I.A. Ansari, J.

1. This is a criminal reference, made by the learned Judicial Magistrate, 1st Class, Saraideo, Sonari, District Sibasagar, in GR Case No. 135 of 2009, wherein the question, which has been referred to by the learned Court below, for the decision of this Court, reads:

As to whether this Court may take, the evidence recorded in re-cross-examination of PW1, PW2, PW3, PW4 and PW6, into consideration in deciding this case as per direction of the Hon'ble appellate Court (Hon'ble Sessions Judge, Sibasagar) vide its judgment and order, dated 10-10-2001 in Appeal No. 6(1) 2001?

I have heard Mr. Z Kamar, learned Public Prosecutor, Assam, and Mr. S Kataki, learned counsel for the accused.

2. In the case at hand, as the reference is substantially based on facts, the back-ground events, which have led to the making of the reference, need to be, therefore, taken not of. The material facts, leading to this reference, are, in brief, be set out as under:

(i) By judgment and order, dated 30- 12-2000, the learned Judicial Magistrate, 1st Class, Saraideo, Sonari, district Sibasagar, convicted the accused under Section 324, IPC and sentenced him to suffer rigorous imprisonment for a period of one year and pay a fine of Rs. 500/- and, in default of payment of fine, rigorous imprisonment for a period of three months. Aggrieved by his conviction and the sentence passed against him, the accused preferred an appeal, which gave rise to Criminal Appeal No. 6(1) of 2001.

(ii) By judgment and order, dated 10-10-2001, the learned Sessions Judge, Sibsagar, has partly allowed the appeal and remanded the case to the learned Court below with certain directions.

3. Before I go to the directions, given by the learned Sessions Judge in appeal it may be noted that the learned appellate Court has observed that in the appeal, a prayer, for remand of the case to the trial Court, was made on two grounds, namely, the witnesses were not thoroughly examined to bring on record the defence case; and, secondly, the investigation had apparently been taken up on the basis of Borhat Police Station GD Entry No. 28, dated 03-04-1999, but the said GD Entry was not produced in the learned trial Court and, according to the learned counsel for the appellant, any oral information of cognizable offence, recorded in the General Diary, shall be construed as the FIR within the meaning of Section 154, Cr.P.C.; but in the Criminal Reference No. 3 of 2006 Page 3 of 10 case at hand, the relevant GD Entry was not produced at the trial and the charge-sheet was submitted on the basis of a subsequently lodged First Information Report (in short, 'FIR'). Learned counsel for the appellant also submitted, in the learned appellate Court, that the accused- appellant would be prejudiced if he was not given any opportunity to bring the defence case on record as well as cross-examine the investigating officer on the entry made, in the General Diary, on 02-04-1999. Reacting to the submissions, so made by the learned counsel for the appellant, the learned Sessions Judge observed and directed as under:

5. It is true that the defects pointed out by the learned counsel cannot be attributed on the part of the trial Court. However, justice demands fair and defects less trial sans whether it was on the part of his lawer, the investigation officer or on the part of the Court. It appears to me that non-production of the GD Entry was a lacuna in the trial. To remove any kind of prejudice from the mind of the accused, it is desirable that the accused should be given an opportunity to re- cross-examine the I.O. on the basis of the GD Entry No. 28. I am also of the view that if the case is remanded back to bring on record the first GD Entry, the accused may be given an opportunity to re-cross- examine the remaining witnesses, who are available for this purpose.

6. Since the case is destined for remand, I am not adverting or discussing the merit of the prosecution case or the impugned judgment.

7. In the re