Can The Anticipatory Bail Be Cancelled?


An offence is defined as an act or omission made punishable by any law for the time being in force[1]. The offence can be further classified in a bailable and non-bailable offence where bailable offence meaning thereby an offence which is shown as bailable in accordance with the first schedule or which is made bailable by any other law for the time being in force[2]& non-bailable offence means any other offence.[3]The law w.r.t bails fundamentally constitute an important branch of procedural laws. The term bail has not been defined in the above said code but in a broader term it can be interpreted as a temporary release of an accused person in return of some kind of security for his appearance wherein in accordance of law, an undertaking is being taken to ensure presence during the trial and to submit to the concerned jurisdiction and judgement of the court. Anticipatory bail is actually applied for ˜in the anticipation of one’s arrest’. It is a course to release a person on bail, issued prior to the arrest of the person is arrested. If the accused has a validated reason to believe that the individual may be arrested on accusation of having committed a non-bailable offence then the individual has the legal right to apply for an anticipatory bail in the Sessions Court or High Court. One may apply for anticipatory bail subsequent to the finding a criminal complaint made against them to the police by their wife, or by any threats made by his family against themselves and their family. The primary importance is to know whether the offence is bailable or non-bailable in the cases filed. While in the previous bail is allowed as an issue of right, the award of bail in the last depends on a few possibilities.


Anticipatory bail was added and became a part of the new criminal procedural code in 1973 (which replaced the older code of 1898), after the following the submission of 41st Law Commission Report of 1969 which recommended the inclusion to protect the arbitrary violation of the right to personal liberty of the person bestowed in art 21 of the Indian constitution. The law on anticipatory bail can be read as: “When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”[4]

Landmark Cases:

In a five-judge Supreme Court bench led by then, Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution[5] which broadens the importance and ambit of the anticipatory bail. In the case of Salauddin Abdulsamad Shaikh vs State of Maharashtra[6] case wherein, SC overruled its earlier judgment on the time limit of the anticipatory bail and held that granting of anticipatory Bail should be lawfully limited by time and cannot be for lifelong. In the other case, SS Mhetre vs State of Maharashtra & Ors[7] case, Supreme Court held that duration in terms of protection from the arrest of an order granting anticipatory Bail could not be shortened.”.

Cancellation of Anticipatory Bail:

  • 437(5) & Sec. 439 of CrPC with the invalidating of anticipatory Bail. They state that a Court which has the power to reward an Anticipatory Bail is simultaneously authorized to cancel the Bailor recall the order related to Bail upon appropriate consideration of facts.
  • A High Court or Court of Session may coordinate, that any individual who has been discharged on Bail by it- be arrested, and brought under custody after filing of an application by the prosecution.
    • However, a Court does not have the power to cancel the bail granted by the police officer.

Throughout the years, anticipatory Bail has acted as the protection (granted under Sec. 438 of CrPC) to safeguard a person against whom fraudulent allegation or charges have been made. It legally authorises and further ensures the discharge of such falsely accused person even before they are arrested.

The power to cancel the Anticipatory Bail is vested with the Court who grants the same, which can be due to new or happenings circumstances arise after the release on bail such as mistreatment of liberty by hampering the investigation or tampering with a witness or perpetrating same or comparable offence or a case is made out in a petition filed under Section 439 of Criminal Procedure Code, 1973. Therefore, The Courts may award anticipatory bail but in accordance with the view to forestall the person hampering the investigation provision(s) may be made by the Court giving anticipatory bail subject to such conditions as it might suspect fit.


[1] Section 2(n) of The Code of Criminal Procedure, 1973 (2 of 1974)

[2] Section 2(a) of The Code of Criminal Procedure, 1973 (2 of 1974)

[3] Id.

[4]S. 438 Sub-section (1) of the Code of Criminal Procedure, 1973

[5] Gurbaksh Singh Sibbia Etc v. State of Punjab, 1980 AIR 1632, 1980 SCR (3) 383

[6]1996 AIR 1042, 1996 SCC (1) 667

[7](2011) 1 SCC 694

This article is written by Kumar Aditya student of 2nd year BBA LLB at JEMTEC School of Law, Affiliated By Guru Gobind Singh Indraprastha University

Also Read: Curfew and Rule of Law – Two Overlapping Concepts

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