BNSS 2023 — Top 10 Supreme Court Judgments Every Criminal Lawyer Must Know

As the transition from the old to the new regime creates procedural friction, these ten judgments and legal principles established by the Supreme Court are essential for every practitioner.

1. Grounds of Arrest in Writing — Section 47 BNSS

The Supreme Court held in Mihir Rajesh Shah v. State of Maharashtra (2025) that Section 47 of the BNSS and Article 22(1) of the Constitution impose an absolute and mandatory duty on the State to furnish grounds of arrest in writing to every arrestee. This follows the precedent set in Pankaj Bansal, making it clear that even under the new BNSS regime, oral communication is insufficient.

Key ratio: Written communication of the grounds of arrest is a fundamental right. Non-compliance at the time of arrest renders the subsequent remand and detention illegal.

2. Police Custody Beyond the First 15 Days — Section 187 BNSS

One of the most significant shifts from CrPC to BNSS is Section 187, which allows police custody to be sought in segments over the first 40 or 60 days of the remand period. In recent observations, the Supreme Court has clarified that while the total duration of police custody remains capped, the power to grant it is no longer restricted to the first 15 days of arrest.

Lawyer’s Tip: Advocates must now monitor the "total aggregate" of police custody across multiple remand applications, as the "15-day limit" is now a "15-day total" within a larger window.

3. Maximum Period for Under-Trial Prisoners — Section 479 BNSS

Section 479 BNSS (formerly Section 436A CrPC) introduced a "first-time offender" clause. The Supreme Court in Union of India v. Kapil Wadhawan (2024) and subsequent clarifications emphasized that if a person is a first-time offender (never convicted of any offense in the past), they must be released on bond after serving one-third of the maximum imprisonment period.

4. Mandatory Preliminary Inquiry — Section 173(3) BNSS

The BNSS has codified the Lalita Kumari guidelines under Section 173(3). The Supreme Court has noted that for offenses punishable with 3 to 7 years, a Preliminary Inquiry (PI) can be conducted within 14 days before registering an FIR.

Key ratio: Failure to conduct a PI where mandated, or conducting a PI for a duration exceeding the statutory 14 days, can be a ground for challenging the FIR’s validity.

5. Retrospective Applicability and Section 531 BNSS

A major point of contention was whether pending trials would follow CrPC or BNSS. In State of Punjab v. Vidya Sagar (2024), the Court clarified the "Savings Clause."

Key ratio: If an investigation, trial, or appeal was pending before 1 July 2024, it shall continue under the CrPC 1973. The BNSS applies only to proceedings initiated after the commencement date.

6. Handcuffing Standards — Section 43(3) BNSS

Section 43(3) of the BNSS allows the use of handcuffs for "heinous" crimes and habitual offenders. This seemingly contradicts the SC’s earlier stance in Prem Shankar Shukla. Recent judicial scrutiny suggests that while the statute allows it, the "exceptional circumstances" rule still applies. Handcuffing must not be routine; it requires specific judicial recording of reasons regarding the risk of escape or violence.

7. Trial in Absentia — Section 356 BNSS

Section 356 BNSS introduces a revolutionary (and controversial) provision: trial in the absence of a proclaimed offender. The Supreme Court has signaled that this must be a measure of last resort.

Key ratio: Before proceeding with a trial in absentia, the Court must be satisfied that all means of securing the accused (summons, warrants, proclamation) have been exhausted. It is a mandatory duty of the defense counsel appointed by the state to protect the accused's interests.

8. Attachment of Property — Section 107 BNSS

Section 107 gives police the power to attach property "derived from proceeds of crime." In interpreting similar provisions, the Supreme Court has cautioned that this power cannot be used arbitrarily. There must be a direct nexus between the crime and the property, and the Magistrate’s oversight is mandatory.

9. Forensic Evidence Mandate — Section 176 BNSS

The BNSS makes forensic investigation mandatory for offenses punishable by 7 years or more. The Supreme Court has viewed this as a move toward "scientific investigation."

Practical Note: If the police fail to call a forensic expert to the crime scene in a major offense, it creates a "procedural lapse" that defense lawyers can use to doubt the integrity of the evidence collection.

10. Electronic Summons and Evidence — Section 64 & 94 BNSS

The Supreme Court has embraced the BNSS push for digitalization. Summons via "electronic communication" are now legally valid. However, the Court has maintained that the safeguards of the Evidence Act (now Bharatiya Sakshya Adhiniyam) regarding certificates for electronic records must be strictly followed.

Practical Note for Advocates

When appearing in criminal matters under the BNSS, your checklist should include:

Verify Compliance: Did the police provide written grounds of arrest under Section 47?

The "One-Third" Rule: Check if your client is a first-time offender eligible for bail under Section 479.

Procedure Audit: Was a Preliminary Inquiry conducted if required under Section 173(3)?

Forum Shopping: Ensure the case is being tried under the correct code (CrPC vs. BNSS) based on the date of the FIR/application.

The BNSS is a shifting landscape. As the Supreme Court continues to bridge the gap between the old CrPC precedents and the new statutory language, staying updated on these "first-mover" judgments is the key to a successful criminal practice.

At ₹99 per month, accessing Supreme Court judgment summaries written by
practising SC advocates is — we believe — the best value in Indian legal research.

Start your subscription at apexdigest.in/subscribe