Adikanda Swain & Anr. v. State of Orissa, 2026
The judgment provides important clarification on the scope and limitation of Section 35(3) BNSS, thereby preventing its misuse in serious criminal cases.
Judgement Details
Court
Orissa High Court
Date of Decision
27 April 2026
Judges
Justice Gourishankar Satapathy
Citation
Acts / Provisions
Section 13(1)(ia), Hindu Marriage Act, 1955
Section 25, Hindu Marriage Act, 1955
Facts of the Case
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An FIR was registered against the petitioners alleging commission of multiple offences, including culpable homicide not amounting to murder, which is a serious offence punishable with life imprisonment under Section 105 BNS.
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The allegations also included offences relating to obscene acts, voluntarily causing hurt, wrongful restraint, criminal intimidation, and acts done in furtherance of common intention, thereby indicating a combination of serious and minor charges.
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After investigation, the police filed a charge-sheet against the petitioners maintaining the same set of allegations and legal provisions.
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During the pendency of the case, the Sub-Divisional Judicial Magistrate (SDJM), Bhanjanagar, granted bail to the co-accused persons.
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The Magistrate granted bail primarily on the ground that the accused persons had been served with notice under Section 35(3) BNSS and had appeared before the court.
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The petitioners approached the High Court by filing a bail application under Section 483 BNSS, challenging the legality of the bail granted.
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It was specifically argued that the application of Section 35(3) BNSS was legally incorrect because one of the offences carried life imprisonment, which falls outside the scope of that provision.
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It was further contended that the Magistrate failed to record proper judicial reasons as required under the law governing bail in serious offences.
Issues
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Whether notice under Section 35(3) BNSS can legally be issued in cases where the alleged offence is punishable with life imprisonment?
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Whether the Magistrate committed an error in granting bail without properly applying the restrictions contained in Section 480(1)(i) BNSS?
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Whether bail can be validly granted solely on the basis that notice under Section 35(3) BNSS was issued and complied with by the accused?
Held
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The Court held that Section 35(3) BNSS cannot be applied to offences punishable with life imprisonment, and its use in such cases is legally incorrect.
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It was held that the bail granted by the Magistrate suffered from non-application of mind and failure to consider mandatory legal provisions.
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Despite identifying these errors, the Court granted bail to the petitioners after considering the overall facts and the filing of the charge-sheet, which reduced the necessity of custodial detention.
Analysis
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The judgment provides important clarification on the scope and limitation of Section 35(3) BNSS, thereby preventing its misuse in serious criminal cases.
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It reinforces the principle that bail in non-bailable offences, especially those involving life imprisonment, must be granted only after careful judicial evaluation.
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The Court’s reasoning highlights the importance of recording reasons and demonstrating application of mind, which are essential components of a valid judicial order.
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The decision acts as a corrective measure against mechanical exercise of judicial discretion, particularly at the level of subordinate courts.
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It also contributes to the evolving jurisprudence under the new criminal law framework (BNSS and BNS) by clarifying how procedural provisions should be interpreted.
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The advisory tone adopted by the Court reflects a balance between judicial discipline and institutional guidance, particularly for relatively inexperienced judicial officers.