Prosecution under Section 210 Kerala Panchayat Raj Act requires prior failed distraint warrant for tax arrears recovery.

2021 on the file of the Court of the Judicial First Class Magistrate-I, Alathur (‘Trial Court’ for short), which has been registered on the basis of a private complaint filed by the 1^st respondent Panchayat alleging the commission of the offences punishable under Section 210 of the Kerala Panchayat Raj Act, 1994 (‘Act’, for brevity) read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 (‘Rules’, in short).

2. The gist of the allegations in Annexure A2 complaint is that; the petitioner is liable to pay Rs.6446/- to the 1^st respondent towards the arrears of tax for the period from 2019-2020 and 2020-2021, which they have deliberately defaulted in payment. Thus, the petitioner has committed the above offences.

3. I have heard the learned counsel appearing for the petitioner, the learned Senior Public Prosecutor and the learned Standing Counsel for the 1^st respondent.

4. The learned counsel for the petitioner submits that, even if the allegations in Annexure A2 complaint are taken on their face value, the same would not attract the offences alleged against the petitioner. He relies on the decisions of this Court in identical matters, wherein this Court has held that, unless the statutory remedies available to the Panchayat under Section 210 of the Act are exhausted, a prosecution cannot be launched. It was without resorting to the above course, that the Panchayat has initiated recovery proceedings to recover the alleged arrears, that the prosecution has been launched, which is premature and unsustainable in law. Therefore, the criminal prosecution may be quashed.

5. The learned Standing Counsel for the 1^st respondent and the learned Senior Public Prosecutor oppose the Crl.M.C. They submit that there is no legal bar for the 1^st respondent to independently prosecute the complaint against the petitioner. Therefore, this Court may not embark upon a mini trial and terminate the prosecution. Hence, the Crl.M.C. may be dismissed.

6. The principle contention of the petitioner is that, in view of Section 210 of the Act, the 1st respondent ought to have first taken steps to issue a distraint warrant for recovery of the money before initiating the prosecution.

7. In the above context, it is profitable to refer to Section 210 of the Act, which reads as follows:

"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".

8. A plain reading of the above section unambiguously reveals that a distraint warrant has to be issued to the defaulter to recover the arrears payable to the Panchayat. It is only when the recovery proceedings become futile, a criminal prosecution can be launched.

9. The two cardinal conditions for initiating a prosecution are:

(i) The distraint warrant should be issued against the accused, and (ii) The distraint warrant should be unsuccessful. 10. In the above context it is also apposite to refer to Rules 14 and 15 of the Rules, which reads thus:

"14. Notice to be served before enforcing provisions of distraint