Section 479 of BNSS Would Apply Retrospectively to the Undertrials: Supreme Court

Today, (August 23, 2024, Friday), the Supreme Court (SC) of India ruled that Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) would apply retrospectively to the undertrials across the country. Section 479 of the BNSS deals with the ‘Maximum period for which undertrial prisoner can be detained’. Section 479(1) states that “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: 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…” 

The SC bench of Justice Hima Kohli and Justice Sandeep Mehta, while hearing the PIL (public interest litigation) related to the issue of overcrowding of prisons in India today, said “It is deemed appropriate to direct the implementation of Section 479 of BNSS by calling upon the superintendent of jails across the Country where the accused persons are detained to process their applications through the concerned courts upon their completion of one-half/ one-third of the period mentioned in sub-section (1) of the provision for their release on bail. The said steps shall be taken as expeditiously as possible and preferably within three months.” Moreover, the bench also directed all the States/Union Territories to file an affidavit elaborating the details of the number of undertrials on whom this new provision (Section 479) is applicable, the number of applications made for the benefit of this provision, and the number of persons released under this provision. 

Earlier, the SC bench had asked whether this provision would apply to undertrial prisoners arrested before July 01, 2024, when BNSS came into force. Today, Additional Solicitor General (ASG) Aishwarya Bhati confirmed that Section 479 of the BNSS would apply to undertrial prisoners irrespective of the date when the case was registered. The order reads “On the last date of hearing, Amicus Gaurav Aggarwal had submitted that Section 479 of BNSS that allows grant of bail to first-time undertrials. The attention of this court was drawn to the first proviso of Section 479. Having regard to the fact that the substituted provision of Section 436A CrPC was more beneficial where the period undergone was mentioned as 1/2rd of the maximum sentence undergone, this new provision provided for 1/3rd of the maximum sentence. We had sought clarification from ASG Bhati regarding applicability of this new provision of Section 479 BNSS. Ms. Bhati submitted that instructions have been obtained from concerned ministry that Section 479 will be applicable on all undertrials irrespective of whether cases were registered before July 1.”