Introduction:

In a strong reaffirmation of procedural fairness and the primacy of personal liberty, the Orissa High Court in Srinivaschary K.R. alias Srinivaschari K.R. alias K.R. Srinibash Acharya alias K.R.S Achary versus State of Odisha examined the legality of issuing a non-bailable warrant of arrest before the scheduled date of appearance mentioned in a police notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The case arose from an FIR registered under multiple provisions of the Bharatiya Nyaya Sanhita and Sections 66(C) and 66(D) of the Information Technology Act, based on allegations that the accused extracted approximately Rs. 63 lakhs from the informant by threatening him with so-called digital arrest. During the course of investigation, the Investigating Officer issued a notice to the accused under Section 35(3) of BNSS directing him to appear at 10 AM on 01.09.2025 at Bhuban Police Station. The accused reportedly received this notice on 13.08.2025. However, instead of waiting for the scheduled appearance date, the Investigating Officer moved the Judicial Magistrate First Class on 14.08.2025 seeking issuance of a non-bailable warrant, which was promptly granted. Acting on this warrant, the accused was arrested and remanded to judicial custody. Aggrieved by this coercive step, the accused approached the High Court seeking bail under Section 483 of BNSS, contending that the warrant and the subsequent remand were illegal as they violated the express scheme of Section 35(3) which contemplates voluntary appearance when arrest is not necessary.

Arguments:

On behalf of the petitioner, it was argued that Section 35(3) of BNSS is a statutory safeguard designed to protect individuals from unnecessary arrest when the Investigating Officer does not consider arrest to be required at that stage. The provision mandates issuance of notice to appear, and once such notice is issued, the police must wait for the scheduled time before resorting to coercive measures. The petitioner contended that approaching the Magistrate for issuance of a non-bailable warrant even before the date fixed for appearance amounts to defeating the very purpose of Section 35(3) and renders the notice meaningless. It was further argued that non-bailable warrant is the most extreme coercive process available to secure the presence of an accused and must be used only as a last resort when even bailable warrants fail to secure appearance. The petitioner also highlighted that there was no allegation that he had evaded the notice or expressed unwillingness to cooperate, and therefore there was no justification whatsoever for issuance of a non-bailable warrant. It was submitted that once the warrant itself was illegal, the arrest and remand flowing from it were also illegal, and continued custody would amount to violation of Articles 21 and 22 of the Constitution.

On the other hand, the State sought to justify the actions of the Investigating Officer by relying on the seriousness of the allegations involving cyber fraud and large monetary loss, contending that in such cases immediate steps are often necessary to prevent absconding or tampering with evidence. The prosecution argued that the police are empowered to seek warrants where they apprehend non-cooperation by the accused. However, the State did not place any material to show that the accused had failed to comply with the notice or that he had attempted to evade investigation. The High Court also noted that it was unclear whether the Magistrate was informed that a notice under Section 35(3) had already been issued and that the date of appearance had not yet arrived, raising serious doubts about whether the judicial mind was properly applied while issuing the non-bailable warrant.

Court’s Judgment:

Justice Gourishankar Satapathy, after examining the notice issued under Section 35(3) and the order of the Magistrate issuing the non-bailable warrant, expressed serious concern at the haste with which coercive process was invoked. The Court held that Section 35(3) clearly mandates issuance of notice in cases where arrest is not required, thereby indicating that the legislature intended voluntary appearance to be the primary method of securing cooperation in such situations. Once the police choose this statutory route, they are bound to respect the timeline provided in the notice and cannot prematurely escalate to arrest through non-bailable warrants. The Court observed that issuing a non-bailable warrant before the expiry of the time granted in the notice is not merely a procedural irregularity but an affront to the personal liberty of the accused, as it unjustifiably converts a non-custodial investigative step into a custodial one without legal basis.

The Court further reiterated the settled principle that non-bailable warrant is a measure of last resort in criminal jurisprudence and should be issued only when summons and bailable warrants have failed to secure the appearance of the accused. Relying on the Supreme Court decision in Directorate of Enforcement v. Subash Sharma, 2025 LiveLaw (SC) 137, the Court emphasized that coercive processes must follow a graded approach and must be proportionate to the conduct of the accused. In the present case, there was no material to show that the accused had defaulted in appearance or had shown any intention to evade the process of law. On the contrary, the police themselves had chosen not to arrest him and had issued a notice for appearance on a future date. Therefore, bypassing that statutory mechanism and directly seeking a non-bailable warrant was held to be without sanction of law.

The Court also expressed doubt as to whether the Magistrate was properly informed about the issuance of notice under Section 35(3), and observed that had this fact been brought to the notice of the Magistrate, the issuance of non-bailable warrant may not have occurred. Importantly, the Court held that once the non-bailable warrant was found to be illegal, the subsequent remand to judicial custody also became illegal and unsustainable in law. Custody based on an unlawful warrant cannot be legitimized by mere passage of time or procedural formalities. Therefore, the Court concluded that the only logical and legal consequence was to grant bail to the accused. Accordingly, the petitioner was released on bail on furnishing bail bonds of Rs. 2,00,000 with two solvent sureties for the like amount, while making it clear that investigation could continue in accordance with law and that the accused was expected to cooperate with the authorities.