R. BALIA, J. ( 1 ) THIS is an application under Sec. 439 (2) of the Criminal procedure Code for cancellation of bail granted to the applicant by order dated 12- 12-1997. The circumstance in which this application has been moved may be noticed in brief. The respondent is accused of having committed offence under Sec. 302 read with Sec. 34 and Sec. 114 as well as under Sec. 120b of the Indian Penal Code being a party to criminal conspiracy to commit murder of one Ranjitsinh Parmar also known as Ranjitsinh Jam along with other accused persons which included respondents father Jaswantlal Manilal Sheth in pursuance of which said Ranjitsinh was murdered. As per the F. I. R. , some dispute existed between accused Jaswantlal m. Sheth and his son Deepak on one side and deceased Ranjitsinh Jam on the other in respect of a land situated near M. P. Shah Arts and Science College, Surendranagar and suit is pending in Civil Court. The complainant a cousin of said Ranjitsinh parmar received a telephonic call at about 6-00 or 6-30 p. m. on 6-11-1997 for ranjitsinh. On enquiry it was revealed that Jashubhai was calling and it was stated that he and his son Deepak were sitting at their bungalow and want to have discussion with Ranjit Jam in respect of land. On getting this message, deceased went to the house of Jashubhai. When the said deceased did not return for sometime, the complainant went to the house of the accused Jashubhai after about one hour. At that time, he found that accused-respondent, along with three persons named and three persons unnamed was sitting in the Varandah with the deceased. Seeing this the complainant returned. When deceased did not return upto 10-30 p. m. , the complainant again went to the residence of Jashubhai where he found Ranjitsinh lying in pool of blood in the compound of house of Jashubhai. Jashubhai Manibhai, deepakbhai Jashubhai Sheth and Dudhrajwala, a person called "gadia Gamno Jat" and two to three other persons were described as accused in the F. I. R. During the course of investigation one Siddiq Khan working as watchman at the residence of jashubhai, Manharsingh Hemubha and Harbala, both also in the employment of jashubhai, were examined. Jashubhai Manibhai, deepakbhai Jashubhai Sheth and Dudhrajwala, a person called "gadia Gamno Jat" and two to three other persons were described as accused in the F. I. R. During the course of investigation one Siddiq Khan working as watchman at the residence of jashubhai, Manharsingh Hemubha and Harbala, both also in the employment of jashubhai, were examined. Ayubkhan @ Raju, S/o. Alamkhan, referable to "jat of gadia village" in the F. I. R. , and Iqbal Hussein S/o. Allarakha were arrested and their statements were also recorded, which were self-incriminating as actually responsible for killing as well as implicating, other accused persons including Jashubhai and deepak as involved in criminal conspiracy to kill Ranjit. On 1/2-12-1997 application under Sec. 438 was filed on behalf of Jaswantlal and Deepak. In the said application Deepak Jaswant Sheth pleaded his alibi from the scene of occurrence. His presence in Bombay as indoor patient at a nursing home from 6-11-1997 to 9-11-1997 was stated. A certificate from the doctor of the said nursing home was also presented to the Court. The application was decided on 12-12-1997. Application on behalf of Jashwantbhai M. Sheth (Jashubhai) was rejected by holding that prima facie a case under Sec. 302, may be read with Sec. 114 or Sec. 34 is made out against petitioner No. 1. About accusation under Sec. 120b the Court said "sec. 120b of the Indian Penal code which may not be considered at this stage but the case has been made out against him for murder". Application on behalf of Deepak was allowed by holding the plea of alibi was plausible and case under Sec. 302 being evenly passed, benefit must go to accused. Regarding the case of criminal conspiracy under Sec. 120b, the Court observed :"the allegation of conspiracy against him appears to be a conspiracy on the part of the complainant and the persons guiding him. "about the plea of alibi pleaded on behalf of respondent-accused Deepak, the court observed that first witness named, Manharsinh Hemubha being of the community of the deceased creates a shadow of doubt on his reliability and Saddiq badarkhan, another witness was also placed in the same category, because he belong to different community. Thus, discarding the prosecution witnesses opined that the plea of alibi is uncontroverted at that stage that the accused Deepak was present in bombay from 6-11-1997 to 9-11-1997. Thus, discarding the prosecution witnesses opined that the plea of alibi is uncontroverted at that stage that the accused Deepak was present in bombay from 6-11-1997 to 9-11-1997. The Court came to conclusion that the case of alibi in the light of these facts is probable as well as plausible. The learned sessions Judge opined that "so far as petitioner No. 2 is concerned two distinct compartmentalisation of the case is available only on the strength of F. I. R. and the petition. Both the compartmentalisation are air-tight and are plausible. Under these circumstances, if such a position arises, one in favour of the accused should be accepted". Finding this distinction with the case of Jaswant Sheth, the Court ordered that petitioner No. 2 Deepak Jaswantlal Sheth if required to be arrested in connection with Surendranagar City Police Station, he be released on regular bail. Aggrieved with this direction State has preferred this application. ( 2 ) BEFORE embarking on the merit of the application, it may be noticed that Sec. 438 contemplates a direction that an accused be released on bail, if arrested and the order comes into existence at his pre-arrest stage in respect of an apprehended arrest. Section 439 (2) envisages that the High Court or the Court of Sessions can direct that any person who is released on bail be arrested and commit him to custody. The stage for cancellation of a bail would obviously arise after a person having been taken into custody and released on bail on such condition as may have been imposed by the order. No stage for cancellation arises prior to that in stricto sensu, when a grievance is made about legality, validity and correctness of directions under Sec. 438. Such grievances may be considered and the principles governing the consideration of such application may be slightly different from what strictly are applicable, governing the issue of direction to arrest and commit the accused to custody after he has been arrested and released on bail. Relevant consideration for the purpose of examining whether directions issued under Sec. 438 are in proper exercise of jurisdiction vested in the Court on appropriate consideration of material before it, and the same is not based on irrelevant consideration or by ignoring relevant material which ought to have been considered before making such direction. Relevant consideration for the purpose of examining whether directions issued under Sec. 438 are in proper exercise of jurisdiction vested in the Court on appropriate consideration of material before it, and the same is not based on irrelevant consideration or by ignoring relevant material which ought to have been considered before making such direction. In short, a discretion which vest in the Court inheres in itself a limitation that it shall be exercised in judicious manner and not in a manner which is arbitrary, capricious or founded on irrelevant consideration. In this connection, reference may be made to a decision in the case of Khima Jakhu v. State of Gujarat , Criminal Revision application No. 396 of 1970 decided on 22nd December, 1970. The question has arisen under Sec. 497 of old Code. The provisions under the old Code were not on the same lines as are in the same section as Sec. 439 (2) is concerned. At the relevant time, under the old Code, under sub-sec. (2) of Sec. 498, the High Court or the Court of Sessions could only cancel the bail granted by it. Whereas under Sec. 439 (2) of the present Code, the High Court or the Court of Sessions can cancel the bail even if it is granted by the lower Court. However, this distinction is not of much relevance for the present purpose. The order granting bail was neither appealable then nor now. Nor there was any provision like Sec. 438 for anticipatory bail. Question under old code ordinarily could arise only after release on bail of the accused. However, now the orders come into effect even before actual arrest is made, on the apprehension of such arrest and question of validity of such direction can arise even before arrest is made and occasion for releasing on bail arise. In the aforesaid case, the Court was considering the question of cancelling the bail granted by the Sessions Court, the court said :"in hearing this Criminal Revision Application I must bear in mind the fact that I myself not being called upon to exercise power of the High Court either to enlarge the accused on bail or to cancel the bail granted by the Sessions Court what I have to consider is whether the discretion which is undoubtedly vested in the Sessions Court, under Secs. 497 and 498 of Cri. Pro. 497 and 498 of Cri. Pro. Code has been exercised by the learned Judge in accordance with the well settled principles. . . "on merit, the Court found that it cannot be said that the discretion was not in accordance with law. ( 3 ) I am of the opinion that while considering the question whether direction under Sec. 438 has been made in proper exercise of the discretion, the same principle be adopted. ( 4 ) THE learned A. P. P. has in the first instance urged with considerable vehemence that the learned Sessions Judge has taken into account the plea of alibi set up by the accused in defence at this initial stage for considering the bail application, which is not permissible in law and the Sessions Court ought to have confined his consideration to the material which has come on record during investigation by the investigating agency. The plea of alibi can be set up and proved in the course of trial. It was further urged that the burden of proving such plea rest on the accused, and even if the accused were to unveil its defence during the course of investigation by setting a plea of alibi, the investigating agency is not under obligation to examine that plea at that stage. ( 5 ) HAVING carefully considered the contention, I am unable to sustain the same. Neither investigation can shut its eyes and refuse to examine the case set up by the accused which leads to exonerate complicity of accused in the commission of crime, nor the Court would be justified in not taking into consideration all the possible defence or circumstances emerging from the material on record before it, which are germane for consideration of application for releasing the accused on bail, whether during investigation or pending trial. Rather, it would be the duty of the investigating agency to enquire into all facts brought to its notice as it is dutybound to remove the mist of obscurity surrounding the true facts. It is true that the accused is not bound to reveal his defence during investigation but if he does so and pleads his innocence before the investigation officer, the investigating agency cannot ignore the same and confine itself to inquire in such direction for proving that the accused is guilty of the offence alleged against him. That would be a nonfair investigation. That would be a nonfair investigation. Investigation is not to prove X or Y as the guilty of committing offence, it is to find who has committed the offence. If the accused at the very outset stated that it is impossible for him to have participated in the commission of crime because he could not have been present at that place for definite reasons disclosed by him, it cannot be said that the investigating agency is not under obligation to inquire into the possibility of that defence to be truthful which exonerates accused from the allegation and investigating agency is required to change its direction to find the true culprit. The obligation or the duty of the investigation is not to make out a case against the persons who have been accused of having committed offence by complaint or by another witness, the obligation is to find the truth from each and every source as it comes to it. That is also the duty of investigating agency as per the guidelines contained in the Manual of procedure guiding investigation. ( 6 ) REFERENCE in this connection may be made to Clause 137 of the Gujarat Police manual, 1975 Vol-III which states in unequivocal terms that :"police enquiries should always be impartial. It is the duty of the police to do all they can to find out the truth. An investigating officer is to aim at discovering the actual facts and arresting the real offender. He ought not prematurely to commit himself to any view of the facts for or against any person. He should consider carefully any evidence tendered to him on behalf of an accused person. He should not make up his mind on any point hastily, but keep, as far as possible, an open mind to be influenced by evidence only. "again in sub-clause (2) of Clause 172, it has been emphasised that :"it is equally important and advisable for an investigating officer to record the statement of an accused person, especially if it consists of lengthy details in complicated cases, so that these details may not be forgotten or overlooked in the course of enquiries for their verification. The statement may sometime disclose his line of defence and may also at times indicate sources from which independent evidence may be available. The statement may sometime disclose his line of defence and may also at times indicate sources from which independent evidence may be available. "thus, it is not permissible for investigating agency to ignore the line of defence revealed by the accused during the course of investigation and to keep it out of consideration altogether. ( 7 ) LIKEWISE, if a plausible case of extricating accused from the commission of crime or plausible case of permissible defence is made out in respect of commission of crime from the material on record, the Court considering the application for release of the accused on bail is bound to consider as it is relevant consideration in the exercise of discretion whether to keep the accused in custody during the course of trial or he may be set at liberty on bail. However, ultimate decision rests with the court on overall view it takes of all relevant circumstances in each case. ( 8 ) THE precedents relied on by the learned Counsel for respondent in this regard do not lay down the ratio, as suggested by the learned Addl. Public Prosecutor. He has placed reliance, in the first instance, on a decision of this Court rendered in the case of Shirish Madhavdas Parikh v. State of Gujarat, 1990 (1) GLR 617 . It was the case under N. D. P. S. Act and the plea of accused was that there has been an irregularity in the course of investigation in exercise of powers by one of the officers investigating the case. It is in these circumstances the Court observed that, "when the question of prima facie case is to be decided, this irregularity on the point of investigation or producing before the Sessions Judge would not be of any avail. " it may be noticed that question of complicity of the accused in the offence is quite distinct question from the question whether on account of some irregularity in the conduct of the investigation, the accused is entitled to benefit. This case does not lay down any such principle that in no case defence version which supports the plea of non-complicity of the accused can be taken into consideration by the Court considering the application for bail. This case does not lay down any such principle that in no case defence version which supports the plea of non-complicity of the accused can be taken into consideration by the Court considering the application for bail. ( 9 ) DECISION in the case of State of Gujarat v. Shaikh Lala Shaikh Balu, reported in 1995 (2) GLR 1709 is on the same lines as in the case of Gurubaksh Singhs case, referred to above. ( 10 ) ANOTHER case which the learned Public Prosecutor relies on is State of gujarat v. Bhagwanji Pitamber , 1988 (1) GLR 445 . A close look at this judgment goes to show that the ratio is otherwise. It was a case where on finding that there was a cross-case and that there were injuries on person of accused, the learned Sessions Court made an order for releasing the accused persons on bail. The learned Sessions Judge has raised a presumption about existence of right of selfdefence in favour of accused and granted bail to all the persons. The Court stated that the cross-case and injuries on the accused person cannot give rise, as universal proposition, to presumption of existence of right to private defence mechanically. The Court was of the opinion that -"that does not necessarily mean that both sides have a right of private defence. It would depend upon the facts and circumstances of each case as to whether there is a right of private defence to any of the side and if yes, which side. It cannot be said that both sides have a right of private defence. In any case, it would be disastrous to presume that in all cross-cases with injuries, there is a right of private defence. In some cases, there may not be any right of private defence. In some cases, there may not be any right of private defence to either side and it may be a case of free fight. Therefore, without going into the question prima facie, it cannot be said that merely because there is a cross-case and injuries on the side of the accused the accused has a probable case of self-defence and, therefore, there is no probable case under Sec. 302 of I. P. C. . . . Therefore, without going into the question prima facie, it cannot be said that merely because there is a cross-case and injuries on the side of the accused the accused has a probable case of self-defence and, therefore, there is no probable case under Sec. 302 of I. P. C. . . . "the Court nowhere laid down as proposition of law that the Court at the stage of considering bail cannot consider the question of right to private defence, which is a defence plea, and must confine itself to question whether prima facie case of causing death by the accused is made out and stop at that. On the other hand it envisages certain considerations to be relevant but prohibits raising of any presumption in a mechanical manner on the basis of some earlier precedent for the purpose of raising a plea of private defence. ( 11 ) IT may be pertinent to notice that the Court has referred to earlier decisions of this Court, which is unreported one viz. , Misc. Criminal Application No. 479 of 1975, decided on 26-8-1975, wherein the Court after noticing the fact about the crosscases and injuries on the person of the accused held -"these facts prima facie show that the applicants have a good case to be put forward before the Court to escape from punishment under Sec. 302 of I. P. C. In this case, from the circumstances, I find that this is a fit case for enlarging the applicant on bail. "this decision clearly indicates that whether a plausible defence on the ground of self-defence is made from the material on record is relevant consideration while deciding whether to grant or refuse the bail. This ratio was not dissented from in gurbaksh Singhs case (supra ). On the contrary, it was affirmed that this is the relevant consideration. But the presumption of such plausible existence of right of private defence cannot be raised mechanically on mere proof of existence of a crosscase and injury on the person of the accused, without considering other relevant materials which are necessary for examining existence of a prima facie case. On the contrary, it was affirmed that this is the relevant consideration. But the presumption of such plausible existence of right of private defence cannot be raised mechanically on mere proof of existence of a crosscase and injury on the person of the accused, without considering other relevant materials which are necessary for examining existence of a prima facie case. ( 12 ) THESE two cases emphasise that before the bail is granted or refused, Court is required to consider all the relevant facts, including the defence that emerges from the material on record and its plausibility, before discretion to grant or refuse the bail is exercised. ( 13 ) IN this connection, reference may also be made to a decision rendered by supreme Court in the case of Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and Anr. , reported in AIR 1960 SC 1113 . It was a case in which complaint was lodged in the Court of Presidency Magistrate, Bombay by one Dattatraya Dulaji ghadigaonkar (respondent therein) that he heard a fire-shot from a blue car in the evening in a public meeting which was held at Chowpatty in Bombay, which was to be addressed by the Prime Minister of India and as a result of which one person has died. The complainant was referred to Superintendent of Police for inquiry and as per the inquiry report, it was disclosed that, "from the exhaustive enquiries made immediately after the incident, it was disclosed that Shri Vadilal Panchal was justified in resorting to firearms in self-defence of himself and other occupants of the motor car. " On the plea of self-defence, the accused Vadilal Panchal was sought to be discharged. The learned Presidency Magistrate, after considering the material on record, dismissed the complaint under Sec. 203 Criminal Procedure Code. The complainant moved the High Court, the High Court set aside the order of dismissal and directed the learned Presidency Magistrate to issue process against the appellant therein and deal with the case in accordance with law. The learned Presidency Magistrate, after considering the material on record, dismissed the complaint under Sec. 203 Criminal Procedure Code. The complainant moved the High Court, the High Court set aside the order of dismissal and directed the learned Presidency Magistrate to issue process against the appellant therein and deal with the case in accordance with law. The Bombay High Court was of the view that as causing of the death of Sitaram being indisputable, if it was found as the petitioner alleges that it was the shot fired by the respondent that caused the death of Sitaram, the accused would have to establish the necessary ingredients of the right of private defence as laid down in Sec. 96 and onwards of the Criminal procedure Code. That there is nothing in the Evidence Act that such exception can be held to have been established on the mere report of the police as that would be contrary to the provisions of the Evidence Act and would result in abrogation of the rules as to the presumption laid down in Sec. 105 of the Evidence Act and the mode of proof of exception laid down in imperative language in that section. With this view, the Court allowed the revision before it and directed the learned Magistrate to issue process holding that there was no evidence before the learned Magistrate as and by way of proof to establish the exception of the right of private defence pleaded by the respondent. In short, the decision of Bombay High Court is now propounded by the learned Addl. P. P. that until the stage of trial is set, plea of defence or taking the case in one of the exceptions under Sec. 302, cannot be considered as the same can be proved only during the course of trial by the accused on whom the burden lies. The Supreme Court on further appeal reversed the decision of the Bombay High court. The Court posed a question before it, "was the High Court right in its view that when a Magistrate directs an enquiry under Sec. 202 Cr. The Supreme Court on further appeal reversed the decision of the Bombay High court. The Court posed a question before it, "was the High Court right in its view that when a Magistrate directs an enquiry under Sec. 202 Cr. P. C. , for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officers supporting a plea of self-defence made by the person complained against, it is not open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring officers ? Must he, as a matter of law, issue process in such a case and leave the person complained against to establish his plea of self-defence at the trial ? the Court answered the above questions in negative. The Supreme Court held that :"we are of the view that the High Court was in error in holding in this case that as a matter of law, it was not open to the learned Presidency Magistrate to come to the conclusion that on the materials before him no offence had been made out and there was no sufficient ground for proceeding further on the complaint. "the Court further examined into the issue and observed that :"what is contended on behalf of the respondent-complainant is that as a matter of law it was not open to the learned Magistrate to accept the plea of right of self-defence at a stage when all that he had to determine was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provisions of Sec. 203 that the judgment which the magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment, he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there is satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. " ( 14 ) IT may be stated that what is contended before this Court, on behalf of applicant that as a matter of law it was not open for the learned Sessions Judge to consider the plea of alibi as defence at the stage of considering whether to grant the bail to the accused or not. The answer must be that the Court is to form its opinion whether or not there is sufficient ground for granting or refusing the bail and that judgment is necessarily to be formed on the basis of material on record which may consist of statements recorded during the course of investigation or evidence adduced by accused in support of his defence to the investigating agency to show his innocence. The Court at that juncture cannot keep those materials out of consideration to arrive at a prima facie conclusion whether a case is made out against the accused and whether a plausible defence and allegations made against the accused have been made out on the materials or not. He is not bound to accept either version in a mechanical manner. It must depend upon the facts and circumstances of each case and taking into account other relevant considerations as are well settled in the matter of granting or refusing the bail, which need not be enumerated here, as do not arise for consideration. I am, therefore, unable to sustain the first contention of the learned Addl. It must depend upon the facts and circumstances of each case and taking into account other relevant considerations as are well settled in the matter of granting or refusing the bail, which need not be enumerated here, as do not arise for consideration. I am, therefore, unable to sustain the first contention of the learned Addl. Public Prosecutor that the learned sessions Court had no jurisdiction to take into account the plea of alibi or defence version of the accused. ( 15 ) NEXT contention that has been raised by the learned A. P. P. is that custodial interrogation is qualitatively more elicitation-oriented than questioning the suspect in a free atmosphere with the favourable order under Sec. 438, and therefore, where order under Sec. 438 hampers the custodial investigation, the order ought not to have been made. With this premise, the learned A. P. P. contended that as the case is at the investigation stage, the custodial interrogation of the accused is more desirable when the accused, who has caused serious offence like murder punishable under S. 302 and 120b, the learned Sessions judge has not properly exercised his jurisdiction. In support of his contention, learned Counsel relied on a recent decision of the Supreme Court rendered in the case of State v. Anil Sharma, 1997 SCC (Cri.) 1039. This was a case in which, during the course of hearing of application under Sec. 438 before the High Court of Himachal Pradesh, the accusation has been made against the respondent that he had acquired wealth to the tune of Rs. 16,65,000. 00 as against his known sources of income which could not reach even half of that. C. B. I. further alleged that the assets have been made by the respondent through illegal means and "there is clear-cut evidence pointing to the transfer of assets by Shri Sukhram in the name of his son". It was further pointed out that it was a clear case of corruption in high places and the order of anticipatory bail should never have been granted in such a case. It was further pointed out that it was a clear case of corruption in high places and the order of anticipatory bail should never have been granted in such a case. The Court observed that -"considering the responsible and high office which respondent held and the wide influence which he could wield and the great handicap which investigating agency would be subjected to while interrogating a person armed with an order of anticipatory bail, the discretion under Sec. 438 should never have been exercised in favour of the respondent. "the plea on the part of the State for cancellation of bail was contested on behalf of respondent on the spacious plea that it is not proper for the Supreme Court to interfere with it as it was passed by the High Court in exercise of a discretionary power. It was in the circumstances narrated above, the Court stated that the learned single Judge ought not to have side-stepped the apprehension expressed by the C. B. I. as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which respondent held and in the nature of accusation relating to a period during which he held such office. In the aforesaid circumstances, on considering the entire material, the Court found that the High Court has misdirected itself in exercising the discretionary power under sec. 438 of the Code, by granting a pre-arrest bail order to the respondent. However, the Court did not lay down that in all cases bail order under Sec. 438 be refused merely on the ground that custodial interrogation is qualitatively more elicitationoriented than the interrogation in free atmosphere, without there being a ground to reasonably apprehend tampering with or influencing the fair course of investigation. It may be noticed that the Court was cautious enough to make a remark that while "high Court has side-stepped the apprehension expressed by the C. B. I. " solely on the ground that such apprehension can be made against every accused person in all cases, but the Supreme Court held a different opinion by pointing out that the apprehension was quite reasonable considering the high position which respondent held and in the nature of accusation relating to a period during which post was held. Therefore, whether in a given case custodial interrogation would be more desirable or not, or what should be the ground for refusing or granting a pre-arrest bail, cannot be subject to mechanical application but must depend upon the facts and circumstances of each case. Where the apprehension of tampering with the evidence or influencing the witnesses is reasonable, as may appear from the attending circumstances, would be relevant ground for refusing to issue direction under Sec. 438 Cr. P. C. but not in all cases, irrespective of the attending circumstances. ( 16 ) IN this case, it may further be profitable to refer to Constitutional Bench decision of the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of punjab, reported in AIR 1980 SC 1632 . A Full Bench of Punjab and Haryana High Court while rejecting the appellants application for bail, had summarised the true legal position by formulating eight different propositions, one of which was regarding requiring the accused in custody for the purpose of securing incriminating material or information which is likely to be received from the offender under Sec. 27 of the Evidence Act. About the relevance of the custodial requirement during investigation, while considering the exercise of discretion for the purpose of granting or refusing a pre-arrest order, disapproving the view taken by Full Bench of High Court, the Court opined -"the order of anticipatory bail does not in any way directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Sec. 438 (1) are those recommended in sub-S. (2) (i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under sec. 438 (1), appropriate conditions can be imposed under Sec. 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Sec. 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Sec. 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Sec. 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principles stated by this Court in State of U. P. v. Deoman Upadhyaya, 1961 (1) SCR 14 at page 26 to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give him information leading to the discovery of the fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Sec. 46 of the Cr. P. C. does not contemplate any formality before a person can be said to be taken in custody; submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Sec. 167 (2) of the Code is made out by the investigating agency. " ( 17 ) THUS, as a rule of thumb, the contention of the learned A. P. P. cannot be accepted that because quality of investigation through the custody of the accused is always better, during the course of investigation, ordinarily, power under Sec. 438 ought not to have been exercised. That would be re-writing Section itself defeating its purpose. It is only when there is a reasonable apprehension that the accused is likely to tamper with the witnesses while he is at liberty or free, investigation of a person wielding influence of high places in the context of charges levelled against him that it may become relevant to refuse bail on that ground alone. It is only when there is a reasonable apprehension that the accused is likely to tamper with the witnesses while he is at liberty or free, investigation of a person wielding influence of high places in the context of charges levelled against him that it may become relevant to refuse bail on that ground alone. In the present case, at no such stage, apprehension has been spelt out by the prosecution, either before the Sessions Court or before this Court, except merely raising a plea of "the better qualitative elicitation of custodial interrogation" in favour of denial of prearrest bail unless case is otherwise made out. Position must be otherwise. ( 18 ) IT was further contended by the learned A. P. P. that in considering the bail applications on behalf of the present respondent, the learned Sessions Judge has acted contrary to the well settled principles in the matter of considering the application for releasing the accused on bail, whether anticipatory or post-custodial. It was urged by the learned A. P. P. that it seems to have escaped from the notice of the learned sessions Judge that while considering the question of whether a prima facie case has been made out or not, it is well settled principle that a detailed examination of evidence and elaborate evaluation of the merits of case is not warranted nor any party be left with an impression that its case has been prejudged by the order. The reading of the order in question betrays that the learned Sessions Judge had not only embarked upon the detailed evaluation of the merits of the case but has even gone to the extent of commenting on the trust-worthiness of the witnesses for rejecting their statements as unreliable, and at that stage of investigation discrediting the investigation from the inception of putting embellished version, right from the point of lodging a complaint. A reading of the order, according to the learned A. P. P. , reveals that in the first instance, the learned Sessions Judge has set up for himself the yardstick of examining the cases of the present type that there is a tendency of over-implication and then have examined the entire issue of considering the anticipatory bail application of respondent No. 2 in that light to find out that it is a case of over- implication unless otherwise shown totally losing sight of the basic premise that while considering the bail application under Sec. 439 or application under Sec. 438, the first issue is whether prosecution has been able to establish a prima facie case against the applicant, and then to inquire whether a case for ordering release of applicant on bail has been made out or not ? ( 19 ) IT has been vehemently urged by the learned Counsel Mr. Shethna, appearing for the respondent, that at best the present case can be considered of an erroneous conclusion on the part of learned Sessions Courts favour of the respondent but it cannot be considered to be a case of injudicious exercise of discretion and mere erroneous order cannot be a ground for cancellation of bail. ( 20 ) I have carefully considered the rival contentions and perused the order in question, and also carefully gone through the material placed before me. I am of the opinion that there is a substance in what is contended by the learned A. P. P. Each case depends upon the facts and circumstances of its own, and the precedents do not provide strait-jacket formula to be applied in any given circumstances, except laying down proposition generally, which govern the consideration of application for grant or rejection of bail. ( 21 ) THE decided cases do suggest it fairly well established that where bail has been granted illegally or improperly, by considering the applications contrary to the well settled principles resulting in injudicious exercise of discretion vested in the court, the power under Sec. 439 (2) of the Code for cancellation of bail can be exercised. In the case of State v. Captain Jagjit Singh, AIR 1962 SC 253 the Court observed that -"whenever an application for bail is made to the Court, the first question should invariably be whether the offence for which the accused is being prosecuted is bailable or otherwise. In the case of State v. Captain Jagjit Singh, AIR 1962 SC 253 the Court observed that -"whenever an application for bail is made to the Court, the first question should invariably be whether the offence for which the accused is being prosecuted is bailable or otherwise. "the Court further elaborated that -"what such further considerations can be, namely, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence. "in the case before the Court, the accused was charged for conspiracy and also under S. 3 and 5 of the Official Secrets Act, 1923. The High Court considered the bail application on the footing that the offence fell under Sec. 5, which is bailable. The High Court further was of the opinion that at the best, whether the offence fell under Sec. 3 or 5 was arguable. However, the High Court assuming the case to be bailable under Sec. 5, proceeded to consider the bail application of the accused, respondent before it, and finding it that the other two co-accused have been released on bail, and there is no likelihood of respondent absconding, he being well connected, and that the trial was likely to take considerable time, granted application of accused. The Supreme Court found that the High Court in assuming that the case fell under sec. 5, making the offence bailable, was the basic error. It opined that -"it is true that under Sec. 498 of the Code of Criminal Procedure, the powers of the high Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. Thus, the High Court does not seem, to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one. Thus, the High Court does not seem, to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one. "the Court finding that prima facie, respondent if convicted will be liable upto 14 years imprisonment, considering nature of offence, opined that, it was not a case where discretion which undoubtedly vested in the High Court ought to have been exercised in favour of the respondents and with these premises, appeal was allowed and the bail granted by the High Court was cancelled. The above was a case where in considering the bail application, High Court had not adhered to the well settled principles of considering the bail in the matter of nonbailable offence and which was considered to be a good ground for cancelling the bail. ( 22 ) DECISION in the case of Gurcharan Singh v. State (Delhi administration), reported in AIR 1978 SC 179 also affords valuable guidelines. It was a case in which the accused-appellant before the Supreme Court had applied for bail before the learned Magistrate who declined to release them on bail, the accused applied before the learned Sessions Judge, Delhi who ordered their release on bail by two separate orders. The Delhi Administration moved for cancellation of bail before the High Court. The High Court set aside the orders of Sessions Judge and ordered the accused to be taken into custody forthwith. Affirming the decision of the High Court, the Court stated :"in the present case, the Sessions Judge having admitted the appellants to bail by recording his reasons we will have to see whether that order was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere with his discretion in granting the bail. "having set this question for its consideration, and having set out the material portion, the order of Sessions Judge in the earlier part of its judgment, the Court observed that -". . . . . . it is seen that he did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the prosecution witnesses. . . . . . it is seen that he did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the prosecution witnesses. In the peculiar nature of the case revealed from the allegations and the position of the appellants in relation to the eye-witness it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eye-witnesses, which was urged before him in resisting the application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regarding to tampering of the witnesses and the allegations rested only on a hold statement. "the Court further observed that -"the learned Sessions Judge was not alive to the legal position that there was no substantive evidence yet recorded against the accused until the eye-witnesses were examined in the trial which was to proceed unimpeded by any vicious probability. The witnesses stated on oath under Sec. 164 Criminal Procedure Code that they had made the earlier statements due to pressurisation by some of the appellants. Where the truth lies will be determined at the trial. The High Court took note of this serious infirmity of approach of the Sessions Judge as also the unwarranted manner bordering on his prematurely commenting on the merits of the case by observing that such deposition cannot escape a taint of unreliability in some measure or other. The only question which the Sessions Judge was required to consider at that stage was whether there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials. There appeared at least nothing at that stage against the statement of A. S. I. Gopal Das who had made no earlier contradictory statement. "the taint of unreliability" could not be attached to his statement even for the reasons given by the learned Sessions Judge. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. "the taint of unreliability" could not be attached to his statement even for the reasons given by the learned Sessions Judge. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. In considering the question of bail of an accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying on the conduct of some of the appellants in taking Sunder out of police lock-up for making what is called a false discovery and it is but fair that the Panch witness in that behalf be not allowed to be got at. "while further observing that two paramount considerations, namely, likelihood of the accused fleeing from and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice, it was said, "it is essential that due and proper weight would be bestowed on these two factors apart from others. There cannot be any inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. " as the High Court has found that the Sessions Judge has not considered properly the plea of the prosecution and the order of Sessions Judge suffers from serious infirmity of approach in prematurely commenting on the merits of the case, by attributing distrustworthiness to some of the witnesses at this stage being not a judicious approach, confirmed the decision of the High Court in reaching its conclusion. The Court relied on principles enunciated by the Apex Court in its earlier decision in State v. Capt. Jagjitsingh, referred to above. ( 23 ) IN Niranjan Singh v. Prabhakar Rajaram Kharote , AIR 1980 sc 785 , the Apex Court cautioned in terms that -"detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. ( 23 ) IN Niranjan Singh v. Prabhakar Rajaram Kharote , AIR 1980 sc 785 , the Apex Court cautioned in terms that -"detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. "i need not multiply the cases on principle. ( 24 ) IT would be necessary to consider the case in its proper perspective to refer to the order of the learned Sessions Judge in some detail. It may be recalled that the complaint was lodged by one Vikramsinh Manubhai Parmar, cousin of deceased ranjitsinh Parmar. The gravamen of the First Information Report were that there was a civil dispute pending between the deceased on the one hand and the accused jaswantlal Sheth, referred to as Jashubhai and his son Deepak on the other in respect of land situated opposite M. P. Shah Arts and Science College. On 6-11-1997 a telephone call was received by the complainant and on his being asked about the identity of the caller, he was told that the caller is Jashubhai and he and his son deepak are awaiting to meet Ranjit for discussion in connection with the dispute about the land. In pursuance of that call, Ranjitsinh, deceased visited the residence of accused Jashubhai where on his visit, the complainant with Bapalal Parmar after about an hour and half of going of Ranjitsinh, saw deceased in company of accused jashubhai, Deepak, Amarsinh Zala Dudeshwarwalla, and "jat" from Gadia village and three other persons. Finally when Ranjitsinh did not return until 10-00 p. m. , the complainant alongwith Bapalal went there and found Ranjitsinh lying in the pool of blood in the compound of Jashubhais residence. During the course of investigation, Vikramsinh, Bapalal, Siddiq Khan an employee of accused Jashubhai, manharsinh Hemubha also an employee of accused Jashubhai alongwith some other witnesses some of whom were in the household employment of Jashubhai were examined. Two of the accused, namely, Iqbal Hussain and Ayub Khan @ Raju referred to as "jat" of Gadiya were arrested. During the course of investigation, Vikramsinh, Bapalal, Siddiq Khan an employee of accused Jashubhai, manharsinh Hemubha also an employee of accused Jashubhai alongwith some other witnesses some of whom were in the household employment of Jashubhai were examined. Two of the accused, namely, Iqbal Hussain and Ayub Khan @ Raju referred to as "jat" of Gadiya were arrested. Their statements were also recorded which contained their admission as to their complicity in the offence implicating the present respondent also as participant in the conspiracy to do away with Ranjit. The case against the present accused at this stage, which was argued by the prosecution before the learned Sessions Judge also was in respect of criminal conspiracy under Sec. 120b of doing away with the deceased Ranjitsinh. ( 25 ) FOR making out a case for considering application under Sec. 438 in the case of offence like murder, it has been argued on behalf of accused that because jashubhai has some political standing and he had contested Assembly Elections last time and lost to Ranjitsinh Zala, who is at present in the Council of Ministers of gujarat State, there is a group rivalry between two communities, and therefore, the honble Minister is taking undue interest in the investigation of the case. About this plea, the learned Sessions Judge made the following observations : "it is true that election rivalry was not a serious phenomena till the incident had taken place. But, once the incident had taken place, the machinery of the police moved fast in a particular manner and so the fear in mind of the accused that they will be manhandled or will be tackled heavily by the police, cannot be ruled out, more particularly, when the police had put guards at the premises of the accused for protection of their property, the police had fled away which facilitated the crowd to take law in their hands. Had the accused taken law in their hands, the other party has no authority to retaliate in the same manner. The other party if gone angry, the police has to take its own course and a serious crime under Sec. 436 has been registered against certain persons with connivance of the police. If the word "connivance" is too harsh, i would put that the police guard put there had facilitated the crime. The other party if gone angry, the police has to take its own course and a serious crime under Sec. 436 has been registered against certain persons with connivance of the police. If the word "connivance" is too harsh, i would put that the police guard put there had facilitated the crime. Under the circumstances, the fear of the accused that a particular community and particular persons in the police or certain officers acting under certain instruction may be from higher level, may not take the accused lightly. . . . . . " having found that political rivalry between Ranjitsinh Jhala and the accused jashubhai was not of such a serious nature to take notice, further comments on the investigating agency in the matter of investigation with reference to other incident appears to be hardly relevant and out of place, while considering the application for releasing the accused on bail. The learned Sessions Judge apparently had left the bounds of judicial restrains holding the police responsible for alleged incident to take place and label it with connivance or facilitation by police. Neither there was material nor any occasion for the learned Judge to dwell upon this accusation without even a semblance of any investigation into the happening. While considering the case of petitioner No. 1 Jasubhai, the Court observed that, "the dead body of the deceased was found from the compound of the petitioners. Licensed gun of the petitioners son as well as one countrymade pistol and a knife have been recovered. The death is apparently result of gun-fire shot, and therefore, prima facie a strong case under Sec. 302 may be read with Sec. 114 or sec. 34 is made out against the petitioner No. 1. " The learned Sessions Judge has further observed that, "the question of Sec. 120b of I. P. C. may not be considered at this stage but the case has been made out against him for murder. " On these findings, the bail application of accused No. 1 was rejected. Considering the case of present respondents, the Court noticed that the accused has put up a plea of alibi by producing a certificate of Dr. " On these findings, the bail application of accused No. 1 was rejected. Considering the case of present respondents, the Court noticed that the accused has put up a plea of alibi by producing a certificate of Dr. Bipin H. Nanavati dated 5th July, 1997, according to which, the present respondent No. 2 was advised admission in a nursing home, and therefore, he was hospitalised with gopi Nursing Home from 6-11-1997 to 9-11-1997 and a certificate of that hospital and its discharge card have been produced by the accused. Referring to this, absence from scene of occurrence during the period covered by certificate, in the face of prosecution case, even after excluding the statements of co-accused, other eye-witnesses, namely, Siddiq Khan and Manharbhai apart from complainant vikramsinh and Bapalal, accused was seen at the scene of occurrence on 6-11- 1997 was highly probablised. Ignoring that prosecution evidence did connect the respondent actively with conceiving the plan to do away "jam" right from 3-11- 1997 even before the period covered by the certificate. The Sessions Judge went thus far to draw inference adverse to prosecution from the fact that during the period between filing of the certificate and hearing of the case, the investigating agency has not tried to verify the facts mentioned in the certificate, and observed that the plea of alibi must be taken as an uncontroverted fact at the present stage. Then, before considering whether the prosecution has been able to establish prima facie case, the learned Sessions Judge embarked on the inquiry about the contention of Mr. Shethna that there is a general tendency that in serious crimes people are trying to rope in as many happening of a serious crime, that is question of day-to-day experience for all. In para Nos. 17 and 18, the learned Sessions judge has observed that :"17. The prosecution begins with receiving of telephonic message from the petitioner no. 1 to the deceased. The deceased was sitting in Radhe Funworld which is governed by the complainant. The deceased was present there. Upon receiving the telephone of the petitioner No. 1, the complainant asked him for what purpose he requires to talk to Mr. Jam. The prosecution begins with receiving of telephonic message from the petitioner no. 1 to the deceased. The deceased was sitting in Radhe Funworld which is governed by the complainant. The deceased was present there. Upon receiving the telephone of the petitioner No. 1, the complainant asked him for what purpose he requires to talk to Mr. Jam. Therefore, the petitioner might have told him that for negotiations of the land in dispute which is going on between them in civil Court but he will not say that here father and son are sitting and send him. If other negotiators would have been there, he would have referred to them or he would have told to Mr. Jam that both father and son are ready to welcome him for negotiation but ordinarily none will tell the third person lifting phone receiver first that "yes, we father and son are here" that too on inquiry. Therefore, it appears that right from the inception the prosecution has taken some advice so that the son can also be roped in with the father. 18. The second attempt by the complainant to rope in the petitioner No. 2 appears to be easy and created or well-planned case. The complainant has seen the dead body of the deceased. Therefore, it is a case of circumstantial evidence. So, a circumstance was to be created for a person who has seen them last together. Therefore, after sending the deceased at 6-30 the complainant who got worried for his cousin, went to inquire at the house of the petitioner. There he did not step into the house of the petitioner but from the outside, he marked everything including presence of all the three accused including petitioner No. 2 and three others and without whispering anything he returned back. Now, he had gone there ordinarily, he would have at least acted in a manner his presence is marked by the persons sittings in "varanda". He would have talked to his cousin, how much time he would take and he would have returned back or he would have asked even regarding the progress in the negotiations but nothing has happened. This creates a serious doubt that whether the complainant had gone there to see those people there or it is an advised concoction of story to rope in other persons. This creates a serious doubt that whether the complainant had gone there to see those people there or it is an advised concoction of story to rope in other persons. The presence of persons shown in the bungalow of the petitioner was of their agents or servants or relatives. So, the theory advanced by the complainant even in the F. I. R. creates a serious doubt atleast for the petitioner No. 2. "thus, in the first instance, the learned Sessions Judge concludes that from the inception the prosecution has taken some advice so that the son can also be roped in with the father. Having thus loaded with mind against the prosecution with embellishment to implicate son; present respondent, falsely in the case, examines the case of prosecution on merit and observes, "after the statement of Manharsinh hemubha and Sadik Badarkhan, now it is case of direct evidence of eye-witnesses and so relying on them the prosecution can even against petitioner No. 2 is strong one. But at the same time, as contended by Mr. Shethna, the first eye witness named in the affidavit is of the community of the deceased and another is of different caste. This creates a shadow of doubt on their reliability. Even if they had seen the incident, they had learnt that the accused have gone away, they could have informed the police but that is not so. After the uproar and sensualisation of the case by the media, they have come forth as eye-witnesses. I find certain substance in the contention of Mr. Shethna. " then, after reaching the conclusion that there is systematic plan from the beginning to implicate son after finding prima facie the plea of alibi remaining uncontroverted, the learned Sessions Judge while considering the statement of eyewitnesses at the scene of occurrence who are noneelse then the employees of the accused projects them as unreliable witness, at this stage of investigation. When according to well established principles of considering of material at this stage, whether prosecution witnesses are lying or speaking truth is to be considered at the time when substantive evidence come on record, during trial, and not at the stage of considering the bail application, the learned Sessions Judge demolishes the entire prosecution case on merit against the accused No. 2 - present respondent. Further discussion discloses that perhaps the learned Session Judge was obsessed with the post-incident happening at the premises of accused after police guards were deployed there. Reading the order as a whole does not give any clue as to connection between the alleged incident at the property of the accused after the incident had taken place on 6-11-1997 with the complicity or innocence of the accused with the crime under investigation. About the veracity or truthfulness of the statement of witnesses during investigation, it may be noticed that both the eye-witnesses, who have been otherwise found to be reliable while considering the case of accused Jashubhai, has been painted as tainted with unreliability for the purpose of present respondent on ground diametrically opposed to each other, namely, one is tainted with unreliability because he is of the community of deceased and another, he is because of different caste. ( 26 ) WHILE considering the plea of alibi at this stage, the learned Judge appears to have obliterated the distinction between the physical participation in commission of offence and participation in criminal conspiracy. In the former, physical presence at the scene of occurrence is essential requirement, in the latter case, physical presence at the time and scene of occurrence is not pre-requisite. A person can be a party to criminal conspiracy even if away from the scene of crime. While probabilising the alibi of accused on 6-11-1997, the learned Sessions Judge completely ignored the evidence which points to respondents complicity in criminal conspiracy prior to 6-11-1997. The order also reveals side-tracking the consideration of prosecution case against present accused under Sec. 120b altogether. The entire approach in the case of present respondent appears to be contrived one. ( 27 ) IT may be recalled here the observation of the Supreme Court in Gurbaksh singh Sibbia v. State of Punjab , AIR 1980 SC 1632 (supra ). Such consideration of evidence by the Sessions Judge, which discloses manner in which it commented on the merits of case by prematurely observing upon reliability or otherwise of the deposition made during the investigation was held to be unwarranted of judicious approach required of Sessions Court while considering bail application. Such consideration of evidence by the Sessions Judge, which discloses manner in which it commented on the merits of case by prematurely observing upon reliability or otherwise of the deposition made during the investigation was held to be unwarranted of judicious approach required of Sessions Court while considering bail application. The unwarranted approach of the Sessions Judge in considering the bail application which weighed with the High Court in cancelling the bail in Gurbaksh Singhs case (supra), and that approach was affirmed by the Supreme Court in appeal in Gurbaksh singhs case (supra), offers parallel with the case at hand. ( 28 ) IN this connection, it may further be observed while the case of prosecution has throughout been, at this stage of the investigation, on the basis of material before it, that the accused Jashu and Deepak Jashubhai are involved in a serious crime of conspiracy under Sec. 120b. Finding the case against Jashubhai to be prima facie under Sec. 302 read with Sec. 114 or 34 of I. P. C. , the learned Sessions Judge has declined to apply his mind in respect of prima facie case under Sec. 120b. While considering the case of present respondent, having already come to the conclusion that from the inception, prosecution has taken advice that the son is also to be roped in with the father, discards the testimony of eye-witnesses as unreliable, he dismissed the plea of conspiracy against the accused in a most cavalier faction (sic.) by observing, "the allegation of conspiracy against him appears to be a conspiracy on the part of the complainant and the persons guiding him. " To say, in other words, the learned Sessions Judge brands investigation as prejudicially loaded against the accused by discarding the evidence of prosecution to be unreliable and holding the case of prosecution against the present respondent as fabricated one by attempting to implicate him right from the beginning. This approach, in my opinion, on the material on record was wholly unwarranted and unravels, lack of judicious exercise of discretion by ignoring all well settled principles in considering the bail application at this stage when investigation is not completed. This approach, in my opinion, on the material on record was wholly unwarranted and unravels, lack of judicious exercise of discretion by ignoring all well settled principles in considering the bail application at this stage when investigation is not completed. ( 29 ) THE learned Sessions Judge has further ignored in making a blanket direction under Sec. 438 for releasing the accused on bail, if arrested, the ratio laid down by the Supreme Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 , where the Court stated that, "anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender is sought to be by passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry, directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the chargesheet is submitted. It should be realised that an order of anticipatory bail could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail. " ( 30 ) FOLLOWING the aforesaid ratio, this Court had adopted a practice to limit the operation of the order by conditioning it that the order will hold good if the petitioner is arrested at any time within the specified period. It is further conditioned by directing that the order for releasing on bail will remain in operation only for a period from the date of his arrest and thereafter, it will be open to the petitioner to make a fresh application for being enlarged on bail in usual course which when it comes before the competent Court, will be disposed of in accordance with law, having regard to all the attending circumstances and the material available at the relevant time, uninfluenced by the fact that anticipatory bail was granted. In other words, within a period fixed by the Court, in case of a person having been arrested and released on bail under Sec. 438 he has to apply for regular bail and obtain orders thereon. The period during which the bail under Sec. 438 remains in force is only considered as a temporary release order, in order to enable the applicant to move the Court and secure regular bail. The learned Sessions Judge has not circumscribed its order by any such condition and thus has exercised the power of considering the bail at regular stage. ( 31 ) IN these circumstances, the order of the Sessions Court in issuing direction in respect of respondent No. 2 under Sec. 438 deserves to be set aside and the bail granted in pursuance of that direction be cancelled. ( 31 ) IN these circumstances, the order of the Sessions Court in issuing direction in respect of respondent No. 2 under Sec. 438 deserves to be set aside and the bail granted in pursuance of that direction be cancelled. However, keeping in view the fact that reasons for setting aside the order under Sec. 438 is that the learned Sessions judge has improperly considered application under Sec. 438 and it is because of serious infirmity in considering the application inasmuch as the approach of learned sessions Judge ignores the well settled principles for considering the applications in case of non-bailable offence punishable with death and life imprisonment the order under Sec. 438 is not sustained by this Court, but at the same time, this Court being not for the present seized with the matter for grant of bail on merit and the direction under Sec. 438 has already been operated by arresting the respondent and releasing him on bail, and no untoward incident has been reported so far about abuse of his liberty by the accused-respondent, it will be only appropriate that in consonance with principles enunciated in Salauddin Abdulsamad Shaikh v. State of Maharashtra, air 1996 SC 1042 and the practice of this Court, the impugned order be modified from being in the nature of unlimited operation to be circumscribed with usual limitations. ( 32 ) AS in pursuance of direction under the impugned order, the respondent has already been arrested and released on bail, the fixing of a period during which the order shall remain in operation has become redundant. However, keeping in view the ratio underlying the decision is Salauddins case (supra) and the usual practice followed by this Court, the directions under Sec. 438 by the Sessions Court are modified by restraining its operation in the following terms :-"if the petitioner is arrested in pursuance of this order and released on bail, the order of release on bail will remain operative only for a period of one week on his arrest. During this period, it will be open to the respondent-accused to make a fresh application for being enlarged on bail in usual course which when it comes before the competent Court, will be disposed of in accordance with law, having regard to all the attending circumstances and the materials available at the relevant time uninfluenced by the fact that anticipatory bail was granted. " ( 33 ) SINCE this condition is being imposed today by this order and the accusedrespondent is already released on bail prior to this date, the period of 7 days referred to above will be counted from today, and on any application being moved in regular course, the Court would consider the said application in accordance with law on its own merits uninfluenced by the previous order. In case no application is moved or order is not obtained within the aforesaid period, on regular bail application, the accused-respondent shall surrender before 5-00 p. m. on 3rd February, 1998, before the Police Inspector, incharge of Surendranagar City Police Station, else the police would take him in custody forthwith thereafter. .