Prosecution based on an assessment order set aside is not automatically quashed; survival must be decided as a preliminary issue.

Criminal prosecution founded on an assessment order is not automatically quashed merely because that assessment order has been set aside. Where the assessment was remitted for fresh consideration, the Court treated the survival of the prosecution as a preliminary issue for the Magistrate to decide independently. The basis of the prosecution had to be examined at trial level before any final step on quashing could be taken. Quashing was therefore declined, and the petition was dismissed.

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Issues: Whether the criminal prosecution launched on the basis of the assessment order was liable to be quashed after the assessment order had been set aside, leaving the question of survival of the prosecution to be examined as a preliminary issue.

Analysis: The proceedings were challenged on the ground that the prosecution rested solely on the assessment order. The assessment order had already been set aside and the matter remitted for fresh consideration in relation to the sale of machinery. In these circumstances, the Court held that whether the basis for the prosecution survived was a matter for the Magistrate to decide independently as a preliminary issue.

Conclusion: Quashing was declined and the petition was dismissed.

Ratio Decidendi: Where the foundation of a prosecution is affected by the setting aside of the assessment order, the question whether the prosecution still survives is to be decided by the trial court as a preliminary issue, and quashing is not automatic.

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