The Ghost of Arnesh Kumar Lives On: Supreme Court Cements Section 35 BNSS Notice as the Rule, Arrest as the Exception

The Illusion of a Clean Slate

When the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure (CrPC) on July 1, 2024, the government promised a paradigm shift in Indian criminal justice. But as the Supreme Court’s 2026 early dockets reveal, the more things change, the more the judiciary relies on constitutional constants. For practicing defense lawyers, the latest Supreme Court rulings on the BNSS deliver a clear message: the statutory language may be new, but the fight against arbitrary police action remains the same.

The most consequential development for the daily criminal practice is the Supreme Court’s categorical clarification on arrest procedures under Section 35 of the BNSS (the successor to Section 41 and 41A of the CrPC). Let’s break down why this ruling is the most important tool in a defense counsel’s arsenal this year.

Section 35 BNSS: Notice is the Rule, Arrest is the Exception

Any lawyer who has spent time in a Magistrate’s court knows the drill: the police routinely arrest accused persons in offenses punishable by up to seven years, ignoring the statutory mandate for a notice of appearance. The landmark Arnesh Kumar v. State of Bihar (2014) and later Satender Kumar Antil guidelines sought to curb this, but Investigating Officers (IOs) frequently found workarounds.

With the BNSS, there was anxiety that the jurisprudence might hit a reset button. But the Supreme Court has decisively ruled that for offenses punishable with imprisonment up to seven years, issuing a notice of appearance under Section 35(3) BNSS is the absolute rule, while arrest under Section 35(6) read with Section 35(1)(b) is the stringent exception.

"The discretionary nature of arrest must be justified by the Investigating Officer on the specific grounds laid out in the statute. Routine arrests in sub-seven-year offenses are fundamentally antithetical to the BNSS."

What this means in practice: If your client is hauled in for an offense carrying under seven years, your first line of defense at the remand hearing isn't just a bail application—it is a direct challenge to the legality of the arrest under Section 35(6). Magistrates are now under a renewed Supreme Court mandate to scrutinize the IO's checklist. If the IO hasn't explicitly recorded reasons showing why the arrest was necessary (e.g., to prevent evidence tampering or fleeing), the remand must be rejected. The ghost of Arnesh Kumar is now hardcoded into the BNSS jurisprudence.

The Pre-Cognizance Hearing: A New Defense Frontier

Another monumental shift is the Supreme Court's strict enforcement of Section 223(1) BNSS. In a recent 2025/2026 digest ruling, the Court quashed a cognizance order explicitly because the Magistrate failed to give the accused a pre-cognizance hearing—a statutory novelty introduced by the BNSS.

Under the old CrPC, an accused had virtually no locus standi before process was issued. Section 223 BNSS changes this, demanding that an accused be heard before cognizance is taken on a complaint. However, a massive transitional dispute is currently plaguing the High Courts: Does Section 223 apply retroactively to complaints filed before July 1, 2024, if cognizance is taken after that date?

The Supreme Court has issued notice to settle this exact issue. Until the dust settles, defense counsel must file an application demanding a Section 223 hearing in every pending complaint case where cognizance hasn't yet been taken, regardless of when the complaint was instituted. If a Magistrate takes cognizance without this hearing, it is a prime ground for a quashing petition under Section 528 BNSS (formerly Section 482 CrPC).

The Double-Edged Sword of Public Servant Protections

For litigators dealing with Prevention of Corruption cases or complaints against state officials, the Supreme Court has also highlighted the formidable "two-tier protection" system under the BNSS.

Gone are the days when a simple Section 156(3) CrPC application could immediately put a public servant on the back foot. The BNSS has erected twin fortresses:

• The Investigation Stage (Section 175(4) BNSS): A Magistrate cannot order an investigation against a public servant without first seeking a report from their superior officer and considering the accused servant's assertions.
• The Cognizance Stage (Section 218(1) BNSS): Prior government sanction remains mandatory before cognizance is taken.

The strategic takeaway? If you are prosecuting a public servant, your initial complaint must be meticulously drafted to survive the superior officer's scrutiny under Section 175(4). If you are defending, you now have a statutory right to intervene and kill a frivolous complaint before an FIR is even registered.

Anticipatory Bail: Stripping the Old Restrictions

Finally, a critical procedural update from the Allahabad High Court, which has been making waves nationally: The restrictions that existed under Section 438(6) of the CrPC regarding anticipatory bail in certain state-amended offenses no longer apply. Why? Because Section 482 of the BNSS (the new anticipatory bail provision) purposefully omitted those restrictions. This is a massive win for personal liberty, confirming that the BNSS cannot be read as merely a copy-paste of the CrPC with old state amendments automatically imported.

However, the courts are also clarifying that anticipatory bail may not be maintainable in a complaint case where the court has only issued a summons and there is no tangible "apprehension of arrest" by the police.

The Bottom Line

The procedural transition from CrPC to BNSS is messy, and High Courts are still pulling in different directions on how to handle the overlap. But the Supreme Court’s 2026 trajectory is clear: the new codes will not be allowed to dilute established constitutional protections against arbitrary arrest. For the sharp criminal lawyer, mastering the interplay between Section 35 (Arrest) and Section 223 (Pre-Cognizance Hearing) of the BNSS is no longer optional—it is the very foundation of modern trial practice.