IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 OP(Crl.).No. 652 of 2010(Q) ------------------------------------- ( CMP 1768/2010 ON THE FILE OF JFCM -II, HODURG,KASARAGOD, DIST ) ------------------- PETITIONER(S) / PETITIONERS : --------------------------------------------- SATHAR.E.M,AGED 33 YEARS, S/O.MOIDEENKUNHI,RESIDING AT EYYALA HOUSE, BENDICHAL,THEKKIL VEEDU,CHENGALA, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): RESPONDENTS ------------------------------------------------ 1. THE INCOME TAX OFFICER,KASARAGOD, P.O.KASARAGOD.PIN-671 121. 2. SHARAFUDDEEN.P.P,S/O.ABDUL RAHIMAN, AGED 20 YEARS,RESIDING AT BENDICHAL, THEKKIL,KASARAGOD DISTRICT.P.O.THEKKIL 671 541 BY GOVERNMENT PLEADER SRI. I.V. PRAMOD THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- O.P.(Crl).NO.652 OF 2010 --------------------------------------------- Dated 10th November, 2010 JUDGMENT Pursuant to Ext.P1 order in Crl.M.C.5047/2008, petitioner was permitted to have interim custody of the cash seized in Crime No.135/2008 of Bekal Police Station. Subsequently, based on the assessment order, Income Tax Officer approached the learned Magistrate for a direction to the petitioner to deposit Rs.5,68,560/-, being the income tax payable by the petitioner as assessed. Ext.P3 notice was issued by the learned Magistrate in that application, directing him to appear before the Magistrate on 19/6/2010. This petition is filed under Article 227 of Constitution of India for a writ of mandamus directing Judicial First Class Magistrate-II, Hosdurg to keep in abeyance further OP(Crl) 652/10 2 proceedings in C.M.P.1768/2010, contending that challenging the order of dismissal, petitioner had already filed Ext.P2 appeal before Commissioner (Appeals) of Income Tax, Kozhikode. Case of the petitioner is that if before disposal of the appeal, petitioner is to pay the amount as assessed by the Income Tax Authorities, which is challenged in the appeal, the appeal itself will become infructuous. 2. Learned counsel appearing for the petitioner and learned Standing Counsel appearing for first respondent were heard. 3. Petitioner did not produce copy of C.M.P.1768/2010 which was sought to be kept in abeyance by issuing a writ of mandamus. The fact that petitioner filed Ext.P2 appeal against the order passed by the Income Tax Officer, is not a ground to OP(Crl) 652/10 3 contend that he is not liable to pay that amount. So long as there is no order of stay, learned Magistrate can proceed with application. It is upto the petitioner to seek an order of stay in Ext.P2 appeal. Learned counsel appearing for the petitioner submitted that the appeal is not posted for a particular day and therefore, petitioner could not get an order of stay. Writ petition is disposed directing Judicial First Class Magistrate's Court-II, Hosdurg to keep in abeyance further proceedings in C.M.P.1768/2010 for three weeks from today making it clear that it is upto the petitioner to get an order from the Appellate Authority, before that date. M.SASIDHARAN NAMBIAR, JUDGE. uj.