- (1.) THE facts giving rise to this reference by a learned Single Judge of this Court are that the applicant, Asif Hussain, filed a criminal revision against an order of the Special Sessions Judge, Azamgarh, in Sessions Trial No. 125 of 2002 by which an application of the accused seeking summoning certain witnesses and documents has been rejected in the murder trial at a stage when the trial was fixed for final arguments. THE application of the accused was referable to Section 311 Cr. P. C. which empowers the trial Court to summon any person as a witness at any stage of the trial.
(2.) THE learned Single Judge of this Court, by order dated 30-11- 2006, referred the question as to whether an order of the trial Court under Section 311 Cr. P. C. is an "interlocutory order" or not. THE question assumes relevance because criminal revisions under Section 397 Cr. P. C. against interlocutory orders are not maintainable in view of the bar contained in Section 397 (2) Cr. P. C. It is not necessary to examine whether the order under Section 311 Cr. P. C. is or is not a "final order" because in view of a series of decisions of the Supreme Court, the Supreme Court has held that an order may not amount to a "final order" but yet may not fall within the narrow sense of "interlocutory order" and revisions are barred only against "interlocutory orders" and are not barred against orders which are not interlocutory but which may not necessarily be final orders. The law on this point being well-settled by a large number of decisions, most of which are referred to in the referring order of the learned Single Judge, need not be repeated here. While examining whether an order is interlocutory or a final order, the nature of the order has to be examined from the point of view of the person who has approached the revisional Court. It is not to be examined whether an order summoning a witness is an interlocutory order or not from the point of view of that witness, unless the witness approaches the revisional Court. What has to be seen here is whether from the point of view of the accused, who has invoked the revisional jurisdiction of this Court, the order of the learned Sessions Judge refusing to summon a witness under Section 311 Cr. P. C. is or is not "interlocutory order".
(3.) IT has been held by a large number of decisions of this Court as well as the Supreme Court that orders summoning or refusing to summon witnesses are interlocutory as they do not decide any substantive right of the litigating parties, which are in an issue at the trial. Again a number of such decisions have been referred to in the referring order of the learned Single Judge dated 30-11-2006 and, therefore, it is not necessary to reproduce the same here. We, therefore, answer the reference by holding that the order of the learned Sessions Judge under Section 311 Cr. P. C. refusing to summon witnesses, sought to be called by the accused, is a purely interlocutory order from the point of view of the accused- applicant and no revision against the same is maintainable.;