The Circle Head vs The Secretary
2026 Latest Caselaw 1366 Ker

Kerala High Court

The Circle Head vs The Secretary on 9 February, 2026

Author: C.S.Dias

Bench: C.S.Dias

                                                       2026:KER:11623

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE C.S.DIAS
        MONDAY, THE 9TH DAY OF FEBRUARY 2026 / 20TH MAGHA, 1947
                       CRL.MC NO. 3611 OF 2025
        AGAINST THE ORDER/JUDGMENT DATED IN ST NO.3590 OF 2023 OF
JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR

PETITIONER/ACCUSED:

            THE CIRCLE HEAD,
            DISHNET WIRELESS LTD (AIR CEL) NO.9414332365,
            B B1 B2 B3 NH BYEPASS, VYTILLA, COCHI,
            MOBILE TOWER (V111/401.A)
            PRESENTLY GTL INFRASTRUCTURE LTD,
            66/4514, PRABHU TOWER, 2ND FLOOR,
            OPP.CHENNAI SILKS, M.G. ROAD NORTH PALLIPADI,
            ERNAKULAM, PIN - 682035

            BY ADV SRI.G.SANTHOSH KUMAR (P).


RESPONDENTS/STATE AND COMPLAINANT:

    1       THE SECRETARY,
            KANAKKARY GRAMA PANCHAYAT,
            OFFICE OF THE KANAKKARY GRAMA PANCHAYAT,
            VEMPALLY P.O. ,KOTTAYAM DISTRICT, PIN - 686633

    2       STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, PIN - 682031


            BY ADV SRI.RAJEEV V.KURUP


OTHER PRESENT:

            SENIOR PUBLIC PROSECUTOR- SMT.SEETHA S


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
09.02.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl. M.C. No.3611 of 2025   -:2:

                                                   2026:KER:11623

           Dated this the 9th day of February, 2026

                            ORDER

The petitioner is the accused in S.T. No.

3590/2023 on the file of the Court of the Judicial First

Class Magistrate-I, Ettumanoor ('Trial Court', for short),

which has been filed by the first respondent alleging the

commission of an offence punishable under Section 210

of the Kerala Panchayat Raj Act ('Act', for brevity) read

with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy

and Appeal) Rules ('Rules', in short).

2. The gist of the allegation in Annexure A2

complaint is that; the petitioner is liable to pay Rs.

42,051/- as arrears of tax payable to the first respondent

for the period from the first half of 2016-2017 to the first

half of 2018-2019.

3. I have heard the learned counsel appearing for the

petitioner, the learned Standing Counsel for the first

respondent and the learned Public Prosecutor.

4. The learned counsel for the petitioner submits

that, even if the allegations in Annexure A2 private Crl. M.C. No.3611 of 2025 -:3:

2026:KER:11623

complaint are taken on their face value, the same would

not attract the offence alleged against the petitioner. He

relies on the order passed by this Court in Crl.M.C.

No.6229/2025, wherein this Court has held that, unless

the statutory remedies available to the first respondent

under Section 210 of the Act are exhausted, a

prosecution cannot be launched. It was without resorting

to the above course for recovery of the alleged arrears as

contemplated under Section 210 of the Act, that the

prosecution has been launched, which is premature and

unsustainable in law. Therefore, the petitioner may be

given the benefit of the law laid down in Crl.M.C.

No.6229/2025, and the entire proceedings may be

quashed.

5. The learned Standing Counsel for the first

respondent and the learned Public Prosecutor oppose the

Crl.M.C. They submit that there is no legal bar for the

first respondent to independently prosecute the

complaint against the petitioner. This Court may not

embark upon a mini trial and terminate the prosecution Crl. M.C. No.3611 of 2025 -:4:

2026:KER:11623

due to the alternative statutory remedy. 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 first 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 Crl. M.C. No.3611 of 2025 -:5:

2026:KER:11623

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.-

(1) The Secretary shall, where any tax due from any person has not been remitted on or before the due date, serve upon such person a demand notice requiring him to pay the tax together with notice fee of two rupees and the cost of service of the notice if sent by registered post, within fifteen days from the date of service of notice, before taking the proceedings under Section 210 of the Act.

(2) Notice under sub-rule (1) shall be signed by the Secretary and shall contain the following matters,-

(a) a statement regarding the period for which the tax is imposed, and description regarding the occupation, property or institution on which the tax is imposed;

(b) the amount of tax, fee of demand notice and cost of notice is sent by registered post;

(c) the date from which tax is due; and

(d) statement of the liability incurred on account of the default in remitting money Crl. M.C. No.3611 of 2025 -:6:

2026:KER:11623

"15. Recovery by distraint.- If the amount due on account of any tax together with the fee of demand notice and the cost of service of the notice is not paid within fifteen days from the date of service of the notice and if the person from whom the tax is due has not shown cause to the satisfaction of the Secretary as to why it should not be remitted, the Secretary may, by distraint under warrant and by sale of the movable property of the defaulter, recover the amount due on account of the tax together with demand notice fee, cost of service of notice, warrant fee including the distraint fee together with such further sum that is sufficient for a meeting the actual expenses for the safe custody and sale of the property so distrained:

Provided that movable property described in the proviso to Section 60 of the Code of Civil Procedure, 1908, shall not be distrained. (2) The warrant under sub-rule (1) shall be in Form No.1 appended to these rules and for each such warrant a fee of five rupees shall be levied".

11. As per Rule 14, when an amount is due from

a defaulter, a demand notice calling upon him to pay the

amount within 15 days from the date of service of notice

has to be issued to him. Rule 15 says that even after

service of notice under Rule 14, if the amount is not paid

within 15 days thereof, the Secretary of the Panchayat

may issue a distraint warrant.

12. The above statutory provisions are

incorporated in the Act and Rules to prevent

unnecessary harassment of the defaulters by the

initiating criminal prosecution proceedings.

 Crl. M.C. No.3611 of 2025        -:7:

                                                       2026:KER:11623

13. In light of the statutory mandate, it was

imperative on the part of the first respondent to have

proceeded against the property of the petitioner before

initiating the prosecution.

14. Undisputedly, the first respondent has not

issued any distraint warrant or initiated coercive

proceedings as against the property of the petitioner.

Instead, the first respondent has straight away initiated

the criminal prosecution against the petitioner.

15. A similar view has been taken by this Court

in Secretary, Pozhuthana Grama Panchayat v. T.K.

Unni Peravan & Anr. [2021(1)KLT 72].

16. It is well-established that this Court has broad

plenary powers under Section 482 of the Code of

Criminal Procedure, which corresponds to Section 528 of

the Bharatiya Nagarik Suraksha Sanhita, 2023, to quash

criminal proceedings. However, such inherent power,

though expansive in nature, is not unbridled or

unlimited. They are to be exercised sparingly, with

circumspection, and within the parameters delineated by Crl. M.C. No.3611 of 2025 -:8:

2026:KER:11623

judicial precedents. One of the elementary principles to

quash a criminal proceeding is that, even if allegations in

the first information report or the complaint are taken at

their face value and accepted in their entirety, the same

will not prima facie constitute any offence or make out a

case against the accused. (Read the decisions in State of

Haryana and others v. Bhajan Lal and others [(1992)

Supp (1) SCC 335], Central Bureau of Investigation v.

Aryan Singh and Others [(2023) 18 SCC 399],

Daxaben v. State of Gujarat and Others [(2022) 16

SCC 117] and Monica Kumar and Another v. State of

U.P. and Others [(2008) 8 SCC 781]).

17. On an overall consideration of the facts, the

materials on record and the law referred to in the afore-

cited decisions, and particularly considering the fact that

the first respondent has not initiated any proceedings for

recovery of the money, I am convinced that this is a fit

case to exercise the inherent powers of this Court under

Section 528 of the Bharatiya Nagarik Suraksha Sanhita,

2023.

Crl. M.C. No.3611 of 2025 -:9:

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In the aforesaid circumstances, I allow the

Crl.M.C, by quashing Annexure A2 complaint and all

further proceedings in S.T. No. 3590/2023 of the Trial

Court, as against the petitioner.

Sd/-

mtk C.S.DIAS,JUDGE Crl. M.C. No.3611 of 2025 -:10:

2026:KER:11623

APPENDIX OF CRL.MC NO. 3611 OF 2025

PETITIONER ANNEXURES

Annexure -A1 TRUE COPY OF THE BUILDING PERMIT DATED 29/10/2008 ISSUED BY THE 1ST RESPONDENT PANCHAYAT.

Annexure-A2           TRUE COPY OF THE COMPLAINT PREFERRED BY
                      THE    1ST    RESPONDENT   NUMBERED    AS

S.T.NO.3590/2023 PENDING ON THE FILES OF JUDICIAL FIRST-CLASS MAGISTRATE COURT-I, ETTUMANOOR.

Annexure-A3 TRUE COPY OF THE COMMON JUDGMENT DATED 03/10/2023 IN CRL.M.C.NO.822/2020 AND CONNECTED MATTERS.

Annexure-A4 TRUE COPY OF THE JUDGMENT DATED 27/07/2023 IN CRL.MC NO.2492/2020. Annexure-A5 TRUE COPY OF THE JUDGMENT DATED 02/03/2022 IN CRL.M.C.NO.1385/2020.