R. K. DASH, J.

( 1 ) - In this application for bail the sole question arises for consideration is whether the accused who has since been admitted to bail for having committed a bailable offence could be put behind the bars if subsequently the offence turns to be non-bailable one.

( 2 ) IT is borne out from the application for bail that for an incident alleged to have occurred on 2-2- 1998 an FIR was lodged against the petitioner which was registered under Sections 341, 324 and 294 read with Section 34, IPC. The offences being bailable, the petitioner was admitted to bail by the Court of the first instance. But since the injured succumbed to injuries some days after the case turned to be one under Section 302, IPC charge-sheet was accordingly laid under Sections 341, 294 and 302 read with Section 34, IPC. In the changed circumstance, the learned Court below cancelled the bail and remanded the petitioner to custody. After commitment the petitioner moved the learned Additional Sessions Judge. Rourkela, in seisin of the case for bail and the said prayer having been rejected, he moved this Court by filing the present application.

( 3 ) IN course of hearing either side could not cite any judicial pronouncement on the question whether the Court of the first instance admitting a person accused of bailable offence to bail can itself cancel the bail if subsequently the case turns to be non-bailable one. Provisions as to bail and bail bonds are provided in Chapter XXXIII in the Code of Criminal Procedure. 1973 (for short, 1973 Code ). The relevant sections necessary for the purpose are Sections 436, 437, 438 and 439. Section 436 relates to bailable offences, whereas Sections 437 and 439 relate to non-bailable offences and so far as Section 438 is concerned it is a new provision embodied in 1973 Code regarding grant of bail to a person apprehending arrest popularly known as anticipatory bailt. It would appear from Sections 437 (5) and 439 (2) that a person admitted to bail can be arrested and committed to custody. The former provision provides for exercise of such power by the Court which has admitted a person to bail, whereas the latter envisages that the said power can only be exercised either by the High Court or the Court of Sessions.

( 4 ) IT is needless to refer to the settled position of law as decided by the Apex Court and this Court as to under what circumstances bail once granted to an accused can be cancelled in exercise of power either under Section 437 (5) or 439 (2) of 1973 Code. Once the accused against whom a case has been registered for commission of a non-bailable offence is released on ban, he cannot be rearrested if the case is converted to a serious offence that provides severe punishment. In this context, it is apposite to refer to a decision of this Court in Prafulla Kumar Nayak v. State of Orissa. In that case the offence registered against the accused was one under Section 384, IPC. He was granted bail by the S. D. J. M. , but since charge-sheet was filed under Section 395, IPC, his bail was cancelled and he was committed to custody. While setting aside the order of the learned S. D. J. M. the Court observed: xxx An order of bail either under Section 437 or Section 438 or Section 439, Cr. P. C. remains operative unless it is cancelled under appropriate provisions. Merely because cognizance has been taken of an offence which is exclusively triable by Court of Sessions or the punishment provided for is higher than the offence relating to which there was earlier accused and on the basis of which an order of bail was granted the order of bail does not automatically lapse. x xt

( 5 ) COMING to the case in hand the offence with which the petitioner stood, prosecuted were initially registered under Sections 341, 324 and 294, IPC, and the same being bailable learned Court below admitted him to bail. But since the case subsequently turned to be one under Section 302, IPC, learned S. D. J. M. cancelled-his bail. Neither