Section 401 BNSS vs Section 4 of the Probation of Offenders Act: Eligibility, the Bond, Report, Supervision, Conditions, Breach and Effect Compared, with Five Worked Examples

Section 401(1) of the BNSS and Section 4 of the Probation of Offenders Act, 1958 both allow a court to release a convicted offender on a bond of good conduct for up to three years instead of sentencing him. The wording is similar enough that the two are often treated as interchangeable. They are not. Section 401 draws eligibility lines by age, gender, punishment and previous conviction that Section 4 does not, and Section 4 comes with tools that Section 401 lacks. This note compares the two provisions clause by clause and applies them to five examples.

1. Who Can Be Released: One Track and Three

Section 4 is a single wide gate: any offender convicted of an offence not punishable with death or imprisonment for life may pass through, if the court thinks it expedient. Section 401(1) is a gate with three lanes, each with its own height limit, and a guard who turns away anyone with a previous conviction.

Eligibility under Section 4 and Section 401(1)

Figure 1: Eligibility under Section 4 and Section 401(1)

Men aged twenty-one or more. Under Section 401, only for offences punishable with fine only or with imprisonment of seven years or less. Under Section 4, for any offence short of death or life imprisonment.
Persons under twenty-one and women. Under both provisions, any offence not punishable with death or life imprisonment. For offenders under twenty-one, Section 6 of the Act adds a presumption against imprisonment.
Previous conviction. Section 401 applies only where no previous conviction is proved. Section 4 contains no such bar; antecedents are part of the 'character of the offender' the court weighs.
The statutory factors. Both require the court to consider the age, character or antecedents of the offender (Section 401) or the circumstances, the nature of the offence and the character of the offender (Section 4)
Fixed abode. Both require the court to be satisfied that the offender or his surety has a fixed place of abode or regular occupation (Section 4(1) proviso; Section 401(7))

2. Five Worked Examples

Five offenders under Section 4 and Section 401

Figure 2: Five offenders under Section 4 and Section 401

Example A. A man of thirty, with no record, is convicted of cheating, punishable with up to seven years under Section 318(4) BNS. Both provisions are open.
Example B. The same man is convicted of robbery, punishable with up to ten years under Section 309(4) BNS. Section 401 is closed because the punishment exceeds seven years; Section 4 remains open because robbery is not punishable with death or life.
Example C. A woman of forty is convicted of the same robbery. Both provisions are open, because Section 401 gives women the wider track.
Example D. A man of nineteen is convicted of the same robbery. Both are open; and under the Act, Section 6 requires the court not to imprison him unless release is undesirable, after calling for the probation officer's report.
Example E. A man of thirty with one previous conviction is convicted of a minor offence. Section 401 is closed by the previous conviction; Section 4 leaves it to the court's judgment.

3. After Release: What Each Provision Provides

The bond, report, supervision and breach compared

Figure 3: The bond, report, supervision and breach compared

The bond. Section 4: a bond with or without sureties, to appear and receive sentence when called upon within a period not exceeding three years, and meanwhile to keep the peace and be of good behaviour. Section 401: the same undertaking, on a 'bond or bail bond', using the BNSS's defined terms.
The report. Section 4(2) requires the court to consider the probation officer's report, if any; the Supreme Court in Chellammal (2025) treated calling for it as a necessary step. Section 401 has no report.
Supervision and conditions. Section 4(3) and (4) allow a supervision order of at least one year and conditions such as residence and abstention. Section 401 allows only the conditions to keep the peace and be of good behaviour.
Compensation. Section 5 of the Act allows compensation and costs within the probation order. Under Section 401, the court must rely on the general power in Section 395 BNSS.
Breach. Under Section 9 of the Act, the court may, after hearing, sentence the offender or, for a first failure, impose a penalty of up to ₹50 while the bond continues. Under Section 401(8) and (9), the court may issue a warrant, remand the offender or admit him to bail, and then pass sentence.
Appellate and revisional powers. Section 11 of the Act and Section 401(4) and (5) BNSS both let higher courts make or set aside probation orders.
Effect. Section 12 of the Act removes statutory disqualifications. Section 401 does not.

4. Which One the Court Uses

The court does not choose between them freely. Where the Act is in force, Section 19 excludes the general provision and the court proceeds under Section 4. Section 401 governs only where the Act has not been brought into force (see Topic 43). A comparison of the two is therefore not a comparison of options open to the same court, but of the protection an offender receives depending on where he is tried.

⚠ Common mistakes

First, applying the seven-year limit of Section 401 to a case under Section 4; Section 4 has no such limit. Secondly, treating a previous conviction as an absolute bar under Section 4; the bar in the Act applies only to admonition under Section 3. Thirdly, assuming that release under Section 401 removes disqualification; only Section 12 of the Act does.

5. Quick Revision and Memory Aids

'One gate, three lanes'. Section 4 has one wide track; Section 401 has three with limits.
'Man over 21: seven years'. The key limit that exists only in Section 401.
'Record bars 401, not 4'. Previous conviction.
'Report, supervise, compensate, clean slate'. What Section 4 has and Section 401 lacks.
'Three years in both'. The maximum bond period.

6. Frequently Asked Questions

Can a man over twenty-one convicted of an offence punishable with ten years be released on probation?

Under Section 4 of the Act, yes, since the offence is not punishable with death or life imprisonment. Under Section 401 BNSS, no, since the punishment exceeds seven years.

Is a previous conviction a bar to probation?

Under Section 401 BNSS, yes. Under Section 4 of the Act, no; it is a factor in assessing the offender's character. It bars only admonition under Section 3.

Does Section 401 BNSS provide for supervision?

No. Supervision by a probation officer is available only under Section 4(3) of the Act.

7. Related Topics and Provisions

Topic 6: Section 4. Complete note on Section 4.
Topic 21: Probation under the BNSS. Section 401 in detail.
Topic 29: Section 4 vs Section 6. Young offenders.
Topic 43: Probation Act vs Section 401 BNSS. The two regimes as systems.