The main legal point established in the judgment is the importance of considering whether a prima facie case is made out for proceeding further at the stage of framing the charge.

Heard Mr D.K. Das, learned counsel for the petitioner and Mr J.M. Choudhury, learned counsel appearing for the respondents.

2. The C.B.I. (SPE), Silchar had filed a case against Shri Partha Sanyal, Accountant, Indian Bank, Silchar and one Shri K. James, before the Special Judge, Assam, Guwahati under Section 419,420, 467, 468, 471, IPC read with Section 13(l)(d) of the Prevention of Corruption Act. The case was registered as Special Case No. ll(C)/93. So far as the respondent, Partha Sanyal is concerned, the Special Judge discharged him, vide order dated 12.5.95, and so far as respondent, K. James is concerned, it was held that since he was not a public servant, his case need not be tried by a Special Judge. This criminal revision was filed under Section 397, Cr.P.C., against the order of discharge, dated 12.5.95, against Shri Parhta Sanyal. Though Shri K. James is also arrayed as a respondent, but no relief has been claimed by the petitioner, C.B.I.

3. It may be observed here that vide order dated 19.6.97, Mr. Justice V.D. Gyani, a Judge of this Court (since retired) had accepted the revision petition and set aside the order dated 12.5.95 discharging Shri Patha Sanyal. Shri Partha Sanyal filed Criminal Appeal No. 917 of 1998 before the Apex Court. The primary grievance made was that at the time the case was heard by the learned Judge of the High Court, he was not present. It may be observed here that the learned Judge of this Court had observed that despite service of notice, Shri Partha Sanyal had not entered appearance. However, the Apex Court vide order dated 31.8.98 set aside the order of this Court dated 19.6.97 and remanded the case for rehearing after hearing the respondent, Shri Partha Sanyal. Shri Partha Sanyal has put in appearance through his counsel Shri J.M. Choudhury and Shri B.M. Choudhury.

4. In a nutshell, the prosecution story is that some person had submitted fictitious income-tax returns purported to be of the assessees who were non-existent. Along with the income-tax returns, some T.D.S. certificates were attached, which were allegedly fake and forged. This was with the idea to get refunds from the Income-Tax Department. The alleged role played by the respondent, Shri Partha Sanyal, was that he as an Accountant of the Bank was instrumental and facilitated in getting three accounts opened in the names of fictitious persons who are non-existent, at the behest of Shri K. James, who is stated to ha impersonated. The further allegations a that Shri Sanyal facilitated the passing the cheques.

5. The learned counsel for tl respondent, Shri Partha Sanyal, submitti that whatever Shri Sanyal did in openii the accounts was perfectly legal and as per his duties in opening the accounts.

6. I have perused the order dated 12.5.95 discharging the respondent, Shri Sanyal.

7. At the stage of framing the charge against an accused what is to be seen that whether the prosecution allegation if proved, constitute an offence. If the answer is in the affirmative, charge must be framed without going into as to who would be the defence of the accused. At the stage of framing the charge, the defence whatever is not to be gone into. Thex Ape Court in State of Maharashtra-Vs-Soi Nath Thapa, AIR 1996 SC1744, observe as under: -

"28: Before adverting to what was stated in Antulay 's case (AIR 1986 SC 2045), let the view expressed in State of Karnataka-Vs-I. Muniswamy, (1977) 3 SCR 113: (AIR 1977 SC 1489), be noted. Therein, Chandrachud, J. (as he then was) speaking for a three Judge Bench stated at page 119 (of SCR) (at pp. 1493-94 of AIR), that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasised.

29. What was stated in this regard in Stree Atyachar Virodhi Parishad's