Section 436A CrPC vs Section 479 BNSS — Maximum Period an Undertrial Prisoner Can Be Detained

In India, Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 436A of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The one-half rule stays; the BNSS adds release after one-third for first-time offenders, excludes life-imprisonment offences, bars release where multiple cases are pending, and makes the jail Superintendent apply.

At a glance

Section 479 is a release provision, not an offence, so the First Schedule does not classify it. Bail for particular offences is covered on the bailable-offence page and the non-bailable-offence page.

What changed

• Modified — exclusion widened. "(not being an offence for which the punishment of death has been specified as one of the punishments under that law)" becomes "(not being an offence for which the punishment of death or life imprisonment has been specified …)".
• Modified — form of release. "he shall be released by the Court on his personal bond with or without sureties" becomes "he shall be released by the Court on bail". Section 2(1)(b) BNSS defines "bail" as release on conditions "on execution by such person of a bond or a bail bond"; a "bond" is a personal bond or undertaking without surety (s.2(1)(e)) and a "bail bond" is an undertaking with surety (s.2(1)(d)).
• New — first-time offender. "Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law".
• Minor edit — continued detention proviso. The court may still, after hearing the Public Prosecutor and recording reasons, order continued detention beyond one-half, or release "on bail bond instead of his bond" (old: "on bail instead of the personal bond with or without sureties").
• Minor edit — outer limit. "Provided further" becomes "Provided also"; no person shall "in any case" be detained beyond the maximum term.
• Identical — Explanation. Delay caused by the accused is excluded in computing detention.
• New — Section 479(2). "where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court", notwithstanding sub-section (1) and "subject to the third proviso".
• New — Section 479(3). The jail Superintendent, "on completion of one-half or one-third of the period", shall "forthwith make an application in writing to the Court".
• Minor edit — "Code" becomes "Sanhita" in the words "trial under this Sanhita".

Statutory text (relevant extract)

Extract, Section 436A CrPC (repealed from 1 July 2024; inserted by Act 25 of 2005, s.36, w.e.f. 23-6-2006):

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Extract, Section 479(1) first proviso, (2) and (3) BNSS:

Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:

(2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court.

(3) The Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.

How it works — the conditions and steps

1. Detention during the process. The person must have been detained "during the period of investigation, inquiry or trial" of an offence under any law. Dayamoy Mahato (para 9.1) describes this as an undertrial in judicial custody.
2. Offence not excluded. Death or life imprisonment must not be one of the punishments specified for the offence.
3. Threshold reached. One-half of the maximum term specified for the offence; one-third for a person who has never been convicted of any offence.
4. Computation. Days of detention caused by the accused's own delay are excluded (Explanation).
5. Application. The jail Superintendent applies in writing as soon as the threshold is reached (s.479(3)); the accused may also move the court.
6. Order. The court "shall" release on bail (or, for a first-time offender, on bond). It may instead order continued detention, or require a bail bond with sureties, after hearing the Public Prosecutor and recording written reasons (second proviso).
7. Multiple cases. If investigation, inquiry or trial in more than one offence or in multiple cases is pending, the court shall not release on bail under the section (s.479(2)).
8. Outer limit. In no case may the person be detained beyond the maximum term for the offence (third proviso), and sub-section (2) is expressly subject to that limit.

Worked example (a reading of the text). A person with no previous conviction is held in custody during trial for an offence punishable with up to seven years. One-third of seven years is two years and four months; once that period is served, excluding any delay caused by the accused, the first proviso says the court shall release him on bond, and sub-section (3) obliges the jail Superintendent to apply. If another case is pending against him, sub-section (2) bars release under the section, but he still cannot be held beyond seven years.

What this means in practice

For the undertrial and defence advocate

• Work out the maximum term for each offence charged and the one-half or one-third date; keep a record of adjournments sought by the prosecution so that only delay caused by the accused is excluded.
• If the Superintendent has not applied, the court can be moved directly. Satender Kumar Antil (para 47) called the provision "substantive" and said continued detention beyond one-half "is expected to be undertaken sparingly being an exception to the general rule".
• Check whether any offence charged carries life imprisonment as one of its punishments; on the text, that excludes Section 479 entirely even though Section 436A would have applied.
• For a first-time offender, establish that the person "has never been convicted of any offence in the past"; the section does not define the phrase further.

For the prosecutor

• To resist release, the second proviso requires a hearing and written reasons. Vijay Madanlal (para 147) said the court must consider relief "on case-to-case basis" and may impose terms to ensure the accused attends the trial.
• Sub-section (2) turns on pending investigation, inquiry or trial "in more than one offence or in multiple cases"; place the pending matters on record.

For the jail Superintendent

• Sub-section (3) is a duty, not a discretion: on completion of one-half or one-third of the period, apply "forthwith" and in writing to the court.

Judgments that still matter

Satender Kumar Antil v. Central Bureau of Investigation, [2022] 10 S.C.R. 351 (2022 INSC 690) — 11 July 2022. In a judgment by M.M. Sundresh J. (with Sanjay Kishan Kaul J.), the Court held that the detention period under Section 436A is reckoned across investigation, inquiry and trial, and, where an appeal or revision is long pending, "the period of incarceration in all forms will have to be reckoned" (para 46). The word "shall" "clearly denotes the mandatory compliance of this provision", there is "not even a need for a bail application" where the delay is not attributable to the accused, and the provision is "substantive" (para 47). Section 436A applies to special Acts in the absence of a specific provision (para 64), and courts were directed to carry out the Section 436A exercise directed in Bhim Singh (para 73(j)). Section 479(3) now puts the application on the jail Superintendent.

Vijay Madanlal Choudhary v. Union of India, [2022] 6 S.C.R. 382 (2022 INSC 757) — 27 July 2022. A Bench of three Judges (A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar JJ.; judgment by Khanwilkar J.) held that Section 436A is an exception to the PMLA twin conditions for bail (para 142) and "needs to be construed as a statutory bail provision and akin to Section 167" (para 149). Relief "cannot be granted mechanically" but is considered "on case-to-case basis", and the provision "is not available to accused who is facing trial for offences punishable with death sentence" (paras 147-148; conclusion (xiv), para 187). Section 479 repeats "an offence under any law", so on a reading of the text the reasoning on special statutes carries over, subject to the wider exclusion for life imprisonment.

Central Bureau of Investigation v. Dayamoy Mahato, 2025 INSC 1418 — 11 December 2025. In a judgment by Sanjay Karol J. (with N. Kotiswar Singh J.), the Court reproduced Section 436A and noted that it "has been included" in the BNSS as Section 479 (paras 7-8). It set out its elements: an undertrial in judicial custody; offences with death as a possible punishment excluded; "shall" confers an entitlement, which the court may deny after hearing the prosecutor for recorded reasons; and detention can never exceed the maximum sentence (paras 9.1-9.6). Because the accused were tried for offences including Section 302 IPC and Section 16 UAPA, for which death is a possible punishment, Section 436A did not apply (para 11). The Court nonetheless declined to interfere with the accused's liberty at that stage (paras 21.2-22), and allowed the appeals only "to the aforesaid extent" (para 23).

Which law applies to your case

Section 531(2)(a) BNSS provides that an "application, trial, inquiry or investigation" pending immediately before 1 July 2024 is disposed of or continued under the CrPC "as if this Sanhita had not come into force". On a reading of that clause alone, an undertrial whose investigation or trial was pending on that date remains under Section 436A CrPC, and a case begun on or after that date is under Section 479 BNSS. Whether Section 479, and in particular the one-third proviso, also reaches undertrials in pending cases is not decided by any judgment read for this page; check the current position before relying on either reading. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 436A CrPC? Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 436A CrPC. An undertrial who has been detained during investigation, inquiry or trial for up to one-half of the maximum term of imprisonment for the offence shall be released by the court on bail, unless the court, after hearing the Public Prosecutor, records reasons for continued detention.

What is the one-third rule for first-time offenders? The first proviso to Section 479(1) BNSS says a first-time offender, defined as a person "who has never been convicted of any offence in the past", shall be released on bond by the court once detained for up to one-third of the maximum term for the offence. Section 436A CrPC had no such proviso; everyone waited for one-half.

Which offences are excluded from Section 479 BNSS? Section 479(1) BNSS excludes an offence for which the punishment of "death or life imprisonment" has been specified as one of the punishments. Section 436A CrPC excluded only offences punishable with death. On the text, an undertrial charged with an offence that carries a possible life sentence could seek release under Section 436A but cannot under Section 479.

Can an undertrial facing several cases get release under Section 479? Section 479(2) BNSS says that, notwithstanding sub-section (1) and subject to its third proviso, where investigation, inquiry or trial in more than one offence or in multiple cases is pending against a person, he shall not be released on bail by the court. The third proviso still bars detention beyond the maximum term. Section 436A CrPC had no such bar.

Does the undertrial have to apply for release under Section 479? Section 479(3) BNSS requires the Superintendent of the jail where the accused is detained, on completion of one-half or one-third of the period, to forthwith apply in writing to the court for release on bail. The accused may still apply. In Satender Kumar Antil (2022 INSC 690, para 47) the Supreme Court had said that under Section 436A there is not even a need for a bail application where the delay is not attributable to the accused.

Does Section 479 BNSS apply to offences under special laws like the PMLA or NDPS Act? Section 479(1) applies to "an offence under any law", as Section 436A did. In Vijay Madanlal Choudhary (2022 INSC 757, para 149) the Supreme Court held that Section 436A could be invoked by an accused arrested under the PMLA, and in Satender Kumar Antil (para 64) it held that Section 436A applies to special Acts in the absence of a specific provision. On a reading of the text, the same words in Section 479 carry that reasoning forward.

Is time spent in custody because of the accused's own delay counted? No. The Explanation to Section 479(1) BNSS, identical to the Explanation to Section 436A CrPC, says that in computing the period of detention, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

Which law applies to an undertrial whose case was pending on 1 July 2024? Section 531(2)(a) BNSS says an application, inquiry, trial or investigation pending immediately before 1 July 2024 is disposed of or continued under the CrPC as if the BNSS had not come into force. On a reading of that clause alone, such a case stays under Section 436A CrPC. No Supreme Court judgment read for this page decides whether Section 479, including the one-third proviso, reaches those undertrials, so check the current position before relying on either reading.

Related

• Undertrial release after one-third: BNSS 479 vs CrPC 436A
• Section 436 CrPC — bail in bailable offences
• Section 437 CrPC — bail in non-bailable offences
• Section 167 CrPC — remand and default bail
• Bail provisions: old vs new
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(b), (d) and (e), 478, 479, 480 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 436, 436A (with the Act 25 of 2005 footnote) and 437.
• Judgments read in full text: Satender Kumar Antil v. Central Bureau of Investigation (2022_10_351_447_EN.md); Vijay Madanlal Choudhary v. Union of India (2022_6_382_726_EN.md); Central Bureau of Investigation v. Dayamoy Mahato (Diary_27175-2023_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.