What Is Anticipatory Bail? Distinction Between Ordinary Bail And Anticipatory Bail


The right to freedom is an individual’s natural right, and also his fundamental right. An individual must nevertheless respect the rights of others recognized by law, such as the inviolability of their body and property. When a person is reasonably suspected of committing an offense, the law machinery is set in motion to arrest him and bring him to trial, and if found guilty, punish him. The arrest act robs a man of his liberty.

India is a country of democracy and the fundamental principle of democracy is that every citizen must have personal freedom and liberty. It is an individual’s fundamental right which is secured by the State. Thus, the principle of bail and personal liberty goes hand in hand, and so every adult, including the accused person, has the right to obtain bail in order to be released from custody before and unless proved guilty by a court of law. As laid down in Article 21 of the Indian Constitution.

In Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry, court explained the principle behind giving bail.


The term “anticipatory bail” is a misnomer, and the order only becomes operational upon arrest. Where a competent court grants anticipatory bail, an order is issued that a person be released upon bail in the event of arrest. It provides that a person who has a fair belief that he will be arrested for a non-bailable offense can then apply to the court of sessions or the high court to seek directions for granting anticipatory bail under section 438 of the Criminal Procedure Code.

For example, if a person is married and his wife files a case under IPC Section 498A then he is under the apprehension that he will be arrested as such, he will apply for anticipatory bail either before a court of sessions or before a high court of law.


In Gurbaksh Singh Sibbia v. State of Punjab, The distinction between an ordinary bail order and an anticipatory bail order is that whereas the former is granted after arrest and thus means release from police custody, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable co-arrest for non-bailable offences. An advance bail order is, so to speak, an insurance against police custody following an arrest for the offense or offenses for which the order is issued. In other words, unlike a post-arrest bail order, it is a pre-arrest legal process that directs that if the person in whose favor it is issued is subsequently arrested on the indictment for which the direction is issued, he will be released on bail.


Scrutiny of the above provision provides a remedy for a situation. According to this clause, if a person is not yet detained by the police but apprehends his arrest on an allegation of having committed a non-bailable offence, he may either go with the similar apprehension to the HC or the Court of Session and can ask the court to grant him an order that would allow him to be released on bail in the event of his arrest. On the orders issued under the anticipatory bail there is no clause for time limitation.

In India some of the earliest cases in which parties requested anticipatory bail occurred in civil suits concerning inheritance or contract disputes during the British Raj. And after independence, the 1973 Code of Criminal Procedure provides protection for people who anticipate or fear arrest. The High Courts and Court of Sessions (Courts) in India are empowered to make an order granting anticipatory bail in case of arrest; a person shall be released on bail forthwith without having to go through jail rigour.

Anticipatory Bail became part of the CrPC in 1973 after having proposed the incorporation of such provision in the 41st Law Commission Report (1969). It was included to prevent the person’s arbitrary violation of his right to personal freedom.

In the case of, K. Gajendra Baidu Vs State of A.P. The Court held that the need to offer anticipatory bail exists primarily because often prominent individuals seek to involve their rivals in false cases for other purposes. There are fair grounds to argue that a person accused of an offense is unlikely to abscond or otherwise abuse his freedom while on bail.


(a) The anticipatory Bail is granted on the basis of the following factors:

  • Nature and gravity of the accusation.
  • Applicant’s possibility of fleeing from justice.
  • Previous cases against the applicant including any previous convictions or cases of a cognizable offence.

(b) Cases of Bailable Offence:

  • If there are sufficient reasons to believe that the accused has not committed the offence.
  • As per the Court, if there are sufficient reasons to conduct further enquiry into the matter.
  • If the person is not accused of a crime which is punishable by death, life imprisonment, or imprisonment up to 10 years or more.

(c) Cases of Non-Bailable Offence:

  • If the accused is a woman or child,
  • If there is a lack of adequate evidence,
  • If there is a delay in registering the FIR by the complainant,
  • If the accused is physically or gravely sick,
  • If there is corroboration about personal animosity between accused and complainant.


Time restriction is the domain in which the laws relating to anticipatory bail create confusion. The courts have tried to interpret the essence of this section and are of the opinion that the sole reason for the existence of anticipatory bail is to allow the accused person some time to apply to the regular court for regular bail, and therefore an order granting anticipatory bail will only be issued until the regular bail of the accused is granted.

Salauddin Abdulsamad Shaikh vs State of Maharashtra, Supreme Court overruled the earlier judgment and maintained that “the granting of anticipatory bail should be time-limited.

SS Mhetre vs State of Maharashtra & Ors, SC held that it could not curtail life/duration of an order granting anticipatory bail.

Due to such divergent views, the Court had to decide on two questions in the recent Sushila Aggarwal v. State of NCT of Delhi

1. Should there be a fixed time period to seek anticipatory Bail, so as to enable a person to surrender before the Trial Court and seek for regular Bail? Also, should the life of anticipatory Bail end at the time of summoning by the Court?

2. Can Courts impose any conditions while granting such Bail or not?

And addressing all delivered a substantial verdict, ruling that no time limit can be set while awarding anticipatory bail and it can continue until the trial is over. The Court referred to India’s free movement on the grounds that arbitrary arrests, indefinite detentions and lack of institutional safeguards played an important role in bringing people together to increase the demand for independence.

This article has been written by Astitva Kumar, 4th Year, BBA-LLB at JIMS Engineering Management Technical Campus School of Law, (Affiliated to GGSIP University, New Delhi)

Also Read – What Are The Rights of An Arrested Person in India?

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