Arrest is the Exception, Notice is the Rule: Supreme Court Draws a Hard Line on BNSS Arrests (Plus the Section 69 BNS Chaos)

The Dust Settles on the New Criminal Codes: The Courts Strike Back

We are halfway through 2026, and the growing pains of the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) are playing out in real-time across trial courts and High Courts. When the new codes were introduced, the defense bar raised alarms about expanded police powers and the potential for mechanical arrests. But recent rulings from the Supreme Court and various High Courts reveal a clear judicial pushback: the constitutional courts are aggressively reading procedural safeguards into the BNSS to prevent it from becoming an instrument of police harassment.

For practicing criminal lawyers, the latest quarter of jurisprudence offers immense tactical value—from remand hearings to quashing petitions. Here is why the latest developments matter for your daily practice.

Resurrecting Arnesh Kumar: Section 35(3) BNSS is Mandatory, Not Optional

The most consequential development for daily practice is the Supreme Court’s definitive interpretation of arrest powers under the BNSS for offenses punishable by up to seven years. The Court has categorically ruled that issuing a notice of appearance under Section 35(3) of the BNSS is the rule, and effecting an arrest under Section 35(6) (read with Section 35(1)(b)) is a clear exception.

Why does this matter? Because investigating agencies have been treating Section 35(3) notices as a mere formality to be bypassed at their convenience, often justifying immediate arrests under vague claims that the accused might "tamper with evidence." The Supreme Court has now effectively codified the spirit of the landmark Arnesh Kumar v. State of Bihar guidelines directly into the BNSS framework.

"Arrest should not be mechanical for lesser offences. The prosecution must demonstrate exceptional circumstances to bypass the statutory mandate of Section 35(3)."

Practice Point: If you are defending a client at a first remand hearing for an offence carrying a penalty of seven years or less, your primary attack vector should be the Investigating Officer's failure to issue a Section 35(3) notice. Magistrates can no longer rubber-stamp police custody requests; defense counsel must demand that the IO justify the shift from Section 35(3) to 35(6) on the case diary. Furthermore, the Supreme Court has clarified that the stringent bail conditions under Section 480(3) BNSS do not apply to these lesser offenses, lowering the threshold for securing regular bail.

Section 173(3) BNSS: A Shield Against Frivolous FIRs

In Ashish Dave vs. The State of Rajasthan, the Supreme Court addressed the rampant issue of weaponized FIRs. The Court observed that Section 173(3) BNSS—which provides for a preliminary inquiry before registration of an FIR in cases punishable by 3 to 7 years—is designed specifically to prevent the mechanical registration of FIRs based on vague, doubtful, or purely civil allegations.

For years, civil disputes have been clothed as criminal cheating or breach of trust to force settlements. Section 173(3) is your statutory shield. If the police register an FIR without conducting this preliminary inquiry, defense lawyers have strong grounds to approach the High Court for quashing under Section 528 BNSS (the equivalent of the old Section 482 CrPC). As the Supreme Court noted in Sajal Bose vs. State of West Bengal, if the defense can produce unimpeachable material that disproves the factual foundation of the complaint, the High Court must quash the proceedings.

White-Collar Defense: Mandatory Pre-Cognizance Hearings in PMLA

For practitioners handling white-collar crimes, the Supreme Court’s ruling in Parvinder Singh vs. Directorate of Enforcement is a game-changer. The Court held that if a Magistrate takes cognizance of a PMLA complaint after the commencement of the BNSS, a pre-cognizance hearing of the accused is absolutely mandatory. This provides defense counsel an invaluable, albeit narrow, window to scuttle ED complaints before the draconian PMLA trial machinery is fully set into motion.

The Section 69 BNS Minefield: "Kundli Mismatch" as Deceit

While the procedural law (BNSS) is seeing liberal interpretations, the substantive law (BNS) is creating new, highly subjective battlegrounds. Section 69 of the BNS criminalizes sexual intercourse obtained by "deceitful means," including false promises of marriage.

In a recent and highly concerning judgment, the Delhi High Court held that refusing to marry someone due to a "Kundli" (astrological) mismatch—after engaging in physical relations based on repeated assurances of marriage—attracts Section 69 BNS. The Court essentially categorized post-facto cultural or astrological excuses as "cheating by personation."

The Legal Reality: This ruling blurs the line between a genuine change of circumstances and malicious deceit at the inception of the relationship. For defense lawyers, Section 69 is becoming a nightmare to defend against. You can no longer rely merely on "family refusal" or "astrological incompatibility" as a defense to prove that the promise to marry was not false from the beginning. Trial strategy must shift heavily toward proving that the relationship was entirely consensual and devoid of any conditional promise, rather than justifying the subsequent breakup.

The Rise of Reformative Justice

Finally, we are witnessing a refreshing shift away from carceral punishment for petty offenses. Courts are aggressively utilizing Community Service—a newly introduced sentencing alternative under the BNS. Whether it is the Delhi HC ordering a 21-year-old to serve at a hospital in exchange for quashing an FIR, or the MP HC ordering a defaulting lawyer to serve at a Mercy Home, the message is clear: Indian courts are eager to decongest prisons and promote reformative justice where appropriate.

The Bottom Line: The jurisprudence of 2026 shows that while the new codes give the police an expanded toolkit, the Supreme Court is determined to strictly enforce the instruction manual. Defense lawyers must actively leverage Sections 35(3) and 173(3) of the BNSS to choke frivolous investigations at the very root.