Introduction:

In a significant judgment reaffirming the importance of personal liberty and procedural fairness in criminal proceedings, the Orissa High Court has held that a Non-Bailable Warrant (NBW) should not ordinarily be issued against an accused who is already on bail without first exhausting less coercive measures available under law. The Court emphasized that liberty cannot be curtailed lightly and that criminal courts must follow the statutory procedure before directing the arrest of an accused who has already been granted bail.

The ruling was delivered by Justice Gourishankar Satapathy in Trinath Guru & Another v. State of Orissa, Criminal Miscellaneous Case (CRLMC) No. 1806 of 2026, reported as 2026 LiveLaw (Ori) 53. The judgment arose from a challenge to an order passed by the Judicial Magistrate First Class (JMFC), Lakhanpur, Jharsuguda, directing the issuance of a Non-Bailable Warrant against the petitioner despite the fact that he had already been granted bail in the criminal case pending against him.

The case originated from a First Information Report registered against the petitioner and other accused persons for alleged offences under Sections 126(2) (wrongful restraint), 115(2) (voluntarily causing hurt), 296 (obscene acts), 324(4) (mischief), 351(2) (criminal intimidation), 109 (attempt to murder), and 3(5) (common intention) of the Bharatiya Nyaya Sanhita, 2023. Following his arrest and production before the competent court, the petitioner was granted bail on December 23, 2025. He thereafter furnished the necessary bail bonds and was released in accordance with the conditions imposed by the court.

Subsequently, during the pendency of the trial proceedings, summons were issued directing the petitioner to appear before the JMFC. According to the trial court records, despite service of summons and repeated calls, the petitioner failed to appear. Treating the absence as sufficient ground for securing his presence, the Magistrate passed an order on May 6, 2026, directing issuance of a Non-Bailable Warrant and ordering his production before the court.

Aggrieved by this order, the petitioner approached the Orissa High Court by invoking its inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The principal grievance raised before the High Court was that the trial court had mechanically issued an NBW without first resorting to less drastic measures contemplated by law and without assigning any compelling reasons for depriving him of his liberty.

The case thus presented an important question regarding the circumstances under which a criminal court may issue a Non-Bailable Warrant against a person who is already on bail and whether such a coercive step can be taken without first exhausting alternative statutory procedures.

The judgment assumes particular significance in the context of the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, as it clarifies the relationship between judicial discretion, procedural safeguards, and the constitutional protection of personal liberty.

Arguments of the Parties:

The petitioners challenged the order of the JMFC primarily on the ground that the issuance of a Non-Bailable Warrant was contrary to the statutory scheme of the BNSS and violated settled principles governing the rights of an accused who has already been granted bail.

It was argued that once a competent court grants bail and the accused complies with the conditions imposed by furnishing bail bonds, the protection granted by the bail order continues to operate unless it is cancelled by a competent court or set aside through appropriate legal proceedings. According to the petitioners, the trial court had effectively undermined the subsisting bail order by directing issuance of a Non-Bailable Warrant without following the procedure contemplated under law.

The petitioners further submitted that the Magistrate possessed several alternative options for securing the presence of an accused person. If the court was dissatisfied with the non-appearance of the accused, it could have issued notice to the sureties or bailors, directed the accused to explain his absence, or issued a bailable warrant. Resorting directly to an NBW, it was argued, was excessive and disproportionate.

The petitioners also relied upon the provisions of the BNSS dealing with attendance of accused persons during inquiry and trial. They contended that the law itself recognizes situations where personal attendance may be dispensed with by the court and therefore mere absence on a particular date could not automatically justify issuance of the most coercive form of warrant.

It was further argued that the impugned order contained no reasoning explaining why less restrictive alternatives were considered inadequate. In the absence of such reasons, the issuance of an NBW amounted to an arbitrary exercise of judicial power.

The State, represented by the Additional Public Prosecutor, defended the action of the trial court. It was submitted that the petitioner had failed to appear despite service of summons and repeated opportunities granted by the Magistrate. According to the State, courts conducting criminal trials must possess adequate powers to ensure attendance of accused persons and prevent unnecessary delays in proceedings.

The prosecution emphasized that an accused who secures bail is under a corresponding obligation to cooperate with the trial and appear whenever required by the court. Failure to do so, it was argued, can justify coercive measures intended to secure attendance.

The State maintained that the Magistrate had exercised powers available under criminal procedure law for ensuring the progress of the trial. It was suggested that repeated non-appearance justified stronger measures aimed at securing the accused’s presence before the court.

At the same time, the State could not point to any specific finding recorded by the trial court indicating that the petitioner was deliberately absconding, attempting to evade justice, tampering with evidence, or otherwise misusing the concession of bail. The dispute therefore centered not on the existence of judicial power to issue warrants, but on whether the manner in which that power was exercised conformed to statutory safeguards and principles of procedural fairness.

Court’s Judgment:

Justice Gourishankar Satapathy allowed the petition and set aside the order directing issuance of the Non-Bailable Warrant. The judgment contains a detailed examination of the statutory framework governing attendance of accused persons and the protection afforded to personal liberty under criminal procedure law.

At the outset, the Court underscored the importance of personal liberty in the criminal justice system. Observing that liberty cannot be taken away casually or without adherence to due process, the Court emphasized that judicial authorities must exercise extreme caution before directing arrest of an individual who is already enjoying the benefit of bail.

The Court observed that deprivation of liberty carries serious consequences. Custody not only restricts physical freedom but also exposes an individual to significant hardship, inconvenience, stigma, and disruption of personal and professional life. For this reason, every coercive order affecting liberty must be supported by proper legal justification.

A central aspect of the Court’s reasoning concerned the legal effect of a bail order. Justice Satapathy reiterated the well-established principle that once bail is granted, it continues to remain operative until it is cancelled or set aside by a competent court. The mere fact that an accused fails to appear on a particular date does not automatically extinguish the protection granted by the bail order.

The Court observed that the impugned order failed to disclose any compelling circumstances warranting issuance of a Non-Bailable Warrant. There was no finding that the petitioner was absconding, attempting to evade the judicial process, or engaging in conduct justifying immediate deprivation of liberty.

The judgment then proceeded to examine Section 355 of the BNSS, which corresponds to Section 317 of the Code of Criminal Procedure, 1973. This provision grants substantial discretion to criminal courts regarding the attendance of accused persons during inquiry and trial.

The Court noted that the provision recognizes practical realities and permits a Magistrate, in appropriate cases, to dispense with the personal attendance of an accused. Even where an accused is absent, the court may continue proceedings and require personal attendance only when necessary at a subsequent stage.

This statutory flexibility demonstrates that personal attendance is not invariably mandatory at every stage of criminal proceedings. Consequently, non-appearance by itself cannot automatically justify issuance of the harshest form of coercive process.

Justice Satapathy also examined Section 482(3) of the BNSS. This provision assumes particular significance because it lays down the procedure to be followed when the court considers issuance of a warrant against an accused person who is already on bail.

The Court explained that the legislative scheme contemplates a graduated response. Before resorting to an NBW, the court is expected to consider less intrusive measures. The law specifically envisages issuance of a bailable warrant in appropriate circumstances. This reflects a conscious legislative attempt to balance the need for securing attendance with the protection of individual liberty.

The Court found that the JMFC had failed to follow this statutory sequence. Instead of issuing notice to the bailors or directing issuance of a bailable warrant, the Magistrate had proceeded directly to issuance of a Non-Bailable Warrant.

According to the High Court, such an approach was inconsistent with the spirit and structure of the BNSS. Judicial discretion must be exercised progressively and proportionately. Where less restrictive alternatives are available and have not been exhausted, immediate resort to an NBW becomes difficult to justify.

The Court emphasized that sureties and bailors play a significant role in ensuring the attendance of accused persons. Issuing notice to them is often an effective mechanism for securing compliance with bail conditions. Similarly, a bailable warrant serves as an intermediate step that balances enforcement with respect for liberty.

The judgment stressed that a Non-Bailable Warrant should ordinarily be viewed as a measure of last resort. It is intended for situations where other methods have failed or where circumstances indicate deliberate evasion of the judicial process. Absent such circumstances, issuance of an NBW risks becoming punitive rather than procedural.

Justice Satapathy observed that the impugned order lacked any discussion regarding necessity or proportionality. The order merely directed issuance of an NBW without explaining why other available options were unsuitable. Such an omission rendered the order vulnerable to judicial interference.

The Court also linked its reasoning to broader constitutional values. Although the judgment primarily interpreted provisions of the BNSS, its underlying philosophy reflects the constitutional commitment to protection of personal liberty under Article 21 of the Constitution of India.

The Supreme Court has consistently held that procedural safeguards are not mere technicalities but essential components of fair procedure. Any action resulting in deprivation of liberty must therefore satisfy standards of legality, fairness, and reasonableness. The High Court’s ruling aligns with these constitutional principles by insisting that coercive measures be employed only after due consideration of less restrictive alternatives.

Ultimately, the Court concluded that the JMFC had acted prematurely in issuing a Non-Bailable Warrant against an accused who was already on bail. Since no compelling reasons had been recorded and the statutory procedure had not been properly followed, the impugned order could not be sustained.

Accordingly, the High Court set aside the order dated May 6, 2026, directing issuance of the NBW. The bail granted to the petitioner on December 23, 2025, was allowed to continue without disturbance.

At the same time, the Court reminded the petitioner of his obligations under the bail order. While protecting his liberty, the Court directed him to cooperate with the trial proceedings and appear before the trial court whenever required.

The judgment thus strikes a careful balance between two competing interests. On one hand, it safeguards the fundamental right to personal liberty and prevents arbitrary use of coercive powers. On the other hand, it ensures that accused persons remain accountable to the judicial process and fulfill their obligations under the conditions of bail.

In conclusion, the decision serves as an important precedent on the issuance of Non-Bailable Warrants under the BNSS. It reinforces the principle that courts must adopt a graduated and proportionate approach when dealing with non-appearance of accused persons on bail. By holding that notices to bailors and bailable warrants should ordinarily precede issuance of an NBW, the Orissa High Court has strengthened procedural fairness and reaffirmed the central role of liberty in criminal justice administration.