The BNSS Pushback: How Constitutional Courts Are Reining in Police Powers Under the New Criminal Code

When the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure (CrPC), a collective shudder went through the Indian defense bar. The fears were palpable: expanded police custody durations, ambiguities in arrest protocols, and the potential for investigating agencies to run roughshod over civil liberties. But as we navigate the judicial landscape of mid-2026, a clear and comforting trend has emerged. The Constitutional Courts are aggressively interpreting the BNSS to build robust procedural safeguards, effectively telling the State that the new code is not a blank cheque for police excess.

For practicing criminal lawyers, the jurisprudence settling right now is critical. The courts are taking the constitutional spirit of landmark CrPC judgments—like Arnesh Kumar and Satender Kumar Antil—and hardwiring them into the DNA of the BNSS. Here is why the latest rulings matter for your daily practice.

The Arrest Matrix: Section 35 BNSS is Not a Trapdoor

Under the old regime, Section 41A of the CrPC was the standard shield against arbitrary arrest for offences punishable by up to seven years. Its BNSS equivalent, Section 35(3), is now facing rigorous judicial scrutiny, and the Supreme Court has drawn a hard line in the sand.

The Apex Court recently reaffirmed that a notice under Section 35(3) BNSS is absolutely mandatory for offences carrying a punishment of up to seven years. But the real victory for the defense bar lies in the Court’s interpretation of Section 35(6) BNSS. The Court categorically held that if an accused complies with the notice, any subsequent arrest must be based on fresh material that was not available to the Investigating Officer (IO) earlier.

"This interpretation of Section 35(6) BNSS effectively kills the notorious police tactic of calling an accused 'for cooperation' under a notice, only to arbitrarily arrest them on the exact same facts by the end of the day. If the IO wants to make an arrest post-notice, the evidentiary burden has just shifted heavily onto their shoulders."

If you are representing a client who has received a Section 35(3) notice, ensure you document their total cooperation and the exact documents submitted. If an arrest follows, your immediate bail argument must challenge the existence of this "fresh material." Furthermore, the Supreme Court has clarified that for non-bailable offences punishable up to seven years, magistrates can grant bail without imposing the burdensome special conditions outlined in Section 480(3) BNSS.

Remand Math: Decoding Section 187 BNSS

The transition from Section 167 CrPC to Section 187 BNSS regarding police remand was one of the most hotly debated legislative changes, primarily due to the fear that police could seek custody in staggered blocks over a longer period. The Delhi High Court has now provided much-needed clarity on how this time is calculated.

The High Court clarified that for the purposes of Section 187 BNSS police remand, only actual physical custody counts. Time spent by the accused on interim bail (such as medical bail) does not count towards the custody calculation.

Practice Note: This is a double-edged sword. While the police cannot claim their remand window is exhausted while your client is at home recovering on interim bail, it also means defense counsel must meticulously calculate actual incarceration days when moving for default bail. The clock stops ticking when the accused is out on interim relief.

Filtering the Noise: Section 173(3) and the End of Mechanical FIRs

For years, the mandate of Lalita Kumari was weaponized by complainants to force the mechanical registration of FIRs, often leading to immediate harassment of the accused. The Supreme Court has now breathed life into Section 173(3) BNSS, stating explicitly that the provision is designed to prevent the mechanical registration of FIRs based on vague, speculative, or doubtful allegations.

This judicial pushback against frivolous litigation is being enforced with teeth at the High Court level. In a highly consequential move, the Allahabad High Court has directed that police must prosecute informants who register false FIRs. Even more strikingly, the Court warned that Investigating Officers who fail to initiate these prosecutions may face contempt proceedings.

What does this mean for litigation strategy? The days of drafting hyper-inflated, speculative complaints just to secure an FIR and pressure the opposing party are over. If you are representing a complainant, your drafting must be airtight and evidence-backed. If you are on the defense, you now have a mandate to push IOs to file complaints against malicious informants under the relevant provisions of the Bharatiya Nyaya Sanhita (BNS).

Jurisdictional Safeguards and Modern Trials

Courts are also ensuring that the procedural harassment of accused persons residing in distant jurisdictions is curtailed. The Supreme Court recently held that a Magistrate must conduct an inquiry or direct an investigation under Section 225 BNSS (the equivalent of the old Section 202 CrPC) before proceeding against an accused residing outside their territorial jurisdiction. This acts as a vital filter against frivolous pan-India summons.

Simultaneously, the Madras High Court’s August 2026 guidelines on video conferencing in criminal trials mark a progressive step. By allowing accused persons residing outside the State or Country to appear remotely in appropriate cases, the Court is harmonizing the BNSS with modern technological realities, reducing the logistical nightmare for NRIs and out-of-state defendants facing protracted trials.

The Bottom Line

The early panic surrounding the BNS and BNSS is beginning to settle into a structured legal reality. The courts are actively stepping in to fill legislative gaps with constitutional safeguards. For the proactive lawyer, the strategy is clear: stop relying entirely on old CrPC precedents. The fresh jurisprudence of 2026 demands that you master the nuances of Section 35, Section 173, and Section 187 of the BNSS immediately. The law has changed, but the judiciary's intolerance for arbitrary state action remains absolute.