IMPORTANT POINT
Bail – Mere existence of criminal antecedents would not be sufficient to refuse bail, unless there is material to indicate that Petitioner in the event of enlargement on bail would terrorize material witnesses.

JUDGMENT (ORAL)

G. Satapathy, J.—This is an application U/S.483 of BNSS by the petitioner for grant of bail in connection with ST Case no.137 of 2016 arising out of Bidanasi PS Case no.86 of 2004 pending in the file of learned 1st Addl. Sessions Judge, Cuttack for commission of offences punishable U/Ss.302/120B/34 of IPC r/w Sections 25/27 of the Arms Act, on the main allegation of committing murder of one Akhana @ Akhaya Kumar Malia, along with co-accused person by entering into conspiracy with each other in furtherance of their common intention.

2. Heard, Mr. Soura Chandra Mohapatra, learned Sr. counsel who is being assisted by Mr. Chandan Samantaray, learned counsel for the Petitioner and Mr. Partha Sarathi Nayak, learned specially engaged counsel for the State in the matter and perused the record.

3. After having considered the rival submissions upon perusal of record, there appears allegation against the Petitioner for committing murder of the deceased along with co-accused person, but it is not disputed that the Petitioner is in custody since 08.04.2016 with framing of charge on 29.07.2016, however, the trial is yet to be concluded even after more than 10 years custody of the Petitioner and only 9 out of 18 charge sheeted witnesses have been examined till today and out of the 9 witnesses, 7 witnesses have become hostile, but PW8 is a Constable who had stated about receiving information about the deceased shot dead and PW7 is the Postmortem conducting Doctor. It is no doubt true that Mr. Partha Sarathi Nayak, learned Specially engaged counsel for the State by relying upon the statement of Krushna Chandra Malia and Dibakar Behera have tried to oppose the bail application of the Petitioner, but the certified copy of the order sheet dated 07.04.2026 & 22.04.2026 supplied by the learned counsel for the Petitioner reveals that the summon issued against the witness Krushna Chandra Malia received back with a report of Process Server that he has already expired since long and the summon issued against the witness Dibakar Behera is received back with report of Process Server that the summonee has already expired for more than 7 years. It is, therefore, clear that the effort of the learned Special Counsel by relying upon the decision of Pakala Narayana Swain Vrs. Emperor; MANU/PR/0001/1939 to make the statement of witness Krushna Chandra Malia remains elusive. Further, co-accused Sushil Kumar Dhalasamanta who is similarly situated with present accused has already been acquitted by the learned trial Court vide Judgment dated 30.09.2010 passed in ST Case no.155 of 2010 and on being asked, Mr. Nayak submits that he has got no instruction as to whether the State has challenged the said impugned judgment or not, however, Mr. Soura Chandra Mohapatra, learned Sr. Counsel confirms that the aforesaid judgment has never been challenged by the State.

4. What is most surprising is that on the last date, on being asked by this Court, Mr. Partha Sarathi Nayak, learned Specially engaged counsel for the State undertook to inform the Court by way of an affidavit as to when the prosecution would probably conclude the examination of witnesses, but the affidavit filed by the IIC, Bidanasi PS does not reveal any date or time for concluding the examination of prosecution witness and his reply in the affidavit is speculative one which is evident from his reply that the prosecution will take all sincere steps for early conclusion of the case as per the schedule date of the learned trial Court. What is more astonishing that the learned trial Court in its report has made it clear that it would take one year to conclude the trial, nevertheless the petitioner is in custody for more than ten years without conclusion of trial. It is also equally unfortunate, but true that the prosecution on 22.04.2026 has filed petition U/S. 311 CrPC to issue summons against witnesses namely Bhagirathi Mohanty, Joseph Eka, R.N. Swain, Bibhuti Sethi, Tanmaya Pattnaik, Jayanta Pan