The Arrest Exception Survives: Supreme Court Injects 'Arnesh Kumar' into Section 35(3) BNSS Amidst Section 69 BNS Quashing Battles

The transition to the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) was heavily marketed as a paradigm shift in Indian criminal justice. But as the dust settles in early 2026, the appellate courts are doing the heavy lifting of statutory interpretation. The overarching message from the Supreme Court and various High Courts is clear: new criminal codes do not obliterate fundamental constitutional safeguards.

For practicing criminal lawyers, the latest wave of judgments provides the exact jurisprudential ammunition we’ve been waiting for to counter the overzealous application of the new Sanhitas by investigating agencies.

Resurrecting Arnesh Kumar: Section 35(3) BNSS Arrest Limits

When the BNSS rolled out, a major concern for the defense bar was whether the hard-fought protections against arbitrary arrest under Section 41A of the CrPC would survive the transition. In a monumental February 2026 ruling, a Supreme Court bench comprising Justices M.M. Sundresh and N. Kotiswar Singh put those fears to rest while interpreting Section 35(3) of the BNSS.

The Court categorically ruled that for offences punishable by up to 7 years of imprisonment, issuing a notice of appearance under Section 35(3) BNSS is the rule, while arrest remains the stark exception. Investigating Officers (IOs) cannot bypass this merely by checking a box; they must establish the specific conditions outlined in Sections 35(1)(b)(i) and 35(1)(b)(ii) BNSS (such as preventing evidence tampering or further offences).

Crucially, the Bench emphasized that even if these conditions exist, an arrest is not mandatory. The ghost of Arnesh Kumar v. State of Bihar (2014) lives on in the BNSS.

Practice Implication: Police agencies have been treating the new codes as a clean slate, often bypassing pre-arrest notices. At remand hearings, defense counsel must go on the offensive. Magistrates ordering remand under the BNSS must be forced to record their satisfaction regarding the necessity of arrest under Section 35(1)(b). If the IO failed to issue a 35(3) notice for a sub-7-year offence without compelling, documented reasons, the arrest is illegal, and the accused is entitled to default bail.

The Section 69 BNS Trap: Courts Refuse Early Quashing

While the BNSS arrest ruling is a win for civil liberties, the interpretation of the new BNS substantive offences is proving to be a minefield—specifically Section 69 BNS (sexual intercourse by deceitful means, including false promise of marriage).

Unlike the IPC, where the "false promise of marriage" was judicially read into the offence of rape under Sections 375 and 90, the BNS carved it out as a distinct, standalone offence punishable by up to 10 years. Recent High Court rulings indicate that the judiciary is treating this new provision with lethal seriousness.

In January 2026, the Allahabad High Court in Kuldeep Verma v. State of U.P. boldly refused to quash proceedings under Section 69 BNS alongside Sections 115(2), 352, and 351(3) BNS. The Court found that allegations of long-term cohabitation based on false promises constituted sufficient prima facie evidence to warrant a trial. Similarly, in a February 2026 ruling, the Delhi High Court held that refusing marriage citing a "kundli mismatch" after establishing physical relations actively attracts Section 69 BNS.

Practice Implication: The threshold for quashing Section 69 BNS FIRs under Section 528 BNSS (formerly Section 482 CrPC) is currently incredibly high. Defense lawyers arguing that the relationship was consensual and merely "soured" are hitting a brick wall at the High Court level. Strategy must shift from seeking early quashing to securing anticipatory bail by heavily relying on the Section 35(3) BNSS notice requirements mentioned above, forcing the trial courts to examine the specific mens rea of deceit at the time of the physical act.

Repugnancy and the Federalism Friction: Section 111 BNS

Another massive development brewing in the Supreme Court involves Section 111 BNS, which introduces the offence of "Organized Crime" into the central penal code. In Siraj Ahmad Khan v. State of Uttar Pradesh, the Apex Court has demanded the UP government answer whether the draconian UP Gangsters Act is now repugnant to Section 111 BNS under Article 254 of the Constitution.

Why this matters: State-level organized crime laws (like MCOCA, UP Gangsters Act, GUJCOC) have historically bypassed standard evidentiary rules to make bail nearly impossible. If the Supreme Court rules that Section 111 BNS "occupies the field," it could render these state acts unconstitutional. Practitioners defending clients in organized crime cases must immediately start taking preliminary objections on repugnancy, arguing that the central BNS framework supersedes harsher state laws.

Liberty at the Margins: Handcuffing and Undertrials

Finally, the courts are actively curbing the carceral excesses written into the BNSS. In recent directives:

• Handcuffing (Section 43(3) BNSS): The Supreme Court has struck down arbitrary handcuffing, ruling that despite the statutory provision, handcuffing without recorded justification and judicial oversight violates Articles 21 and 22(1) of the Constitution.
• Undertrial Release (Section 479 BNSS): The Court has mandated Jail Superintendents to proactively identify women prisoners eligible for early release under Section 479 (the liberalized equivalent of Section 436A CrPC).

The Bottom Line: The appellate courts in early 2026 are aggressively reading constitutional safeguards back into the BNS and BNSS. As practitioners, we must stop viewing these new codes as impenetrable walls of state power, and instead challenge them using the precise, liberty-oriented interpretations the Supreme Court is currently handing down.