Arnesh Kumar Lives On: Supreme Court Cements the 'Notice Over Arrest' Rule for 7-Year Offences Under BNSS

The CrPC is Dead, Long Live the CrPC

As we navigate the operational realities of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in 2026, a distinct judicial trend has emerged from the Constitutional Courts: the new criminal codes are not a clean slate for police overreach. If the investigative agencies hoped the transition from the CrPC to the BNSS would dilute the hard-fought protections against arbitrary arrest and detention, the Supreme Court has firmly shut that door.

The foremost takeaway from the latest slew of Supreme Court and High Court judgments is that the procedural safeguards of the CrPC remain deeply embedded in the BNSS. For the defense bar, this means your old commentaries and landmark precedents are far from obsolete—they just require precise statutory mapping.

Arrest Under Section 35 BNSS: Notice is the Rule, Arrest is the Exception

The most consequential development for daily criminal practice is the Supreme Court’s recent clarification on arrests for offences punishable with imprisonment up to seven years. The Court categorically ruled that issuing a notice of appearance under Section 35(3) BNSS (the successor to Section 41A CrPC) is the absolute rule.

Conversely, an actual arrest under Section 35(6) read with Section 35(1)(b) BNSS is the exception, requiring recorded, justifiable reasons. Let’s be blunt about why this matters: since the rollout of the BNSS, we have seen a disturbing trend of investigating officers interpreting the new provisions as a loophole to bypass the Arnesh Kumar v. State of Bihar mandate. Police have frequently invoked Section 35(6) to justify immediate arrests by vaguely citing the "necessity" of custody.

This Supreme Court ruling arms defense counsels with the necessary ammunition to strike down mechanical remand requests. When an accused is produced before a Magistrate for a sub-7-year offence, the immediate line of attack must be the IO’s compliance with Section 35(1)(b). If the police diary lacks specific, concrete reasons demonstrating why a Section 35(3) notice would be insufficient to secure the investigation, the arrest is illegal, and the Magistrate is duty-bound to refuse remand.

Clawing Back Magisterial Overreach on Bail: Section 480(3) BNSS

Another critical practice point stems from the Supreme Court’s intervention regarding bail conditions under Section 480(3) BNSS (mirroring Section 437(3) CrPC). The Court has explicitly clarified that the stringent bail conditions outlined in this sub-section do not apply to offences punishable by up to seven years.

"The imposition of onerous, copy-paste bail conditions for lesser offences is a legacy issue that the BNSS cannot be allowed to perpetuate."

Practicing lawyers know the drill: Magistrates often grant bail but mechanically impose conditions like surrendering passports or imposing heavy local surety requirements, even for minor offences. By restricting the application of Section 480(3), the Supreme Court has drawn a red line. If you are arguing bail for an offence under the 7-year threshold, you must actively cite this ruling to prevent the imposition of disproportionate conditions that effectively render the bail order illusory.

The 15-Day Remand Debate: A Warning from Gujarat

While the Supreme Court has protected the accused against arbitrary arrest, the Gujarat High Court has issued a sobering reminder about police custody under the new regime. Interpreting Section 346(2) BNSS (the replacement for the infamous Section 167 CrPC), the High Court ruled that police remand beyond the initial 15 days is not per se illegal for an accused already in custody, and a writ of habeas corpus will not automatically lie.

This is a crucial tactical warning. Section 346(2) allows police custody to be sought in parts, extending up to 60 or 90 days depending on the offence, fundamentally altering the old CrPC restriction where police custody was strictly limited to the first 15 days of remand. Defense lawyers can no longer rely on the expiry of the 15-day clock to block police custody. Instead, objections to extended police remand must focus squarely on the merits—challenging the 'necessity' of interrogation and arguing that the agency is merely using prolonged custody as a tool for coercion.

Substantive Law: Discharge and PC Act Overlaps

Beyond arrest and remand, the continuity of jurisprudence is evident in pre-trial procedures. The Supreme Court has expressly observed that the substantive legal standards governing discharge and the framing of charges remain entirely unchanged under the BNSS. The threshold test—whether a prima facie case is made out based on uncontroverted allegations—still governs the day.

Furthermore, the Allahabad High Court’s ruling in Achche Lal v. CBI brings much-needed clarity to prosecution sanctions. The Court held that if a valid sanction exists under Section 19 of the Prevention of Corruption (PC) Act, the prosecution does not need a redundant, supplementary sanction under Section 218 BNSS. Crucially, it noted that criminal conspiracy under Section 61(2) BNS (formerly 120B IPC) is not treated as an independent offence requiring separate sanction when inextricably linked to the substantive PC Act offence. This shuts down a common, albeit technical, defense strategy of challenging cognizance based on dual-sanction technicalities.

The Bottom Line for Practitioners

The judicial interpretation of the BNS and BNSS in 2026 sends a unified message: the nomenclature has changed, but the constitutional morality underpinning Indian criminal law has not. Courts are actively resisting the weaponization of the new codes. For the practicing lawyer, success in the trial courts now depends on masterfully bridging the gap between established CrPC jurisprudence and the specific textual nuances of the BNSS. Keep your *Arnesh Kumar* close, but keep the BNSS text closer.