Pranav B Prem

The Kerala High Court has held that the benefit under the first proviso to Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) cannot be applied retrospectively to convicted prisoners. Justice C.S. Sudha, while dismissing a plea for suspension of sentence under this provision, emphasized that the Supreme Court has extended the benefit only to undertrial prisoners.

Section 479 BNSS- 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.

Background of the Case

The case arose from an application filed by the petitioner, Arunkumar, who had been convicted under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of ₹1,00,000, with an additional three-month imprisonment in case of default. Having already served nearly four and a half years of his sentence, the petitioner sought relief under the first proviso to Section 479 BNSS, arguing that he was a first-time offender and should be released on bond.

Contentions of the Parties

The petitioner’s counsel submitted that the first proviso to Section 479 BNSS provides that a first-time offender, who has undergone detention for up to one-third of the maximum imprisonment for the offense, is entitled to release on bond. Since the petitioner met these conditions, it was argued that his sentence should be suspended.

However, the Public Prosecutor opposed the plea, contending that the provision applies exclusively to undertrial prisoners and cannot be extended to convicted prisoners. It was further argued that the Supreme Court, in its order in Re: Inhuman Conditions in 1382 Prisons (W.P. (C) No. 406/2013), had explicitly extended the benefit of Section 479 BNSS with retrospective effect only to undertrial prisoners.

Court’s Findings

The Court took note of the fact that the offense in question was committed on August 12, 2020, whereas the BNSS came into effect on July 1, 2024. Analyzing the scope of Section 479 BNSS, the Court observed: "The Apex Court as per the aforesaid order has extended the benefit of the first proviso to Section 479 BNSS with retrospective effect only to under-trial prisoners. When the Apex Court is presently seized of the matter and is monitoring implementation of Section 479 BNSS, propriety demands that this Court refrain from interpreting and passing orders regarding its applicability to convicted prisoners retrospectively."

The Court also referred to the Supreme Court’s order dated August 23, 2024, in Re: Inhuman Conditions in 1382 Prisons, which directed the immediate implementation of Section 479 BNSS for undertrial prisoners. The Supreme Court’s observations were quoted in full, including: "In that view of the matter, it is deemed appropriate to direct 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. This step will go a long way in easing overcrowding in jails which is the primary focus of this Court in the present petition."

Since the Supreme Court’s directive was limited to undertrial prisoners, the High Court concluded that extending the same benefit to convicted prisoners would be inappropriate. The Court also rejected the petitioner’s reliance on Satender Kumar Antil v. Central Bureau of Investigation (2022), stating that the issue was not whether Section 479 BNSS applies to appeals or revisions, but whether the benefit can be extended retrospectively to convicts.

Verdict

In light of these observations, the Kerala High Court dismissed the application, reiterating that the first proviso to Section 479 BNSS does not have retrospective applicability for convicted prisoners. 

Cause Title: Arunkumar v State of Kerala

Case No: Crl.A 1042 of 2023

Date: January-14-2025

Bench: Justice C.S. Sudha

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