Anticipatory bail remains effective despite the addition of graver offences, unless explicitly cancelled by the court or an arrest order is issued.

JUDGMENT :

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 under Sections 451 /294/323/354/427/506/34 of IPC . Subsequently a chargesheet was submitted, under Section 4 98-A/294/323/406/307/506/34 of 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 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.

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 Delhi, AIR 2020 SC 831 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 & Another, AIR 2015 SC 3090 wherein it was held that once, pursuant to an order of the Court an accused is released on anticipatory ba