According to the National Crime Report Bureau, over the last 10 years, the number of undertrial prisoners in jails has risen constantly, and around 77% of the population of total prisoners are undertrial prisoners¹. The crisis of prolonged pre-trial incarceration is not merely administrative; it raises serious constitutional concerns related to personal liberty, the presumption of innocence, and the right to a speedy trial under Article 21, also defying the principle that bail is the rule, not jail.

In a system long criticised for its reliance on incarceration, particularly of undertrial prisoners, Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, was introduced as a much-needed reform that replaces Section 436-A CrPC. Section 436-A was a result of the Supreme Court judgment in the case of Hussainara Khatoon v. State of Bihar,² where the court strongly criticized the judicial system for the prolonged detention of individuals, without trial, declaring that the right to a speedy trial is an essential component of the fundamental rights guaranteed under the Constitution.

Now the upgraded version of the said section's Marginal note reads as “Maximum period for which an undertrial prisoner can be detained”, it lays down the provision for bail to a certain class of undertrial prisoners. The provision appears to mark a progressive shift toward decongesting overcrowded prisons while reinforcing the constitutional guarantee of personal liberty under Article 21. By prescribing the time limit for release of undertrial prisoners on bond or bail, the section promises to address persistent issues of overcrowding and delayed justice. However, a nuanced view of the section reveals that this relief may be more illusory than real. The exception provided in the form of a sub-section disqualifying undertrials charged with more than one offence from being released on bail casts serious doubt on its practical application, especially in a criminal justice system where multi-charge FIRs are the norm, not the exception.

The Promise of Section 479(1)

Section 479(1) BNSS mandates the release of an undertrial prisoner who has undergone detention for a period up to one-half of the maximum period of imprisonment specified for that offence. The provision clarifies that this does not apply to persons who are charged for an offence whose punishment is death or life imprisonment.

The provision also demarcates first-time offenders as a class and provides that if such a person has undergone detention for a period up to one-third of the maximum period of imprisonment specified for such offence, then he shall be released on bail.

The second proviso further states that "no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided." The provision was brought in as a means to uphold the fundamental right to a speedy trial, enshrined under Article 21 of the Constitution.

Recently, the Supreme Court, in the case of In re: Inhuman Conditions in 1382 Prisons³, held that Section 479 of the BNSS would apply retrospectively to all undertrials in cases registered before July 1, 2024. The retrospective application of the section further adds to the hope towards addressing the issue of overcrowding in prisons.

Subsection (2) and the Hidden Exclusion

At first glance, Section 479 of the BNSS appears to offer undertrial prisoners a hope of an early release on bail, especially for those who have already spent a significant portion of the sentence specified for that offence in pre-trial incarceration. However, a closer look reveals a critical limitation in the Subsection (2), which states that “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 multiple cases are pending against a person, he shall not be released on bail by the Court”. This is a novel provision and was not there in section 436A CrPC.

This provision makes mere registration of multiple offences in one's name a reason enough to deny bail, and disqualifies the person from getting the benefit of sub-section 1. This Exclusion stands contrary to the rights enshrined under Article 21 and the whole ethos of the bail jurisprudence. Making mere registrations of more than one offence as a reason to deny bail defeats the principle of presumption of innocence, as now, an undertrial prisoner has to serve the whole period of imprisonment irrespective of the nature or the gravity of the offence.

While it may seem like a narrow carve-out, this exception effectively excludes a majority of undertrial prisoners from availing the benefit offered by Section 479(1). In criminal proceedings, it is exceedingly rare for an accused to be charged with just a single offence. FIRs frequently include multiple charges, either based on overlapping factual allegations or as part of common police practice aimed at building a stronger case or pre-empting possible legal loopholes. For example, an individual accused of theft (Section 303 BNS) might also be charged with criminal intimidation (Section 351 BNS), or even trespass (Section 331 BNS, making them ineligible under Section 479 to avail bail.

Various Studies and legal commentaries have consistently noted that various sections FIRs are the norm, not the exception, in the Indian policing system. This is done either to ensure prosecutorial flexibility or out of an abundance of caution, or to make a stronger case against the person charged, especially when the investigation is at a preliminary stage.

This provision effectively offers its benefits to a very minuscule group of undertrial prisoners and successfully excludes others under this exception. The unclear scope of the phrase 'more than one offence or in multiple cases' may result in supplementing another blockage for bail in cases wherein the undertrial prisoner is charged under the penal code, along with special laws. Therefore, section 479 offers a hope that vanishes on closer inspection. The retrospective benefit and jail-initiated application process become ineffective for most due to this narrow carve-out.

Subsection 3 of Section 479 BNSS- A Reform

Subsection (3) of Section 479 of BNSS i offers a hopeful prospectus, as it imposes a duty on the Jail Superintendent to make an application to the Court to release a person on bail who has undergone one-half or one-third of the period mentioned in sub-section (1), as the case may be. Under the CrPC, it was upon the accused person to move an application to the court

for release, and often, accused who are illiterate or who are not aware of the said prison were left in hopelessness.

Though this section takes more than it gives, the provision can be steered closer to its intended purpose with a few purposeful changes or reforms. One of the most crucial changes needed is a redefining or narrowing of the “more than one offence” exception under Subsection (2). The current language is overly broad, treating all multiple charges equally, regardless of their nature or severity.

Section 479 of the BNSS was enacted with the intent to offer relief to the large number of undertrial prisoners entangled in prolonged pre-trial detention.. Yet, in its present form, particularly with an exclusion built in the form of a subsection, it risks becoming a dead letter, more symbolic than substantive.

In a legal system already burdened by procedural delays, chronic overcrowding, and long periods of pre-trial incarceration, such half-measures only add to the illusion of reform. The undertrials for whose protection this law intends to protect, or those charged with petty offences or first-time offenders, are often charged with more than one offence, making them disqualified for release.

It is important to keep in mind that the purpose of bail is merely to secure the presence of an undertrial prisoner, as held by the Supreme Court in a catena of cases, without making him suffer the entire period of imprisonment merely due to registration of multiple cases.

Hence, there is a pertinent need for interpreting the scope of Section 479(2) to avoid denial of the fundamental right to personal liberty and speedy trial for undertrial prisoners languishing in jails.

Views are personal.

References: 

1 National Crime Records Bureau, Crime in India: Provisional Statistics, 2022, https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/psiyearwise2022/1701613297PS I2022ason01122023. pdf (last visited on 26th july, 2025)

2 Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98

3 Inhuman Conditions in 1382 Prisons, In re, 2024 SCC OnLine SC 3596