V. V. BEDARKAR, J. ( 1 ) THIS petition is with a grievance against the order of the learned Sessions Judge Banaskantha at Palanpur releasing opponents nos. 1 and 2 on anticipatory bail of Rs. 3 0 each in case the learned Magistrate issues a non-bailable warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 2 ) IT is submitted by Mr. J. G. Shah Advocate for the petitioner that though now as decided by the Supreme Court in Gurubaksh Singh Sibbia v. State of Punjab AIR 1980 Supreme Court 1632 and by this Court in Baldevbhai Natvarlal Barot v. State 23 (1) Gujarat Law Reporter 56 the limitation under sec. 437 of the Code cannot be brought into a case wherein a person is to be released on anticipatory bail still however the Court should have considered the facts and circumstances of the case to come to the conclusion whether it was a fit case in which order for anticipatory bail should have been passed. ( 3 ) READING of the order of the learned Sessions Judge does not show that he considered this aspect at all. The learned Sessions Judge observed that there is an inquiry before the Magistrate but the applicants apprehend that the Magistrate may issue non-bailable warrant against them and considered that this apprehension is well-founded because the High Court has directed the Magistrate to proceed with the inquiry in accordance with law. The learned Sessions Judge therefore considered that under sec. 438 (1) of the Code the Court of Sessions can grant anticipatory bail because under sub-sec. (3) of sec. 438 of the Code if the Magistrate taking congizance of such offence decides that a warrant should issue in the first instance against that person then he has to issue a bailable warrant in conformity with the direction of the Court. Then the learned Sessions Judge considered that in the instant case the applicants were to be proceeded with in connection with the offence of murder and therefore this was a fit case in which the applicants be released on bail of Rs. 3 0 ( 4 ) I quite appreciate the grievance of Mr. J. G. Shah against this order. Firstly this order is passed without any condition. Normally conditions provided under sub-sec. 3 0 ( 4 ) I quite appreciate the grievance of Mr. J. G. Shah against this order. Firstly this order is passed without any condition. Normally conditions provided under sub-sec. (2) of sec. 438 of the Code are usually attached to such an order. But it seems that the learned Sessions Judge has not applied his mind even to those conditions. Not only that but though the limitations under sec. 437 (1) of the Code cannot be imported into the exercise of the power by the learned Sessions Judge under sec. 438 of the Code still however the Court has to consider the facts of each case. Only because a person is accused of an offence punishable for life or death Court cannot be deprived of its jurisdiction to grant anticipatory bail. But if in a murder case after the arrest of a person Court would not have released him on bail under sec. 439 of the Code then also can it be said that without applying its mind the Court should release a person on bail under sec. 438 of the Code ? By no stretch of imagination it can be so said. ( 5 ) THOUGH the Supreme Court in case of Gurubaksh (Supra) observed that the limitations under sec. 437 of the Code cannot be brought into action while granting the bail under sec. 438 of the Code in para 13 of the judgment it has been observed that anticipatory bail cannot be granted without the imposition of any conditions. It is further observed that the High Court and the Court of Sessions to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to 8rant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. It is further observed that similarly they must be left free to refuse bail if the circumstances of the case so warrant on considerations similar to those mentioned in sec. 437 or which are generally considered to be relevant under sec. 439 of the Code. It is further observed that similarly they must be left free to refuse bail if the circumstances of the case so warrant on considerations similar to those mentioned in sec. 437 or which are generally considered to be relevant under sec. 439 of the Code. In para 31 also the Supreme Court has observed that on several other considerations and those enumerated in that paragraph the combined effect must weigh with the Court while granting or rejecting the anticipatory bail and for that the Court must consider the nature and seriousness of the proposed charges the context of the events likely to lead to the making of the charges etc. This Court in case of Baldevbhai (Supra) rendered by Ahmadi J. to which I was a party has also considered the aforesaid para 13 and also para 18 of the Supreme Court judgment in case of Gurubaksh (Supra) wherein it has been observed:". . . . . . circumstances may broadly justify the grant of bail in such cases too (cases in respect of criminal breach of trust) though of course the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal". It is therefore necessary for a Sessions Judge granting anticipatory bail to consider the circumstances and facts of each case and this consideration should be apparent on the face of the order. In the instant case it seems that the learned Sessions Judge has not considered the facts and circumstances of the case and merely because a person was likely to be proceeded with in connection with the offence of murder meaning thereby non-bailable offence he thought that he has to exercise jurisdiction under sec. 438 (1) of the Code. Though he has jurisdiction to grant anticipatory bail he missed the other aspect to consider whether this was a fit case in which anticipatory bail or even a normal bail could have been granted. If after appreciation of the circumstances brought on the record or argued before him he was convinced that even if the accused are to be proceeded with for the offence of murder the facts and circumstances show that they deserve to be released on bail then he may release them on anticipatory bail. If after appreciation of the circumstances brought on the record or argued before him he was convinced that even if the accused are to be proceeded with for the offence of murder the facts and circumstances show that they deserve to be released on bail then he may release them on anticipatory bail. But if on consideration of the circumstances he would come to the conclusion that this is not a case in which the accused should be released on bail then he has the jurisdiction to refuse the bail. Jurisdiction of granting the bail or refusing the bail has to be exercised judicially and the order must show that judicial mind is applied. The impugned order does not show anything of this type. Therefore? this petition deserved to be allowed ( 6 ) IN the result the petition is allowed. But I propose that the order passed by the learned Sessions Judge directing opponents nos. 1 and 2 to be released on bail of Rs. 3 0 each in case they are arrested would continue till he considers afresh the application of the petitioner in the light of the observations made above and if he comes to the conclusion that even in spite of the allegations it is a fit case to release the accused (opponents nos. 1 and 2) on anticipatory bail then he may pass such order but if he comes to the conclusion that this is a serious case and the facts and circumstances are not such as the accused (opponents nos. 1 and 2) should be released on bail then he may refuse bail and permit the learned Magistrate to take any action proposed by him under the circumstances of the case. Rule is made absolute. Petition allowed. .