Undertrial

BNSS, 2023 — Section 479 (erstwhile CrPC, 1973 — Section 436A)

A person who has been accused of an offence and is in custody pending trial. Section 479 of the BNSS (erstwhile Section 436A of CrPC) provides for bail to undertrials who have served half the maximum period of imprisonment for the alleged offence. For cheque bounce (NI Act Section 138) accused, maximum imprisonment is 2 years, so bail under S.479 BNSS may be sought after 1 year.

In practice, undertrial bail is a quantum-of-custody argument that matters most in lower-stakes economic offences such as cheque dishonour. Section 479 of the BNSS (which replaced Section 436A of the CrPC) entitles an accused who has already spent half the maximum sentence for the alleged offence in custody pending trial to be released on bail. Because the maximum imprisonment for a Section 138 NI Act cheque-bounce offence is two years, an accused who has been in custody for around a year can invoke Section 479 to seek release while the trial drags on. The practical task for defence counsel is to compute the custody period precisely against the maximum sentence, account for any concurrent matters, and place the calculation before the court. For complainants and banks, this is a reminder that prolonged pre-trial detention is not a recovery strategy. Counsel verify the exact custody arithmetic before moving the application, as a miscount defeats the petition.