The BNSS Bites Back: Supreme Court Weaponizes Section 35 Against Mechanical Arrests While Allahabad HC Docks Magistrates’ Pay

The Era of the Sanhitas: Two Years In, The Judiciary Pushes Back

As we cross the two-year mark since the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced our colonial-era criminal statutes in July 2024, the dust has finally begun to settle. For the defense bar, the initial panic surrounding the expanded police powers under the BNSS is giving way to a new reality: the higher judiciary is aggressively policing the police.

Recent rulings from the Supreme Court and High Courts in 2025 and 2026 send a visceral message to law enforcement and lower court magistrates. The statutes may have changed, but the constitutional bedrock of personal liberty has not. For practicing criminal lawyers, the latest judicial interpretations of Section 35 and Section 173(3) of the BNSS are not just academic—they are absolute game-changers for bail and quashing petitions.

Section 35(3) BNSS: The New, Sharper Arnesh Kumar

Under the old regime, Section 41A of the CrPC and the Arnesh Kumar guidelines were the defense lawyer’s primary shield against arbitrary arrests for offences punishable by up to seven years. The BNSS replaced this with Section 35(3), but until recently, police practice remained largely unchanged—issue a notice, tick a box, and arrest anyway.

The Supreme Court has now dropped the hammer. In a landmark ruling, the Apex Court has categorically held that for offences carrying a punishment of up to 7 years, the issuance of a notice under Section 35(3) BNSS is strictly mandatory. But more importantly, the Court introduced a critical evidentiary threshold:

"Arrest can only occur after the issuance of notice if fresh materials emerge that were unavailable when the notice was initially issued."

Why this matters for practice: This effectively kills the routine police tactic of calling an accused in for "questioning" under a notice only to arrest them on the spot based on the original complaint. If your client is arrested post-notice, your immediate remand objection must demand the Investigating Officer (IO) to produce on record the specific, fresh material discovered post-notice. If the IO cannot, the arrest is inherently illegal.

Killing the Mechanical FIR: Section 173(3) BNSS

We are all too familiar with the weaponization of the criminal justice system through frivolous FIRs—especially in commercial disputes or matrimonial discord. Under Section 154 of the old CrPC, police often registered FIRs mechanically upon receiving a complaint disclosing a cognizable offence, citing Lalita Kumari.

Enter Section 173(3) of the BNSS. In Ashish Dave v. State of Rajasthan, the Supreme Court has breathed life into this provision, ruling that it acts as a statutory safeguard against arbitrary criminalization. The Court held that Section 173(3) specifically prevents the mechanical registration of FIRs on vague or doubtful allegations.

Further, in Sajal Bose v. State of West Bengal, the Court demonstrated how appellate courts will use this. They quashed proceedings outright because the prosecution failed to rebut credible material that undermined the complaint’s factual foundation. The takeaway: Pre-FIR preliminary inquiries are now a statutory right in doubtful cases, and defense counsels must proactively submit exculpatory material to the police before an FIR is registered, creating a record to later seek quashing under Section 528 BNSS (formerly 482 CrPC).

Accountability with Teeth: Docking Magistrates' Pay

Perhaps the most satisfying development for civil liberties advocates comes from the Allahabad High Court. For decades, illegal preventive detention and mechanical remand orders by Executive Magistrates and police commissioners have been a "shocking state of affairs" (to use the High Court's own words).

The High Court decided that mere reprimands are no longer enough. Dealing with a case of illegal detention beyond 24 hours under the BNSS preventive provisions, the Court ordered a staggering ₹25,000 per day compensation for the illegally detained citizen. In a related case where a man was jailed for 8 days illegally, the Court awarded ₹2,00,000.

But here is the kicker: The Court directed that this compensation be recovered directly from the salaries of the erring Magistrates and police officers.

This is a watershed moment. The moment civil liability attaches personally to judicial and police officers, mechanical remand orders will plummet. Lawyers practicing in trial courts should attach this Allahabad High Court judgment to every bail application where statutory detention limits are breached.

Trial Tactics: No Second Chances Under Section 348 BNSS

While the BNSS has expanded rights in some areas, it demands strict procedural compliance in others. Section 348 BNSS corresponds to the old Section 311 CrPC (power to summon material witnesses). Historically, prosecutors and defense counsels alike have used 311 to plug holes in their cases at the fag end of a trial.

The Madras High Court has formally shut this door, ruling that Section 348 BNSS cannot be invoked to give "negligent litigants a second chance" to improve their case. Trial lawyers take note: the days of sloppy cross-examinations patched up by recall applications are over. You must structure your trial strategy comprehensively from day one.

The Verdict on the Transition

As we navigate the BNS and BNSS, the judicial trend is clear. The courts are refusing to let the new Sanhitas become tools for state oppression. From the Delhi High Court clarifying that only actual custody (excluding interim bail) counts for police remand under Section 187 BNSS, to the Supreme Court mandating court permission for further investigation after a final report is filed, the procedural leash is tightening.

For the Indian lawyer, the mandate is simple: unlearn the CrPC, but carry forward its constitutional soul. The BNSS has provided us with sharper tools—it is time we start cutting through the prosecution's overreach.