JUDGMENT : R.K. Dash, J. - In this application u/s 439 of the Code of Criminal Procedure, 1973, Petitioners have prayed for their release on bail, their similar prayer having been rejected by the learned Sessions Judge, Puri. 2. This is a peculiar case of its own nature. Petitioners, it is alleged, having committed a ghastly crime could avoid the rigour of law with the blessings of the prosecuting agency. To appreciate the contentions raised at the Bar, a few facts may be stated thus: The incident occurred in the early hours of the night on 18.4.92 at Madhipur Chhak, 4 k.Ms. away from Pipli Police station in the district of Puri. The prosecution allegation is that on the aforesaid date and time of the incident while the informant's brother and Ors. were sitting at Madhipur Chhak, the present Petitioners and Ors. alighted from a jeep belonging to the local M.L.A. and of them Petitioner Mitu alias Titu alias Prasidha Maharathi hurled a bomb at them, causing injuries to Pramod Mangaraj and Ratikanta Mangaraj, Seeing this, the informant's brother and Ors. started running away from the spot in order to save their life. The miscreants then followed them and threw bombs one after another. It is specifically alleged that Petitioner Titu alias Mitu alias Prasidha Maharathi threw a bomb causing bleeding injuries to the brother of the informant which ultimately resulted in his death. A written report being lodged within few hours of the incident, a case was registered u/s 302/34, Indian Penal Code and Section 9-B of the Explosives Act and investigation commenced. The case diary reveals that involvement of the Petitioners in the incident was supported by the eye-witnesses. Despite there being sufficient materials, they were not arraigned as accused in the charge-sheet, since the Investigating Officer accepted their plea, of 'alibi' that on the date and time of incident they were at Ranpur being involved in an excise case where they were arrested by the Sub-Inspector of Excise and were detained till next day. It may be noted that while Investigation was in progress, the Petitioners and another moved the learned Sessions Judge, Puri, in Criminal Misc. Case No. 358 of 1992 for anticipatory bail. Their sole contention for grant of anticipatory bail was based on the plea of, alibi' which found flavor with the learned Additional Sessions Judge and thus they were granted regular bail. Case No. 358 of 1992 for anticipatory bail. Their sole contention for grant of anticipatory bail was based on the plea of, alibi' which found flavor with the learned Additional Sessions Judge and thus they were granted regular bail. The relevant portion of the order of the learned Additional Sessions Judge is extracted hereunder: The Petitioners are therefore directed to surrender before the S.D.J.M., Puri on 10.30 a.m. on 29.5.1992 and on their surrender the learned S.D.J.M. shall admit them to bail on each of them furnishing bonds for Rs. 1 0,000/- with two solvent sureties for the like amount to the satisfaction of the learned S.D.J.M., Puri, x x x Pursuant to the aforesaid order the Petitioners surrendered before the S.D.J.M., Puri, and were released on bail. 3. It is submitted at the Bar that during trial the prosecution examined one witness who in his evidence implicated the Petitioners in the alleged incident. Thereupon, the learned Trial Judge took cognizance u/s 319, Code of Criminal Procedure and issued warrants of arrest against them for their apprehension. The said order was challenged in this Court in Criminal Misc. Case No. 2433 of I. 996: Reported in (1999) 16 OCR 30. The Court upon hearing declined to interfere with the said order and dismissed the case, where after the Petitioners moved the Apex Court in SLP (Criminal) No. 857 of 1999 which also met with the same fate. Ultimately the Petitioners were apprehended and taken to custody. They moved for bail and the same having been rejected, they have filed the present petition. 4. Shri D. Nayak, learned Counsel for Petitioners, submits that in view of Section 438(3), Code of Criminal Procedure"an accused once has been granted anticipatory bail, the said benefit would enure to him even after filing of the charge-sheet. Therefore, applying the said principle to the present case, the Petitioners whose case stands on abetter footing, in as much as the Investigating Officer having not found them to be involved in the incident, did not charge-sheet them, should be granted bail. 5. Shri S.K. Nayak, learned Addl Standing Counsel, opposing the Petitioners' prayer urges that grant of regular bail to the Petitioners by the learned Additional Sessions Judge while dealing with an application for anticipatory bail, was illegal and without jurisdiction. 5. Shri S.K. Nayak, learned Addl Standing Counsel, opposing the Petitioners' prayer urges that grant of regular bail to the Petitioners by the learned Additional Sessions Judge while dealing with an application for anticipatory bail, was illegal and without jurisdiction. In support of his submission he relies upon the decision of this Court in the case of Smt. Basanta Sahu Vs. Padma Charan Sahu and Others, . 6. Shri D.P. Dhal, learned Counsel appearing for the informant, contends that the question whether the Petitioners were present during the occurrence and had taken part is the incident or they were present elsewhere can be determined by the trial court on the basis of evidence to be adduced during trial. Therefore, while dealing with their petition for bail, the court is required to ascertain about their involvement from the available materials and not to be influenced by their plea of 'alibi'. In support of his argument Shri Dhal places reliance on the decision of the Supreme Court in Naresh Pal Singh v. Raj Kiran and Anr. : (1999) 17 OCR (SC) 207: 1999 SCC (Cri.) 466. 7. I have gone through the F.I.R. and the case diary and find that there are sufficient materials to show that the Petitioners had taken part in the alleged incident. In view of that, the learned Additional Sessions Judge while dealing with the petition for anticipatory bail ought not to have granted them regular bail accepting their plea of 'alibi'. The said order in my opinion is wrong, illegal and contrary to the provisions of law. 8. Chapter XXXIII of the Code of Criminal Procedure, 1973 makes provision for bail and bail bonds. Section 436 provides grant of bail to a person accused of bailable offence. Section 437 envisages that the court of first instance may grant bail to an accused suspected of commission of non-bailable offence. Section 438 which is popularly known as anticipatory bail, provides that a person apprehending arrest in a non-bailable offence by the Police during investigation may approach the High Court or the Court of Session for bail. Next provision is Section 439 which confers power upon the High Court and the Court of session to grant bail to an accused who is in custody. Next provision is Section 439 which confers power upon the High Court and the Court of session to grant bail to an accused who is in custody. The above being the relevant provisions with regard to bail, if the learned Additional Sessions Judge was satisfied that Petitioners' prayer for anticipatory bail should be allowed, he should have passed orders accordingly in terms of Section 438, Code of Criminal Procedure Instead, while disposing of their application for anticipatory bail, he granted them regular bail, as if their application was one u/s 439, Code of Criminal Procedure The procedure followed by him is foreign to law. In Smt. Basanta Sahu (Supra), a Division Bench of this Court did not approve the grant of regular bail by the Sessions Court in a proceeding u/s 438, Code of Criminal Procedure The relevant observation of the Court is extracted hereunder: We, however, observe in this connection that while disposing (of) application for anticipatory bail, the learned Sessions Judge should not have directed release of the accused persons on bail as if he was dealing with an application u/s 439, Code of Criminal Procedure With the rejection of the prayer for grant of anticipatory bail, the proceeding u/s 438, Code of Criminal Procedure came to an end. The applicants be then had not surrendered and if they were to surrender, they were to do so before the Magistrate who under the law is to deal with an application for bail, if made. We deprecate the practice which is developing in some quarters of seeking bail u/s 439, Code of Criminal Procedure from the learned Sessions Judge in proceedings u/s 438, Code of Criminal Procedure by passing the Magistrate who should ordinarily deal with the matter as the court of first instance. Since under the procedure, the Magistrate is to be approached first, by passing him should not be encouraged. In view of the above, the order of the learned Additional Sessions Judge extracted above, cannot be termed as an order of anticipatory bail so to attract the provision of Sub-section (3) of Section 438, Code of Criminal Procedure as contended by Shri D. Nayak. 9. Regard being had to be facts and circumstances of the case and submissions of the learned Counsel for parties, I am of the opinion that it would be a misplaced sympathy if the Petitioners' prayer for bail is allowed. 9. Regard being had to be facts and circumstances of the case and submissions of the learned Counsel for parties, I am of the opinion that it would be a misplaced sympathy if the Petitioners' prayer for bail is allowed. Resultantly the prayer for bail is refused and the Criminal Misc. Case is dismissed. 10. Before parting with, I am observed that I will be failing in may duty if I close the matter here. On scrutiny of the record in 2(a) CC No. 22 of 1992 on the file of the Judicial Magistrate, First Class, Ranpur, it appears that the Sub-Inspector of Excise, Ranpur, submitted prosecution report under Section,47(a), Bihar and Orissa Excise Act on 24.4.92 against the Petitioners on the allegation that on 18.4.92 at 7.30 p.m. they were found to be in possession of XXX foreign liquor in a paper packet weighing 5.250 ml. The foreign liquor and a nutlet motor cycle were allegedly seized under a seized list and the Petitioners were arrested on 18.4.92 and were released on bail on the next day, Le. 19.4.92 on their furnishing necessary bail bonds for Rs. 2,000/- with one surety each. Shri Nayak, learned Addl. Standing Counsel, on instruction submits that at the relevant time there was no provision for Hazat in the Excise Department to detain a person involved in an offence under the Bihar and Orissa Excise Act. In view of such Submission, questions arise as to whether the Petitioners were arrested, detained and released on bail and whether their food expenses during detention were met from the State exchequer. Prima facie I entertain doubt about the truth of the case filed by the Excise Sub-Inspector. It is quite probable that with a view to creating evidence in support of the Petitioners plea of 'alibi', a false case was instituted against them. Therefore, in order that truth comes to light, a probe by an independent investigating agency has become necessary. In that view of the matter, I direct the Superintendent of Police, C.B.I., Bhubaneswar, to investigate into the truth of the case filed by the Sub-Inspector of Excise, Ranpur, and take appropriate action in accordance with law. Since trial of the Sessions case has commenced, investigation shall be completed within three months. In that view of the matter, I direct the Superintendent of Police, C.B.I., Bhubaneswar, to investigate into the truth of the case filed by the Sub-Inspector of Excise, Ranpur, and take appropriate action in accordance with law. Since trial of the Sessions case has commenced, investigation shall be completed within three months. It is made clear that the trial court will proceed with the hearing and take all such evidence as may be produced by the prosecution, but will not close the prosecution case till completion of investigation by the C.B.I. As the record in 2(a) CC No. 22 of 1992 has been consigned to the dormant file, the learned Judicial Magistrate, First Class, Ranpur, will make available the said record to the C.B.I., if required for the purpose of investigation. 11. I may note that anything said or any observation made in this order will not influence either the mind of the trial Judge or the C.B.I. 12. A copy of this order be sent to the Superintendent of Police, Bhubaneswar, for compliance of the direction.