16th April, 2024 SASHIKANTA MISHRA, J.

This anticipatory bail application involves the following question of law - what is the effect of subsequent addition of graver offences in a case against a person who has been granted anticipatory bail earlier.

2. The petitioner is apprehending arrest in connection with Tumusingha P.S. Case No. 49 of 2021 corresponding to G.R. Case No. 179 of 2021 pending in the Court of the learned SDJM, Kamakhyanagar for the alleged commission of offence Page 1 of 21 under Sections 451 / 294 / 323 / 354 / 427 / 506 / 34 of IPC. Subsequently a chargesheet was submitted, under Section 498-A / 294 / 323 / 406 / 307 / 506 / 34 of IPC read with Section 4 of the DP Act.

3. Considering the importance of the question of law involved, this Court requested Mr. Devashis Panda, a leading lawyer of the State, to assist it as amicus curiae. Mr. Panda, being assisted by Mr. P.K.Mishra, learned counsel for the petitioner was heard extensively by this Court. This Court also heard Mr. S.K.Mishra, learned Additional Standing counsel for the State.

4. A brief reference to the facts of the case would be in order at the outset. One Judhisthir Sahoo lodged FIR before Tumusingha Police Station on 16.03.2021 alleging therein that on 20.03.2021 at 7:30 am, while he was talking with a villager, Damburudhar Mallick, three persons namely, Prasanna Swain (petitioner No.1), Pabitra Swain (petitioner No.9) and an unknown person came in a scooty and tried to assault him on his head by means of a Thenga.

Damburudhar Mallick caught hold of the Thenga. Since the informant came to know that several persons of Jhagadapada Page 2 of 21 village, being armed with Thengas were also present nearby, he rushed into his house to save himself. While he was in his house the above named accused persons and Santosh Behera (petitioner No.8), Gati Krushna Behera (petitioner No.7) and one Rabi Swain damaged three windows of his house and entered into his house by breaking the back door. When the wife of the informant requested them not to do so, they abused her in obscene language. At that time, the Sarpanch, Sitaram Behera told them to restrain themselves whereupon they left the house. In course of investigation, the complicity of all the 24 petitioners having come to light, they approached this Court in ABLAPL NO. 8100 of 2021 in which, by order dated 19.07.2021, they were granted anticipatory bail subject to the condition that no other graver offence is reported against them. Subsequently, chargesheet was submitted and the offence under Section 307 of IPC was added. Cognizance has been taken and the Court below issued summons for appearance of the petitioners. They apprehend that on their appearance, the Court below would remand them to custody in view of addition of the graver offence.

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5. Learned amicus curae Mr. Panda would argue that it is no longer res integra that the protection granted under Section 438 of Cr.P.C. should not be limited to a fixed period and no restriction as to time should ordinarily be imposed. The conditions laid down in subsection (3) of Section 437 and subsection (2) of Section 438 can however be imposed. He has cited the Constitution Bench judgment of the Supreme Court in the case of Sushila Agarwal & Ors v NCT Delhi1 with special reference to the observations made under paragraphs 70 and 71 thereof to drive home his point. Mr. Panda has also cited the judgment of the Supreme Court in Bhadresh Bipinbhai Seth Vs. State of Gujurat & Another2, wherein it was held that once, pursuant to an order of the Court an accused is released on anticipatory bail, it would be unreasonable to compel him to surrender before the trial Court and again seek regular bail. Mr. Panda concludes his argument by submitting that once a person has been granted anticipatory bail, a motion can be made by the prosecution to take him to custody for violation of any conditions imposed under Section 437(3) read with Section 438(2) and therefore, 1 AIR 2020 SC 831 2 AIR 2015 SC 3090 Page 4 of 21 unless such contingency arises, the accused, despite addition of graver offences should continue to be on bail.

6. Per contra, Mr. S.K.Mishra, learned Additional Standing counsel for the State would argue that an order of anticipatory bail is granted considering the offence alleged against the accused and so it cannot be treated as a blanket order covering any other or higher offence that the accused may be subsequently found to have committed. He cites an illustration of a person alleged to have committed the offence under Section 307 who is granted anticipatory bail, but if the case turns to one under Section 302 the very nature of investigation would change and in such event, the accused cannot be allowed to enjoy the same liberty. He submits that as between the liberty of a person accused of murder and the loss suffered by the victimised family, the cause of the latter should always be advanced. Under such circumstances, Mr. Mishra argues, the proper course would be for the accused to surrender before the Court and move for fresh bail specifically for the higher offences. It is also open to the prosecution to seek cancellation of bail and also for the Court to require the attendance of the accused when higher Page 5 of 21 offences are added. Mr. Mishra has relied upon the judgment of the Supreme Court in Pradeep Ram vs. State of Jharkhand and another3 and X. vs. State of Maharasthra & Anr.4 to buttress his contention.

7. As already stated, Mr. Panda has tried to convince the Court that once a person has been granted anticipatory bail considering the offences then alleged against him, it is not obligatory on his part to wilfully surrender such liberty only because graver offences have arisen. Relying on Sushila Agarwal (supra), Mr. Panda has contended that an order granting anticipatory bail cannot be for a fixed tenure.

8. At this stage, it would be proper to refer to the provision under Section 438 of Cr.P.C., which is quoted herein below:

AIR 2019 SC 3193 4 AIR 2019 SC 3031 Page 6 of 21

(ii)the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognisable offence;

(iii)the possibility of the applicant to flee from justice; and

(iv)where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

section (3) of Section 437, as if the bail were granted under that section :Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3)If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1). (4)[ Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.]"

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Significantly, the Constitution Bench also took note of the conclusions arrived in the case of Pradeep Ram vs. State of Jharkhand (Supra) and reproduced paragraph 29 thereof. Said paragraph of Pradeep Ram (supra) is quoted herein below:

Be it noted that in Pradeep Ram, the accused was granted regular bail and not anticipatory bail.

9. As against the above mentioned decisions, Mr. Mishra, the State counsel has relied upon the judgment in X. vs. State of Maharasthra (supra). In the said case the Supreme Court was seized with a similar question that is, addition of a graver offence after grant of anticipatory bail. The Bench took note of the several judgments including the case of Prasant Kumar Sarkar Vs. Ashis Chartarjee and another5 and also Pradeep Ram (supra). After making a comparative study of the decisions cited at the bar, the Court held as follows:

Learned State counsel has argued that since the higher offence of Section 307 has been added. It is for the petitioner to surrender before the Court below in terms of Pradeep Ram (Supra) and move for bail afresh.

10. Before delving any further on this aspect, it would be relevant to also take note of the observations of the Supreme Court in the case of Priya Indoria vs. State of Karnataka Page 12 of 21 and others.6 Though the question before the Court was relatable to grant of extra-territorial transit anticipatory bail yet the principles laid down in Gurbaksh Singh Sibbia (supra) were culled out and the following observations were made "Cautioning the Courts against granting blanket order of anticipatory bail so as to cover or protect any and every kind of allegedly unlawful activity, or eventually, it was observed that there must be a genuine apprehension of arrest by the applicant and there must be something tangible to go by on the basis of which it can be said that the applicant's apprehension of arrest is genuine. Otherwise, a blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because regardless of what kind of offence is alleged to have been committed by the applicant, when an order of bail comprehends allegedly unlawful activity or any description whatsoever, this will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Therefore, the Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum." (Emphasis Added)

10. Thus, what emerges from the discussion made above is, an order of anticipatory bail is granted taking into 6 2023 INSC 1008 Page 13 of 21 consideration the offences then alleged against the accused. As held in Sushila Agarwal (Supra), mere addition of offence (whether graver or not) does not serve to automatically nullify the earlier order granting anticipatory bail. The Code of Criminal Procedure does not contain any provision laying down as to what is required to be done in such event. Recourse can only be had to the judgments governing the field. In Pradeep Ram, the Supreme Court has highlighted the possible steps that may be taken by all concerned as culled out in paragraph 29 of the judgment quoted below:

cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail."

Though such observations were made in respect of an accused on custody bail yet the same principles, according to the considered view of this Court, can also be made applicable to an accused who is on anticipatory bail subject to appropriate modifications. As evident from the observations in paragraph 29 of Pradeep Ram (supra), four logical options are available:

11. Taking a cue from the options thus available, this Court would hold that the question of surrender arises in case of an accused who is on regular bail. Obviously a prayer for anticipatory bail cannot be passed upon surrendering because then it would tantamount to going into custody. Since without surrendering to custody of the Court he was favoured with an order of anticipatory bail, there is no reason why he cannot do the same again in the event of addition of graver offences. This is being said for all the more reason as there is nothing either in the Code or in the observations of the Supreme Court in Pradeep Ram making it mandatory for the Investigating Agency to seek cancellation of bail or an order for arrest of the accused or even for the Court to suo motu cancel the bail and direct the person to be taken to custody in every case where graver offences are added. It follows that if the Court has not cancelled the bail granted earlier either suo motu or on the application of the investigating agency nor granted order to it to arrest the accused, the accused can himself approach the Court that Page 16 of 21 had granted him anticipatory bail earlier to grant him anticipatory bail also for the graver offences.

12. Another aspect of the matter needs mention here. Sub- section (3) of Section 438 relates to a situation where an accused has been granted anticipatory bail (an order in terms of sub-section(1)) and the time has arrived for the Magistrate to take cognizance. It is provided that in such event if the Magistrate feels that a warrant be issued then he may issue a bailable warrant against the accused conforming to the order under sub-section (1). This essentially means that while taking cognizance of the offences the Magistrate has to respect the order of anticipatory bail granted earlier in favour of the accused. However, reference being made in sub-section (3) to the order passed under sub-section (1) it follows that such order of issuing bailable warrant is in respect of the same offences for which the earlier order of anticipatory bail had been issued. Sub-section (3) does not contemplate a situation where graver offences have been added.

13. To reiterate, if the accused who has been granted anticipatory bail comes to know that graver offences have been added by the investigating agency he may move the Page 17 of 21 Court that has granted him anticipatory bail to grant him such relief also in respect of the graver offences. As can be easily discerned, neither the Code nor the Supreme Court in Pradeep Ram have made it mandatory for the Court to cancel the bail either on the prayer of the investigating agency or suo motu or for the investigating agency to obtain an order of arrest of the accused. These are only recourses available to all concerned that they may exercise depending on the circumstances. Now, what would happen if none of these options are exercised by the concerned parties or the Court? Obviously, the bail granted earlier shall continue to be operative, for the Investigating Agency has not come forward to seek its cancellation or armed itself with an order to arrest the accused. Even in Pradeep Ram, an option was available to the accused to surrender and pray for fresh bail which, he may or may not avail. If he does not, the investigating agency cannot straightway take him to custody without having the earlier bail cancelled or obtained an order for his arrest. So essentially what Pradeep Ram has delineated is the possible scenarios that may happen in the Page 18 of 21 event of addition of graver offence in respect of an accused already on bail.

14. Thus, on a conspectus of the analysis of law made hereinbefore, this Court arrives at the following conclusions:

15. Coming to the facts of the present case, this Court finds that despite submission of charge sheet adding the offence under Section 307 of IPC, the investigating agency has not come forward either to seek cancellation of bail granted earlier or for an order of arrest of the petitioners. The trial Court has also issued a summons only. Under such circumstances and in view of the conclusions arrived in the preceding paragraph, this Court holds the anticipatory bail application filed by the petitioners as maintainable.

16. On merits, this Court finds that one Damburu Mallick had sustained injury allegedly being assaulted by the petitioners, who actually wanted to assault the informant Judhisthira Sahoo by means of a Thenga aiming it at his head but Damburu Mallick received the blow. The injury report of said Damburu Mallick reveals that he sustained only an abrasion and swelling on his forehead which is simple in nature. Under such circumstances, there is no Page 20 of 21 reason for this Court to take a different view as regards the liberty of the petitioners than what was taken earlier.

17. The bail application is therefore, allowed and disposed of with the direction that the petitioners, despite addition of the offence under Section 307 of IPC, shall continue to remain on bail as granted by this Court earlier subject to the conditions already imposed.

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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 16th April, 2024/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 18-Apr-2024 09:16:28 Page 21 of 21