The Death of the 'Ghost Accused': Supreme Court Mandates Pre-Cognizance Hearings Under BNSS and Narrows Section 69 BNS

The BNSS Era is Finally Biting: What the Latest 2026 Judgments Mean for Your Criminal Practice

For the first few years following the enactment of the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS), trial courts and high courts were largely shadow-boxing with transitional provisions. Now, in 2026, the Supreme Court is laying down the substantive contours of these new codes. If you are still relying on your dog-eared copy of the CrPC and its settled precedents, you are already committing professional malpractice.

The latest slew of judgments from the Supreme Court and various High Courts reveals a clear judicial trend: the courts are strictly enforcing the new statutory safeguards granted to the accused, while aggressively weeding out technical loopholes that defense lawyers have historically exploited. Here is what you need to change in your practice tomorrow morning.

1. The Pre-Cognizance Hearing: A Tectonic Shift in Complaint Cases

Under the old regime of Section 200 CrPC, the accused was effectively a ghost at the pre-cognizance stage. Decades of jurisprudence—from Chandra Deo Singh onwards—dictated that a prospective accused had no locus standi to participate, object, or even be heard until the Magistrate issued process. The BNSS has completely flipped this script, and the Supreme Court has just given it teeth.

The Supreme Court recently held that where a Magistrate takes cognizance of a complaint case after the BNSS came into force, the first proviso to Section 223(1) BNSS strictly mandates a prior hearing for the accused. Crucially, the Court ruled that non-compliance with this provision renders the cognizance order void ab initio.

"The era of ex-parte cognizance in complaint cases is dead. If a Magistrate takes cognizance without giving the accused an opportunity to be heard under Section 223(1) BNSS, do not waste time arguing on the merits of the allegations. Attack the procedural illegality directly. A void ab initio order means the entire subsequent trial is a nullity."

Practice Note: Defense counsel must immediately scrutinize every recent summoning order in complaint cases. If no prior hearing was granted, file a revision petition immediately citing this procedural fatality.

2. Default Bail: The "Missing Charge-Sheet" Tactic is Over

For years, under Section 167(2) of the CrPC, a favorite tactic among defense lawyers was to claim default bail because the prosecution, despite filing the charge-sheet on the 60th or 90th day, failed to supply a copy to the accused, or filed it without crucial annexures. We argued that an "incomplete" filing or non-supply meant the investigation wasn't truly complete.

The Supreme Court has now definitively slammed this door under the new regime. Ruling on Section 187(3) of the BNSS (the successor to 167(2) CrPC), the Court held on 1 July 2026 that the mere non-supply of a charge-sheet copy to the accused is not, by itself, a ground for default bail.

The rationale is clear: the right to default bail is extinguished the moment the charge-sheet is filed in court. The administrative delay in supplying copies (which is now governed by Section 230 BNSS) does not rewind the clock on the police's investigative time limit. Stop drafting default bail applications based on missing paperwork; you will lose, and you will look outdated doing it.

3. Section 69 BNS: Drawing the Line on "Deceitful Inducement"

One of the most debated additions in the new penal code was Section 69 BNS, which criminalizes sexual intercourse induced by a "deceitful promise to marry." The legislature intended to separate this from the general offence of rape (Section 63 BNS). However, the fear was that every broken relationship would now be weaponized under Section 69.

Fortunately, the Supreme Court is stepping in to prevent this abuse. In a recent order, the Court quashed an FIR under Section 69 BNS, noting that the complaint disclosed a consensual relationship that simply went sour, rather than a case of deceitful inducement from the inception.

This is a vital distinction for criminal practitioners. To sustain a charge under Section 69 BNS, the prosecution must prove that the promise was deceitful at the very moment it was made, and that the accused had no intention of fulfilling it. A subsequent inability to marry (due to family pressure, incompatibility, etc.) does not retrospectively transform a consensual relationship into a crime under Section 69. When drafting quashing petitions under Section 528 BNSS (formerly 482 CrPC), explicitly highlight the duration of the relationship and any evidence of genuine initial intent to marry.

4. Investigating the Investigators: Curbs on Police Power

Two significant rulings—one from the Supreme Court and one from the Allahabad High Court—have reiterated that the police cannot treat trials as their personal playgrounds.

Both courts held that further investigation cannot be carried out by the police suo motu without the express leave of the court. Under the BNSS framework, once cognizance is taken, the police's unfettered right to investigate is paused. Any further investigation requires judicial application of mind. The Allahabad High Court went a step further, stating that no police officer, regardless of rank, can direct further investigation during a trial without court permission.

Furthermore, practical realities of arrests are being recognized. The Madras High Court pragmatically ruled that Section 48 BNSS does not require a formal "written" intimation of arrest to relatives; a phone call or SMS is sufficient. Meanwhile, the Chhattisgarh High Court showed that illegal detention will cost the State, awarding ₹25,000 in compensation for a violation of Article 21 where an accused was kept in custody despite furnishing a bail bond.

The Bottom Line

The 2026 jurisprudence on BNS and BNSS is clear: courts are strictly interpreting the new procedural rights (like pre-cognizance hearings) while refusing to entertain old technical loopholes (like default bail for unsupplied charge-sheets). As practitioners, our strategy must evolve. The BNSS has handed defense lawyers powerful new tools—particularly at the pre-cognizance and remand stages. It is time we start using them effectively.