Section 439 CrPC: Special powers of High Court or Court of Session regarding bail
Code of Criminal Procedure, 1973
Section 439 CrPC at a Glance
Section 439 CrPC deals with special powers of High Court or Court of Session regarding bail. From 1 July 2024 it is replaced by Section 483 BNSS. Popularly called bail by the High Court or Court of Session. The rule is unchanged; IPC references now read as BNS 65 and 70(2).
What Section 439 CrPC Says
439. Special powers of High Court or Court of Session regarding bail
(1) A High Court or Court of Session may direct,—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
Source: Section 439, Code of Criminal Procedure, 1973
Section 439 CrPC in Simple Words
Section 439 of the Code of Criminal Procedure, 1973 gives a High Court or Court of Session special powers about bail. Under Section 439(1)(a) CrPC, the Court may direct that any person accused of an offence and in custody be released on bail. If the offence is of the nature specified in section 437(3) of the Code, the Court may impose any condition which it considers necessary for the purposes mentioned in that sub-section. Under Section 439(1)(b) CrPC, the Court may direct that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.
The first proviso to Section 439(1) CrPC covers a person accused of an offence triable exclusively by the Court of Session, or punishable with imprisonment for life though not so triable. Before granting that person bail, the Court shall give notice of the bail application to the Public Prosecutor. The Court shall give this notice unless it is of opinion, for reasons to be recorded in writing, that giving it is not practicable. The second proviso to Section 439(1) CrPC covers a person accused of an offence triable under section 376(3), section 376AB, section 376DA or section 376DB of the Indian Penal Code.
Before granting that person bail, the Court shall give notice of the bail application to the Public Prosecutor within fifteen days from the date of receipt of the notice of the application. Under Section 439(1A) CrPC, the presence of the informant, or any person authorised by the informant, is obligatory at the hearing of a bail application of a person accused under any of those sections. Under Section 439(2) CrPC, the Court may direct that any person released on bail under Chapter XXXIII of the Code be arrested and committed to custody.
Who Can Use Section 439 CrPC
- A High Court or a Court of Session may direct the release on bail of any person accused of an offence who is in custody, and for an offence of the nature specified in Section 437(3) of the Code of Criminal Procedure, 1973 it may impose any condition it considers necessary for the purposes in that sub-section.
- A High Court or a Court of Session may direct that any bail condition imposed by a Magistrate when releasing a person on bail be set aside or modified under Section 439(1)(b) of the Code of Criminal Procedure, 1973.
- Under the first proviso to Section 439(1) of the Code of Criminal Procedure, 1973, before granting bail to a person accused of an offence triable exclusively by the Court of Session or punishable with imprisonment for life, the High Court or the Court of Session shall give notice of the bail application to the Public Prosecutor, unless it is of opinion, for reasons to be recorded in writing, that it is not practicable to give such notice.
- At the hearing of a bail application for a person accused under Section 376(3), Section 376AB, Section 376DA or Section 376DB of the Indian Penal Code, Section 439(1A) of the Code of Criminal Procedure, 1973 makes the presence of the informant or a person authorised by the informant obligatory.
- Under Section 439(2) of the Code of Criminal Procedure, 1973, a High Court or a Court of Session may direct the arrest and committal to custody of any person who has been released on bail under the same Chapter of the Code.
Time Limits Under Section 439 CrPC
- Under the second proviso to Section 439(1) of the Code of Criminal Procedure, 1973, for an offence triable under Section 376(3), Section 376AB, Section 376DA or Section 376DB of the Indian Penal Code, the High Court or the Court of Session shall give notice of the bail application to the Public Prosecutor within a period of fifteen days from the date of receipt of notice of the application, before granting bail.Act text: “within a period of fifteen days from the date of receipt of the notice of such application”
Example of Section 439 CrPC
When Section 439 CrPC Does Not Apply
- The power to direct release on bail under Section 439(1)(a) of the Code of Criminal Procedure, 1973 does not apply if the person is not accused of an offence or is not in custody.
- The power under Section 439(2) of the Code of Criminal Procedure, 1973 to direct arrest and committal to custody does not apply if the person has not been released on bail under that Chapter of the Code.
Bail by High Court Under BNSS 483: What Changed
Section 439 CrPC is now covered under Section 483 BNSS.
Section 439 of the Code of Criminal Procedure, 1973 became Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. Section 439(1) CrPC, Section 439(1A) CrPC and Section 439(2) CrPC are renumbered as Section 483(1) BNSS, Section 483(2) BNSS and Section 483(3) BNSS, with no new sub-section. In Section 483(1)(a) BNSS, Section 437(3) CrPC becomes Section 480(3) BNSS. In the second proviso to Section 483(1) BNSS and in Section 483(2) BNSS, Section 376(3), Section 376AB, Section 376DA and Section 376DB of the Indian Penal Code become Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, 2023. BNS 70(2) covers gang rape of a woman under eighteen, where IPC 376DA and IPC 376DB covered under sixteen and under twelve.
View detailed comparison (CrPC 439 vs BNSS 483) →FAQs on Section 439 CrPC
Which courts can exercise the special bail powers under Section 439 CrPC and what orders may they pass?▼
A High Court or a Court of Session may exercise the special powers in Section 439 of the Code of Criminal Procedure, 1973. Under Section 439(1) CrPC, either court may direct that any person accused of an offence and in custody be released on bail, may impose conditions it considers necessary if the offence is of the nature specified in Section 437(3) CrPC, and may set aside or modify any condition imposed by a Magistrate when releasing a person on bail.
When must the High Court or the Court of Session give notice to the Public Prosecutor before granting bail under Section 439 CrPC?▼
Under the first proviso to Section 439(1) of the Code of Criminal Procedure, 1973, prior notice to the Public Prosecutor is required for offences triable exclusively by the Court of Session or punishable with imprisonment for life, unless the court records reasons in writing that it is of opinion that notice is not practicable. For offences triable under Section 376(3), Section 376AB, Section 376DA or Section 376DB of the Indian Penal Code, notice shall be given within fifteen days from receipt of notice of the application.
When is the presence of the informant obligatory at a bail hearing under Section 439 CrPC, and can a person on bail be re-arrested?▼
Section 439(1A) of the Code of Criminal Procedure, 1973 makes the presence of the informant or any person authorised by the informant obligatory at the time of hearing of the bail application for a person under Section 376(3), Section 376AB, Section 376DA or Section 376DB of the Indian Penal Code. Separately, under Section 439(2) CrPC, a High Court or a Court of Session may direct that any person who has been released on bail under the Chapter be arrested and committed to custody.
Where is Section 439 CrPC found from 1 July 2024?▼
The Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. From 1 July 2024, the provisions of Section 439 CrPC are found in Section 483 BNSS, with Section 439(1) CrPC in Section 483(1) BNSS, Section 439(1A) CrPC in Section 483(2) BNSS, and Section 439(2) CrPC in Section 483(3) BNSS.
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Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 27 Oct 2026 ·