Right of Private Defence — Body and Property (Sections 34 to 44 BNS)

Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 96 to 106 of the Indian Penal Code, 1860 (IPC) — codify the right of private defence. The right is a substantive defence, not a partial mitigation: where the accused acts within its limits, no offence is committed at all. The Sanhita reproduces the IPC architecture intact, with paragraphs rephrased as clauses (a), (b) and (c) for ease of reading; the substantive content survives unchanged.

This chapter — part of our wider IPC and BNS notes series — sets out the eleven sections of the right in turn: the foundational rule under Section 34 BNS, the scope of the right under Sections 35 and 36 BNS, the limits under Section 37 BNS, the conditions under which the right extends to causing death (body) under Section 38 BNS and (property) under Section 41 BNS, and the doctrine of commencement and continuance under Sections 40 and 43 BNS. The supplementary rule under Section 44 BNS — risk of harm to innocent persons — closes the chapter.

Section 34 BNS — the foundational rule

Section 34 BNS (formerly Section 96 IPC) provides that nothing is an offence which is done in the exercise of the right of private defence. The provision is strikingly compact. It does not define the right; it does not set out its scope; it states only that the exercise of the right negates criminality. The substantive content of the right is supplied by the sections that follow.

The Supreme Court in Dharam v. State of Haryana, JT 2007 (1) SC 38, explained the principle on which the right rests. When an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual is entitled to protect himself and his property. The right serves a social purpose: the law does not require a citizen to behave like a coward when confronted with imminent unlawful aggression. There is, the Court observed, "nothing more degrading to the human spirit than to run away in face of danger". The right is therefore designed to be fostered within prescribed limits, not narrowly construed. The point sits naturally alongside the wider transition story set out in our introduction chapter, which records that the BNS retains the IPC architecture of private defence intact.

Section 35 BNS — body and property

Section 35 BNS (formerly Section 97 IPC) sets out the scope of the right. Every person has a right, subject to the restrictions in Section 37 BNS, to defend (a) his own body and the body of any other person against any offence affecting the human body; (b) the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit any such offence. The BNS rephrases the IPC paragraphs as numbered clauses, an editorial improvement that does not alter substance.

Two features of the section deserve attention. First, the right extends to the defence of any other person, not merely the defender. The right is not selfish; it includes the protection of strangers. Second, the right is bounded — by reference to the offences against the body in clause (a), and by an exhaustive list of property offences in clause (b). A trespass that is not criminal under Section 329 BNS, a casual annoyance, a verbal slight: these do not engage the right.

Section 36 BNS — defence against an unsound-mind person

Section 36 BNS (formerly Section 98 IPC) extends the right of private defence against acts done by persons who are themselves not criminally responsible — by reason of unsoundness of mind, immaturity of age, intoxication or misconception. The provision is a recognition that the threat from such a person is real even if the person is exempted from punishment by one of the doctrines covered in our chapter on the general exceptions of Sections 14 to 33 BNS. The defender does not lose his right merely because the aggressor enjoys a personal immunity.

Section 37 BNS — the central limits

Section 37 BNS (formerly Section 99 IPC) is doctrinally the most important section in the chapter, because it bounds the right. Four limits are set. First, there is no right of private defence against an act which does not reasonably cause apprehension of death or grievous hurt, if the act is done, or attempted to be done, by a public servant acting in good faith under colour of office, even though the act may not be strictly justifiable by law. Second, there is no right of private defence against an act done, or attempted to be done, by the direction of a public servant acting in good faith under colour of office, even though the direction may not be strictly justifiable by law. Third, there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Fourth, the right in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

The fourth limit — proportionality — is the most heavily-litigated. The Court in Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, held that to determine whether the right has been legitimately exercised, the entire incident must be examined with care and viewed in its proper setting. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused, and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors. The Court in Bhanwar Singh v. State of MP, (2008) 16 SCC 657, reiterated that the right is a defence right, not a right of aggression or reprisal — there is no right of private defence where there is no apprehension of danger.

Section 38 BNS — when the right extends to causing death (body)

Section 38 BNS (formerly Section 100 IPC) lists seven grounds on which the right of private defence of the body extends to the voluntary causing of death of the assailant. The right extends to causing death where the assault may reasonably cause apprehension of death; where it may reasonably cause apprehension of grievous hurt; where the assault is with intent to commit rape; where it is with intent to gratify unnatural lust; where it is with intent to commit kidnapping or abduction; where it is with intent to wrongfully confine a person under circumstances which may reasonably cause apprehension that the person confined will be unable to have recourse to public authorities for release; and (the new ground added by the IPC amendment of 2013, retained in BNS) where the assault is with the intent of throwing or administering acid or attempting to throw or administer acid which may reasonably cause apprehension that grievous hurt will otherwise be the consequence.

The Supreme Court in Deo Narain v. State of UP, (1973) 1 SCC 347, held that the nature of apprehension depends on the nature of the weapon used or intended to be used; it cannot be said that, because the complainant's party had only used lathis, the accused was not justified in using a spear, especially where a lathi blow was aimed at a vulnerable part such as the head. The proportionality test is not arithmetical; it is contextual.

Section 39 BNS — when the right extends to other harm (body)

Section 39 BNS (formerly Section 101 IPC) provides that, if the assault be not of any of the descriptions enumerated in Section 38 BNS, the right of private defence does not extend to the voluntary causing of death, but does extend, subject to Section 37 BNS, to the voluntary causing to the assailant of any harm other than death. The provision operates as the residual rule — where the threat does not engage one of the seven grounds in Section 38 BNS, the defender may still inflict harm short of death.

Section 40 BNS — commencement and continuance (body)

Section 40 BNS (formerly Section 102 IPC) governs when the right of private defence of the body commences and how long it continues. The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, although the offence may not have been committed; and it continues so long as the reasonable apprehension of danger to the body continues.

The Supreme Court in Sekar v. State, AIR 2002 SC 2972, explained the commencement test: there must be an attempt or threat and consequent thereon an apprehension of danger; a mere idle threat or every apprehension of a rash or timid mind will not justify the exercise of the right. The Court in James Martin v. State of Kerala, (2004) 2 SCC 203, held that present and imminent danger seems to be the standard — if the defender reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right; he must use force necessary for the purpose; and he must stop using force as soon as the threat has disappeared.

The right ends with the necessity. The Court in State of UP v. Ramswarup, AIR 1974 SC 1570, held that there is no right to inflict punishment on the wrong-doer for his past act after the apprehension has ceased to exist. So where the deceased was fleeing for his life, there was no justification to shoot him down — that would be a case of murder and nothing else. The Court reaffirmed the principle in State of UP v. Roop Singh, AIR 1996 SC 2278, where the testimony of independent witnesses showed that the accused had chased a fleeing victim and killed him; the right of private defence was held unavailable.

The no-retreat rule and Jaidev

One of the distinctive features of the Indian law of private defence is its rejection of the common-law duty to retreat. The Supreme Court in Jaidev v. State of Punjab, AIR 1963 SC 612, held — through Gajendragadkar J — that there is no rule in India which expects a man first to run away or at least try to do so before he can exercise his right of private defence. The defender has every right to stand his ground and defend himself if there is no time to have recourse to official help. The Court in Mohd Khan (1972) reaffirmed: the law does not expect a citizen to be a rank coward, or to leave his own house at the mercy of the burglar.

A subsequent two-Judge Bench in Yogendra Morarji (1980) suggested, perhaps inconsistently, that the defender must first attempt to avoid the attack by retreating; the better view, which is consistent with Jaidev and the stream of authorities since, is that retreat is not a precondition of the right. Mahabir Choudhary v. State of Bihar (1996) summarised the position: if a person's property is in imminent danger of being attacked, he has the right to resort to such measures as would be reasonably necessary to thwart the attack.

Section 41 BNS — when the right extends to causing death (property)

Section 41 BNS (formerly Section 103 IPC) specifies the four grounds on which the right of private defence of property extends to voluntarily causing death of the wrong-doer. The grounds are: robbery; house-breaking after sunset and before sunrise; mischief by fire committed on any building, tent or vessel used as a human dwelling or as a place for the custody of property; and theft, mischief or house-trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if the right is not exercised.

The first three are absolute — the property offence itself, by reason of its nature, justifies causing death of the wrong-doer. The fourth is conditional on the apprehension of death or grievous hurt; ordinary theft or trespass without such apprehension does not justify causing death. The Code thus calibrates the right to property defence by reference to the gravity of the threat. For the substantive offences themselves, see our chapter on theft and our chapter on robbery and dacoity.

Section 42 BNS — when the right extends to other harm (property)

Section 42 BNS (formerly Section 104 IPC) is the residual rule for property: if the offence — being theft, mischief or criminal trespass — is not of any of the descriptions in Section 41 BNS, the right of private defence does not extend to voluntary causing of death, but does extend, subject to Section 37 BNS, to voluntary causing to the wrong-doer of any harm other than death.

Section 43 BNS — commencement and continuance (property)

Section 43 BNS (formerly Section 105 IPC) is the property analogue of Section 40 BNS. The right of private defence of property commences when a reasonable apprehension of danger to the property arises. It continues against theft till the property has been recovered, or till the offender retreats with it, or till the assistance of the public authorities is obtained, or till the offender escapes from the property. It continues against robbery as long as the offender causes or attempts to cause to any person death, or hurt, or wrongful restraint, or as long as the fear of instant death, hurt or restraint continues. It continues against criminal trespass or mischief as long as the offender continues in the commission of criminal trespass or mischief. It continues against house-breaking after sunset and before sunrise as long as the house-trespass which has been begun by such house-breaking continues.

The level of detail in Section 43 BNS reflects the Code's calibration: the right to defend property does not last indefinitely; it ends when the threat that justified its commencement has subsided.

Section 44 BNS — risk of harm to innocent persons

Section 44 BNS (formerly Section 106 IPC) supplies a supplementary rule for the case where the exercise of the right risks harm to innocent persons. If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is so situated that he cannot effectively exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. The illustration is of A who is attacked by a mob attempting to murder him; A cannot effectively exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children mingled with the mob. A commits no offence if by so firing he harms any of the children.

Reasonable apprehension as the test

The thread that runs through Sections 38, 39, 40, 41, 42 and 43 BNS is the requirement of "reasonable apprehension". The Court repeatedly returns to the proposition that the extent of the right depends not on the actual danger but on whether there was a reasonable apprehension of such danger. The point is illustrated in the property context as much as in the body context. A defender who fires on what he reasonably believes to be a robbery in progress is within the right under Section 41 BNS, even if it later transpires that the apparent robbers were entitled to take the property. The standard is the reasonable apprehension at the moment of action, judged from the perspective of the defender, not a retrospective reconstruction.

The reasonableness inquiry has both an objective and a subjective component. Objectively, would a person of ordinary firmness, in the same situation, have apprehended the danger? Subjectively, did this defender, in fact, apprehend it? Both questions must be answered in the affirmative. Where the defender's apprehension is unreasonable — where, for example, the alleged threat was a child playing with a toy weapon — the right does not arise. Where the defender did not in fact apprehend the danger but used force on a pretext, the right is equally unavailable. The doctrinal anchor for the framework, drawing on the wider general-part discussion of mens rea, sits in our chapter on the general definitions of Section 2 BNS.

Self-creation, aggression, and the limits of the right

The right is unavailable where the defender himself created the necessity for it. The Court in Bhanwar Singh stated the rule directly: the right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. The necessity must be a present necessity, whether real or apparent. The Court in Biran Singh v. State of Bihar, AIR 1975 SC 87, applied the rule: running into a house, fetching a sword, and assaulting the deceased are by no means matters of chance; they bear the stamp of a design to kill, and take the case out of the purview of private defence.

The Court in Krishanlal v. State, 1988 Cr LJ 144, illustrated the converse case. The accused was dispossessed of his land by a party of men. He ran to his residence, fetched his gun, and returned within fifteen minutes to fire at and injure the dispossessors. He was held to be within his rights against them. But when he went further and chased and injured a person who was just standing by — and who died — the right of private defence was held unavailable as against that person; the defender's escalation took him outside the limits of the right. The escalation analysis is doctrinally close to the assessment under the offence-specific exceptions to murder, where the Court likewise asks how far the accused has gone beyond what the situation reasonably called for.

Strategic note for the practitioner and aspirant

Three propositions to take forward. First, the right of private defence under Section 34 BNS is a substantive defence, not a partial mitigation. Where the accused is within the right, no offence has been committed; the question is not how much to reduce the sentence but whether to convict at all. Second, Section 37 BNS is the doctrinal heart of the chapter. Its four limits — no defence against good-faith public servants except for apprehension of death or grievous hurt; no defence where there is time to have recourse to public authorities; no defence beyond the harm necessary; and the proportionality rule — bound every exercise of the right. Third, the no-retreat rule established in Jaidev survives. The defender is not required to flee; he is required to exercise the right within the limits of Section 37 BNS, no more.

The next chapter takes up the law of abetment under Sections 45 to 60 BNS, including the doctrines of instigation, conspiracy and aid. After that, we turn to criminal conspiracy and to the law of attempt under Section 62 BNS. A section-by-section comparison of all eleven private-defence sections is collected in the IPC-to-BNS comparative table.

Frequently asked questions

Does the law of private defence under the BNS require the accused first to retreat?

No. The Supreme Court in Jaidev v. State of Punjab, AIR 1963 SC 612, expressly held — through Gajendragadkar J — that the common-law rule of retreat is not part of Indian law. A person attacked has every right to stand his ground and defend himself if there is no time to seek official help. The defender is not required to be a rank coward, or to leave his own house at the mercy of a burglar. The right is bounded by Section 37 BNS, not by a duty to flee.

When does the right of private defence extend to causing the death of the assailant?

Section 38 BNS (formerly Section 100 IPC) lists seven grounds — apprehension of death; apprehension of grievous hurt; assault with intent to commit rape; assault with intent to gratify unnatural lust; assault with intent to commit kidnapping or abduction; assault with intent to wrongfully confine where the confined person cannot have recourse to public authorities; and (added in 2013, retained in BNS) assault with intent to throw or administer acid raising apprehension of grievous hurt. The right extends to causing death only on these grounds.

What are the four limits in Section 37 BNS?

Section 37 BNS sets four limits on the right of private defence. First, there is no right against an act by a public servant acting in good faith under colour of office, unless the act causes apprehension of death or grievous hurt. Second, there is no right against an act done at the direction of a public servant under similar good-faith circumstances. Third, there is no right where there is time to have recourse to the protection of the public authorities. Fourth, the right does not extend to the inflicting of more harm than necessary for the purpose of defence.

Can a person plead private defence after creating the necessity himself?

No. The right is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. The Court in Bhanwar Singh v. State of MP, (2008) 16 SCC 657, stated this directly. The right is a defence right, not a right of aggression or reprisal. Where the accused has provoked the encounter, fetched a weapon and returned to escalate, his actions bear the stamp of a design to harm — and Biran Singh v. State of Bihar, AIR 1975 SC 87, denies him the benefit of the section.

Does the right of private defence continue after the threat has ceased?

No. The right ends with the necessity. Section 40 BNS (body) provides that the right continues only so long as the reasonable apprehension of danger continues. Section 43 BNS (property) calibrates duration to the offence — against theft, until recovery or escape; against robbery, until the threat of instant violence subsides; against trespass, while the trespass continues. The Court in State of UP v. Ramswarup, AIR 1974 SC 1570, held that there is no right to inflict punishment for a past act after the apprehension has ceased — chasing a fleeing victim and shooting him is murder, not private defence.

Can the right of private defence be exercised against an unsound-mind aggressor?

Yes. Section 36 BNS (formerly Section 98 IPC) provides that every person has the same right of private defence against an act done by a person of unsound mind, by an immature child, by an intoxicated person, or by a person acting under misconception, as he would have against the same act if it were an offence. The defender does not lose his right merely because the aggressor enjoys a personal immunity from prosecution under Sections 20 to 24 BNS. The threat itself, not the aggressor's culpability, founds the right.