JUDGMENT 1. - Heard.By his judgment and order dated 19.6.95 the learned trial court convicted and sentenced the petitioner for the offence Under section 467, 468 and 471 IPC. The petitioner preferred an appeal, against the said judgment and order, before the learped appellate court. It appears that in the course of pendency of the appeal it was pointed out on behalf of the petitioner that since PW 1 Purshottam Sharma and PW 2 Roop Narain, two of the prosecution witnesses, were not produced for further cross-examination by the petitioner, their testimony cannot be read in evidence. It was further pointedout to the learned appellate court that the transfer order, which was claimed to be forged document and on the basis of which the petitioner was alleged to have drawn T.A., was not produced at the trial and that no permission of the court to tender the evidence Under section 65 of the Indian Evidence Act was also obtained. It was thus urged on behalf of the petitioner that there was no legal evidence to support his conviction for the afore-mentioned offences, against him. The learned appellate court appears to have appreciated the contention of the petitioner and in his discretion it remanded the case for re-summoning PW 1 Purshottam Sharma and PW 2 Roop Narain for being further cross-examined by the petitioner. 2. It was urged on behalf of the petitioner that the offences were alleged to have been committed as early as on 12.9.80 and the petitioner had been facing the rigorous of this trial since then. It was submitted that the remand was not necessitated by any act of commission or omission on the part of the petitioner and that it was not opened to the learned appellate Judge to have remanded the case for afresh trial by the trial court only in order to fill up lacunas of the prosecution case. The learned counsel further submitted that under Art. 21 of the Constitution speedy trial has since been recognised as a fundamental right of an accused and the impugned order jeopardises such valuable right of the petitioner, the impugned order is not legally sound. 3. The learned Public Prosecution did not dispute the narration of facts, as pointedout by the learned counsel for the petitioner and as born out of a study of the impugned order. 3. The learned Public Prosecution did not dispute the narration of facts, as pointedout by the learned counsel for the petitioner and as born out of a study of the impugned order. On the face of it, it is not in dispute that the petitioner has been facing the trial against him for about last 17-18 years. It is not a function of the appellate court to fill up the prosecution lacuna, if one has been left by the prosecution in their case. In the instant case it could not be explained to me as to why PW 1 Purshottam Sharma and PW 2 Roop Narain could not be produced for further cross-examination by the petitioner, once their examination had been deferred. Similarly it was also not explained as to why the original transfer order, which made the very basis of the prosecution theory against the petitioner, could not be produced at the trial. There is no evidence to show that the prosecution ever tried to request the court to read the photostat copy of the transfer order as secondary evidence Under section 65 of the Indian Evidence Act. on such facts the remand order in the present case may well be read as an effort of the prosecution to fill up a lacuna. 4. It was also submitted by the learned counsel for the petitioner that PW 1 Purshottam Sharma has since died and, therefore, no useful purpose will be served by remanding the case again to the trial court. I find substance in the submission, advanced before me. 5. In view of the above, the impugned order is hereby set-aside and the case is sent back to the appellate court with the direction to hear the parties on the material, available on the record of the trial court, and to dispose of the appeal of the appellant on merits according to law. The parties are directed to appear before the learned appellate court on 24.11.98. 6. The petition is disposed of as such.Petition Disposed of as Per Above Observation. *******