Under section 479 of the Bharatiya Nagarik Suraksha Sanhita, an undertrial prisoner who has spent up to half of the maximum imprisonment for the offence in detention must be released on bail by the court, and a first-time offender must be released on bond after one-third. It does not apply to offences punishable with death or life imprisonment, or where several cases are pending, and the jail superintendent has a duty to apply to the court for the release. No one can be kept in custody during the trial for longer than the maximum sentence.
What changed in 2024
Section 479 replaced section 436A of the old criminal procedure code, which allowed release after half the maximum sentence. The BNSS kept the half rule and added three things: release after one-third for first-time offenders, a bar where multiple cases are pending, and a duty on the jail superintendent to apply. The new law took effect on 1 July 2024.
The rule, step by step
1. The offence must not carry death or life imprisonment. Section 479(1) excludes any offence for which death or imprisonment for life is one of the possible punishments. So it does not help someone charged with murder, but it does apply to most offences of cheating, theft, assault, cheque-related crimes and the like.
2. Work out the maximum sentence. Look up the section the person is charged under and find the longest term of imprisonment it allows. For theft under section 303(2) of the BNS, for example, the maximum for a first conviction is three years.
3. Count the time in detention. Count the whole period of detention during investigation, inquiry and trial, including police custody and judicial custody. Time spent in custody in the same case before the trial began counts.
4. Subtract delay caused by the accused. The Explanation to section 479(1) says that any period of detention caused by the accused's own delay is excluded. Courts look at the order sheets to see who sought adjournments.
5. Apply the fraction.
- Half of the maximum for everyone eligible.
- One-third for a first-time offender, meaning a person "who has never been convicted of any offence in the past".
Using the theft example: half of three years is eighteen months; one-third is twelve months.
Bail or bond?
The section uses two words. A first-time offender who has served one-third "shall be released on bond", which is the person's own undertaking, without sureties. Others who have served half are "released by the Court on bail", which may involve sureties. The court may, after hearing the Public Prosecutor, order release on a bail bond instead of a bond, or order continued detention beyond half, but it must record its reasons in writing.
The outer limit
The third proviso to section 479(1) is absolute: no person can be detained during investigation, inquiry or trial for longer than the maximum period of imprisonment for the offence. Once that point is reached, continued detention has no legal basis.
The multiple-case bar
Section 479(2) says that where investigation, inquiry or trial in more than one offence or in multiple cases is pending against a person, the court shall not release them on bail under this section. This catches many undertrials, so check carefully. It does not stop an ordinary bail application on the merits; it only removes the automatic route under section 479.
The jail superintendent's duty
Section 479(3) is new and important. The superintendent of the jail where the accused is held must, on completion of one-half or one-third of the period, forthwith make an application in writing to the court for release under section 479(1). The prisoner does not have to wait for a lawyer to notice.
In August 2024, the Supreme Court directed that section 479 be applied to undertrials across the country, including those in cases registered before 1 July 2024, and asked jail superintendents to process the applications of eligible prisoners. Families should still check that it has been done.
What the family can do
- Get the papers. You need the FIR, the charge sheet if filed, and the date of arrest. See how to get an FIR copy online.
- Do the arithmetic using the steps above, and note any adjournments the defence sought.
- Ask the jail whether the superintendent has applied under section 479(3). Many jails have a legal aid clinic run by the District Legal Services Authority.
- Apply to the court through the lawyer, or through a legal aid lawyer if you cannot afford one. Prisoners are entitled to free legal aid.
- Keep visiting and stay in touch with the prisoner; many states let families book visits online through the e-Mulakat service.
Undertrial review committees chaired by the district judge also meet regularly to identify prisoners eligible for release, and the District Legal Services Authority can bring a case to their notice.
A worked example
Suppose a person is arrested on 1 January and charged with an offence carrying a maximum of seven years, which is not punishable with life imprisonment, and they have never been convicted before. One-third of seven years is two years and four months. If no delay is attributable to the defence, the superintendent should apply, and the court should release the person on bond, around the beginning of May two years later. If the person had a previous conviction, the relevant point would be half, three and a half years. If the defence had sought adjournments that held up the trial for, say, three months, that time would be left out of the count and the date would move later accordingly.
When section 479 does not apply
If the offence carries life imprisonment, or several cases are pending, the person must apply for bail in the ordinary way. The basic rights that apply from the moment of arrest, such as being produced before a Magistrate within 24 hours, are covered in the rights of an arrested person. For minor offences, the new punishment of community service under the BNS may also be relevant at the sentencing stage.
