The BNS/BNSS Reality Check: Conflicting High Court Rulings and the Survival of Arnesh Kumar

The New Codes Face the Real World

We are now in the early months of 2026, and the honeymoon period for the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) is officially over. The appellate dockets are flooding with interpretational crises, and for practicing criminal lawyers, the transition is proving to be less of a seamless upgrade and more of a jurisprudential whiplash.

If you thought merely memorizing the new section numbers would suffice, recent rulings from the Supreme Court and various High Courts should serve as a stark wake-up call. The courts are actively wrestling with the ghosts of the CrPC and IPC, trying to figure out which legacy precedents survive and which have been legislated into obsolescence. For the defense bar, three major battlegrounds have emerged: the power of arrest, the mechanics of remand, and the substantive mess that is Section 69 of the BNS.

Arrest Notices: The Ghost of Section 41A CrPC Lives On

One of the biggest anxieties surrounding the BNSS was whether the celebrated procedural safeguards of Arnesh Kumar would survive. The Supreme Court has finally provided clarity on Section 35(3) of the BNSS (the equivalent of the erstwhile Section 41A CrPC).

In a recent ruling, the Apex Court held that for offences punishable by up to 7 years of imprisonment, the police must issue a notice before arrest if the conditions under Section 35(1)(b) exist. However, the Court drew a sharp, pragmatic line: while the notice is mandatory, the arrest itself remains discretionary. Meeting the conditions does not mean the police are compelled to arrest.

Why this matters for your practice: Investigating officers often weaponize ambiguity. By clarifying that police discretion cannot trample the mandatory notice requirement, the Supreme Court has preserved your best weapon against arbitrary Friday-evening arrests. When moving anticipatory bail applications under Section 482 BNSS, your first ground of attack should remain the non-compliance with Section 35(3) notice procedures.

Remand Roulette and Default Bail Under Section 187 BNSS

Section 187 of the BNSS—which replaced Section 167 of the CrPC—was heavily criticized for potentially allowing police custody to be sought in tranches beyond the initial 15 days. High Courts are now stepping in to police this provision strictly.

A recent February 2026 judgment from the Gujarat High Court clarified that remand beyond 15 days under Section 346(2) BNSS for an accused already in custody is, in fact, legal, holding that a writ of habeas corpus is not an automatic remedy here. However, this must be read alongside a crucial October 2025 Bombay High Court ruling which struck down judicial remand extensions beyond 60 days if done without a hearing or a reasoned order.

More importantly for default bail practitioners, the Orissa High Court has categorically ruled that Section 187(3)(i) BNSS sets a strict 90-day limit for filing the chargesheet to defeat default bail, effectively repealing state amendments that had previously stretched this timeline to 120 days.

"The statutory right to default bail remains an indefeasible fundamental right under Article 21, and the BNSS does not grant the State a license to indefinitely delay investigation."

The takeaway: Magistrates are still treating remand as a mechanical exercise. Defense counsel must aggressively challenge unreasoned remand extensions and strictly calculate the 90-day chargesheet clock, as state-level legislative gymnastics to extend investigation times are being struck down under the new central code.

Section 69 BNS: Codifying Confusion in "False Promise to Marry"

If there is one provision in the BNS that desperately needs legislative review, it is Section 69 (sexual intercourse on false promise of marriage). By carving this out from the traditional rape statute (Section 375 IPC), the legislature intended to provide clarity. Instead, High Courts are fundamentally divided on its application.

The Allahabad High Court recently took a legally sound approach, ruling that FIRs under Section 69 BNS must be quashed if there is no evidence of dishonest intent from the inception of the relationship. A mere breakdown of the relationship does not attract criminal liability.

Contrast this with a highly troubling February 24, 2026 ruling from the Delhi High Court. The Court held that refusing marriage post-sexual relations citing a "kundli mismatch," after giving repeated assurances, does attract Section 69 BNS.

Opinion: The Delhi High Court's interpretation is dangerous. It risks transforming every broken engagement into a non-bailable felony, effectively criminalizing the breach of a promise to marry based on subsequent familial or astrological developments. For lawyers advising clients in Section 69 quashing petitions, you must heavily rely on the Allahabad HC's inception-based mens rea test to counter the Delhi HC's outcome-based approach.

Looming Constitutional Battles

Beyond daily procedure, constitutional repugnancy is rearing its head. The Supreme Court is currently examining whether the draconian UP Gangsters Act conflicts with the new organized crime provision under Section 111 of the BNS (Siraj Ahmad Khan v. State of UP). If the Court finds repugnancy under Article 254 of the Constitution, it could invalidate decades of state-level special operational laws.

Ultimately, early 2026 proves that the BNS and BNSS are a goldmine for litigation but a severe headache for civil liberty. The letter of the law may have changed, but the fight against executive overreach remains exactly the same. Keep your old CrPC commentaries handy—the courts are leaning on them more than the drafters of the BNSS would like to admit.