p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.167 of 2025 Basanta Kumar Rout & another …. Petitioners Mr. A.K.Pandey, Advocate -Versus- State of Odisha & another …. Opposite parties Ms. B.Dash, ASC CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 30.06.2025 01. 1. Heard Mr. Pandey, learned counsel for the petitioners and Ms. Dash, learned ASC for the State. 2. No notice is issued to opposite party No.2 as the matter is disposed of at the stage of admission. 3. Instant revision is filed by the petitioner assailing the correctness of the impugned order dated 28th February, 2025 passed in connection with S.T. No. 27 of 2016 by learned Additional Sessions Judge, Kendrapara on the grounds stated therein. 4. Mr. Pandey, learned counsel for the petitioners submits that an application seeking recall of P.W. 9 during trial was moved by the petitioners as per Annexure-4 dated 27th February 2025, however, learned court below did not entertain the same p. 2 and rejected such a request moved in terms of Section 311 Cr.P.C. followed by the impugned order i.e. Annexure-5. The further submission is that the conducting counsel was sick on the date of such examination of P.W. 9 and the same is revealed from Annexure-2, the date on which, the examination was fixed but it was not considered thereby denying recall of the witness as per Section 311 Cr.P.C. The contention is that in view of the illness of the conducting counsel on 25th February, 2025, the cross-examination of P.W. 9 could not be held and he was discharged as a result, the fact, which should have been duly appreciated by the learned below but the recall was denied vide Annexure-5, which is, therefore, liable to be interfered with. 5. Ms. Dash, learned ASC for the State opposite party No.1 justifies the impugned order dated 28th February, 2025 at Annexure-5 and at the same time would submit that the revision is not maintainable, since it is against an interlocutory order dated 28th February, 2025. 6. Admittedly, the witness, namely, P.W. 9 was sought to be recalled at the instance of the petitioners with an application i.e. Annexure-4 moved and it was rejected by learned court below as per Annexure-5 on the ground that the conducting counsel declined to cross-examine him. In fact, on the date fixed i.e. 25th February, 2025, the conducting counsel moved an application for time, a copy of which is at Annexure-2 and such an adjournment was requested on the ground of illness. As it appears, learned court below, since discharged P.W.9 after p. 3 cross-examination was declined was not in favour of recall and therefore, it was followed by the impugned order dated 28th February, 2025 i.e. Annexure-5. On a reading of the impugned order dated 28th February, 2025, the Court finds that learned court below concluded that the conducting counsel though was present, he chose not to cross-examine to P.W.9. But from Annexure-2, it is also revealed that the conducting counsel had in fact moved the learned court below seeking an adjournment on the ground of illness. The admitted fact is that P.W. 9 was not cross-examined at all which is apparently made to reveal from Annexure-5. The petitioners happen to be the accused persons and hence, had moved such an application 27th February, 2025 seeking recall of P.W.9 which was barely after two days from the date of such examination of the witness having been discharged. Considering Annexure-2 and the fact that such recall of P.W. 9 was promptly moved before the learned court below and that the said witness was not cross- examined and discharged and it could not be accomplished due to the illness of the conducting counsel, the Court is of the view that the said fact should have been duly appreciated and taken cognizance of while dealing with the application for recall. Having said that, the Court is inclined and in favour of recall of P.W. 9 for cross-examination, as has been pleaded for by the petitioners. In so far as the contention of the State with regard to the maintainability of the revision is concerned, the Court is also of the view that such an objection is not acceptable for the fact that an application under Section 311 Cr.P.C. as per p. 4 Annexure-4 was followed by a final order. In other words, the Court is of the conclusion that the revision is maintainable as it does not consider Annexure-4 to be an interlocutory order but final with a decision on an application seeking recall. The ultimate view of the Court is that the impugned order i.e. Annexure-5 is liable to be set at naught paving the way for cross-examination of P.W.9 at the instance of the petitioners. 7. Accordingly, it is ordered. 8. In the result, the revision petition stands allowed. As a necessary corollary, the impugned order dated 28th February, 2025 as at Annexure-5 is hereby set aside with a direction to learned Additional Sessions Judge, Kendrapara to summon P.W. 9 for the purpose of cross-examination in connection with S.T. No. 27 of 2016 and thereafter, to proceed to deal with it as per and in accordance with law. 9. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge kabita Designation: Secretary