'Affront To Personal Liberty', NBW Can't Be Issued Before Scheduled Date Of Appearance Of Accused U/S 35(3) BNSS: Orissa High Court

The Orissa High Court has held that non-bailable warrant of arrest (NBW) cannot be issued against an accused before the scheduled date of appearance, upon issuance of notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Terming such dereliction as an “affront to personal liberty” of the accused, the Single Bench of Justice Gourishankar Satapathy held –

“…it seems that since the IO has not waited for the scheduled time, the NBWA issued against the petitioner is an affront to the personal liberty of the petitioner and the same appears to have no legal standing/sanction of law, inasmuch as NBWA should be the last resort in a criminal case when issuance of BW would not result in appearance/production of the petitioner before the Court concerned.”

An FIR was registered against the accused/petitioner under Sections 319(2), 318(4), 336(2). 338, 336(3), 340(2) of the Bharatiya Nyaya Sanhita (BNS) read with Section 66(C) and 66(D) of the Information Technology Act, on the main allegation of extracting Rs. 63 lakhs from the informant by giving threat of 'digital arrest'.

The petitioner was issued a notice under Section 35(3) of the BNSS to appear at 10 AM on 01.09.2025 before the Inspector-in-Charge, Bhuban Police Station. He purportedly received the said notice on 13.08.2025. The Investigating Officer (IO), however, did not wait for the scheduled date, rather prayed to the JMFC, Bhuban on 14.08.2025 to issue NBW against the petitioner.

Notably, Section 35(3) says, “The police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.”

The JMFC, on the basis of the prayer made by the IO, issued the NBW against the petitioner pursuant to which he was arrested. Being aggrieved by such coercive action, the petitioner approached the High Court under Section 483 of the BNSS seeking bail.

Justice Satapathy perused the certified copy of the order passed by the JMFC as well as the notice of appearance produced by the petitioner. The Judge was taken aback by the sudden coercive step taken by the police without waiting for the scheduled date of appearance. He also expressed doubt as to whether the Magistrate was apprised of the prior issuance of notice under Section 35(3) by the police.

Nevertheless, the Court was of the view that NBW is a last resort in the criminal justice delivery system to facilitate the appearance of accused when even issuance of bailable warrant does not yield any result. Thus, referring to the ruling made by the Supreme Court in Directorate of Enforcement v. Subash Sharma, 2025 LiveLaw (SC) 137, the Court held –

“Once NBWA issued against the petitioner is found to have no sanction of law, the subsequent remand of the petitioner to judicial custody becomes illegal and cannot have approval of law... In view of the aforesaid facts and circumstances and taking into consideration the remand of the petitioner not in consonance with the provision of law and thereby, the subsequent remand being not having sanction of the law, the only consequence as emerges is to grant bail to the accused-petitioner.”

Accordingly, the Court granted bail to the petitioner on furnishing bail bonds of Rs.2,00,000/- (rupees two lakhs) with two solvent sureties each for the like amount.

Case Title: Srinivaschary K.R. @ Srinivaschari K.R. @ K.R. Srinibash Acharya @ K.R.S Achary v. State of Odisha

Case No: BLAPL No. 11633 of 2025

Date of Order: January 22, 2026

Counsel for the Petitioner: Mr. Sailaza Nandan Das, Advocate

Counsel for the State: Mr. M.R. Patra, Addl. Public Prosecutor

Citation: 2026 LiveLaw (Ori) 10

Click Here To Read/Download Order