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The necessity of granting arises mainly because sometimes influential persons try
to implicate their rivals in false cases for the purpose of disgracing them r for other
reasons by getting them detained in jail for some days.( Law Commission – 41st Report)
What does the word anticipatory bail not mean is to be understood first to
understand the whole concept of Anticipatory bail. Anticipatory bail does not mean
that bail be granted before arrest but refers to a pre-arrest order passed by a court
The word ‘anticipatory’ labeling of the order can be misleading as it is not an order
which grants a person bail before he is arrested as bail cannot come into effect
before a person is arrested. Having said that, the fundamental difference between
an order for regular bail and one for anticipatory bail is to be understood in a
proper perspective. The former is granted only after arrest (and becomes operative
subsequently) but the latter is granted (Order) before arrest and hence is operative
from the moment of arrest. One also has to understand that regular bail comes into
operation once a person is remanded to judicial custody but the anticipatory bail
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comes into operation immediately on arrest and prior to being remanded to police
arrest for commission of a non-bailable offence in which the police are empowered
serious offence which requires the custody of the accused to conduct investigation.
Case laws which have elaborated the provisions of the anticipatory bail:
The law as regards anticipatory bail has been simplified in the landmark judgment
of Gurbaksh Singh Sibba vs. The State of Punjab AIR 1960 SC 1632 and further
the same has been reiterated now in 2010 in the judgment of Siddharam Mhetre
vs. State of Maharashtra 2011(1) BomC.R. (Cri) 293. These two case laws are a
authority on the law of anticipatory bail. Another landmark judgment on the point
1808.
Further there are also authorities which point out as to when anticipatory bail can
be granted and what are the various aspects which have to be taken into
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What are the pre-requisites to be taken into consideration before applying for
Anticipatory Bail?
ii. The apprehension should be that the offence that could be registered
against the applicant is of a non bailable offence (the offences which are
bailable and non bailable are described in the First Schedule of the
iii. Apprehension that the police might register a non bailable offence
There is no necessity of an FIR being registered against the person applying for
anticipatory bail. It can be granted by the Court when a person apprehends arrest
for a non-bailable offence (refer to the First Schedule for the list of offences
bail and thereby files the same before the Court of Sessions. On filing of the
anticipatory bail, the Public Prosecutor now requires time to file his say and wants
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to consult with the police machinery on the point as to whether custody is required
or not. If the Public prosecutor required time to file his say and as well say of the
police may use this time period to arrest the applicant. In such circumstances, the
whole objective of the anticipatory bail would be frustrated and hence the applicant
can apply for interim anticipatory bail and the Courts generally grant interim
anticipatory bail. The same has been so laid down in the famous case of Menino
Lopes vs. State of Goa and State of Maharashtra vs. KSS Rajput.
As per the facts of each and every case the circumstances would differ but the
i) the Court should be convinced as to how there are chances that the
ii) even if the applicant has a role to play it should be highlighted that the
possession of the prosecution and how custody of the applicant would not
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iv) how there is no need of recovery of any document/weapon/incriminating
v) how it would affect his/her liberty and would cause embarrassment in the
society
ix) how he/she has contributed towards the wellbeing of the society by
xi) any medical history – whether suffering from any particular ailment
xii) and last but the most important – how the applicant is ready to abide by
all the conditions put by the Court and how he/she would be ready to co-
Yes, if the Court which has the power to grant anticipatory bail also has the power
to cancel the same if the prosecution/police authorities are able to show as to how
the person released on anticipatory bail is not abiding by the conditions put down
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by the Court and also if the person given the benefit of anticipatory bail is not co-
If the Court has granted interim anticipatory bail to the applicant then in such case,
the presence of the applicant shall be mandatory but in case the interim is not
granted, the presence of the applicant at the time of final hearing of the applicant is
mandatory. The Court may reject the application of anticipatory bail if the
There are certain circumstances where applications for anticipatory bail are
the applicant, the case where there can be a chance of recovery of weapon from the
thereby directly showing the nexus between the accused and the offence in such
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence
of India Rules, 1971 have made the provisions which state that the provisions of
anticipatory bail would not be applicable but there is always an exception to the
same and where the applicant is in a position to show that the offence alleged is
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prima facie not made out as per the ingredients of the relevant Sections and in such
cases the anticipatory can be granted. The offences like murder, rapes, dacoity,
economic offences are the instances where the courts are very cautious while
granting anticipatory bails. The trend now in cases of economic offences is that
they are worst than the murders and rapes and hence forget anticipatory bails but
not even regular bails are granted because of the apprehension of tampering with
In offence like MCOC Act and Defence of India Rules, the provision of
Law says Court of Sessions and the High Court have concurrent jurisdiction then
in such cases the question is where to apply for the anticipatory bail? The
application for anticipatory bail should be generally made in the Sessions Court but
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there are instances where the anticipatory bails have been directly granted by the
High Court as the power to grant anticipatory bail is vested with Sessions as well
as High Courts. The proper approach would be to file an application in the Court of
Sessions, exhaust the remedy and then if the same is rejected then to move the
High Court. If a person files a anticipatory bail in the High Court first and his
and that would be like waiving off your right to apply in the Sessions Court.
What if the Sessions Court rejects the application and the applicant is
arrested?
Let us assume that the application for anticipatory moved in the Sessions Court is
rejected and the applicant still apprehends that before moving his bail application
in the Hon’ble High Court, the police arrest the applicant, in such instances well
the lawyer can move an application praying for interim protection to be extended
till filing of the same before the High Court and this has been so held in the case of
KSS Rajput vs. State of Maharashtra. But, this is a discretionary power in the
Lastly the most important thing is that anticipatory bail should not be moved
merely because the applicant feels to do so because it is not the provision which
allows the crime to be committed and the protection be given but only in cases
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where there is a substantial chance of the applicant being falsely involved or the
liberty of the applicant shall stand at stake for no fault of his own. Lastly I would
personally like to state that the weapon namely the anticipatory bail which has
been vested in the hand of the litigants, is for sure a double edged weapon which
requires to be handled very cautiously as it make give relief to the one who really
makes out his case but can be really harsh if the same stands rejected and would
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