Introduction
Undertrial detention is a persistent problem in Indian prisons. According to the Prison Statistics India 2024 report of the National Crime Records Bureau (NCRB), the country had 5,11,542 prisoners as of 31 December 2024,1 of whom 3,71,440, or about 72.6% of all prisoners, were undertrials.2 The profile of this undertrial population shows that about 22.6% were illiterate and 40% had been educated only below Class X, so that some 62.6% in all had not studied beyond Class X.3 This can be a significant disadvantage, compounding the difficulties undertrials face in navigating the criminal justice system, although educational status does not by itself establish their socio-economic circumstances.
Undertrial detention is a matter of concern because it takes place before the guilt of the accused has been proved. The individual is deprived of the personal liberty guaranteed by the Constitution of India, and that deprivation must therefore be in harmony with other constitutional guarantees, such as the right to equality and the right to a speedy trial. Bail jurisprudence has consistently emphasised the importance of limiting unnecessary pre-trial incarceration, particularly where the delay is not attributable to the accused but results from systemic delays in the criminal process.
Against this background, Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which deals with the ‘maximum period for which undertrial prisoner can be detained’,4 appears to be a positive statutory intervention by the legislature. It replaces Section 436A of the Code of Criminal Procedure, 1973 (CrPC). It retains the general rule that an undertrial is to be released on bail once he has undergone detention for one-half of the maximum period of imprisonment specified for the offence of which he is accused. In addition, a first-time offender is to be released on bond on completing one-third of that maximum period. The new feature of the section is that the Superintendent of the jail is required to apply to the court for the release of undertrials who are eligible under it.5
However, the statutory change also adds one significant restriction on the benefit of the section. Section 479(2) provides that where an 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, subject to the third proviso to Section 479(1).6
This restriction raises an important question: should the pendency of more than one offence or case, in itself, determine an undertrial’s eligibility for release, even where the individual has crossed the threshold the statute prescribes? The question becomes more pressing where the multiple offences arise from the same transaction and several penal provisions are invoked in a single FIR, or where the accused faces another proceeding involving only minor offences. The section, as it stands, does not distinguish between these scenarios.
This paper therefore examines Section 479(2) critically through the lens of Articles 14 and 21 of the Constitution, alongside the empirical realities of undertrial detention and overcrowding in Indian prisons. It questions the exclusion created by Section 479(2), asking whether it bears a sufficient nexus to the objectives of the criminal justice system and whether it produces disproportionate consequences for persons who have already crossed the statutory threshold for release.
Legislative evolution: from Section 436A CrPC to Section 479 BNSS
Section 436A of the CrPC provided that where a person had, during the period of investigation, inquiry or trial under the CrPC of an offence under any law (not being an offence for which the punishment of death had 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 was to be released by the court on his personal bond, with or without sureties.7
Section 436A, inserted by the Code of Criminal Procedure (Amendment) Act, 2005, came into force on 23 June 2006.8 It was introduced in the interests of undertrial prisoners, to protect persons forced to remain in jail for prolonged periods pending investigation, inquiry or trial; in many cases undertrials had been held for substantial periods, contrary to the principle that an accused is presumed innocent until found guilty.9 Section 436A was silent on its application to cases involving multiple offences, whereas Section 479 of the BNSS expressly bars release on bail where multiple offences or cases are pending, subject to the proviso on the maximum period of detention.10
With the advent of the BNSS, the provision was significantly altered. Section 479 reads:
Maximum period for which undertrial prisoner can be detained. (1) 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:
Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, 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:
Provided also 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 for the said offence under that law.
Explanation. In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
(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.11
The new Section 479 adds two positive features: the release of a first-time offender on completion of one-third of the maximum period of imprisonment for the alleged offence, and the obligation on the Superintendent of the jail to apply to the court for the release of undertrials eligible under the section. The difficulty lies in Section 479(2). It provides that where an inmate is accused of more than one offence, or is an accused in multiple cases, and the proceedings are pending, that inmate is not entitled to statutory release on bail under Section 479.
The report of the Department-related Parliamentary Standing Committee on Home Affairs on the Bill is important here. In its Two Hundred Forty-Seventh Report on the Bharatiya Nagarik Suraksha Sanhita, 2023, the Committee examined Clause 481 of the Bill (‘Maximum period for which undertrial prisoner can be detained’). The suggestion before it was “that the undertrial prisoner may be released on bail by the Court if he has served the maximum sentence that can be awarded to the person in all offences and/or cases pending against the accused for the highest offence”.12 The Committee ‘acknowledges the suggestion and supports the idea that undertrial prisoners who have already served the maximum sentence for the most serious offence they are charged with, should be granted bail unless there are consecutive sentences for multiple offences’; it observed that the suggested amendment ‘aligns with due process and principles of individual liberty’, and recommended incorporating it into the clause.13 The provision as enacted, however, reads: “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.”14 The words ‘and subject to the third proviso thereof’, which preserve the outer limit of the maximum period of imprisonment for the offence, were absent from Clause 481(2) as placed before the Committee;15 beyond that addition, the Committee’s suggested approach was not adopted. The question therefore arises why the final statutory formulation departed from it.
A. Section 479(2)
Section 479(2) provides that, subject to the third proviso to sub-section (1), where an 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 phrase “more than one offence or in multiple cases” is not defined in the Sanhita, and it can bear several meanings. It needs to be clarified whether the phrase refers to:
1. Multiple penal provisions in a single FIR: for example, an FIR is registered against a person invoking several sections of the Bharatiya Nyaya Sanhita, 2023 (BNS). Is it legally correct to call this “more than one offence”? Does Section 479(2) apply merely because several sections have been invoked?
2. Multiple FIRs arising from the same transaction: for example, a single incident leads to several FIRs registered at different places.
3. Multiple unrelated criminal cases pending against one individual: for example, one case is registered in 2023 and a second, completely unrelated case in 2024.
| Situation | Nature of proceeding | Enquiry under Section 479(2) |
|---|---|---|
| One FIR, one offence | Single proceeding | No difficulty |
| One FIR, multiple offences invoked (one transaction) | Same proceeding | Does “more than one offence” apply? |
| Multiple FIRs, same transaction | Multiple proceedings | How should Section 479(2) operate here? |
| Multiple unrelated cases pending | Separate proceedings | Core application of Section 479(2) |
Table 1: Situations in which Section 479(2) may be engaged
In K. Ramakrishna v. Assistant Director, Directorate of Enforcement, the Karnataka High Court held that the benefit of the first proviso to Section 479(1) is subject to Section 479(2), and that all the provisions of the section have to be read conjointly. The ruling was, however, fact-specific: the bail plea was rejected primarily because of the independent statutory bar under Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA), and because it was the petitioner’s third bail application, earlier pleas having been rejected, including by the Supreme Court. Section 479(2), which opens with a non obstante clause, was thus given overriding effect.16 By contrast, in Leena Paulose v. Directorate of Enforcement, the Delhi High Court gave an important interpretation of Section 479(2). The Directorate of Enforcement contended that the provision, which had no counterpart in Section 436A of the CrPC, makes an express exception for an undertrial facing investigation, inquiry or trial in more than one offence or in multiple pending cases. The Court did not read Section 479(2) as a complete bar. It held that Section 479 must be read as a whole, in the light of its statutory purpose and of the constitutional guarantee of liberty, and that sub-section (2) does not wholly override sub-section (1): the multiplicity of offences or proceedings weighs heavily, but the court retains its discretion to grant bail once the accused has served the threshold period of custody.17 The Delhi High Court itself noted that the High Court of Jammu and Kashmir and Ladakh had reached a conclusion similar to the Karnataka High Court’s in the case of a first-time offender charged with more than one offence.18 The interpretation of these phrases therefore remains unsettled.
Constitutional analysis
A. Article 14: right to equality
In State of West Bengal v. Anwar Ali Sarkar, the Supreme Court laid down the reasonable classification test for evaluating the constitutionality of laws.19 As one commentator puts it, the test has two prongs: “firstly, that the action possesses an intelligible differentia; and secondly, that the said intelligible differentia possesses a rational nexus to the object of the law”, and, applied to Section 479(2), “even if the intelligible differentia is found to be reasonable, it does not have any rational nexus to the goal of the section which is to ensure decongestion of prisons and provide bail to those who are incarcerated for long periods of time.”20 Under the reasonable classification test, Section 479(2) must rest on a clear and reasonable distinction between those who receive the benefit of Section 479(1) and those who do not. Does the classification address a social or policy need without violating the rights of individuals? Under this test, groups cannot be selected arbitrarily; differences in treatment must be justified, not random. There must be a logical and direct connection between the difference (the intelligible differentia) and the specific objective that the law seeks to achieve.21 The possible objectives of the provision are to prevent release where the accused faces multiple pending proceedings, to ensure that Section 479 is not applied mechanically where other serious proceedings remain pending, and to protect the administration of criminal justice. The question, then, is whether the mere numerical existence of another offence is rationally connected to those objectives in every situation. Section 479(2) raises a constitutional and policy concern because it makes eligibility for statutory release depend not merely on the period of detention in a particular proceeding but on the existence of other pending offences or cases, without expressly distinguishing between unrelated cases, multiple offences arising from the same transaction, and minor additional offences.
B. Article 21: right to life and personal liberty
Article 21 of the Constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”22 In Maneka Gandhi v. Union of India, the Supreme Court held that “the expression ‘personal liberty’ in Article 21 is of the widest amplitude”, and that the procedure established by law must be fair, just and reasonable, and cannot be arbitrary, fanciful or oppressive.23 Building on that foundation, the Court held in Francis Coralie Mullin v. Administrator, Union Territory of Delhi that the right to life “cannot be restricted to mere animal existence” and includes the right to live with human dignity.24 If Parliament has already determined that detention for one-third or one-half of the maximum sentence triggers statutory protection, does an undifferentiated exclusion based only on additional pending proceedings impose a disproportionate restriction on liberty where those proceedings arise from the same transaction or concern minor offences?
The question, then, is whether classifying undertrials by the number of cases pending against them is reasonable, and whether the classification helps to achieve the purpose of the section. Does it solve the problem of overcrowding in prisons? Does it promote the detainee’s right to personal liberty and the right to equality?
In Leena Paulose, the Delhi High Court, drawing on the Supreme Court’s reading of Section 436A of the CrPC in Satender Kumar Antil v. Central Bureau of Investigation, answered in these terms:
As far as the interpretation of the section is concerned, I am of the view that a holistic interpretation, informed both by the statutory objective and constitutional context, must be favoured. As noted by the Supreme Court, in Satinder Kumar Antil and V. Senthil Balaji [in the context of Section 436A of the CrPC], the statute provides a safeguard against prolonged incarceration pending trial. While an exception can be made under the first proviso to Section 436A CrPC [now the second proviso to Section 479(1) of the BNSS], that exception must be sparingly invoked to further the constitutional guarantee of liberty. In BNSS, a further provision was made, which entitles a first-time offender to the benefit of Section 479(1), upon completion of a lesser proportion of the maximum sentence [1/3rd]. It would, in my view, be inconsistent in this approach to hold that Section 479(2) entirely eclipses Section 479(1), even if the accused is facing trial in more than one offence in the same FIR, or more than one criminal case. Instead, a harmonious reading of the various provisions contained in Section 479 of the BNSS requires the Court to take into account multiplicity of offences or pending proceedings as a significant factor, but does not altogether deprive the Court of its discretion to grant bail once the accused has crossed the custody threshold of Section 479(1) of the BNSS.25
Empirical realities
The NCRB’s Prison Statistics India reports show the scale of the problem. The prison population exceeds 5,10,000 inmates, and about 73% of all prisoners are awaiting investigation or trial.26 Put differently, roughly three in four prisoners in India have not been convicted of any offence. While Prison Statistics India 2024 provides current data on the composition of the prison population, earlier inquiries also documented the socio-economic vulnerability of undertrials.27 Economic disadvantage may affect an accused person’s ability to secure effective legal representation and to comply with financial or surety-related bail conditions, and may thereby contribute to prolonged pre-trial detention; as long ago as 1979, the Supreme Court observed that the system of bail “operates very harshly against the poor”.28
Judicial trajectory
In In re Inhuman Conditions in 1382 Prisons, the Supreme Court recorded the Union Government’s statement, made on instructions, that Section 479 of the BNSS “shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01st July, 2024”, the date on which the BNSS came into force, and it directed the immediate implementation of the provision through the Superintendents of jails.29 The Court expected the step to relieve overcrowding in jails considerably, describing that as its own primary focus in the petition. The Supreme Court and the High Courts have repeatedly treated speedy trial as a fundamental right of the accused under Article 21 of the Constitution, with bail as the consequence of its denial.30 The right to bail is not absolute. Nonetheless, an undertrial is held in custody before any court has found him guilty, and Article 21 tolerates that loss of liberty only under a law that is reasonable.31 After Maneka Gandhi v. Union of India,32 the earlier restrictive reading of Article 21 gave way: the Court held that “the mere prescription of some kind of procedure cannot ever meet the mandate of article 21”, and that the procedure must be “fair, just and reasonable”.33
In State of Rajasthan v. Balchand, Krishna Iyer J. observed: “The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court.”34 In Gudikanti Narasimhulu v. Public Prosecutor, he emphasised that the deprivation of personal freedom, “ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.”35
The same approach was followed in Hussainara Khatoon v. Home Secretary, State of Bihar (1979),36 where large numbers of undertrials had been held in Bihar’s prisons for years, in some cases for periods longer than the punishment they would in all probability have received if convicted, many of them simply because they could not furnish bail. Speaking for the Court, Bhagwati J. declared that speedy trial “is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21”, since no procedure that does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just”.37 By contrast, the Karnataka High Court’s holding in K. Ramakrishna that the benefit of the first proviso to Section 479(1) is subject to Section 479(2), and that all the provisions must be read conjointly,38 sits in tension with the reasoning in Hussainara Khatoon and Balchand.
Comparative framework
England and Wales transformed their law on pre-trial release through the Bail Act 1976.39 The Act is clear in creating a general right to bail, a rebuttable statutory presumption that applies to most accused persons, although the grounds on which it may be displaced differ between imprisonable and non-imprisonable offences.40
Under Part I of Schedule 1 to the Act, which applies to most defendants accused of imprisonable offences, a court need not grant bail if it is satisfied that there are substantial grounds for believing that the defendant, if released, would fail to surrender to custody, commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice.41 The Act has to an extent done away with monetary requirements: no recognizance for his surrender is taken from the defendant himself, and the conditions it contemplates are typically non-monetary, such as reporting to the police, curfews or electronic monitoring.42 On this approach, pre-trial release turns on objective risk, not on financial means or on ambiguous classification.43 India’s Section 479(2) uses multiplicity of proceedings as a statutory trigger, whereas the English framework focuses more directly on the identified risks relevant to pre-trial release.
Indian bail jurisprudence up to 2026 shows that bail law has repeatedly been aligned with constitutional liberties and other fundamental rights and has become more objective; yet administrative frameworks and entrenched practices continue to create structural hurdles that significantly affect the bail provisions of the BNSS. To give full effect to the spirit of Article 21 of the Constitution, India needs to address several issues, one of which is the clarity required in Section 479(2), which, on a literal reading, may operate as a substantial exclusion from the benefit of Section 479(1) wherever multiple offences or cases are pending.
The legislature should therefore consider amending Section 479(2) of the BNSS, and should give the judiciary the discretion to treat petty offences, and multiple penal provisions invoked in respect of a single transaction, as no bar to the benefit of Section 479(1).
A proposed framework for clarity
Category 1: multiple sections arising from the same transaction. These should not automatically defeat eligibility under Section 479.
Category 2: minor additional offences. The court should assess whether they genuinely justify continued detention.
Category 3: separate, unrelated serious proceedings. Where there are multiple proceedings involving serious offences, Section 479(2) remains relevant, subject to judicial assessment of the case. Release should depend on the stage of the other proceedings, whether the detention is attributable to the accused, the risk of absconding, whether the proceedings originate from the same transaction, and whether continued detention is proportionate.
Conclusion
While Section 479(1) of the BNSS introduces a beneficial one-third detention threshold for first-time offenders to alleviate severe prison overcrowding, the non obstante clause in Section 479(2) creates a substantial statutory exclusion from the ordinary benefit of Section 479(1) for persons against whom proceedings in more than one offence or in multiple cases are pending, subject to the outer limit contained in the third proviso. This classification of undertrials merely by the number of pending cases should be reassessed against the tests established under Articles 14 and 21 of the Constitution. It is equally important to take into account the practice of registering a single FIR for multiple offences, which reflects the inevitable interconnection of offences arising from one criminal transaction. The restriction hampers the legitimate intent of Section 479 and keeps undertrial prisoners in jail without trial. Section 479 should therefore be treated as a substantive provision facilitating personal liberty under Article 21, and the seriousness of the offence alone should not override the statutory entitlement where the delay in trial is not caused by the accused. Statutory clarity would be the most appropriate measure the legislature could take to address overcrowding and to promote the constitutional values of personal liberty, human dignity and equality.
*****
Footnotes
1. National Crime Records Bureau, Prison Statistics India 2024 ix, xii (Ministry of Home Affairs, Gov’t of India 2026).
2. Id. ch. 2, § 2.1, at 36.
3. Id. ch. 2, at 38–40.
4. The Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023, § 479 (India) [hereinafter BNSS].
5. Id. § 479(1), (3).
6. Id. § 479(2).
7. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, § 436A (India) (repealed by BNSS, supra note 4, § 531).
8. The Code of Criminal Procedure (Amendment) Act, 2005, No. 25, Acts of Parliament, 2005, § 36 (India) (inserting § 436A), brought into force on June 23, 2006 by Notification S.O. 923(E) (June 21, 2006).
9. Gaurav Thote, Gamut of Section 436-A of the Code of Criminal Procedure: An Analysis, SCC Online Blog (Feb. 6, 2021), https://www.scconline.com/blog/post/2021/02/06/gamut-of-section-436-a-of-the-code-of-criminal-procedure-an-analysis/ (last visited Sept. 27, 2026).
10. BNSS, supra note 4, § 479(2).
11. Id. § 479.
12. Department-Related Parliamentary Standing Committee on Home Affairs, Rajya Sabha, Two Hundred Forty-Seventh Report on the Bharatiya Nagarik Suraksha Sanhita, 2023 ¶ 3.30.1, at 34 (Nov. 10, 2023), https://prsindia.org/files/bills_acts/bills_parliament/2023/SC_Report_Bharatiya_Nagarik_Suraksha_Sanhita_2023.pdf.
13. Id. ¶ 3.30.2, at 34.
14. BNSS, supra note 4, § 479(2).
15. Department-Related Parliamentary Standing Committee on Home Affairs, supra note 12, ¶ 3.30, at 33–34 (reproducing Clause 481(2) of the Bill).
16. K. Ramakrishna v. Assistant Director, Directorate of Enforcement, Crl. P. No. 9930/2024, 2024 SCC OnLine Kar 1879 (Kar. H.C. Nov. 23, 2024).
17. Leena Paulose v. Directorate of Enforcement, Bail Appl. No. 4657/2024, ¶¶ 20, 25 (Del. H.C. May 5, 2026).
18. Id. ¶ 23 (discussing Muninder Singh @ Sonu v. UT of J&K, Bail App. No. 136/2025 (J&K & L H.C. Nov. 28, 2025)).
19. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
20. Mihir Teja Kalle, One Accusation Too Many: The Chilling Effect of BNSS Section 479(2), The Crime & Justice Blog (Dec. 4, 2025), https://crimeandjustice.blog/2025/12/04/one-accusation-too-many-the-chilling-effect-of-bnss-section-4792/ (last visited Sept. 27, 2026).
21. Id.
22. India Const. art. 21.
23. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
24. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.
25. Leena Paulose, supra note 17, ¶ 25 (citing Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51).
26. See National Crime Records Bureau, supra note 1.
27. See Law Commission of India, Report No. 78: Congestion of Under-Trial Prisoners in Jails ¶ 5.1 (Feb. 1979).
28. Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81.
29. In re Inhuman Conditions in 1382 Prisons, W.P. (C) No. 406 of 2013, ¶¶ 3–4 (S.C. Aug. 23, 2024) (order).
30. Thote, supra note 9.
31. See Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.
32. Maneka Gandhi, supra note 23.
33. Id.
34. State of Rajasthan v. Balchand, (1977) 4 SCC 308, 309.
35. Gudikanti Narasimhulu, supra note 31.
36. Hussainara Khatoon, supra note 28.
37. Id. at 89.
38. K. Ramakrishna, supra note 16.
39. Bail Act 1976, c. 63 (U.K.).
40. Id. § 4.
41. See id. sch. 1, pt. I, ¶¶ 1, 1A, 2(1).
42. See id. § 3(2), (6), (6ZAA); see also Convention for the Protection of Human Rights and Fundamental Freedoms art. 5, Nov. 4, 1950, 213 U.N.T.S. 221.
43. See Atul Kumar & D.K. Bhatt, From Magna Carta to Article 21: Evolution and Challenges of Bail Jurisprudence in India, 8 Indian J.L. & Legal Rsch. 3095, 3112 (2026), https://ssrn.com/abstract=7103898, https://doi.org/10.2139/ssrn.7103898 (last visited Sept. 16, 2026).