Notice U/S 35(3) BNSS Can't Be Issued To Person Accused Of Offence Punishable With More Than 7 Yrs Imprisonment: Orissa High Court
The Orissa High Court has held that a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) can only be issued to persons accused of committing cognizable offences punishable with an imprisonment for less than seven years or which may extend up to seven years, and not more than that. Clarifying the position of law and highlighting the error committed by not only the...
The Orissa High Court has held that a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) can only be issued to persons accused of committing cognizable offences punishable with an imprisonment for less than seven years or which may extend up to seven years, and not more than that.
Clarifying the position of law and highlighting the error committed by not only the police but also the jurisdictional Magistrate, the Bench of Justice Gourishankar Satapathy observed–
“…notice as contemplated U/S. 35(3) of the BNSS is meant for cognizable offences punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine subject to satisfaction of other grounds as enumerated in Sec. 35(1) of the BNSS and it is, therefore, considered that not only the police officer erred in applying the law, but also the learned SDJM passed order granting bail to the co-accused persons without adverting to the relevant provision of law.”
An FIR was lodged against the petitioners for alleged commission of offences under Sections 105 (culpable homicide not amounting to murder)/ 296 (obscene act)/ 115(2) (voluntarily causing hurt)/ 126(2) (wrongful restraint)/ 351(2) (criminal intimidation)/3(5) (common intention) of Bharatiya Nyaya Sanhita (BNS) on the main allegation of commission of culpable homicide not amounting to murder. A charge-sheet was filed against them with the self-same charges.
While the case was pending, the Sub-Divisional Judicial Magistrate, Bhanjanagar (SDJM) granted bail to the co-accused persons on the ground that such co-accused persons have been served with notice under Section 35(3) of the BNSS and the case is posted for appearance of the accused persons.
The petitioners filed this bail application under Section 483 of BNSS before the High Court. It was highlighted that that the co-accused persons were released on bail despite one of the charges being under Section 105 of BNSS, which prescribes imprisonment for life.
The Court then underlined the provision under Section 480(1)(i) which says that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
“However, in the present case, one of the offences alleged against the Petitioners is U/S. 105 of BNS which prescribes one of the punishments as imprisonment for life, but the learned SDJM, Bhanjanagar has granted bail without recording any reason on the ground as stated in Sec.481(1)(i) of BNSS or on the ground as provided in proviso appended to the aforesaid Section,” the Court observed.
So far as bail granted to the co-accused persons was concerned, the Court noted that the same was done by simply observing that such persons were served with notice under Section 35(3) BNSS and the case was posted for appearance of the accused persons. It clarified that the aforesaid notice is meant for cognizable offences punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, subject to satisfaction of other grounds as enumerated in Section 35(1) of the BNSS.
Justice Satapathy found fault not only with the procedure adopted by the police but also with the manner of application of law made by the SDJM. Before parting, he thus observed –
“….it is, therefore, considered that not only the police officer erred in applying the law, but also the learned SDJM passed order granting bail to the co accused persons without adverting to the relevant provision of law. In this situation, especially in order to maintain the majesty of law, this Court considers it proper to advise the learned SDJM, Bhanjanagar to go through the relevant provisions of the law while passing order in such a case as done in this case and this observation is made only to guide the young judicial Officer.”
Taking into account the facts and circumstances coupled with the fact that the charge-sheet in the case has already been submitted, the Court granted bail to the petitioners.
Case Title: Adikanda Swain & Anr. v. State of Orissa
Case No: BLAPL No. 1503 of 2026
Date of Order: April 27, 2026
Counsel for the Petitioners: Mr. Kuresh Prasad Dash, Advocate
Counsel for the State: Mr. C. Mahanty, Addl. Public Prosecutor
Citation: 2026 LiveLaw (Ori) 47