JUDGMENT - M.F. SALDANHA, J.:---By this petition, filed under section 482 of the Code of Criminal Procedure, the limited relief claimed by the petitioners is that the prosecutions instituted against them by the Income Tax authorities in Criminal Case Nos. 99/S, 119/S, 124/S, to 126/S of 1977 and 1/S to 3/S of 1983 pending before the learned Additional Chief Metropolitan Magistrate, 38th Court, Rallard Estate, Bombay he stayed until disposal of the Income Tax Reference No. 120 of 1981 which is pending before the High Court. 2. The petitioners, along with certain other persons who have since passed away, filed an application dated 13th January 1983 before the trial Court praying for stay of the prosecutions under section 309 of the Code of Criminal Procedure. The Income Tax department had prosecuted the petitioners, essentially alleging an offence under section 277 of the Income Tax Act contending that certain miscalculations have been made be them in relation to their assessment. The petitioners requested the trial Court to either adjourn the criminal prosecutions until disposal of the reference or in the alternative, to stay the prosecutions. The learned Magistrate declined both the prayers, principally on the ground that the prosecutions have been pending for several years and that there was no certainty regarding the time-frame with regard to the disposal of the reference. The matter was carried in revision to the Sessions Court and the learned Sessions Judge by his letter dated 20-12-1984, dismissed the revision application. The learned Sessions Judge also took the view that it would not be appropriate to indefinitely adjourn or postpone the hearing of the criminal prosecutions merely because of the pendency of the reference. 3. Mr. Vepari, learned advocate appearing on behalf of the petitioners has placed reliance, in the first instance, on a decision reported in (Uttamchand v. Income Tax Office, Central Circle II)1, 1982 I.T.R. page 1. The Supreme Court, in this case, reversed the decision of the Single Judge of the Punjab Haryana High Court, who had decline to quash a prosecution on the ground that a false return had been filed by the assesses, in so far as the learned Judge, took the view, that it was open to the accused to agitate the matter on merits before the trial Court and that it was not necessary for the High Court to take into account subsequent proceedings before the tax authorities. The Supreme Court, on appeal, set aside the decision of the High Court by holding that in view of a subsequent decision of the tax authorities, that the prosecution itself would not survive and that in this view of the matter, the proceedings, were liable to be quashed. In doing so, the Supreme Court upheld the principle on which Mr. Vepari seems to place reliance on viz., that the criminal prosecution which itself relies heavily on the findings in the income-tax proceedings, cannot reach a state of finality unless the tax proceeding themselves have reached that stage. Mr. Vepari has contended, and to my mind, with considerable justification, that this Court will have to take into account the possibilities of the trial Court accepting the evidenced adduced by the witnesses on behalf of the department, who would rely on the orders of the Income-Tax Officer and the Tribunal in support of their prosecution. Those orders themselves are subject to revision, depending on what view the High Court takes in the reference that is pending. In that view of the matter, it would be unfair to subject the trial Court with a lengthy exercise of examining the matter on merits when the material that is to be adduced before that Court itself is inconclusive in so far as the High Court has yet to decide the issue of finality. More importantly, as contended by Mr. Vepari, apart from the wastage of judicial time and the torment to the accused who has to face the entire trial, in the event of an adverse verdict, it would not be possible to undo the damage caused by a conviction if the assesses are successful in the reference and able to demonstrate that the conviction itself was unjust. It would be useful in this regard to make a reference to a judgment of the Karnataka High Court, reported in (Commissioner of Income Tax, Bihar v. Nipani Tobacco Stores)2, 1984 I.T.R., page 128, wherein the High Court had gone to the extent of quashing the prosecution itself on the ground that the facts on the basis of which the assessee has been prosecutied are uncertain because the proceedings before the tax authorities have not reached a final stage of conclusiveness. 4. 4. The Supreme Court in the decision reported in (P. Jayappan v. S.K. Perumal)3, A.I.R. 1984 S.C. page 1693, has undoubtedly taken into account the practical difficulties that impelled the learned Magistrate as also the learned Judge of the Sessions Court to refuse an order of stay viz. that the prosecution has been pending for a long period of time. Unfortunately, that is an inevitable consequence and in any event, the assessee-accused cannot be blamed for it. It is true that because of the heavy backlog of work, the High Court may not have been able to dispose of the reference but that is not a ground on which the assessee who is facing qa prosecution should be made to suffer. It is necessary, while exercising judicial discretion, to adopt an attitude of total fairness regardless of whether the petitioner before the Court is the accused before a Criminal Court or otherwise. On the facts of the present case, for the reasons indicated by me above, there can be no dispute that the assesses have succeeded substantially before the Tribunal. The genesis of the complaint proceeds on the footing that the assesses are alleged to have made false declarations. For purposes of arriving at this conclusion, the important issue would be as to whether certain heads of account can be added or whether certain heads of account need to be computed or not. These are mixed questions of fact and law, which, undoubtedly, have to be set at rest in the reference which is pending before the High Court. In such a situation, therefore, and on the special facts of the present case, the petitioners are fully justified in their prayer that the prosecutions in question be kept pending until the disposal of the reference. It is undoubtedly open to the department to make a special application to the High Court and to have the reference disposed of expeditiously after pointing out to the Court that the prosecutions which are the off-short of this reference are pending adjudication before the trial Court for a long time. 5. In the result, the petition is allowed. Rule is made absolute in terms of prayer (a) with the exception of the concluding part of the prayer in so far as the application for composition pending before the Central Board of Direct Taxes, New Delhi has already been disposed off. 5. In the result, the petition is allowed. Rule is made absolute in terms of prayer (a) with the exception of the concluding part of the prayer in so far as the application for composition pending before the Central Board of Direct Taxes, New Delhi has already been disposed off. It is, therefore, clarified that the prosecutions are stayed until disposal of the Reference No. 120 of 1981 pending before this High Court. Order accordingly. -----