The BNSS Is Quietly Rewriting Criminal Procedure—And Courts Are Making It Up As They Go Along

The Transition Chaos We Predicted Is Here

Two years into the Bharatiya Nagarik Suraksha Sanhita (BNSS) era, we are finally seeing what happens when you replace a 50-year-old procedural code overnight: judicial improvisation on a massive scale. The latest batch of High Court and Supreme Court rulings on BNSS reveals a troubling pattern—courts are filling legislative gaps with ad-hoc interpretations that often contradict each other, leaving practitioners to navigate a procedural minefield.

The most significant development is the Supreme Court's attempt to clarify the Section 35 BNSS notice-before-arrest regime. The Court has now held that notice under Section 35(3) is mandatory for offences punishable up to seven years—a welcome reaffirmation of the Arnesh Kumar principle now codified. But here's the catch: the Court simultaneously held that arrest under Section 35(6) remains permissible on "fresh material" even after notice is issued.

This is a classic case of giving with one hand and taking with the other. What constitutes "fresh material"? Who decides if it's genuinely fresh or just recycled grounds? The judgment doesn't say, which means police now have a judicially sanctioned escape hatch from the notice requirement.

For defence counsel, this means every Section 35(3) notice must now be followed by vigilant monitoring of what "new" material the prosecution claims to have discovered. Expect litigation on what qualifies as "fresh" to become the next battleground.

Default Bail: BNSS Won't Save You From UAPA

The Delhi High Court's ruling that UAPA's 180-day default bail period survives BNSS is technically correct but practically disappointing. The Court held that BNSS does not override special statutes—a standard interpretation of the generalia specialibus non derogant principle.

But let's be honest about what this means: the much-touted "reforms" in BNSS were never meant to touch the national security apparatus. While ordinary criminal defendants might benefit from marginally better procedural protections, UAPA accused remain trapped in the same extended detention regime. The 90-day default bail period under Section 167(2) CrPC (now mirrored in BNSS) remains a dead letter for anyone booked under special laws.

This creates a two-tier criminal justice system: one for ordinary crimes where BNSS's procedural safeguards apply, and another for "special" categories where the old draconian rules continue. Defence lawyers handling UAPA, PMLA, or NDPS cases should not expect BNSS to provide any relief on remand periods or default bail timelines.

The Section 479 BNSS "Automatic Bail" Myth

The Jammu & Kashmir and Ladakh High Court has done important work in debunking the "automatic bail" misconception under Section 479 BNSS. The provision states that an accused who has undergone detention for half the maximum sentence "shall be released on bail"—language that many read as mandatory release.

The High Court correctly held that this must be read with the provisos, which carve out exceptions. More importantly, the Court clarified that completion of the statutory period only gives a right to apply for bail, not automatic release. You still need a judicial order.

This interpretation is defensible but highlights a drafting failure. If Parliament intended automatic release (as the plain language suggests), the provisos should have been framed as narrow exceptions with the burden on prosecution to justify continued detention. Instead, we have a provision that looks like a right but functions like a discretionary remedy.

Practical tip: Do not assume your client will walk free upon completing half the sentence. File a bail application immediately and be prepared to argue why the provisos don't apply.

Cognizance and Transitional Cases: The Supreme Court's Workable Solution

On the vexed question of when cognizance is "taken" for purposes of CrPC-BNSS transition, the Supreme Court has provided a workable test: the date when the Magistrate applied judicial mind and formed a prima facie view determines which code applies, not the FIR date.

This is sensible. It prevents the absurdity of applying a repealed code to pending cases simply because the FIR was registered before July 1, 2024. But it also means every transitional case now requires a factual inquiry into when exactly the Magistrate "applied judicial mind." Was it when the complaint was filed? When the first hearing occurred? When process was issued?

Expect this to generate satellite litigation. Defence counsel in pending cases should scrutinize the trial court record carefully to determine the exact date of cognizance—it could determine which procedural code governs the trial.

Section 163 BNSS: The Public Order Weapon

The most concerning development is the continued misuse of Section 163 BNSS (restrictions on assembly) against peaceful protests. The Supreme Court's refusal to examine the constitutional challenge at this stage, while issuing notice on Section 172 BNSS, suggests the Court is buying time rather than confronting the issue head-on.

Section 163 BNSS is essentially Section 144 CrPC with a new number. The same concerns about executive overreach, prior restraint on speech, and chilling effects on assembly remain. The fact that it continues to be invoked against peaceful assemblies—despite Anuradha Bhasin and Ramlila Maidan—shows that legislative renumbering doesn't change police behaviour.

Until the Supreme Court definitively rules on the constitutional limits of Section 163, expect magistrates to continue issuing sweeping prohibitory orders and police to continue using them as a preventive detention tool. Civil liberties lawyers should document every misuse to build a record for eventual constitutional challenge.

The Bottom Line for Practitioners

The BNSS transition is messier than the government admitted and courts are making procedural law through interpretation rather than applying clear legislative text. Key takeaways:

1. Section 35 notice is mandatory but not absolute—police can arrest on "fresh material," so monitor investigations closely even after notice is issued.

2. Special statutes remain untouched—UAPA, PMLA, NDPS accused get no benefit from BNSS procedural reforms.

3. Section 479 requires application, not automatic release—file bail applications proactively.

4. Transitional cases require factual determination of cognizance date—scrutinize trial court records.

5. Section 163 continues to be abused—constitutional challenge is pending but don't expect immediate relief.

The BNSS was sold as a modernization of criminal procedure. What we're seeing instead is judicial legislation to fill gaps that Parliament either didn't anticipate or deliberately left vague. That's not reform—that's chaos with a new name.