Deceit by Kundli and Default Bail Battles: High Courts Untangle the BNS and BNSS Hype

The Honeymoon is Over: Courts Grapple with the Sanhitas in Practice

For the first year after their notification, the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) were the subjects of endless webinars and academic hand-wringing. But as we navigate early 2026, the theoretical dust has settled, and the actual friction of courtroom practice has begun. Recent rulings from the Supreme Court and various High Courts are finally laying down the ground rules for the new criminal codes—and for practicing lawyers, the takeaways are immediate and highly actionable.

If you are a defense counsel relying on old CrPC jurisprudence for default bail, or attempting to navigate the newly minted "false promise of marriage" provision under the BNS, it is time to update your arsenal.

BNS Section 69: The "Kundli" Defense and the Mens Rea Mandate

Perhaps no provision under the BNS is more practically divisive than Section 69, which explicitly criminalizes sexual intercourse on the false promise of marriage, employment, or promotion, distinguishing it from the traditional offence of rape. Two recent, contrasting High Court judgments highlight exactly how this provision will be litigated.

The Allahabad High Court recently clarified that proceedings under Section 69 can, and should, be quashed pre-trial if there is no evidence of dishonest intent from the very inception of the relationship. The Court took a pragmatic stance: a mere breakdown of a relationship does not retroactively create criminal liability. However, the Delhi High Court on February 24, 2026, drew a hard line in the sand, ruling that refusing marriage post-intimacy citing a "kundli (horoscope) mismatch" squarely attracts Section 69.

"The legislative intent behind Section 69 was to codify the judicial carve-outs previously made under Section 90 of the IPC regarding 'misconception of fact'. But the statutory text now leaves less room for ambiguity."

The Takeaway for Practitioners: If you are defending an accused under Section 69, the burden of drafting a quashing petition under Section 528 BNSS (formerly Section 482 CrPC) has shifted. You can no longer just argue that the relationship was consensual; you must meticulously document a timeline that proves the original promise was genuine and the breach was caused by subsequent, unforeseen circumstances. Conversely, the "kundli mismatch" defense is effectively dead on arrival in Delhi—courts are viewing it as a convenient, bad-faith escape hatch.

BNSS Default Bail: A Fatal Blow to State Amendments

One of the most significant procedural victories for defense lawyers this year comes from the Orissa High Court's November 2025 ruling on default bail. The Court held that Section 187(3)(i) of the BNSS, which sets a strict 90-day limit for filing a chargesheet in major offences, effectively repeals state-level amendments that had comfortably extended this period to 120 days.

This is a massive development. Under the old CrPC regime, several states amended Section 167 to give their lethargic police forces a 120-day buffer. By ruling that the central BNSS overrides these state amendments, the Orissa High Court has restored the sanctity of the indefeasible right to default bail.

The Practice Note: Diary your 90th day. Do not let trial court magistrates rely on outdated state amendments to deny default bail. The moment the 90 days expire without a chargesheet, immediately file the application before the magistrate. Any remand authorized beyond this under the guise of state-specific extensions is now patently illegal.

Bail Cancellation and Remand: Gravity Still Reigns Supreme

While the new codes boast "reformative" elements, the Supreme Court's March 2026 digest makes it clear that conservative bail jurisprudence remains intact for heinous crimes. In Lal Muni Devi v. State of Bihar, the Supreme Court set aside a High Court order granting bail to a husband accused of dowry death and murder under BNS Sections 103(1) and 80. Relying on the precedent set in P v. State of M.P. (2022), the apex court sent a stern reminder: the gravity of the offence and circumstantial evidence trump a clean criminal record.

Furthermore, the Gujarat High Court clarified the often-misunderstood remand provisions of the BNSS. It held that extending remand beyond 15 days under Section 346(2) BNSS for an accused already in custody is not inherently illegal, shutting down the rampant misuse of habeas corpus petitions as a backdoor for bail.

The Looming Article 254 Constitutional Clash

Keep your eyes on the Supreme Court docket in Siraj Ahmad Khan v. State of Uttar Pradesh. The Court has agreed to examine whether the draconian UP Gangsters Act is legally repugnant to Section 111 of the BNS, which now codifies "organized crime" at the federal level.

Why does this matter? For decades, states have used special local laws (like MCOCA, GUJCOCA, and the UP Gangsters Act) because the IPC lacked a specific "organized crime" provision. Now that BNS Section 111 occupies this field, under Article 254 of the Constitution, state laws that conflict with the central code may be rendered void. If the Supreme Court strikes down or reads down the UP Gangsters Act in light of BNS 111, it will trigger a tectonic shift in how organized crime is prosecuted across India, forcing police to adhere to the BNSS's procedural safeguards rather than the draconian presumptions of state acts.

The BNS and BNSS are no longer abstract concepts; they are biting realities. Practitioners must stop treating them as mere renumbering exercises of the IPC and CrPC. From implicit repeals of state amendments to the rigid interpretation of deceit, the nuances of the Sanhitas are where cases will now be won and lost.