Law & Policy
More Than One Offence: What Section 479 Gives the Undertrial and Sub-Section (2) Withholds
1 October 2026 · 14 min read
A code that permits detention before trial has to say when the detention must end whether or not the trial has. Otherwise the permission is open-ended, and the length of a person's custody becomes a function of the docket rather than of the offence.
The Code of Criminal Procedure, 1973 did not say so as enacted. Section 436A was inserted into it by the Code of Criminal Procedure (Amendment) Act, 2005 and brought into force in 2006, and it supplied a single rule: at one-half of the maximum sentence, the undertrial goes out. The Bharatiya Nagarik Suraksha Sanhita, 2023 carries that rule forward as section 479, under a marginal heading to the same effect — "Maximum period for which under trial prisoner can be detained" — and changes it in four places.
Two of the changes are in the first sub-section. A third places a duty of initiation on an officer of the State, which the old section placed on nobody. The fourth is a new sub-section, and it decides how much of the first one is left.
What sub-section (1) provides
Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment 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 bail:
Three provisos follow. The first entitles a first-time offender — defined in a parenthesis as a person "who has never been convicted of any offence in the past" — to release on bond at one-third instead of one-half. The second permits the Court, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, to "order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond". The third provides that no such person shall in any case be detained for longer than the maximum period of imprisonment provided for the offence. An Explanation excludes from the computation "the period of detention passed due to delay in proceeding caused by the accused".
That is the structure of section 436A — one condition, a proviso permitting continued detention, a proviso imposing an absolute ceiling, and an Explanation in identical terms — with one proviso added. The differences are in the words.
The exclusion, widened
Section 436A excluded from its operation an offence "for which the punishment of death has been specified as one of the punishments under that law". Section 479(1) excludes an offence for which the punishment of "death or life imprisonment" has been so specified.
The addition is two words, and it moves a substantial class of offences from inside the section to outside it. Culpable homicide not amounting to murder is the clearest instance. Section 304 of the Indian Penal Code punished it, where the act was done with the intention there described, with "imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine", and where it was done with the knowledge there described, with imprisonment of either description which may extend to ten years, or fine, or both. Death was not among the punishments, so the offence was within section 436A.
Section 105 of the Bharatiya Nyaya Sanhita, 2023 re-enacts the offence and keeps life imprisonment on the first limb, prescribing "imprisonment for life, or imprisonment of either description for a term which shall not be less than five years but which may extend to ten years", and on the second limb "imprisonment of either description for a term which may extend to ten years and with fine". Life imprisonment is therefore specified as one of the punishments for the offence, and section 479(1) does not apply to it.
Two features of that exclusion are worth separating.
It is drafted by reference to the offence, not to the limb under which the particular accused is charged. A person prosecuted on the knowledge limb of section 105 faces a maximum of ten years and cannot be sentenced to life. He is nonetheless charged with an offence for which life imprisonment "has been specified as one of the punishments under that law", and the section passes him by.
And when the section passes him by, so does the ceiling. The third proviso operates only within sub-section (1) — "no such person shall in any case be detained" — and "such person" is the person sub-section (1) describes. Where sub-section (1) does not apply, the absolute limit of the maximum sentence does not apply either. For an accused charged under section 105 the Sanhita fixes no outer limit on pre-trial detention at all.
There was a drafting problem the two words solve. Section 436A measured the entitlement against "the maximum period of imprisonment specified for that offence under that law", and for an offence such as section 304 of the Penal Code the maximum specified was imprisonment for life. What one-half of a sentence of imprisonment for life amounts to is not a question the section answered, and it supplied no rule for the computation. Section 479(1) resolves the difficulty by removing from the section every offence for which life appears as an alternative punishment, rather than by supplying the rule of computation. The problem was one of measurement; the remedy was one of scope.
Bail, bond and bail bond
Section 436A released the undertrial at one-half "on his personal bond with or without sureties", and its first proviso allowed the Court instead to "release him on bail instead of the personal bond with or without sureties". Section 479(1) releases him "on bail".
The Sanhita defines all three expressions. Section 2(1)(b) defines "bail" as "release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond". Section 2(1)(d) defines "bail bond" as "an undertaking for release with surety". Section 2(1)(e) defines "bond" as "a personal bond or an undertaking for release without surety".
Read against those definitions the change is not one of label. Under section 436A the entitlement at one-half was release on a personal bond, with sureties only if the Court required them. Under section 479(1) the entitlement at one-half is release on bail, which by definition is on a bond or on a bail bond, and the sub-section does not say which. Release without surety has moved into the first proviso, where it is available at one-third and only to a person who has never been convicted of any offence. The second proviso then allows the Court to "release him on bail bond instead of his bond" — to attach a surety requirement to the single benefit the first proviso confers, on the same recorded-reasons condition that permits continued detention outright.
The second proviso also measures continued detention against the longer period only. It authorises the Court to order detention "for a period longer than one-half of the said period". A first-time offender's entitlement arises at one-third, and the words that would authorise his continued detention past that point are not in the proviso; what is there instead is the power to convert his bond into a bail bond. On the face of the drafting, the Court's power to keep a person in custody is calibrated to the one-half rule while its power to require a surety is calibrated to the one-third rule, and the two provisos read as though they were written at different times.
The parenthetical definition of a first-time offender carries no qualification of kind, gravity or date. A conviction for any offence, at any time, however old and however trivial, takes the person out of the first proviso. Nothing in the section says who is to establish the absence of a previous conviction, or on what material.
The sub-section that governs the rest
(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.
Section 436A had no equivalent. The sub-section opens with a non obstante clause directed at the whole of sub-section (1), preserves the third proviso alone, and then prohibits release.
Its reach turns on the disjunction. "In more than one offence or in multiple cases" offers two conditions, and the second is clear enough: more than one case pending against the same person. The first is not. If "more than one offence" means more than one offence in the case in which the person is detained, the sub-section reaches most of the persons sub-section (1) was written for, because a chargesheet alleging a single offence and nothing else is the exception rather than the rule. A person sent up for criminal breach of trust under section 316(2) of the Bharatiya Nyaya Sanhita, punishable with imprisonment which may extend to five years, and for cheating under section 318(4), punishable with imprisonment which may extend to seven years, is a person against whom an inquiry or trial in more than one offence is pending. On that reading he is outside sub-section (1) altogether, and the one-half rule is left to the accused charged on a single count.
If "more than one offence" instead means offences in separate proceedings, the phrase adds little to "multiple cases" and the disjunction is close to redundant. The drafting gives no clear indication which was intended. The verb is plural — "where an investigation, inquiry or trial in more than one offence or in multiple cases are pending" — while each limb of the subject is singular.
The consequence does not depend on resolving the ambiguity, because on either reading a person in custody in more than one case is excluded. For that person the Sanhita's other method of counting time is also unavailable. Section 468 provides that where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, "the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction". Set-off is confined to the same case. Detention suffered in one case is credited against the sentence in that case and nowhere else. A person held simultaneously in three cases accumulates, in each of them, custody that sub-section (2) says cannot found his release and that section 468 will credit only once.
The duty to apply
(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.
This is the section's procedural innovation, and it is worth noting because section 436A placed the obligation on nobody. Under the old section the entitlement existed and its enforcement depended on the undertrial, or someone acting for him, invoking it.
Three features of the sub-section repay reading closely.
It requires the Superintendent to decide which of two periods applies. "One-half or one-third of the period mentioned in sub-section (1), as the case may be" can be identified only by knowing whether the person has ever been convicted of any offence — a fact about records a jail does not hold, and which the sub-section directs nobody to supply.
It requires the application to be made "forthwith", and fixes no time within which the Court is to deal with it. Release under sub-section (1) is "by the Court"; sub-section (3) supplies the trigger and stops there.
And it says nothing about sub-section (2). The Superintendent is to apply on completion of the period in every case, including that of a person whom sub-section (2) forbids the Court to release. The duty to move and the prohibition on granting sit in consecutive sub-sections with no words connecting them.
Nothing in the section provides a consequence if the application is not made. The obligation is stated in the imperative and left unsecured.
By an order dated 23 August 2024 in In Re: Inhuman Conditions in 1382 Prisons, W.P. (C) No. 406 of 2013, the Supreme Court recorded the Additional Solicitor General's instructions that the provision "shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01st July, 2024, the date when the newly minted legislation has come into effect", and directed "immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail". The date referred to is the date appointed for the Sanhita's commencement by notification S.O. 848(E) dated 23 February 2024.
The comparison the order drew was a narrow one. It proceeded on the footing "that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the Code of Criminal Procedure, 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence" — that is, between one-third in the first proviso and one-half in the old section. On that comparison the order is plainly right. It is a direction for implementation in a continuing matter on prison conditions, and the widened exclusion in sub-section (1) and the bar in sub-section (2) were not before the Court.
Where that leaves the clock
Put the pieces together and the Sanhita counts pre-trial custody three times, for three purposes, on three different definitions of the period that matters.
Section 187(3) measures the investigation: ninety days where it relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more, sixty days for any other offence, on the expiry of which "the accused person shall be released on bail if he is prepared to and does furnish bail". That period runs against the completion of the investigation, not the conclusion of the trial, and Explanation I to the section declares that notwithstanding the expiry of the period the accused shall be detained in custody so long as he does not furnish bail.
Section 479 measures the whole proceeding, by reference to the sentence the offence carries — but not for an offence where life imprisonment is one of the punishments, not for a person facing more than one offence or more than one case, and not to the extent the Court records reasons for continued detention.
Section 468 measures the same custody again after conviction, and credits it only within the case in which it was suffered.
The three provisions do not contradict each other. What they do not do, taken together, is state an outer limit on how long a person may be held before there is a verdict, because the provision written to state one is qualified by an exclusion defined by the punishment the offence carries at its highest, a bar defined by the number of offences alleged, and a proviso defined by the reasons the Court is willing to record.
Section 436A had one condition and two provisos, and the undertrial it covered could read it and know where he stood. Section 479 is longer, confers a benefit the old section did not, places a duty of initiation on an officer of the State for the first time, and attaches to the whole arrangement a sub-section beginning "Notwithstanding anything in sub-section (1)". What the section gives is in the first sub-section and its first proviso. How much of it is left is decided by the second.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.