JUDGMENT :

Dr. D.P. Choudhury, J.

1. In the decision Neeru Yadav v. State of Uttar Pradesh and another, reported in 2015 SCC OnLine SC 862, Their Lordships have been pleased to quote the significant lines from Benjamin Disraeli in the following manner:

“I repeat……… that all power is a trust-that we are accountable for its exercise- that, from the people and for the people, all springs, and all must exist.”

2. Keeping in mind of above advice, the Court should consider all the matters including the present one. Heard Mr. K.T.S. Tulsi, learned Senior Advocate for the petitioner and Mr. J. Katikia, learned Additional Government Advocate for the State. Hearing on bail was taken up on 8.5.2017, 11.5.2017, 15.5.2017 and 16.5.2017.

3. This is an application under Section 439 Cr.P.C. filed by the petitioner for releasing him on bail who is allegedly involved for the offences under Sections 302/120-B of the I.P.C. read with Sections 25 (1) (b) and 27 of the Arms Act and Sections 3 and 4 of the Explosive Substances Act.

4. The factual matrix leading to the case of the prosecution is that on 26.10.2016 at about 9.00 A.M. while the deceased Mahendra Kumar Swain being the Branch Manager of Seaways Shipping and Logistics Limited, Paradeep wing was proceeding to his office, the unknown culprits opened indiscriminate firing and also hurled bombs which led to the death of Mahendra Swain. It is alleged, inter alia, that there was animosity between the Seaways Shipping and Logistics Limited, Paradeep and the Orissa Stevedores Limited which is owned by the present petitioner. It is alleged by the prosecution that the present petitioner due to previous enmity with the deceased had threatened the deceased and his brother to finish the deceased from his life.

5. After the said occurrence the brother of the deceased lodged F.I.R. During course of investigation it has come to light that the present petitioner has engaged one co-accused Rakesh Choubey through another co-accused Bapi Sarkhel to take revenge by eliminating the deceased because of their previous enmity. The co-accused Rakesh Choubey and Manoj Gochhayat while confessing guilt before the Police stated about the involvement of the present petitioner. Since the present petitioner has got great conspiracy to cause murder of the deceased and has got criminal antecedents, he was arrested and sent to custody.

6. Mr. K.T.S. Tulsi, learned Senior Advocate appearing for the petitioner commenced his argument by stating that there is no eye-witness and there is no witness to any circumstance against the petitioner. He further referred to the bail order against co-accused Bapi Sarkhel passed in BLAPL No.8380 of 2016 wherein the co-accused has been released on bail. According to him, the case of the present petitioner is on same footing for which on parity the petitioner is entitled to bail.

7. Mr. Tulsi, learned Senior Advocate for the petitioner submits that the learned Sessions Judge in the court below has rejected the bail on four grounds but none of the grounds has been substantiated by the prosecution. One of the grounds the prosecution alleges that there was business rivalry between the deceased and the present petitioner but he drew the attention of the Court to the statement of the witnesses Kalpataru and Amarendra who stated that the dispute with regard to discontentment of the labourer has been subsided at the instance of the Additional District Magistrate and thereby there is no enmity between the parties to suspect the role of the present petitioner.

8. Mr. Tulsi, learned counsel for the petitioner contended that the statement of co-accused Rakesh Choubey is very much pressed by the prosecution to prove the complicity of the present petitioner. But in BLAPL No.8380 of 2016 this Court has held that the statement of Rakesh Choubey being admissible towards recovery of the weapon but not the rest of the statement as rightly pointed out in paragraphs 24 and 25 of the judgment is equally not available again