Orissa HC Quashes Non-Bailable Warrant Issued Against Accused Already on Bail, Restores Previous Bail

Justice G. Satapathy held that a JMFC erred in issuing a non-bailable warrant against an accused on bail without first issuing notice to sureties or a bailable warrant, and that bail once granted continues until cancelled.

The High Court of Orissa at Cuttack, on 9 June 2026, quashed a non-bailable warrant of arrest issued by the Chief Judicial Magistrate (Junior Division)-cum-Judicial Magistrate First Class, Lakhanpur against Trinath Guru, an accused who had already been granted bail on 23 December 2025 and had furnished bail bonds. Justice G. Satapathy, sitting as Vacation Judge, found that the JMFC had bypassed the prescribed procedural steps under the Bharatiya Nagarik Suraksha Sanhita, 2023 by jumping straight to a non-bailable warrant without first issuing notice to the bailers or a bailable warrant. The court restored Trinath Guru's previous bail while directing him to appear before the trial court on the next date fixed.

The Order Challenged Before the High Court

The impugned order was passed by the JMFC, Lakhanpur on 6 May 2026. On that date, the accused persons — including Trinath Guru — were absent when the matter was called. The summons had been served on them, and their counsel did not take any steps or appear after repeated calls. The JMFC recorded this and directed: “Hence, issue NBW. Put up on 9.05.2026 for production of the accused persons.”

Trinath Guru challenged this order by filing CRLMC No. 1806 of 2026 before the High Court under Section 528 of the BNSS, 2023. The petition was filed by two petitioners initially — Trinath Guru and Tosharam Naik @ Anish. At the outset of the hearing, counsel for the petitioners filed a memo not pressing the CRLMC on behalf of Tosharam Naik @ Anish. That portion of the petition was disposed of accordingly, and the matter proceeded only in respect of Trinath Guru.

The Legal Framework: Sections 355 and 482 of the BNSS

Justice Satapathy examined two provisions of the BNSS that govern the court's powers when an accused is absent on a date fixed for inquiry or trial.

Section 355 of the BNSS confers wide discretion on a court to dispense with the personal attendance of an accused even on a date fixed for holding inquiry or trial. Issuance of a non-bailable warrant is not mandatory merely because the accused is absent. The Magistrate may proceed with the inquiry or trial in the accused's absence and may, at a subsequent stage, direct personal attendance.

Section 482(3) of the BNSS provides that if a Magistrate taking cognizance of an offence decides that a warrant should be issued in the first instance against an accused, the warrant issued must be a bailable warrant, in conformity with the direction of the court under sub-section (1) of Section 482.

Reading these provisions together, the court found that the JMFC had two intermediate steps available before resorting to a non-bailable warrant: issuing notice to the bailers, or issuing a bailable warrant against the accused. Neither step was taken.

Why the JMFC's Order Did Not Survive Scrutiny

The court's reasoning rested on three distinct grounds.

First, Trinath Guru was already on bail, having been granted bail on 23 December 2025 and having furnished bail bonds. The impugned order did not disclose any compelling reason why a non-bailable warrant was necessary in these circumstances. The court observed that bail once granted should continue until it is cancelled or the order granting bail is set aside.

Second, the impugned order made no reference to any notice having been issued to the bailers. When an accused on bail fails to appear, the appropriate initial response is to put the bailers on notice or to issue a bailable warrant — not to proceed directly to a non-bailable warrant.

Third, the court addressed the broader principle at stake: “Liberty of a person cannot be taken away without proper procedure.” Custody, the court noted, brings significant harassment and inconvenience to persons deprived of their liberty, and the procedural safeguards exist precisely to prevent that outcome where it is avoidable.

On all three counts, the JMFC's order of 6 May 2026 was found to be legally unsustainable.

Outcome

Justice G. Satapathy quashed the impugned order dated 6 May 2026 in so far as it related to Trinath Guru. The petitioner was permitted to continue on his previous bail. The court, however, directed that Trinath Guru must regularise the proceedings by appearing before the trial court on the next date fixed in the matter. The CRLMC was disposed of at the admission stage itself, with the consent of counsel for both sides.