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Apex Court is the case of Bal Chand Jain v. State Of Madhya Pradesh (1977 AIR 366, 1977 SCR (2) 52) in which it was viewed that the term ‘anticipatory bail’ is really a misnomer because what Section 438 contemplates is not an anticipatory bail but merely an order directing releases of accused on bail in the event of his arrest and therefore, it is manifest that there is no question of bail unless the person is arrested in connection with any non-bailable offence by the police. In Gur Baksh Singh’s case (supra) also it has been observed that ordinary bail is granted after the arrest whereas anticipatory bail is granted in anticipation at arrest and is, therefore, effective at the very moment of arrest.

In Bal Chand Jain’s case (supra) the Apex Court initially took the view that granting of such anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him, or there are reasonable grounds for holding a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail such power is to be exercised. It is also viewed that this power being rather of an unusual nature, it is entrusted only to the higher echelons of the judiciary. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised. Of course, the view taken by the Apex Court in Bal Chand Jain’s case (supra) as regards making out special case before granting an anticipatory bail was not approved by the Larger Bench of the Apex Court in Gur Baksh Singh’s case (supra) and it was viewed that the applicant has undoubtedly to make out the case for anticipatory bail and no one can go further and say that he must make out a special case.