The Ghost of Arnesh Kumar Lives On: Supreme Court Tames BNSS Arrest Powers with "Fresh Material" Mandate

The Blueprint of the New Criminal Codes is Being Redrawn by the Courts

When the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure (CrPC), the defense bar held its collective breath. The statutory text seemed to grant unprecedented latitude to law enforcement, raising fears of a draconian era of mechanical arrests and unchecked police powers. But if the 2026 Supreme Court and High Court rulings tell us anything, it is this: the higher judiciary is actively resurrecting the constitutional safeguards of the CrPC era and superimposing them onto the BNSS.

For practicing criminal lawyers, the most significant development of the year is the Supreme Court’s definitive clampdown on the police’s power to arrest under Section 35 BNSS (the new avatar of Section 41 CrPC). The Court has sent a clear message to Investigating Officers (IOs) and Magistrates alike: the new code is not a blank cheque.

Section 35(3) Notice is Mandatory, and Section 35(6) Arrests Require "Fresh Material"

Under the old regime, the Supreme Court’s landmark ruling in Arnesh Kumar v. State of Bihar made Section 41A CrPC notices mandatory for offences punishable up to seven years. The BNSS codified a similar mechanism under Section 35(3). However, police forces across the country quickly found a loophole in Section 35(6) BNSS, which allows the police to arrest a person who has complied with the notice if there are "reasons to be recorded."

In a sharp rebuke to this growing malpractice, the Supreme Court has now laid down the law: an arrest under Section 35(6) after a notice has been issued cannot be justified by the same facts that existed when the notice was served. It requires fresh material.

"An Investigating Officer cannot use Section 35(6) BNSS as a delayed execution of an arrest they were barred from making initially. If the accused is cooperating with the Section 35(3) notice, taking them into custody requires fresh, compelling material that was not available at the time the notice was issued."

Why this matters for your daily practice: This is your primary weapon against vindictive arrests. When your client receives a Section 35(3) notice, cooperates with the IO, and is suddenly arrested a week later, your first move at the remand hearing is to challenge the case diary. If the IO cannot present new incriminating evidence—fresh material—the arrest is illegal. Magistrates can no longer mechanically grant remand based on the original FIR allegations.

Defanging Mechanical FIRs: The True Purpose of Section 173(3) BNSS

Another major battleground has been the preliminary inquiry provision under Section 173(3) BNSS. Initially viewed by some practitioners as a tool for the police to stall the registration of FIRs in genuine cases, the Supreme Court has clarified its true legislative intent.

The Court ruled that Section 173(3) is explicitly meant to prevent the mechanical registration of FIRs based on vague, speculative, or doubtful allegations—even if the complaint is cleverly drafted to disclose a cognizable offence. This ruling breathes the spirit of Lalita Kumari into the BNSS. For defense counsel handling white-collar crimes, commercial disputes masquerading as criminal cases, or matrimonial disputes under Section 85 BNS, this ruling is a shield. You can now aggressively argue that a preliminary inquiry is a statutory right in doubtful cases, forcing the police to filter out frivolous complaints before the stigma of an FIR attaches to your client.

Bail and Discharge: Restoring Judicial Discretion

The BNSS introduced stringent conditions for bail under Section 480(3), leading trial courts to mechanically impose onerous restrictions on accused persons, even in relatively minor cases. The Supreme Court has intervened, explicitly stating that bail in non-bailable offences punishable up to 7 years can be granted without imposing the rigid conditions of Section 480(3) BNSS. This restores the discretionary power of the trial judge to tailor bail conditions to the specific facts of the case, rather than adopting a one-size-fits-all statutory straitjacket.

Similarly, the Gujarat High Court delivered a massive relief regarding the new 60-day timeline for discharge applications under Section 250(1) BNSS. The High Court held that the 60-day period is directory, not mandatory. The failure to file within 60 days does not extinguish the accused’s right to seek discharge, provided the delay is sufficiently explained.

The Takeaway: Demand Procedural Compliance

What we are witnessing in 2026 is a judicial taming of the BNSS. From the Allahabad High Court barring police from conducting further investigation during trial without court permission, to a Delhi Court mandating strict compliance with Sections 106 and 107 BNSS before freezing bank accounts in cyber-fraud cases, the trend is clear.

The courts are unwilling to let procedural efficiency trump substantive justice. For the practicing advocate, the strategy is simple: do not assume the new codes have eroded your client's rights. The protections of the CrPC era are alive and well—you just need to know which BNSS provision to anchor them to, and demand that trial courts hold the police to the Supreme Court's newly established standards of "fresh material" and strict procedural compliance.