The Ghost of Arnesh Kumar Survives: Supreme Court Tames the BNSS Arrest Regime and Drops a Due Process Bomb on the ED

For the Indian criminal defense bar, the transition from the CrPC to the Bharatiya Nagarik Suraksha Sanhita (BNSS) has been fraught with anxiety. Would decades of hard-fought civil liberty jurisprudence be wiped clean by the new codes? A slew of crucial 2026 Supreme Court and High Court rulings have finally started answering that question—and the news is largely a victory for due process.

If you are a practicing advocate, you need to update your templates immediately. The Supreme Court has aggressively stepped in to ensure that the new procedural code does not become a weapon for arbitrary state action, specifically targeting police arrest powers and the Enforcement Directorate's (ED) ambush tactics.

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

Under the old regime, Section 41A of the CrPC, fortified by the landmark Arnesh Kumar v. State of Bihar, was the primary shield against arbitrary arrest for offences punishable up to seven years. With the advent of the BNSS, police agencies attempted to exploit the newly worded Section 35 to bypass this safeguard.

The Supreme Court has now decisively shut this door. In a defining 2026 ruling, the Apex Court held that for offences punishable with imprisonment up to seven years, issuing a notice of appearance under Section 35(3) BNSS is the absolute rule. Arrest under Section 35(6) read with Section 35(1)(b) BNSS is strictly the exception.

Complementing this, the Orissa High Court has clarified that Section 35(3) notices are specifically restricted to cognizable offences punishable with less than or up to seven years.

"The message from the constitutional courts is unequivocal: you cannot use the semantic shifts in the BNSS to resurrect trigger-happy arrest practices. The soul of Arnesh Kumar has been successfully transplanted into Section 35 of the BNSS."

Practice Note: If your client faces an FIR for an offence carrying a penalty of up to seven years, preemptive representations demanding a Section 35(3) notice should be your first move. If the police arrest without issuing this notice, it is a direct violation of Supreme Court precedent, rendering the arrest illegal and opening the door for immediate bail.

The Section 223(1) Bombshell: Pre-Cognizance Hearings in PMLA Cases

Perhaps the most explosive development for white-collar practitioners is the Supreme Court's interpretation of Section 223(1) BNSS. The first proviso to this section mandates that a Magistrate shall not take cognizance of a complaint without giving the accused an opportunity to be heard.

In a massive blow to the traditional modus operandi in Prevention of Money Laundering Act (PMLA) cases, the Supreme Court ruled that if cognizance of a PMLA offence is taken after the BNSS commenced, it is entirely vitiated unless the accused was given a prior hearing under Section 223(1)—even if the ED's complaint was filed earlier under the CrPC.

This is a paradigm shift. Historically, at the pre-cognizance stage (akin to Section 200/202 CrPC), the prospective accused had no locus standi. The ED could quietly file a prosecution complaint, get cognizance taken, and secure non-bailable warrants.

Why this matters: The BNSS has inadvertently handed the defense bar a powerful golden key. Section 223(1) now guarantees a right of audience before the sword of cognizance falls. Delhi High Court has already flagged a potential conflict between this strict reading of Section 223 BNSS and older Supreme Court laws on cognizance, referring it to a larger bench. Until that larger bench says otherwise, defense lawyers must mercilessly challenge any post-BNSS cognizance taken without a prior hearing.

Discharge and Framing of Charges: Old Precedents Still Hold the Field

While Section 223 changes the game, the Supreme Court has provided much-needed stability at the trial stage. The Court has clarified that the rich jurisprudence developed under the CrPC regarding discharge and framing of charges continues unchanged under the BNSS.

For trial lawyers, this is a massive relief. You do not need to reinvent the wheel. Landmark cases like Sajjan Kumar, Union of India v. Prafulla Kumar Samal, and Dipakbhai Jagdishchandra Patel—which mandate that a judge must not act as a mere post office and must evaluate if a grave suspicion exists—are still perfectly valid law when arguing discharge applications under the BNSS.

Beyond Procedure: Section 69 BNS and Trials in Absentia

Two other developments deserve immediate attention:

• The "False Promise of Marriage" Trap: The Delhi High Court has confirmed that refusing marriage after physical relations and repeated assurances firmly attracts Section 69 of the Bharatiya Nyaya Sanhita (BNS). The new standalone provision is being interpreted strictly. Defense strategies that previously relied on blurring the lines of "breach of promise" versus "false promise" under Section 376 IPC will need to be recalibrated for the specific statutory thresholds of Section 69 BNS.
• Proclaimed Offenders (Section 356 BNSS): The Allahabad High Court has laid down an exhaustive, step-by-step procedure for conducting criminal trials in the absence of a proclaimed offender. Section 356 BNSS is a drastic departure from the CrPC, allowing courts to conclude trials and convict absconders. Trial courts will now have a rigid checklist to follow, and appellate lawyers must scrutinize records to ensure every step was perfectly executed before a conviction in absentia was recorded.

The Verdict: The 2026 jurisprudence is proving that while the legislature can change the statute books, it is the judiciary that breathes life into them. The BNSS is not a blank cheque for the prosecution. By enforcing mandatory notices under Section 35 and pre-cognizance hearings under Section 223, the courts are ensuring that the fundamental pillars of criminal justice—liberty and the right to be heard—remain deeply entrenched in Indian law.