JUDGMENT : B.N. Misra, J. - The Petitioner is the first informant in G.R. Case No. 558 of 1984 registered for offences under Sections 302, 436, 454, 455, 380 and 427/149, I.P.C. The eleven oppositie parties are some of the accused persons in the aforesaid case. 2. It is alleged that on 19-11-1984 at about 9.30 a.m. all the opposite parties and the other accused persons being armed with deadly weapons carne in a group to the house of deceased Balkrishna Barik. On seeing them Balkrishna left his home, ran into neighbour Banamali's house and locked himself in a room. The opposite parties and the accused persons then set fire to that room. When the deceased came out from the room in half-burnt state the accused persons and the opposite parties assaulted him causing his death at the spot. It is further alleged that accused Banamali Barik (not a party in this case) gave two axe blows on the neck of the deceased as a result of which the latter fell down. Accused Rajani (not a party in this case) gave two blows to the deceased with his Tabla. Opposite party No. 4gave three to four blows with a Table and opposite party No. 2 assaulted the deceased with Tabla. According to the prosecution, opposite parties 1, 3 and 5 to 11 being armed with Tabla, Gujar and Lathis also assaulted the deceased who was killed at the spot. On the basis of the first information lodged with the police by the Petitioner on 19-11-1984 at 10.30 a.m., the present case was registered and investigation started. On 13-12-1984 the opposite parties filed before the learned Sessions Judge an application u/s 438, Code of Criminal Procedure, praying for grant of anticipatory bail. On that date the learned Sessions Judge found that the Associate Public Prosecutor who appeared on behalf of the State did not have any papers with him, yet he granted interim anticipatory bail to the opposite parties till15-12-1984 without assigning any reasons in support of his order. Thereafter, the case was adjourned twice and finally on 28-12-1984 the learned Sessions Judge made his interim anticipatory bail order dated 13-12-1984 absolute subject to certain conditions mentioned in the order. Thereafter, the case was adjourned twice and finally on 28-12-1984 the learned Sessions Judge made his interim anticipatory bail order dated 13-12-1984 absolute subject to certain conditions mentioned in the order. Here again the learned Sessions Judge did not assign any reasons justifying the grant of anticipatory bail to the opposite parties except saying that he considered it unnecessary to discuss the matter as the learned Public Prosecutor had filed a memo to the effect that the opposite parties had not been arrested by the police, the investigation was almost complete, there was not further instructions to oppose bail and the prosecution had no objection if bail was granted. We are indeed surprised that in serious case of murder as the present one, the learned Sessions Judge without going into the merits of the case granted anticipatory bail on the sole ground that the Public Prosecutor filed a memo of no-objection. This is improper. In this context it would be useful to refer to a decision of this Court reported in Ratikrishna Nanda v. State of Orissa 54 (1982) C.L.T. 555, wherein it was held: Merely because the investigation has been completed and a charge-sheet has been placed, the Petitioner is not to be released on bail. The submission of a charge-sheet would, on the other hand, indicate that on the basis of materials gathered in the course of investigation, the investigating agency has found a prima facie case against the Petitioner. The learned Standing Counsel has submitted that he has no objection to the release of the Petitioner on bail and appearing as he does on behalf of the State, he may have made this submission on proper instructions. But the judicial discretion of a Court in granting or refusing bail is not to be guided solely by the concession or objection raised by the State Counsel. The Court is not to surrender its judgment to that of a counsel appearing for the State. The Court should exercise its discretion judicially on a proper consideration of the materials against an accused person. We are in respectful agreement with the aforesaid observations of the learned Judge. 3. It has been held by the Supreme Court that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. We are in respectful agreement with the aforesaid observations of the learned Judge. 3. It has been held by the Supreme Court that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In Pokar Ram v. State of Rajasthan and Ors. AIR 1985 S.C. 959 considerations guiding the Court's discretion in granting anticipatory bail u/s 438, Code of Criminal Procedure have been authoritatively laid down. It is held: Relevant considerations governing the Court's decision in granting anticipatory bail u/s 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation. The decision of the Constitution Bench in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab clearly lays down that the distinction between an ordinary order of bail and an order of anticipatory bail is that where as the former is granted after arrest and, therefore, means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest. Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction u/s 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) of confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. A direction u/s 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) of confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says, the learned Chief Justice that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. It was observed that it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond Some of the relevant consideration which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. A caution was voiced that in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. In the facts of the case the Supreme Court further observed: The accusation against the Respondent is that he has committed an offence of murder punishable u/s 302, IPC. Surprisingly, when anticipatory bail was granted on Sept. 30, 1983, there is not a whisper of it in the order of the learned Sessions Judge, Jodhpur. In the facts of the case the Supreme Court further observed: The accusation against the Respondent is that he has committed an offence of murder punishable u/s 302, IPC. Surprisingly, when anticipatory bail was granted on Sept. 30, 1983, there is not a whisper of it in the order of the learned Sessions Judge, Jodhpur. When a person is accused of an offence of murder by the use of a firearm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail. Relevant considerations are conspicuous by silence in the order of the learned Sessions Judge. Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive? Could it be said that the object being to injure and humiliate the Respondent by having him arrested. What prompted the learned Sessions Judge to grant anticipatory bail left us guessing and we are none the wiser by the discussion in the order of the learned Single Judge declining to interfere. 4. In the present case it seems there has been no application of mind by the learned Sessions Judge. He has failed to consider whether on merits this is a fit case for grant of anticipatory bail. The L.C.R. and case-diary were placed before us and on consideration of the facts of this case and upon hearing counsel we are satisfied that the opposite parties have failed to make out a case for grant of anticipatory bail. 5. In the result the orders dated 13-12-1984 and 28-12-1984 passed by the learned Sessions Judge in Criminal Misc. Case No. 212 of 1984 are set aside. We would add that if consequent upon the setting aside the orders of the learned Sessions Judge granting anticipatory bail, the opposite parties are arrested which must ordinarily follows, it is open to them, if they are so advised, to move an application before the learned Sessions Judge for being enlarged on bail and the learned Sessions Judge will then consider the same on merits wholly uninfluenced by his earlier orders and this judgment of ours. This application is accordingly allowed. G.B. Patnaik, J. 6. I agree. Final Result : Allowed