. Necessarily, the order of acquittal by the first appellate court cannot be sustained, liable to ``` CRL.A NO. 1191 OF 2005 ``` **==> picture [15 x 9] intentionally omitted <==** be set aside. I do so. The Criminal Appeal will stand allowed by restoring the judgment of conviction and order of sentence passed by the trial Magistrate. The appellant/accused shall appear before the trial Magistrate to receive sentence within two months from today to receive the sentence. ``` Sd/- ``` ``` P.SOMARAJAN JUDGE ``` ``` SV ```