The court clarified that the prosecution has discretion in witness selection and that applicants do not possess an unqualified right to testify, reflecting the nature of revisional jurisdiction.

JUDGMENT

1. By this common judgment, I shall dispose of these two revision petitions since the two orders under challenge have been passed in the same case i.e., Sessions Case No.1086/2016 titled State v. Suresh Suneja arising out of FIR No.787/2015 registered under Section 302 read with Section 201 IPC at P.S. Mandawali, Delhi.

2. It may be mentioned at this stage that the petitioner Suryakant is the brother of the deceased. He moved an application under Section 311 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") for his examination as a prosecution witness. This application was dismissed by the then District and Sessions Judge (East), Karkardooma Courts, Delhi vide order dated 28th February, 2017. Thereupon, a revision petition being CRL.REV.P. 212/2017 was filed praying that the impugned order be set aside and the application be allowed with directions to the learned Trial Court to examine the petitioner as an eye-witness in the case.

3. Subsequently, on 23rd May, 2017, the accused moved an application under Section 294 Cr.P.C., on the basis of which examination of certain witnesses was sought to be dispensed with. The application has been placed on the record as Annexure P-10 to CRL.REV.P. 612/2017, which petition has been filed against the orders of the learned Trial Court dated 23rd May, 2017 allowing the application under Section 294 Cr.P.C., dismissing the objections raised by the present petitioner.

4. Mr. Sandeep Kumar, learned counsel for the petitioner, submitted that the petitioner was aggrieved by these orders since the eye-witness was not coming to testify and further, another witness had turned hostile, whereas despite the repeated efforts of the petitioner, the Investigating Officer (I.O.) had not included him as an eye-witness. It was submitted by the learned counsel that the PCR call had been made from the phone of the petitioner, though the cell phone stood in the name of his sister. It was further claimed that even as per the testimony of Umesh Kumar, he had rushed to the house of the deceased and along with other brothers of the deceased, the petitioner had also rushed to the spot. Thus, the petitioner had been an eye-witness and his testimony was material to the trial.

5. Similarly, it was submitted by learned counsel for the petitioner that the learned Trial Court had erroneously allowed the application of the accused under Section 294 Cr.P.C. without examining the witnesses. It may be noted that the same argument of the petitioner having not been examined have been repeated even in the CRL.REV.P. 612/2017.

6. Mr. G.M. Farooqui, learned Additional Public Prosecutor for the State opposed these petitions submitting that the learned Trial Court in both instances had correctly followed the prescribed procedure, inasmuch as the application under Section 294 Cr.P.C. moved by the accused would be treated as an admission on their behalf of the various documents that have been mentioned in the application. Moreover, no witness had referred to the presence of the petitioner at the spot as an eye-witness and therefore, the present petitions were liable to be dismissed.

7. Mr. Nitin Sehgal, learned counsel for the accused, also opposed these petitions submitting that these petitions have been moved with ulterior purposes and with no locus to do so.

8. I have heard the submission of both counsel as well as the learned APP for the State and have perused the record. It is well settled that the revisional jurisdiction of the High Court cannot be equated with appellate jurisdiction. In its revisional jurisdiction, the High Court can examine the records of any proceeding