The BNS Bares Its Teeth: Section 69 'False Promise' FIRs and the BNSS Handcuffing Regression

The Honeymoon Phase for the New Criminal Codes is Over

Welcome to early 2026. The Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) are no longer theoretical debates confined to law school symposiums and bar room gossip—they are active minefields in our trial courts. If the January to March 2026 High Court dockets are any indicator, the promised "decolonization" of Indian criminal law is handing unprecedented leverage to complainants and police, while stripping away decades of hard-fought defense jurisprudence.

For practicing advocates representing the accused, the early judicial interpretations of the BNS and BNSS signal a chilling reality: the threshold for quashing FIRs has effectively been raised, and state police powers have been statutorily fortified.

Section 69 BNS: Codifying the Weaponization of Breakups

Perhaps the most highly anticipated—and dreaded—provision of the BNS was Section 69, which criminalizes sexual intercourse by "deceitful means," specifically including the false promise of marriage. Recent rulings from the Delhi and Allahabad High Courts prove that defense lawyers' worst fears regarding this section are materializing.

Under the old IPC regime, courts had to agonizingly read Section 90 (consent given under misconception of fact) with Section 375 (rape). We relied heavily on the Supreme Court’s distinction in Pramod Suryabhan Pawar v. State of Maharashtra: a mere breach of a genuine promise to marry is not rape; the promise must have been false at the very inception.

Section 69 of the BNS was supposed to clarify this by carving it out of the rape definition and assigning a specific 10-year punishment. Instead, it has created a standalone weapon.

In a recent 2026 judgment, the Delhi High Court applied Section 69 to a case where a man refused marriage citing a "kundli (horoscope) mismatch" after engaging in physical relations. The Court held that repeated assurances followed by such a refusal attract the offense.

Simultaneously, the Allahabad High Court, in the case of Kuldeep Verma, bluntly refused to quash a Section 69 FIR under Section 528 of the BNSS (the successor to the beloved Section 482 CrPC). Justice Avnish Saxena held that a prima facie reading of the FIR disclosed the offense, mandating a full trial.

What this means for your practice: The High Courts are treating Section 69 as a strict matter of trial evidence, practically shutting the door on pre-trial quashing under Section 528 BNSS. The distinction between a relationship breaking down due to incompatible astrology and criminal deceit has been dangerously blurred. If your client is slapped with a Section 69 FIR, do not bank on a quick High Court quashing. You must prepare for a full-blown trial focused entirely on the mens rea at the time of the initial promise.

BNSS Section 43(3): The Return of the Carceral State

If the expansion of substantive offenses isn’t enough, the procedural regressions in the BNSS should keep defense counsel awake at night. The most glaring example is Section 43(3) of the BNSS, which explicitly authorizes police to use handcuffs on certain categories of accused persons.

For over 40 years, starting with Krishna Iyer J.'s landmark ruling in Prem Shankar Shukla v. Delhi Administration (1980) and later in Citizens for Democracy (1995), the Supreme Court fought to outlaw routine handcuffing, deeming it a blatant violation of Article 21. Handcuffs were for the rarest of rare flight risks.

The BNSS has casually undone this constitutional safeguard. While marketed as a tool against "hardcore criminals," the statutory language is broad enough to be abused by investigating officers seeking to humiliate the accused during arrest and transit.

What this means for your practice: Anticipatory bail applications (now under Section 482 BNSS) just became a matter of absolute urgency. When drafting these applications, defense lawyers must specifically plead the risk of reputational destruction via handcuffing under Section 43(3), particularly in white-collar crimes, Section 69 BNS disputes, or political obstruction cases (as seen in the recent Chhattisgarh HC Ashutosh Chaitanya case where anticipatory bail was denied).

Old Ghosts in New Shells: Magistrate Powers and Overlapping Offenses

While some provisions are drastically new, others are simply old ghosts wearing new statutory shells.

• Magistrate-Ordered Investigations: What we knew as the powerful Section 156(3) CrPC is now Section 175(3) BNSS. Early 2026 rulings confirm that the Magistrate's gatekeeping role remains intact. If a cognizable offense is disclosed, FIR registration under BNSS Section 173 is mandatory. However, defense counsel should note that courts are strictly ensuring only empowered Magistrates exercise this jurisdiction.
• Double Jeopardy and Overlapping Statutes: The Kerala High Court recently declared its own prior judgment per incuriam, ruling that illegal sand mining attracts penalties under both the specialized Sand Act and theft under the BNS. This signals a judicial willingness to allow parallel prosecutions under the BNS and special local laws, complicating double jeopardy defenses.

The Takeaway

The honeymoon phase of the BNS and BNSS is officially over. The early 2026 High Court digests reveal a judiciary that is hesitant to clip the wings of these new codes. For the Indian defense bar, the strategy must shift. Relying on old CrPC precedents to quash FIRs is proving fatal. We must aggressively challenge the prima facie ingredients of new standalone offenses like BNS Section 69 at the remand stage, and zealously guard our clients against the procedural humiliations codified in the BNSS.

The laws may have been renamed in Hindi, but the language of state coercion remains universally understood.