If an undertrial prisoner has already spent half of the maximum sentence for the alleged offence in jail while the case is still going on, Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 says the court shall release that person on bail. For a first-time offender who has never been convicted before, the threshold is just one-third of the maximum sentence. This is a statutory right, not a favour, and it applies even to cases registered before 1 July 2024.
This guide is for anyone who is in jail as an undertrial, meaning the investigation, inquiry or trial is still continuing and there is no final conviction yet, and for their family members and lawyers. It applies across India because the BNSS is the national criminal procedure law that replaced the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Section 479 BNSS is the successor to the old Section 436A CrPC, and it is more generous because it adds the one-third rule for first-time offenders.
Two groups are excluded or limited. Section 479 does not help a person accused of an offence punishable with death or imprisonment for life. And under Section 479(2), where an investigation, inquiry or trial in more than one offence, or in multiple cases, is pending against the same person, the court shall not release that person on bail under this section. So a single straightforward case is the clean situation; multiple pending cases break the benefit.
The rule turns on the maximum sentence the law fixes for the alleged offence, not the sentence the court might finally give.
| Situation | Detention served | Result |
|---|---|---|
| General undertrial (not a first-time offender) | One-half of the maximum imprisonment for the offence | Court shall release on bail |
| First-time offender (never convicted of any offence before) | One-third of the maximum imprisonment for the offence | Court shall release on bond |
| Offence punishable with death or life imprisonment | Section 479 does not apply | Use ordinary bail provisions instead |
| Multiple cases or offences pending against the same person | Section 479(2) bars release under this section | Use ordinary bail provisions instead |
There is also an outer limit. The third proviso to Section 479(1) says that in no case shall an undertrial be detained during investigation, inquiry or trial for more than the maximum period of imprisonment provided for that offence. The Explanation to the section makes clear that any delay in the proceedings caused by the accused is excluded when counting the detention period, so deliberate stalling cannot be used to clock up time.
You do not have to wait for the prisoner or family to act first. Section 479(3) places a positive duty on the Superintendent of the jail: once an undertrial has completed one-half (or one-third, for a first-time offender) of the maximum detention period, the Superintendent shall make a written application to the court for that person's release on bail. This is meant to be automatic. In practice it is often the legal-aid system and the prisoner's own application that move things faster, so do not rely on the Superintendent alone.
A common worry is whether someone arrested before the BNSS started on 1 July 2024 can use Section 479. The Supreme Court, in the long-running prison-conditions matter In Re: Inhuman Conditions in 1382 Prisons, recorded the Union Government's position that Section 479 applies to all undertrials in pending cases, whether the case was registered before or after 1 July 2024, and treated the new provision as the more beneficial one to apply. So the benefit reaches old, pending cases too. The Court also pushed jail authorities to identify eligible prisoners and process their applications.
For free help, approach the DLSA in the district, the State Legal Services Authority, or the National Legal Services Authority through nalsa.gov.in. Legal aid for prisoners is free.
Do not confuse the maximum sentence with the likely sentence; Section 479 is keyed to the statutory maximum for the offence. Do not assume the benefit applies when more than one case is pending, because Section 479(2) bars it. Do not forget to subtract delays caused by the accused, as that time does not count. And do not wait silently for the Superintendent to act; file your own application, because the duty under Section 479(3) is often not followed on time.
If you are dealing with a fear of arrest rather than someone already in jail, see anticipatory bail under BNSS Section 482. For the general mechanics of preparing and filing a bail application, see how to file a bail application.
Consider a daily-wage worker in a district in Madhya Pradesh, accused in a single case under an offence whose maximum punishment is seven years, and who has never been convicted before. After a little over two years and four months in jail as an undertrial, he has crossed one-third of the seven-year maximum. With a custody certificate and a DLSA panel lawyer, an application under Section 479 BNSS is filed. Because it is a single case with no previous conviction and the offence does not carry death or life imprisonment, the court releases him on a personal bond, with no fee for the legal aid.
It is the rule that an undertrial prisoner must be released on bail once they have spent half of the maximum sentence for the alleged offence in jail while the case is still pending. For a first-time offender, the threshold drops to one-third of the maximum sentence. It replaced Section 436A of the old CrPC from 1 July 2024.
Yes. The Supreme Court, in the prison-conditions matter In Re: Inhuman Conditions in 1382 Prisons, accepted that Section 479 applies to all undertrials in pending cases, whether registered before or after 1 July 2024, treating it as the more beneficial provision. So old, pending cases are covered.
A first-time offender under Section 479 is a person who has never been convicted of any offence in the past. Only such a person gets the lower one-third threshold and release on bond. Anyone with a prior conviction falls under the general one-half rule.
It does not apply to offences punishable with death or imprisonment for life. Under Section 479(2), it also does not apply where investigation, inquiry or trial in more than one offence, or in several cases, is pending against the same person. In those situations you must use the ordinary bail provisions instead.
Section 479(3) makes it the Superintendent of the jail's duty to make a written application to the court once an undertrial completes the relevant detention period. In practice the prisoner, family, or a legal-aid lawyer should also file their own application rather than wait.
Yes. Every person in custody is entitled to free legal aid regardless of income under Section 12 of the Legal Services Authorities Act, 1987. Approach the District Legal Services Authority or the jail's legal-aid clinic, or use nalsa.gov.in. There is no fee for legal aid.
If you or a family member is an undertrial who may have crossed the one-half or one-third mark, ask the jail for a custody certificate today and contact the District Legal Services Authority for a free panel lawyer to file the Section 479 application. Keep a copy of the FIR, the offence sections, and any record of no prior conviction ready. For broader rights and procedure, read The RTI Playbook, and use the cross-linked guides above for anticipatory bail and for filing a bail application.