Essar Agencies and ors. Vs. Assistant Commissioner of Income Tax and anr.

.....articles 226 and 227, need not send petitioners to magistrate's court for quashing a complaint which is admittedly not maintainable. held: this court is of the opinion that having admitted that prosecution will not lie at present, in view of the fact that the assessments and penalty orders were set aside, the department should have withdrawn the prosecution instead of compelling the petitioners to approach the court. technicalities will not stand as an obstacle to do justice. this court which has an extraordinary jurisdiction under articles 226 and 227 need not send the petitioners to the magistrate's court for quashing a complaint which is admittedly not maintainable. rules of procedure are only hand maids of justice. case law analysis: pepsi foods ltd. v. special judicial magistrate air 1998 sc 128 followed. application: also to current assessment year. decision: in favour of the petitioner. constitution of india art 226 constitution of india art 227 in the kerala high court j. b. koshy, j. - land acquisition act, 1894.[c.a. no. 1/1894]. section 49: [j.b.koshy, a.k.basheer & k.p. balachndran, jj] acquisition of part of house or building claim put forward by owner to acquire entire building held, option under section 49(1) is to be made by the owner of the house or building when part of the building is sought to be acquired. once the option is exercised, the collector has no option but to acquire the entire building or withdraw from the acquisition. he has no option to decide whether the option exercised by the owner is genuine or not and the tenant has no role in the same and tenant cannot file a writ petition if the collector accepts the request of the owner under section 49(1). if any question arises whether any land proposed to be taken under the act does or does not form part of the house or building, collector can refer the matter to the court and until decision is taken by the court, collector shall not take possession (second proviso). the..........the assessments and penalty orders for the assessment years 1988-89 and 1989-90 have been set aside and as such at present the prosecution will not lie. it is submitted that since fresh assessments can be done as the appellate authority has only remanded the matter, criminal proceedings can be kept pending. it is contended that the petitioners have to approach the magistrate's court for that relief instead of filing a writ petition. this court is of the opinion that having admitted that prosecution will not lie at present, in view of the fact that the assessments and penalty orders were set aside, the department should have withdrawn the prosecution instead of compelling the petitioners to approach this court. technicalities will not stand as an obstacle to do justice. this court which has an extraordinary jurisdiction under articles 226 and 227 need not send the petitioners to the magistrate's court for quashing a complaint which is admittedly not maintainable. rules of procedure are only hand maids of justice. further, in view of the decision of the supreme court reported in pepsi foods ltd. v. special judicial magistrate air 1998 sc 128 what can be done under the criminal procedure code can be done under this jurisdiction also. having admitted that penalty orders and assessments issued against the petitioners were set aside and therefore prosecution will not lie, i set aside the prosecution proceedings based on the complaint (exhibit p-10) questioned in this case.3. therefore, without prejudice to the right of the department in making assessments as directed by the appellate authority and prosecution, if necessary, according to law, both the original petitions are allowed.