16 th April, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this application under Section 438 of Cr.P.C. seeking protection from arrest which he apprehends as graver offence has been added to the case. The petitioner was originally implicated in Aul P.S. Case No. 343 of AFR 2023 corresponding to G.R. Case No. 550 of 2023 pending in the Court of J.M.F.C., Aul, Kendrapara for the alleged commission of the offences under Sections 498-

A/323/294/427/506/34 of IPC as per the FIR. He was directed to surrender and be released on bail, vide order dated 06.07.2023 passed by this Court in ABLAPL No. 5769 of 2023.

Subsequently, charge sheet was submitted after investigation and the offences under Sections 307 and 406 of IPC were added. The Magistrate after taking cognizance of the matter, has issued process in the case. The petitioner apprehends that on his appearance he may be remanded to custody by the Court and therefore, seeks protection in the form of an order under Section 438 of Cr.P.C.

2. Learned counsel for the petitioner submits that in view of the ratio laid down in Sushila Aggarwal Vs . State (NCT of Delhi) 1 bail once granted is deemed to continue till the end of trial and therefore, necessary order in this regard may be passed to protect the petitioner.

1 AIR 2020 SC 831

3. Mr. S.K.Mishra, learned State counsel on the other hand, submits that the petitioner, being on regular bail has to surrender before the Court below and move for regular bail in respect of the newly added offences of Sections 307 and 407 of IPC. He cites the decision of the Supreme Court in the case of Pradeep Ram Vs. State of Jharkhand 2 in this regard.

4. In the case of Sushila Aggarwal (supra), the Supreme Court observed as follows:

“70. The question here is whether there is anything in the law which per se requires that upon filing of the charge-sheet, or the summoning of the accused, by the court – (or even the addition of an offence in the charge-

sheet, of which an applicant on bail is accused of freshly), his liberty ought to be forfeited and that he should be asked to surrender and apply for regular bail. The observations about the width and amplitude of the power under Section 438, made in answer to the first question, are equally relevant here too. In the present context, further, the judgment and observations of this Court in its interpretation of Section 167(2) are telling. It was held in Gursharan Singh (supra), the release by grant of bail of an accused under Section 167(2) amounts to “deemed bail”. This is borne out by Section 167(2) which states that anyone released on bail under its provision “shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.” The judgment in Aslam Babalal Desai (supra) has clarified that when an accused is released by operation of Section 167(2) and subsequently, a charge-sheet is filed, there is no question of the cancellation of his bail.

In these circumstances, the mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail. The analogy to ‘deemed bail’ under Section 167(2) with anticipatory bail leads this court to conclude that the mere subsequent event of the filing of a charge-sheet cannot compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if

2 AIR 2019 SC 3193

This order was however passed in respect of a person who had been granted anticipatory bail. In so far as the present case is concerned, the petitioner admittedly was granted regular bail by the Court below as per order of this Court. In the case of Pradeep Ram (Supra) the Supreme Court held as follows:

“29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where aft