Magistrate Cannot Straightaway Issue NBW For Non-Appearance If Accused Is Already On Bail; Bail Valid Until Cancelled: Orissa High Court

"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," Orissa High Court, in a significant ruling, held that a Magistrate cannot straightaway issue a Non-Bailable Warrant (NBW) against an accused who fails to appear if they have already been granted bail.

A single-judge bench of Justice G. Satapathy observed that the law is clear: bail, once granted, continues to remain in effect until it is formally cancelled or the order granting it is set aside.

The petitioner, Trinath Guru, had been granted bail on December 23, 2025, and had furnished the necessary bail bonds. However, on May 6, 2026, the Judicial Magistrate First Class (JMFC), Lakhanpur, issued an NBW against him and other accused persons because they were absent on repeated calls despite the service of summons. The petitioner challenged this order before the High Court under Section 528 of the BNSS, 2023.

The primary question before the court was whether a Magistrate can directly issue an NBW for non-appearance when the accused is already on bail. The court also examined whether the Magistrate must first resort to less coercive measures, such as issuing notices to bailors or bailable warrants, before depriving a person of their liberty.

Magistrate’s Discretion To Dispense With Personal Attendance

The Court analyzed the scope of Section 355 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which provides the trial court with wide discretion to dispense with the personal attendance of the accused during an inquiry or trial. The bench noted that even if the accused is not present, the Magistrate has the discretion to proceed with the inquiry or trial in their absence rather than immediately issuing a warrant.

"Section 355 of BNSS confers wide discretion on the Court to dispense with the personal attendance of the accused even on the date fixed for holding inquiry or trial, but issuance of NBWA against accused is not mandatory."

Requirement To Issue Bailable Warrants In First Instance

Justice Satapathy referred to Section 482(3) of the BNSS, emphasizing that if a Magistrate taking cognizance decides that a warrant should be issued in the first instance, it must be a bailable warrant. The court observed that the lower court failed to follow this hierarchy of coercive measures, opting instead for the most severe option without providing compelling reasons.

"If a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that accused person, he shall issue a bailable warrant in conformity with the direction of the Court."

Proper Procedure Must Be Followed Before Depriving Liberty

The bench underscored that the liberty of an individual is a fundamental right that cannot be dealt with lightly. The Court pointed out that instead of issuing an NBW, the Magistrate could have issued a notice to the bailors or a bailable warrant. The impugned order, according to the High Court, did not disclose any necessity or compelling reason to resort to an NBW straightaway.

"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."

Bail Remains Valid Until Formally Cancelled

The Court reiterated the settled legal principle that once an accused is released on bail, that status remains valid throughout the proceedings unless the bail is specifically cancelled. The High Court found that the trial court's order failed to stand up to legal scrutiny as it ignored the fact that the petitioner was already on bail.

"Law is very clear that bail once granted should continue till it is cancelled or order granting bail is set-aside."

The High Court concluded that the impugned order dated May 6, 2026, was legally unsustainable. While quashing the NBW against Trinath Guru, the Court allowed him to continue on his previous bail. However, it directed the petitioner to regularize the proceedings by appearing before the trial court on the next fixed date.

Date of Decision: 09 June 2026