The Ghost of Arnesh Kumar Lives On: Supreme Court Tames Arbitrary Arrests Under Section 35 BNSS

The Return of the "Bail Not Jail" Doctrine Under the New Code

If there was any lingering anxiety among the criminal defense bar that the transition from the CrPC to the Bharatiya Nagarik Suraksha Sanhita (BNSS) would dilute the hard-fought protections against arbitrary arrest, the Supreme Court has just put those fears to rest. In a landmark clarification this June 2026, the Apex Court has drawn a hard line in the sand regarding police powers under Section 35 of the BNSS.

The Court categorically ruled that for offences punishable with imprisonment up to 7 years, issuing a notice of appearance under Section 35(3) BNSS is the absolute rule. Effecting an arrest under Section 35(6) BNSS is a clear, justifiable exception.

For practicing advocates, this is the most consequential ruling of the year. The ghost of Arnesh Kumar v. State of Bihar has successfully transmigrated into the new statutory regime. Under the erstwhile Section 41 and 41A of the CrPC, investigating agencies frequently bypassed the mandate of issuing a notice by relying on vaguely drafted "reasons to believe" that arrest was necessary. The Supreme Court's latest intervention effectively narrows this loophole under the BNSS.

"The deprivation of liberty cannot be a mechanical exercise of statutory power. Section 35(6) is not a shortcut for investigating officers to bypass the mandate of Section 35(3)."

What This Means for Your Next Remand Argument

This ruling fundamentally shifts the burden during remand hearings. When a client is produced before a Magistrate for an offence carrying a penalty of less than 7 years, defense counsel must immediately demand the case diary to scrutinize whether a Section 35(3) notice was issued. If the police opted for direct arrest under Section 35(6), they must demonstrate compelling, documentable exceptional circumstances—not just boilerplate assertions of "non-cooperation."

Magistrates, too, are now on notice. Routine authorization of remand without rigorously testing the police's justification for skipping the 35(3) notice will likely render the remand order illegal, opening the door for immediate bail or quashing petitions.

Statutory Timelines: A Sword and a Shield

While the Supreme Court is busy protecting liberty on the arrest front, trial courts are grappling with the BNSS's aggressive new statutory timelines. Effective 2026, the system mandates that judgments must be delivered within 45 days of the completion of trial, and charges must be framed within 60 days of the first hearing. Most drastically, courts are now capped at granting a maximum of two adjournments.

Let’s be brutally honest: in a judicial system choking on pendulum-swinging dockets, restricting adjournments to two is a statutory pipe dream unless judicial infrastructure sees a massive overhaul. However, for defense lawyers, this is a potent weapon. If the prosecution fails to produce witnesses or evidence, you must aggressively invoke the two-adjournment limit to push for closure of prosecution evidence or discharge. The days of endless prosecutorial delays are statutorily over, provided the Bar insists on enforcing the text of the BNSS.

Custody, Cognizance, and Quashing: Other Crucial 2026 Developments

Beyond Section 35, several other rulings from May and June 2026 have clarified the murky waters of the new Sanhitas:

• Police Custody Limits (Section 187 BNSS): The Delhi High Court has clarified a massive tactical point for defense counsel. In calculating the time limit for police custody under Section 187 BNSS, any period where the accused is out on interim bail is strictly excluded. You cannot run down the police custody clock by securing temporary interim bail for your client.
• PMLA and the BNSS Trigger: In Parvinder Singh vs. Directorate of Enforcement, the Supreme Court resolved the transition friction. If cognizance of a PMLA offence is taken by a magistrate after the commencement of the BNSS, the new procedural rules apply entirely. The date of cognizance, not the date of the ECIR, is the jurisdictional trigger.
• Magisterial Review of Bail: The Delhi High Court in Shabir Momin reiterated a fundamental tenet that survives the transition: a Magistrate has absolutely no jurisdiction to review or modify a bail order once passed. If the investigating agency wants cancellation, they must move the Sessions Court or High Court.
• Quashing on Unimpeachable Material: In Sajal Bose, the Supreme Court expanded the scope for quashing criminal proceedings under BNSS. If the defense can produce credible, unimpeachable material that shreds the factual foundation of the complaint, the High Court can and should quash the FIR. You no longer have to wait for a full trial if the prosecution's case is demonstrably fabricated on paper.

The Takeaway

The judiciary is signaling a clear intent: the BNSS is not just old wine in new bottles. Courts are taking the legislative intent of the new codes literally, especially concerning procedural speed and the curtailment of arbitrary police powers. For the criminal practitioner, the transition period of hand-wringing is over. It is time to weaponize Section 35(3) against trigger-happy investigating officers and use the strict new trial timelines to force the prosecution's hand.