The BNSS Pushback: How Courts in 2026 are Finally Taming Police Powers Under the New Code

Two years after the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure (CrPC) in July 2024, the dust is finally settling. For the criminal bar, the transition was marked by anxiety—particularly regarding expanded police powers, longer remand periods, and the ambiguity of the new procedural mechanisms. But a close reading of the appellate jurisprudence emerging in the first half of 2026 reveals a crucial trend: the Constitutional courts are stepping in to reconstruct the safeguards that many feared were lost in the transition.

The latest half-yearly digest of BNSS judgments from the Supreme Court and High Courts shows the judiciary actively drawing red lines around police powers. For practicing defense counsel, these rulings are not just academic; they are the new ammunition for your daily bail and remand hearings.

The Reincarnation of Arnesh Kumar: Section 35 BNSS

When Section 41A of the CrPC was replaced by Section 35(3) of the BNSS, there was palpable fear that the hard-fought protections against arbitrary arrest in offenses punishable by up to seven years would be diluted. The police machinery, emboldened by the new codes, often treated the Section 35(3) notice as a mere formality before arrest.

The 2026 rulings have decisively slammed the brakes on this practice. Appellate courts have categorically held that the issuance of a notice under Section 35(3) BNSS is mandatory for offenses punishable up to seven years. More importantly for practitioners, the courts have ruled that once a notice is issued, an arrest under Section 35(6) can only be justified on fresh material.

"You cannot issue a notice to cooperate, have the accused appear, and then arrest them on the very same facts that warranted the notice in the first place."

Practice Note: If your client is arrested after complying with a Section 35(3) notice, your immediate move in the remand hearing should be to demand the Investigating Officer produce the "fresh material" on the case diary. Without it, the arrest is illegal.

Defanging Section 187: The "Actual Custody" Rule

No provision of the BNSS caused more heartburn than Section 187, which replaced Section 167 of the CrPC. By allowing police custody to be sought in tranches over a 40 or 60-day period, the BNSS fundamentally altered the dynamics of custodial interrogation. The fear was that the sword of police remand would hang over the accused for months.

However, recent 2026 Supreme Court and High Court rulings have introduced a critical caveat: only actual physical custody counts for police remand under Section 187 BNSS, not time spent on interim bail. Investigating agencies cannot use periods of interim bail or hospitalization to artificially toll the remand clock or claim "constructive custody" to seek delayed physical remand outside the permissible statutory windows.

Section 173(3) BNSS: A Shield, Not a Sword

The introduction of a preliminary inquiry under Section 173(3) BNSS before the registration of an FIR was touted as a mechanism to prevent frivolous litigation. However, it quickly morphed into a tool for the police to delay FIR registration in cases where the accused were influential.

The 2026 judicial consensus has clarified that Section 173(3) is meant exclusively to prevent the mechanical registration of FIRs on vague or speculative allegations. It is a filter for frivolous complaints, not a statutory waiting period for cognizable offenses. If the complaint discloses a clear cognizable offense, the mandate of Lalita Kumari still looms large over the BNSS framework.

Accountability for Illegal Detention: A Warning Shot

Perhaps the most satisfying development for the defense bar comes from the Chhattisgarh High Court's July 31 ruling. The Court awarded ₹25,000 in compensation for illegal detention to a man kept in jail despite furnishing a court-ordered bail bond. While the compensation amount is modest, the precedent is massive.

Under the new codes, bureaucratic delays by jail authorities and trial courts in processing release warrants have become a chronic issue. By attaching a financial penalty to administrative lethargy, the High Court has sent a clear message: the procedural overhaul of the BNSS does not suspend Article 21. A bail order must translate to actual liberty without delay.

The Bottom Line for Lawyers

The narrative that the BNSS is a wholly draconian departure from the CrPC is being rewritten by the judiciary. High Courts are actively mapping the old, battle-tested safeguards of the CrPC onto the new statutory language of the BNSS.

For trial lawyers, the strategy is clear. Do not let Magistrates treat the BNSS as a blank slate. When arguing bail for non-bailable offenses up to seven years, remind the court of the recent rulings stating that bail can be granted without the onerous conditions of Section 480(3) BNSS. When challenging territorial jurisdiction, weaponize Section 225 BNSS, which makes an inquiry or directed investigation mandatory before proceeding against an accused residing outside the court's jurisdiction.

The law may have changed in 2024, but in 2026, the courts are reminding the State that the Constitution has not.