The retrospective application of Section 479 of the Bharatiya Nagarik Suraksha Sanhita is limited to under-trial prisoners and does not extend to convicted prisoners.

ORDER :

(C.S. Sudha, J.)

Crl.M.Appl. No.1 of 2023

This application under Section 389(1) Cr.P.C., has been filed seeking suspension of sentence of the applicant/first accused in S.C.No.3 of 2021 on the file of the Court of Session, Thrissur.

2. The learned counsel for the applicant/first accused submits that the latter has been undergoing imprisonment from 12/08/2020 onwards, which means that he has served nearly 4½ years of his sentence. He being a first offender, is entitled to the benefit of the first proviso to Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (BNSS) and so the sentence is liable to be suspended.

3. The learned Public Prosecutor submitted that the Apex Court is seized of the matter and is monitoring the implementation of Section 3. The learned Public Prosecutor submitted that the Apex Court is seized of the matter and is monitoring the implementation of Section

4. The applicant/first accused as per the impugned judgment dated 04/03/2023 has been found guilty of the offence punishable under Section 20(b)(ii)C of the NDPS Act and has been sentenced to undergo rigorous imprisonment for 10 years and to a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for three months. Section 479 BNSS the benefit of which is sought for reads thus:-

“479. 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 onethird 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.”

5. It is the first proviso sub section (I) that has been pressed into service. The incident in the case on hand took place on 12/08/2020 at 04:00 p.m. The BNSS came into effect w.e.f. 01/07/2024 apparently much after the commission of the crime in this case. Here it would be apposite to refer to the order dated 23/08/2024 of the apex court in Re-Inhuman Conditions in 1382 prisons (W.P. (C)No.406/2013).

“1. This order is in continuation of the order passed on 13th August, 2024. On the last date of hearing, Mr. Gaurav Agrawal, learned Amicus Curiae had submitted that the Bharatiya Nagarik Suraksha Sanhita, 2023, which has replaced the Code of Criminal Proce