The End of the Section 90 IPC Loophole: How High Courts are Weaponizing Section 69 BNS on 'Deceitful' Consent

The Death of the "Misconception of Fact" Defence

For decades, the Indian criminal bar has wrestled with a uniquely convoluted jurisprudential headache: when does a broken promise of marriage amount to rape? Under the old penal regime, prosecutors desperately tried to fit these cases into Section 376 of the IPC by leveraging Section 90 (consent given under a misconception of fact). Defence lawyers, relying on landmark precedents like Pramod Suryabhan Pawar v. State of Maharashtra, routinely secured quashing orders by arguing that a breach of promise does not equate to a false promise at the inception of the relationship.

Those days are officially over. The Bharatiya Nyaya Sanhita (BNS) has severed this conduct from the traditional rape statute, and the High Courts are now aggressively enforcing the new boundary.

In two crucial 2026 rulings, the Allahabad High Court (January 13) and the Delhi High Court (February 24) have clarified the lethal scope of Section 69 BNS. The provision explicitly criminalizes sexual intercourse by "deceitful means"—which statutorily includes false promises of employment, promotion, or marriage. In its January ruling, the Allahabad High Court flatly rejected a quashing petition, noting that Section 69 creates a distinct offence. Even if the prosecution cannot prove that the conduct meets the rigorous threshold of rape, the accused can still face up to 10 years in prison under Section 69.

"Section 69 BNS is not merely a lesser alternative to rape; it is a meticulously crafted statutory trap that eliminates the old IPC grey areas. Defence counsel can no longer rely on the 'we intended to marry but circumstances changed' argument at the quashing stage with the same confidence."

Practice Implication: If you are drafting a petition under Section 528 BNSS (the new avatar of Section 482 CrPC) to quash an FIR in a false promise to marry case, your drafting strategy must change. High Courts are treating Section 69 BNS as a strict liability issue regarding the intent of deceit. You must now produce unimpeachable documentary evidence showing genuine intent to marry during the continuity of the relationship, rather than merely arguing a lack of force or coercion.

Putting a Leash on Magistrate-Ordered Investigations

While the High Courts are tightening the substantive law on sexual offences, the Supreme Court is simultaneously demanding procedural exactitude under the Bharatiya Nagarik Suraksha Sanhita (BNSS). For every trial lawyer whose bread and butter involved firing off Section 156(3) CrPC applications to bypass lethargic police stations, the game has changed under Section 175(3) BNSS.

The Supreme Court recently confirmed that under Section 175(3) BNSS, only a Magistrate empowered to take cognizance of an offence can order a police investigation into cognizable offences. Under the old CrPC regime, there was often jurisdictional laxity, with lawyers filing applications before the nearest or most convenient magistrate to pressure the local police.

This strict interpretation means that preliminary jurisdictional scrutiny is no longer a mere formality. If you file an application before a Magistrate lacking the specific territorial or subject-matter jurisdiction to take cognizance under the BNSS, the resulting investigation order is void ab initio. This is a massive boon for defence lawyers, who should immediately start challenging FIRs registered via defective Section 175(3) orders on jurisdictional grounds.

Stopping the "Mechanical Acquittal" Epidemic

In another pragmatic intervention, the Supreme Court has reined in lazy magisterial practices regarding complainant non-appearance. Under the old Section 256 CrPC, if a complainant failed to appear on the date of hearing in a summons case, magistrates would frequently take the easy way out and acquit the accused to clear their dockets.

Interpreting the successor provision, Section 279 BNSS, the Supreme Court ruled that the non-appearance of a complainant will not automatically result in the acquittal of the accused. The Court sharply criticized the mechanical application of this provision, mandating that magistrates must apply their judicial mind to whether the complainant's presence is actually necessary for that specific day's proceedings.

Why it matters: Defence lawyers can no longer bank on a complainant's fatigue. If you represent the accused in a cheque bounce or minor summons case, do not expect a free pass just because the complainant's counsel missed a date. You must be prepared to argue the matter on merits, pushing for discharge or acquittal based on the evidentiary record rather than procedural defaults.

The Remand Reality Check

Finally, we are seeing the High Courts strictly monitor the new timelines for custody and chargesheets. The Bombay High Court's October 2025 ruling explicitly declared that extending judicial remand beyond 60 days without a hearing and a reasoned order is illegal. Furthermore, the Orissa High Court clarified in November 2025 that Section 187(3)(i) BNSS strictly prescribes a 90-day limit for filing chargesheets in major offences, confirming that older, state-specific amendments (which allowed up to 120 days) are effectively repealed by the central code.

However, the Gujarat High Court (February 16, 2026) offered a sobering reminder to the defence bar: remand beyond 15 days for an accused already in custody is not inherently illegal under the BNSS, and filing a writ of habeas corpus for every extended remand will not be entertained.

The message from the constitutional courts is cohesive and stern: the BNSS and BNS are not just the old codes with new numbers. They represent a fundamental recalibration of criminal procedure and substantive liability in India. Litigators who fail to internalize these statutory nuances—especially the distinct nature of Section 69 BNS and the jurisdictional strictures of Section 175(3) BNSS—will quickly find themselves outmaneuvered in the courtroom.