SECRETARY Vs. SANTHOSH SEBASTIAN

JUDGEMENT

(1.) The issue is pertaining to initiation of prosecution under Sec. 210 of the Kerala Panchayat Raj Act, 1994 (for short, 'the new Act') in accordance with (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.2,05,447.00, 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. 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 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 Sec. 210 of the Kerala Panchayat Raj Act (the new Act) and found that the prosecution is vitiated.