Section 428 CrPC and Section 468 BNSS: Set-Off of Pre-Conviction Detention
When an accused person is convicted and sentenced to a term of imprisonment, time already spent in custody during the investigation, inquiry or trial of the same case is generally credited against that sentence. This statutory credit is called set-off.
Section 468 BNSS, 2023 - Period of detention undergone by accused to be set off against sentence of imprisonment
Statutory provision
Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:
Provided that in cases referred to in section 475, such period of detention shall be set off against the period of fourteen years referred to in that section.
The BNSS preserves the core principle of giving credit for qualifying custody before conviction. Its proviso refers to Section 475 BNSS, the provision concerning restrictions on remission or commutation in certain cases.
Section 428 CrPC, 1973 - Original provision
Statutory text
Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:
Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.
Legislative amendment notes
The words excluding imprisonment in default of payment of fine were inserted by Act 45 of 1978, Section 31, with effect from 18 December 1978. The proviso relating to Section 433A was inserted by Act 25 of 2005, Section 34, with effect from 23 June 2006. These notes are retained from the original article.
Meaning, conditions and legal effect
1. There must be a conviction and a term of imprisonment
The provision applies where the accused is convicted and sentenced to imprisonment for a term. It is not a general direction that every period of custody in every case must be deducted from every sentence.
2. Detention must relate to the same case
Credit is for detention undergone during the investigation, inquiry or trial of the same case, before the date of conviction. Custody records, remand orders and case identification are important in determining the qualifying period.
3. Imprisonment in default of fine is excluded
The statute expressly excludes a term of imprisonment imposed solely because a fine has not been paid. Set-off against a substantive term of imprisonment should not be confused with imprisonment in default of payment of a fine.
4. Only the unserved balance remains
The term of imprisonment imposed upon conviction is reduced by the qualifying pre-conviction detention. The actual release date may also depend on lawful custody calculations, other sentences, warrants and applicable court or prison orders.
5. Special rule for the fourteen-year period
For cases covered by Section 475 BNSS (corresponding to Section 433A CrPC), qualifying pre-conviction detention is credited against the fourteen-year period specified by that provision. This does not itself create an automatic entitlement to remission or release.
6. Transitional application
Section 531 BNSS repeals the CrPC while saving specified pending investigations, inquiries, trials, appeals and applications. The applicable procedural provision must be identified from the date and status of the proceeding, rather than assuming the older provision can never apply.
Illustrative examples
Example: Two-year sentence
An accused spends six months in qualifying pre-conviction detention in the same case and is then sentenced to two years of imprisonment. Subject to accurate custody records and other applicable orders, the six months is credited and the balance of the sentence is approximately eighteen months.
Example: Time already served equals the term
If the qualifying detention period equals the entire term of imprisonment imposed, no further portion of that term ordinarily remains to be served under the set-off calculation. Other lawful detention orders or sentences may nevertheless affect release.
Example: Fine-default imprisonment
If a person is sentenced only to imprisonment in default of paying a fine, Section 468 does not provide set-off against that default term, because the exclusion is express.
Examples are simplified explanations, not calculations of an individual's release date.
Frequently asked questions
What is the purpose of Section 468 BNSS?
It credits qualifying detention during investigation, inquiry or trial of the same case before conviction against the term of imprisonment imposed on conviction.
Which BNSS section replaces Section 428 CrPC?
Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 428 of the Code of Criminal Procedure, 1973.
Does detention in a different case automatically count?
No. The statutory set-off applies to detention undergone in the same case. Questions about overlapping custody or other proceedings require examination of the actual detention and judicial records.
Can pre-conviction detention be set off against imprisonment in default of fine?
No. Section 468 expressly excludes imprisonment imposed in default of payment of a fine.
What happens in cases subject to the 14-year restriction?
For cases governed by Section 475 BNSS, qualifying pre-conviction detention is set off against the fourteen-year period referred to in that section.
Does set-off mean acquittal or remission?
No. Set-off is credit for qualifying pre-conviction detention; it does not cancel the conviction or independently grant remission.
Official legal sources and related reading
- National Crime Records Bureau - BNSS chapters and Section 468 text
- Bureau of Police Research and Development - Official BNSS text and correspondence table (PDF)
- India Code - Central legislation and current statutory records
- Section 427 CrPC - Subsequent sentences
- Section 429 CrPC - Saving
Updated 18 October 2026. For a specific case, consult the applicable legislation, court orders and custody records.