The Sanhita Showdown: Repugnancy, Default Bail, and the Emerging Mess Under Section 69 BNS

The Honeymoon Period for the New Criminal Codes is Officially Over

If 2024 was the year of panic over the implementation of the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS), early 2026 is emerging as the year of hard jurisprudence. The High Courts and the Supreme Court are finally cutting through the academic fog, and what we are seeing is a radical shift in daily trial practice. The new codes are not merely "cut-and-paste" versions of the IPC and CrPC—and lawyers who continue to rely on their old commentaries are walking into traps.

From a looming constitutional crisis over overlapping state laws to the tightening of magistrate powers and the subjective quagmire of "deceitful promise to marry," here is why the latest judicial developments demand an immediate overhaul of your litigation strategy.

The Article 254 Timebomb: UP Gangsters Act vs. Section 111 BNS

Perhaps the most explosive development is the Supreme Court’s February 2026 notice to Uttar Pradesh in Siraj Ahmad Khan v. State of Uttar Pradesh. The Court is examining a direct repugnancy challenge between the UP Gangsters Act and the newly minted Section 111 of the BNS, which penalizes organized crime.

Why does this matter to the defense bar? Under the old IPC framework, "organized crime" was largely the domain of special State enactments (like MCOCA in Maharashtra, GCOCA in Gujarat, or the UP Gangsters Act). By introducing Section 111 into the substantive central penal code, Parliament has formally occupied the field. Under Article 254 of the Constitution, a central law prevails over a repugnant state law on the Concurrent List.

If the Supreme Court rules that Section 111 BNS eclipses state organized crime laws, thousands of FIRs under draconian state acts could be rendered constitutionally invalid unless those state acts receive fresh Presidential assent post-BNS. Defense counsel across the country should immediately begin drafting quashing petitions on repugnancy grounds for any state-level organized crime FIR registered after July 2024.

Default Bail Math Just Changed: Section 187 BNSS

For decades, states have tinkered with Section 167 of the CrPC, passing state amendments to extend the maximum period of police custody or the time limit for filing a chargesheet to deny default bail. The Orissa High Court (November 2025) has put a hard stop to this under the new regime.

The Court ruled that under Section 187(3)(i) BNSS, the outer limit for filing a chargesheet to defeat default bail is strictly 90 days. State amendments that extended this to 120 days under the repealed CrPC are dead letters and cannot be imported into the BNSS framework. The takeaway is clear: the BNSS hits the reset button on State amendments. If the State legislature has not passed a fresh amendment to the BNSS with Presidential assent, the strict central timelines apply. Track your 60/90 day limits meticulously; the police can no longer hide behind outdated state extensions.

Section 69 BNS: The "Deceitful Promise" Conundrum

Section 69 of the BNS (sexual intercourse by deceitful promise to marry) was supposed to clarify the messy jurisprudence surrounding Section 375 (Fourthly) and Section 90 of the IPC. Instead, it has sparked a fierce interpretative battle among the High Courts.

In early 2026, the Allahabad High Court quashed proceedings under Section 69 BNS at the pre-trial stage, reiterating that a mere breakdown of a relationship does not constitute an offence. The prosecution must prove dishonest intent from the very inception of the physical relationship.

However, contrast this with a fascinating February 2026 ruling from the Delhi High Court. The Court refused to quash a Section 69 FIR where the accused engaged in physical relations after repeated assurances of marriage, only to later back out citing a "kundli (horoscope) mismatch." The Delhi High Court rightly identified that using astrological incompatibility as a convenient exit strategy—after securing consent through solemn promises—crosses the line into statutory deceit.

Practice Note: When defending a Section 69 BNS case, your entire focus at the Section 482 BNSS (quashing) or discharge stage must be on the timeline. You must demonstrate documentary or circumstantial evidence (WhatsApp chats, family meetings) showing that the intent to marry was genuine at the time of intimacy, and was only frustrated by subsequent, unforeseen events.

The Death of the Mechanical 156(3) CrPC Order

If you represent complainants, your job just got harder. The Supreme Court has clarified the scope of Section 175(3) BNSS (the successor to Section 156(3) CrPC). Magistrates can no longer mechanically direct the police to register an FIR just because a cognizable offence is alleged on paper.

Under the BNSS, the Magistrate must consider the submissions of the police before ordering an investigation. It essentially turns the preliminary stage into a mini-inquiry. While this provides a much-needed safeguard against frivolous, vindictive FIRs (especially in commercial disputes or harsh political social media posts, as recently upheld by the SC in a Telangana matter), it severely disadvantages genuine victims facing a hostile police station.

The Bottom Line

The 2026 judicial trends reveal a clear judicial policy: High Courts are strictly enforcing the procedural safeguards of the BNSS while demanding a higher threshold of preliminary evidence from complainants. Whether it is the Orissa High Court enforcing strict default bail timelines, or the Bombay High Court ruling that extending judicial remand beyond 60 days without a reasoned order is illegal, the message is unequivocal.

The era of treating the Sanhitas as a mere renumbering exercise is over. It is time to read the fine print.