JUDGMENT P.N. Harkauli 1. THIS application for revision arises in the following circumstances. 2. AMBIKA applicant, is being tried by the learned Assistant Sessions Judge, Ghazipur on a charge under Section 307/34 IPC. The prosecution case is that in furtherance of the common intention of himself and one other person the applicant attempted to murder one Surendra. It appears that victim Surendra had made a dying declaration before the then Sub-Divisional Magistrate, Ghazipur Sri Ram Yagya Singh. The prosecution did not prove it and after producing other witnesses closed its evidence. After the statement of AMBIKA applicant, under Sec. 313 CrPC was recorded, he was called upon to enter on his defence. He then moved an application before the learned Assistant Sessions Judge praying that the learned Sub-Divisional Magistrate, Sri Ram Yagya Singh, may be summoned as a defence witness from Kanpur, to which place he had been transferred in the meantime. In this application it was alleged that the prosecution had deliberately not proved the dying declaration and had tried it, and it was necessary in the interest of justice that this dying declaration may be proved. It was further stated that in this application that the applicant was a poor man and was not in a position to pay the expenses of summoning the aforesaid witness and accordingly it was prayed that the witness may be summoned at Government expense. The learned Assistant Sessions Judge was of the view that the question whether a defence witness should be summoned at the expense of the government or at the expense of the accused person was in the discretion of the Court and that since in this case the applicant was on bail and he had engaged a senior counsel to defend him and there was nothing on the record to show that he was not in fact in a position to bear the expenses of summoning the witness, it was not a fit case for summoning Sri Ram Yagya Singh at Government expense. In this view of the matter, the learned Assistant Sessions Judge ordered that the witness would be summoned only if the applicant deposited one day's pay of the witness and undertook to pay the travelling allowance and diet money of the witness or he deposited a sum of Rs. 300/- in court to meet the travelling expenses etc. of the witness. 3. 300/- in court to meet the travelling expenses etc. of the witness. 3. FEELING aggrieved by this order the applicant has preferred this revision. 4. THE learned counsel for the applicant contended, in the first place, that normally the State must bear the cost of causing the attendance of the witnesses of an accused person and this rule cannot and should not be departed from without adequate reasons. He contended that even if the accused is in fact in a position to pay the expenses of his witnesses this is not a valid ground for departing from the aforesaid rule. In support of these contentions the learned counsel for the applicant placed reliance upon ruling of the Lahore and Punjab High Courts reported in Parshotam Das v. Emperor, AIR 1936 Lahore 919, Khushi Mohammad v. Chaudhari Abdulla Khan, AIR 1937 Lahore 458 and Jit Singh v. State, AIR 1963 Punjab 143. Secondly, the learned counsel for the applicant contended that the applicant was not in a position to deposit such a large sum as Rs. 300/-.to meet the travelling expenses etc. of the witness and the learned Assistant Sessions Judge was in error in directing the applicant to deposit the expenses of calling the witness merely on the ground that he was on bail and that he had engaged a senior counsel to conduct his defence. The learned counsel for the State raised a preliminary objection to the maintainability of this revision. He contended that the impugned order was an 'interlocutory order' and no revision against an interlocutory order was maintainable. On the merits, the learned counsel for the State contended that the learned Assistant Sessions Judge was right in taking the view that the question as to whether a defence witness should be summoned at government expense or at the expense of the accused was in the discretion of the court and that there is no such invariable rule that in a criminal case the defence witnesses must be summoned at government expense. In support of this contention he placed reliance upon a ruling of this Court reported in Emperor v. Mehtab Singh, 1938 ALJ 1082. The learned counsel for the State further contended that in the circumstances pointed out by the learned Assistant Sessions Judge it could not be said that he had exercised his discretion incorrectly. 5. In support of this contention he placed reliance upon a ruling of this Court reported in Emperor v. Mehtab Singh, 1938 ALJ 1082. The learned counsel for the State further contended that in the circumstances pointed out by the learned Assistant Sessions Judge it could not be said that he had exercised his discretion incorrectly. 5. SO far as the preliminary objection raised by the learned counsel for the state is concerned, it is not, and quite obviously, cannot be disputed that a revision against an interlocutory order does not lie. It is, however, contended on behalf of the applicant that the order in question cannot be characterised as an ''Interlocutory order." The question which arises for consideration, therefore, is whether an order of this nature can be characterised as an ''Interlocutory order" or not. The question as to what type of orders will be covered by the expression ''interlocutory order" came up for consideration before the Supreme Court in the case of Amar Nath v. State of Haryana, AIR 1977 SC 2185 . It was observed as follows in this case : "It seems to us that the term "interlocutory order" in Sec. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in Sec. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the nights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court." 6. But orders which are matters of moment and which affect or adjudicate the nights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court." 6. DEALING with the particular order in question in that case, the Court went on to observe as follows :- "The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to fa?:e the trial without proper application of mind it cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial." These observations show that the court took the view that orders which had the effect of deciding matters of moment, or which deprive a party, particularly a person accused, of valuable rights cannot be said to be covered by expression "Interlocutory order" even though such orders may not be final in the sense that they finally decide the case. The words underlined above also show that the question whether a particular matter is a 'matter of moment" or not, or whether a particular order deprives a party of a valuable right or: not has to be considered in the light of the circumstances of each case. 7. THIS question again arose for consideration by the Supreme Court in the case Madhu Limaya v. State of Maharashtra, 1978 AWC 96. In this case the Supreme Court refused to apply the test that an order which did not finally dispose of the matter in dispute was an interlocutory order. 7. THIS question again arose for consideration by the Supreme Court in the case Madhu Limaya v. State of Maharashtra, 1978 AWC 96. In this case the Supreme Court refused to apply the test that an order which did not finally dispose of the matter in dispute was an interlocutory order. Untawalia J., speaking for the court, observed as follows : "In our opinion if this strict tests were to be applied in interpreting the words "Interlocutory order" occurring in Sec. 397 (2), then the order taking cognizance of an offence by a Courts whether it is so done illegally or without jurisdiction, will not be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Sec. 397 (1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are "not appealable under Chapter XXIV of the Code. THIS does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code.......... On one hand, the legislature kept in tact the revisional power of the High Court, and, on the other hand, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order" as invariably being converse of the words "final order."......... ........It is neither advisable, nor possible, to make, a catalogue of orders to demonstrate which kind of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be called out from many decided cases. The first two kinds are well known and can be called out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-Sec. (2) of S. 397. In our opinion it must be taken to be an order of the type falling in the middle course." 8. THESE observations again make it clear that every order which is not final in the sense that it finally disposes of the matter in dispute is not necessarily an "interlocutory order" within the meaning of Section 397 (2) CrPC that various types of orders cannot be placed in separate water-tight compartments and that there is no hard and fast rule of universal application for determining as to which kind of orders are not "interlocutory orders". In other words, the question whether a particular order does or does not fall within the category of "interlocutory order" will have to be decided on the facts and the circumstances of each case tin the light of the guidelines given in these rulings. It was pointed out on behalf of the opposite party, that in Amar Nath's case (supra), it has been observed that orders summoning witnesses, adjourning cases etc. are interlocutory orders being merely steps in aid of a pending proceeding. That is true, but an order refusing to summon an essential witness, or, what amounts to the same thing, laying down a condition for summoning a witness, which the accused is unable to fulfil, cannot be equated with a routine order summoning a witness. I am clearly of the opinion that the above mentioned, observation of the Supreme Court refers only to routine orders for summoning witnesses in the usual course and not to cases like the present one where, as will be shown presently, the evidence is indisputably of an authentic character and the consequences of refusal to summon the witness might be of a crucial importance. 9. IN the instant case it is not disputed that the then Sub-Divisional Magistrate, Sri Ram Yagya Singh was called to record the dying declaration of the injured Surendra and he did record the same. 9. IN the instant case it is not disputed that the then Sub-Divisional Magistrate, Sri Ram Yagya Singh was called to record the dying declaration of the injured Surendra and he did record the same. The prosecution did not prove this document, and the applicant prayed that the Sub-Divisional Magistrate may be summoned to prove this document because, according to him, the oral evidence adduced in this case was at variance with the "dying declaration". If there is material discrepancy between the oral evidence adduced at the trial and the contents of that ''dying declaration" then, prima facie, it would appear essential for the just decision of the case to allow the applicant to have it brought on the record by getting it proved, if the discrepancy is not satisfactorily explained, it might even turn out to be decisive of the case. IN such circumstances it can hardly be said that the impugned order is not an order on a 'matter of moment' or that it does not take away a valuable right of the applicant. To my mind, the refusal to summon such a witness unless the accused pays or undertakes to pay his expenses cannot stand on the same footing as allowing or refusing to summon an ordinary witness in the ordinary course. 10. ACCORDINGLY, I am of the opinion that the impugned, order cannot be considered to be an "interlocutory order" within the meaning of Section 397 CrPC and this revision application is maintainable. If Coming now to the merits of the matter, the first contention of the learned counsel for the applicant is that as a rule the State must pay the expanses of calling the defence Witnesses. After going through the rulings cited by the parties and giving careful consideration to the matter I am of the opinion that this contention is not sound. It is true that it has been observed by the Lahore High Court in Parshotam Das v. Emperor (supra) that if tie prayer of the accused is not unreasonable the accused person should not toe burdened with the cost of balling of tie defence witnesses. It is true that it has been observed by the Lahore High Court in Parshotam Das v. Emperor (supra) that if tie prayer of the accused is not unreasonable the accused person should not toe burdened with the cost of balling of tie defence witnesses. Similarly in Khushi Mohammad's case (supra), it has been observed by the Lahore High Court that the usual rule is that in Warrant cases the cost of causing attendance of the witnesses of an accused person should be borne by the State, and in Jit Singh's case (supra) the Punjab High Court has observed that, the capacity of the accused to pay the expenses of the defence witnesses is not a valid ground for refusing to summon a Witness until he deposits, the same, fiat a Division Bench of this Court has taken a different view in Mehtab Singh's case (supra), The Division Bench distinguished the rulings of the Lahore High Court by pointing out that those rulings appeared to have been given on the basis of the rules framed by the Punjab Government, and held that in view of the provisions of Sec. 544 of the CrPC 1898 the matter is entirely in the discretion of the court. The language of Sec. 312 prPC 1973 is the same as that of Sec. 544 of the CrPC, 1898. Therefore, the ruling in Mehtab Singh's case (supra) which was given with reference to Sec. 544 CrPC, 1898 is still fully applicable. I am, therefore, of the opinion and hold that the question whether the defence witness should be summoned at the expense of the State or not is in the discretion of the Court, which must of course be exercised judicially after taking all the circumstances of the case into consideration. The next contention of the learned counsel for the applicant was that the learned Assistant Sessions Judge, did not exercise his discretion properly. I am of the opinion that this contention is sound. It will be seen that the learned Assistant Sessions Judge does not say that he considered the evidence of Sri Ram Yagya Singh to be unimportant or unnecessary for the proper decision of the case. I am of the opinion that this contention is sound. It will be seen that the learned Assistant Sessions Judge does not say that he considered the evidence of Sri Ram Yagya Singh to be unimportant or unnecessary for the proper decision of the case. On the other hand, as pointed above, the evidence which the applicant sought to produce is of an authentic character and prima facie it not only has a bearing on the case but appears to be necessary for the just decision of the case. That being so it would appear that even if the applicant had not prayed for summoning the witness it would have been the duty of the learned Asstt. Sessions Judge to summon the witness u/Sec. 311 CrPC. Obviously, if the witness had been summoned under Sec. 311 CrPC his expenses would have been paid by the State. What justification then can there be for insisting that the accused should pay the expenses of calling the witness ? In my opinion in such a case the question whether an, accused person is or is not in a position to pay the expenses of calling the witness, is not a relevant consideration. 11. FOR these reasons, I am of the opinion that the learned Assistant 'Sessions Judge did not exercise his discretion at all properly when he virtually declined to summon the witness until the applicant either deposited the expenses of calling the witness or undertook to pay the same and this is a fit case for interference in revision. 12. THE application for revision is accordingly, allowed and the learned Assistant Sessions Judge, Ghazipur, is directed to summon the witness at the expense of the State. Revision allowed.