JUDGMENT 1. - Heard learned counsel for the parties. 2. This petition is directed against the order dated 31.1.2006 passed by learned Sessions Judge, Tonk whereby while granting bail under Section 438 Cr.PC. to the accused petitioners, the court has imposed condition that in pursuance of said order when the accused petitioners appear before the trial court, whether bail would be granted or not, would be in discretion of the trial court. Being aggrieved by this condition of learned Sessions Judge, this Misc. petition has been filed. 3. Learned counsel for the petitioners submitted that this condition could not have been imposed by the learned Sessions Judge because once the discretion to grant bail under Section 438 Cr.P.C. has been used by the court, it cannot be left to the discretion of trial court to again consider the case of grant of bail under Section 437 Cr.PC. He relies upon the judgment rendered in Balchand Jain v. State of Madhya Pradesh reported in AIR 1977 SC 366 ; and Shri Gurbaksh Singh Sibbia and ors. v. State of Punjab, reported in (1980) 2 SCC 565 , para 36 is quoted herein below as under: "36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438." 4. Having heard learned counsel for the petitioners and Public Prosecutor, I find force in the submissions made by learned counsel for the petitioners, and vide order dated 31.1.2006 since the learned Sessions Judge had allowed the application under Section 438 Cr.PC. while granting anticipatory bail to the accused petitioners, there was no occasion to further observe in the said order that when the accused petitioners appear before the trial court, the trial court shall be free to consider the case for grant of bail. 5. In view of this, impugned portion of order dated 31.1.2006 is not sustainable in the eyes of law and same is accordingly quashed. 6. This criminal misc. petition is accordingly allowed.Petition allowed - Order of sessions court set aside. *******