Before Issuing NBW Against Accused On Bail, Court Should Consider Notice To Bailors Or Bailable Warrant: Orissa High Court

While setting aside an order directing issuance of NBW, the Bench of Justice Gourishankar Satapathy observed–

“Liberty of a person cannot be taken away without proper procedure or it should not be dealt with lightly because custody brings lot of harassment and inconvenience to such persons deprived of the liberty. Besides, the impugned order does not reveal any compelling reason to issue NBWA. Besides, law is very clear that bail once granted should continue till it is cancelled or order granting bail is set-aside.”

An FIR was filed against the petitioner for commission of offence under Sections 126(2) (wrongful restraint), 115(2) (voluntarily causing hurt), 296 (obscene act), 324(4) (mischief), 351(2) (criminal intimidation), 109 (attempt to murder), 3(5) (common intention) of the Bharatiya Nyaya Sanhita (BNS). While the case was pending before the Judicial Magistrate First Class (JMFC), Lakhanpur, Jharsuguda, the petitioner was granted bail on 23.12.2025.

While he was on bail, the trial Court issued summons to him for appearance. Despite of summons and repeated calls, he did not show up before the Court. Accordingly, the JMFC issued an NBW against him on 06.05.2026 and ordered his production. The said order was impugned before the High Court by invoking the inherent power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Upon perusing the impugned order, the High Court noted that under Section 355 of the BNSS (akin to Section 317 of the CrPC), the Magistrate has wide discretion to dispense with the attendance of the accused at the stage of inquiry/trial. Even if he is not present during the trial, the Court held, the Magistrate can still dispense his personal attendance and proceed with the trial in his absence, and may require his personal attendance at a subsequent stage.

Justice Satapathy, further elaborating the law governing the field, cited Section 482(3) of the BNSS. The said provision says that if a Magistrate taking cognizance of offence decides that a warrant should be issued in the first instance against the accused person on bail, he shall issue a “bailable warrant” in conformity with the direction of the Court under Section 482(1). However, in the given case, the JMFC neither issued a bailable warrant nor did she cause issuance of notice to his bailors. Rather, she directly issued the NBW against the accused. Thus, disapproving such course of action, the Court held–

“In the present case, the accused petitioner-Trinath Guru was on bail being granted to him on 23.12.2025 and the petitioner has availed such bail by furnishing the bail bonds, however, the impugned order does not disclose what was the necessity to issue NBWA against the petitioner. In a situation like this, the Magistrate or the concerned Court may either issue notice to the bailer(s) or issue BW against the accused person, who has not appeared before it after receiving the summon/notice, but instead of resorting to said procedure, the learned JMFC, Lakhanpur has straight away issued NBWA against the petitioner Trinath Guru and others.”

The Judge made it clear that once bail is granted, it continues to operate unless the same is cancelled or is set aside. Hence, the Court was of the view that an accused on bail should not be vexed by issuance of NBW, without assigning any reason(s), which hampers his personal liberty.

Resultantly, the impugned order was set aside and the previous bail order was kept intact. However, the petitioner/accused was asked to cooperate in the trial by appearing when directed by the trial Court.

Case Title: Trinath Guru & Anr. v. State of Orissa

Case No.: CRLMC No. 1806 of 2026

Date of Order: June 09, 2026

Counsel for the Petitioner: Mr. K. Rashid, Advocate

Counsel for the State: Mr. Arabinda Mohanty, Addl. Public Prosecutor

Citation: 2026 LiveLaw (Ori) 53