The right of private defence is a legal right that allows a person to use necessary and reasonable force to protect themselves, another person, or property from an unlawful attack or harm. Under the Bharatiya Nyaya Sanhita (BNS), a person does not commit an offence when they lawfully use force to prevent or stop such a threat.
Core Rules of Private Defence
- Only for protection: The right of private defence is meant to protect a person or property from harm. It cannot be used to punish the attacker or take revenge.
- Begins when there is a genuine threat: This right arises when a person reasonably believes that there is an immediate danger to their body, someone else, or property.
- Ends when the danger is over: The right continues only as long as the threat exists. Once the danger has passed, the right of private defence also comes to an end.
- Force must be proportionate: A person may use only as much force as is reasonably necessary to protect against the threat. Excessive or unnecessary force is not justified.
Section 34 : Things done in private defence – Nothing is an offence which is done in the exercise of the right of private defence.
Simple meaning:
Section 34 of the Bharatiya Nyaya Sanhita (BNS) says that an act is not considered an offence if it is lawfully done while exercising the right of private defence.
In simple words, if a person is facing an unlawful threat or attack and uses the rightful and necessary force to protect themselves, another person, or property, that act will not be treated as a crime.
Example:
A attacks B with a knife. B pushes A away and, while defending himself, causes injury to A. If B’s actions were within the limits of private defence, B would not be guilty merely because A was injured.
Important: The section gives legal protection only to acts done in the exercise of the right of private defence. It does not give a person a licence to use unnecessary force or take revenge after the danger has ended.
Doctrine of Retreat (Retreat to the Wall)
The Doctrine of Retreat deals with whether a person must run away or move back before using the right of private defence.
In Jai Dev v. State of Punjab, AIR 1963 SC 612, the Supreme Court, speaking through Gajendragadkar, J., made it clear that Indian law does not generally require a person to retreat before defending themselves. A person has the right to stand their ground and protect themselves when faced with an unlawful attack, especially when there is no sufficient time to seek help from the authorities. The law does not expect a person to behave like a coward and abandon their own home simply because an intruder or burglar enters it.
However, in Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660, Sarkaria, J. observed that a person should, where reasonably possible, try to avoid the attack by moving away or retreating. According to this approach, if a person can safely avoid the danger by retreating but instead chooses to confront the attacker, the availability of the right of private defence may be affected.
In simple terms: Indian law does not impose an absolute duty to run away before defending yourself. However, unnecessary confrontation should be avoided where it is reasonably possible and safe to do so.
Inherent Right of Protection
In Deo Narain v. State of Uttar Pradesh, AIR 1973 SC 473, the Supreme Court explained that the right of private defence is based on a person’s natural and inherent right to protect themselves against an unlawful attack.
The law does not expect a person to simply run away when their life, body, or property is in danger. A person may use reasonable force to resist and prevent the unlawful attack.
The basic principle is that when someone tries to commit an offence through force, the person facing the attack is legally entitled to use necessary force to protect themselves.
In simple words: If someone unlawfully attacks you or puts your life, body, or property in danger, you have the right to defend yourself instead of simply standing helplessly or running away.
Section 35 – Right of Private Defence of Body and Property
Section 35 means that a person can legally defend their own body, another person’s body, their own property, or another person’s property against specified unlawful acts, but this right must always be exercised within the restrictions of Section 37.
Opening Part
Original language:
“Every person has a right, subject to the restrictions contained in section 37, to defend—”
Simple meaning:
Every person has the legal right to defend themselves, another person, or property from certain unlawful acts. However, this right is not unlimited. The restrictions mentioned in Section 37 must be followed.
Clause (a) – Protection of Body
Original language:
“his own body, and the body of any other person, against any offence affecting the human body;”
Simple meaning:
A person has the right to protect their own body as well as another person’s body when someone commits or attempts to commit an offence against the human body.
What does this mean?
The right is not limited to self-defence. You can also intervene to protect another person who is being unlawfully attacked.
Example:
A attacks B with a knife. C sees the attack and uses reasonable force to stop A and protect B.
Here, C can exercise the right of private defence to protect B, even though C himself is not being attacked.
Key point:
Section 35(a) protects:
- Your own body
- Another person’s body
- Against offences affecting the human body
Clause (b) – Protection of Property
Original language:
“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 theft, robbery, mischief or criminal trespass.”
Simple meaning:
A person can also defend their own property or someone else’s property against certain unlawful acts.
The property may be:
- Movable property – things that can be moved, such as a mobile phone, vehicle, jewellery, etc.
- Immovable property – land, house, building, etc.
The right applies when the property is threatened by:
- Theft
- Robbery
- Mischief
- Criminal trespass
- An attempt to commit any of these offences
Illustrations
Illustration 1 – Theft:
A attempts to take B’s mobile phone without B’s permission. B may use reasonable force to stop A from taking the phone, subject to the restrictions under Section 37.
Illustration 2 – Criminal Trespass:
A enters B’s house without lawful authority with the intention of committing an offence. B may use reasonable force to prevent A from unlawfully entering or remaining on the property, subject to the limits of the right of private defence.
Illustration 3 – Protection of Another Person’s Property:
A attempts to break the window of C’s shop. B, who is present at the spot, may intervene and use reasonable force to prevent A from damaging C’s property, even though the shop does not belong to B.
Section 35 in One Table
| Clause | What can be protected? | Against what? |
|---|---|---|
| 35(a) | Your own body or another person’s body | Any offence affecting the human body |
| 35(b) | Your own or another person’s movable/immovable property | Theft, robbery, mischief, criminal trespass, or attempts to commit them |
No Right of Private Defence
Tanaji Govind Misal v. State of Maharashtra, AIR 1998 SC 174, the Supreme Court considered a situation where a group of 29 accused persons went onto land belonging to the complainant to remove babul branches that had been kept there. When the complainant’s side objected, the accused attacked them with axes and other weapons.
The evidence established that the property belonged to the complainant party. Therefore, the accused could not claim that they were defending their own property.
The injuries also showed that the accused party was the aggressor. The complainant’s side suffered 51 injuries, whereas the accused side suffered only 15 injuries, most of which were minor. Only one accused suffered a fracture of the left ulna.
Considering these circumstances, the Court held that the accused had no right of private defence, either to protect the property or to protect their persons.
In simple words: A person cannot claim private defence when they themselves unlawfully enter another person’s property and start the confrontation. The right of private defence is meant for protection against an unlawful attack, not for initiating an attack or taking control of someone else’s property.
Section 36 : Right of Private Defence Against Act of a Person of Unsound Mind, etc. – When an act, which would otherwise be a certain offence, is not that offence, by
reason of the youth, the want of maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any misconception on the part of
that person, every person has the same right of private defence against that act which he
would have if the act were that offence
Simple Meaning
Section 36 says that a person can exercise the right of private defence even when the person causing the danger is not legally guilty of an offence because of their age, lack of maturity, unsoundness of mind, intoxication, or a misconception.
The important point is that the right of private defence depends on the nature of the act and the danger faced, not simply on whether the attacker can be punished for that act.
1. “When an act, which would otherwise be a certain offence…”
Bare Act language:
“When an act, which would otherwise be a certain offence…”
Simple meaning:
Suppose a person does something which, under ordinary circumstances, would amount to an offence—for example, attacking another person.
Normally, such an act would attract criminal liability.
2. “…is not that offence, by reason of the youth…”
Bare Act language:
“by reason of the youth…”
Simple meaning:
If the person doing the act is too young to be criminally responsible, the act may not legally be treated as an offence.
However, the person facing the attack can still defend themselves.
Example:
A very young child attacks B with a dangerous object. Even though the child may not be criminally liable because of age, B can still take necessary steps to protect himself.
3. “…the want of maturity of understanding…”
Bare Act language:
“the want of maturity of understanding…”
Simple meaning:
If the person does not have sufficient maturity or understanding to appreciate the nature and consequences of their act, they may not be legally responsible in the same way as a mature person.
But this does not take away the other person’s right of private defence.
4. “…the unsoundness of mind…”
Bare Act language:
“the unsoundness of mind…”
Simple meaning:
If a person is of unsound mind and attacks someone, that person may not be criminally responsible because of their mental condition.
However, the person being attacked still has the right to protect themselves.
Example:
A person of unsound mind attacks B with a knife. B can defend himself even though the attacker may not be legally guilty of the offence.
5. “…or the intoxication of the person doing that act…”
Bare Act language:
“the intoxication of the person doing that act…”
Simple meaning:
The section also covers situations where the legal effect of the person’s intoxication means that the act is not treated as the relevant offence.
Even then, the person facing the danger does not lose their right of private defence.
6. “…or by reason of any misconception on the part of that person…”
Bare Act language:
“or by reason of any misconception on the part of that person…”
Simple meaning:
Sometimes a person may act because of a genuine mistake or misconception.
For example, a person may mistakenly believe that someone is a criminal or an attacker and act against them.
Even if that mistake affects the criminal liability of the person who acted, the other person may still defend themselves against the danger.
The Most Important Part
Bare Act language:
“every person has the same right of private defence against that act which he would have if the act were that offence.”
Simple meaning:
This is the main rule of Section 36.
Even if the person creating the danger cannot legally be held guilty of the offence, the person facing the danger gets the same right of private defence as they would have received if the act had actually been an offence.
Illustrations
(a) Suppose Z is a person of unsound mind and he tries to kill A. Because of his mental condition, Z may not be legally responsible for committing an offence. However, A still has the right to defend himself against Z in the same way as he would if Z were mentally sound.
(b) Suppose A enters a house at night, even though he has a legal right to enter that house. Z genuinely and honestly believes that A is a house-breaker and attacks him. Since Z is acting under a genuine mistake, Z may not be guilty of an offence. Even so, A has the same right of private defence against Z as he would have if Z were attacking him without such a misconception.
Sure. I’ll keep the section references exactly as you have indicated, while rewriting the explanation in simpler, original language.
Note
This section makes it clear that a person can exercise the right of private defence even against someone whose act is not considered an offence because the law excuses that person.
This may happen because of infancy (Section 20), immaturity (Section 21), unsoundness of mind or insanity (Section 22), intoxication (Section 23), or misconception of fact (Sections 14 and 17).
Therefore, the legal incapacity or exemption of the person who performs the act does not take away the right of private defence of the person facing the threat. In simple words, even if the attacker is not legally guilty of an offence, the person being attacked can still defend himself against the act in the same manner as he could if the attacker were legally responsible.
Section 37 — Acts Against Which There Is No Right of Private Defence
Section 37 places limits on the right of private defence. The law does not allow a person to use private defence in every situation. In certain circumstances, a person must rely on public authorities, and even where private defence is available, he cannot cause more harm than necessary.
Section 37(1): Situations where there is no right of private defence
(a) Act done by a public servant in good faith
Bare Act:
“against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law”
Simple meaning:
There is no right of private defence against an act of a public servant who is acting in good faith and under the authority of his office, provided the act does not reasonably create a fear of death or grievous hurt.
Even if the public servant’s act is not completely justified by law, a person cannot use private defence against him if the situation does not create a reasonable apprehension of death or grievous hurt.
Example:
A police officer, while performing his official duty in good faith, unlawfully stops A and tries to take him to the police station. If A does not face a reasonable threat of death or grievous hurt, A cannot claim a right of private defence merely because the officer’s action is technically unlawful.
(b) Act done under the direction of a public servant
Bare Act:
“against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office”
Simple meaning:
The same rule applies when a person is acting under the direction of a public servant who is acting in good faith in the course of official duty.
If the act does not reasonably create a fear of death or grievous hurt, there is no right of private defence, even if the direction given by the public servant is not strictly justified by law.
Example:
A police officer orders his subordinate to remove A from a particular place. The subordinate acts in good faith under that direction. If A is not facing a reasonable threat of death or grievous hurt, A cannot use private defence merely because he believes the order is legally improper.
(c) When there is time to seek help from public authorities
Bare Act:
“in cases in which there is time to have recourse to the protection of the public authorities.”
Simple meaning:
A person cannot claim the right of private defence when there is sufficient time to approach the police or other public authorities for protection.
The right of private defence is meant for situations where immediate action is necessary. It is not a substitute for approaching the authorities when there is enough time to do so.
Example:
A receives repeated threats from B that he will attack him next week. A has enough time to approach the police. A cannot wait for the incident and then claim that he had an unrestricted right of private defence.
Section 37(2): No More Harm Than Necessary
Bare Act:
“The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”
Simple meaning:
Even when the right of private defence exists, a person cannot cause unnecessary or excessive harm.
The force used must be reasonably necessary for protecting himself or another person.
Example:
If A is merely pushing B away during a minor attack, A cannot respond by causing B a serious injury when such force was not necessary for his protection.
Key principle
Private defence is a right of protection, not a right of revenge.
Explanation 1: Knowledge that the person is a public servant
Bare Act:
“A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.”
Simple meaning:
A person does not lose his right of private defence merely because the person attacking or acting against him is actually a public servant.
The protection under Section 37 applies only when the person knows or has reason to believe that the person is a public servant.
Example:
A police officer in plain clothes tries to arrest A without identifying himself. A does not know and has no reason to believe that he is a police officer. A’s right of private defence is not automatically taken away merely because the person is actually a public servant.
Explanation 2: Knowledge of the public servant’s direction
Bare Act:
“A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he knows, or has
reason to believe, that the person doing the act is acting by such direction, or unless such
person states the authority under which he acts, or if he has authority in writing, unless he
produces such authority, if demanded.
This Explanation protects a person who is faced with an act being done under the alleged direction of a public servant.
The basic rule is: a person does not lose his right of private defence merely because the other person claims to be acting on the orders of a public servant.
He will lose that protection only when he knows or has reason to believe that the person is actually acting under such official direction, or when the person properly identifies the authority under which he is acting.
There are two important situations
1. The person knows about the official direction
If A knows, or has sufficient reason to believe, that B is acting under the direction of a public servant, A cannot simply ignore that fact and claim private defence against B.
Example:
A government officer directs B to remove A from a place. B tells A that he is acting under the officer’s direction, and A knows about the officer’s order. A cannot claim that B is acting entirely on his own merely to justify private defence.
2. The person states the authority under which he is acting
Suppose B comes to A and says:
“I am acting under the authority of the District Magistrate.”
In this situation, B has stated the authority under which he is acting. Therefore, A cannot claim that he had no knowledge of the official authority merely because B is not personally a public servant.
If B has written authority, the position is even clearer. If A demands to see that written authority, B must produce it.
Why does the law provide this rule?
The purpose is to prevent people from using private defence against legitimate official action merely because the action is being carried out by someone other than the public servant himself.
For example, a public servant may order another person to carry out an official act. The person carrying out the order may not himself be a police officer or other public servant. The law therefore requires that the person facing the act should be able to know that the act is being done under official authority.
Very Simple Example
Suppose a police officer orders B to arrest A.
- B goes to A and clearly says that he is acting under the police officer’s order.
- A knows about the order.
- Therefore, A cannot simply treat B as an ordinary attacker and claim private defence merely because B is not himself the police officer.
But if B suddenly attacks A and does not identify any official authority, and A neither knows nor has reason to believe that B is acting under a public servant’s direction, A does not automatically lose his right of private defence.
One-line principle
Explanation 2 means that official authority must be known or properly disclosed; a person cannot lose his right of private defence merely because someone secretly claims to be acting under a public servant’s direction.sts.
No Time for Recourse to Public Authorities
Case: Amjad Khan v. State, AIR 1952 SC 165
In this case, a communal riot broke out between Sindhi refugees and local Muslims. The accused and his brother had shops in adjoining portions of the same building. A mob entered the brother’s shop and started looting it. The accused’s family managed to enter the accused’s portion of the building through an opening in the wall for safety.
The accused was then informed by his mother that the mob had entered his shop and was looting it. At the same time, the mob was beating the doors of his shop with lathis. The accused fired two shots, as a result of which one person died and three others were injured.
The Supreme Court held that the accused did not have sufficient time to seek help from the public authorities. The mob had already entered one part of the building and was attacking the doors of the other part where the accused and his family were taking shelter. Therefore, the accused was facing an immediate and serious threat.
The Court also found that the accused had reasonable grounds to apprehend that death or grievous hurt could be caused to him or his family members. In these circumstances, he had a right of private defence of the body, and that right could extend even to causing death.
The Court emphasized that while deciding whether a person exceeded the right of private defence, the circumstances cannot be examined with excessive precision or by applying an unrealistically strict standard. A person facing a sudden and dangerous attack cannot be expected to calculate every step with mathematical accuracy.
Simple Principle
When a person is suddenly confronted with an immediate threat of death or grievous hurt and there is no reasonable opportunity to seek help from the authorities, the law allows him to exercise his right of private defence. The situation must be judged from the circumstances as they appeared to the person at that moment, rather than with perfect hindsight.
Section 38 — When Right of Private Defence of Body Extends to Causing Death
Section 38 explains when a person defending his body can go as far as causing the death of the attacker.
The important point is that causing death is not automatically permitted whenever private defence exists. Under Section 38, it is permitted only when the attack falls within one of the situations specifically mentioned in clauses (a) to (g).
Also, this right remains subject to the restrictions under Section 37, especially the rule that no more harm than necessary should be caused.
Clause (a) — Assault creating fear of death
Bare Act language:
“such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault”
Simple meaning:
If someone attacks a person in such a manner that a reasonable person would fear that the attack may result in his death, the right of private defence can extend to causing the attacker’s death.
Example:
A attacks B with a loaded gun and appears ready to shoot him. B may reasonably fear that the attack will cause his death. B’s right of private defence may therefore extend to causing A’s death if necessary for his defence.
Key point:
The question is whether the circumstances reasonably created a fear of death.
Clause (b) — Assault creating fear of grievous hurt
Bare Act language:
“such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault”
Simple meaning:
Even if the person does not reasonably fear death, the right of private defence may extend to causing the attacker’s death when the attack is such that it creates a reasonable apprehension of grievous hurt.
Example:
A attacks B with a heavy iron rod, repeatedly aiming at B’s head. B may reasonably apprehend that he will suffer grievous injury. In such circumstances, B’s right of private defence may extend to causing A’s death, subject to Section 37.
Key point:
The law recognizes not only the fear of death but also a reasonable fear of grievous hurt.
Clause (c) — Assault with intention to commit rape
Bare Act language:
“an assault with the intention of committing rape”
Simple meaning:
If a person is attacked with the intention of committing rape, the right of private defence of the body can extend to causing the attacker’s death.
Example:
A forcibly attacks B with the intention of committing rape. B can exercise the right of private defence, and the right may extend to causing A’s death if the circumstances justify it.
Key point:
The law specifically recognizes the seriousness of an assault intended to commit rape.
Clause (d) — Assault with intention of gratifying unnatural lust
Bare Act language:
“an assault with the intention of gratifying unnatural lust”
Simple meaning:
If a person is assaulted with the intention of committing an act for the purpose described in this clause, the right of private defence may extend to causing the attacker’s death.
Example:
A forcibly attacks B with the intention of sexually abusing him. B may exercise the right of private defence, and in circumstances covered by this clause, the right can extend to causing A’s death.
Key point:
The provision protects a person against a serious sexually motivated assault.
Clause (e) — Assault with intention to kidnap or abduct
Bare Act language:
“an assault with the intention of kidnapping or abducting”
Simple meaning:
If a person is attacked with the intention of kidnapping or abducting him, the right of private defence may extend to causing the attacker’s death.
Example:
A forcibly attacks B and tries to drag him into a vehicle to take him away against his will. If the circumstances establish an intention to kidnap or abduct B, B’s right of private defence may extend to causing A’s death.
Key point:
The law recognizes that a person may use the right of private defence against a serious attack intended to take him away forcibly.
Clause (f) — Assault intended to wrongfully confine a person
Bare Act language:
“an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release”
Simple meaning:
This clause applies when someone is attacked with the intention of wrongfully confining him, and the circumstances create a reasonable fear that, once confined, he will not be able to seek help from the public authorities to get released.
Example:
A forcibly takes B into a secluded place and intends to lock him inside a room where B will have no realistic opportunity to contact the police or obtain help. B may exercise the right of private defence, which can extend to causing A’s death where the requirements of this clause are satisfied.
Important point:
It is not enough merely that the person is being confined. There must also be a reasonable apprehension that he will be unable to seek help from public authorities for his release.
Clause (g) — Throwing or administering acid
Bare Act language:
“an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.”
Simple meaning:
If a person throws acid, administers acid, or attempts to do so, and the circumstances reasonably create a fear that the victim will suffer grievous hurt, the right of private defence may extend to causing the attacker’s death.
Example:
A throws acid at B’s face. B reasonably fears serious and permanent injury. B can exercise the right of private defence, and the right may extend to causing A’s death, subject to the restrictions of Section 37.
Key point:
The provision specifically covers both an actual act of throwing/administering acid and an attempt to do so.
In one sentence
Section 38 means that the right of private defence of the body can extend to causing the attacker’s death only in the serious situations specifically listed in clauses (a)–(g), and this right remains subject to the restrictions contained in Section 37.
No Claim of Right of Private Defence
Case: Sheo Pershad Singh v. State of U.P., 1979 Cr. L.J. 517
In this case, it was held that a person cannot automatically claim the right of private defence simply because he was involved in a dangerous situation.
The Court observed that the driver could not successfully claim the right of private defence after causing the deaths of several people and then fleeing from the scene of the incident. His conduct of leaving the place after the incident was considered relevant while examining his claim of private defence.
Simple Principle
A person claiming private defence must show that the force used was genuinely necessary for his protection. The right of private defence cannot be used as a justification for causing deaths and then escaping from the scene.
Right of Private Defence — Assault on a Woman with Sexual Intent
Case: Prakash Chandra v. State of Rajasthan, 1991 Cr. L.J. 2566 (Raj.)
In this case, Prakash Chandra and his elder brother Radhey Lal were having dinner at their house at around 8:30 p.m. when Girwar Singh, accompanied by Shambhoo Singh and Dhan Singh, came to their house and called Prakash.
When Prakash’s wife Kamla came to the door to find out what was happening, the persons outside allegedly pushed her and tried to drag her outside. Kamla resisted and cried for help. Hearing her cries, Prakash and his elder brother came out, resulting in a scuffle between the two sides. During the incident, injuries were caused to members of the complainant party.
There had also been an earlier quarrel between the parties a few days before, when Kamla had allegedly been teased.
The circumstances at the place of occurrence were also significant. Various articles, including slippers, broken bangles, a broken torch and buttons, were found scattered around, indicating that a physical struggle had taken place. The dead body of Girwar Singh was found a short distance away.
The Court held that, in the circumstances, the accused persons were entitled to claim the right of private defence under Section 38. The Court considered that dragging a woman out of her house at night with an intention to sexually assault or seduce her for sexual intercourse was a sufficiently serious circumstance to give the accused a right to defend her and themselves.
Simple Principle
When a woman is forcibly taken out of her house at night with a sexual intention, the circumstances may create a serious and immediate threat. In such a situation, the right of private defence can extend to causing injuries to the persons responsible for the attack, subject to the limits prescribed by law.
Section 39 — When Right of Private Defence Extends to Causing Any Harm Other Than Death
Section 39 explains the limit of the right of private defence when the attack does not fall within the serious situations mentioned in Section 38.
Bare Act
“If the offence be not of any of the descriptions specified in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death.”
Simple Explanation
If the attack does not fall under any of the situations mentioned in Section 38, the person exercising private defence cannot intentionally cause the death of the attacker.
However, this does not mean that the person has no right of private defence.
He can still voluntarily cause harm other than death to the attacker, provided that the force used remains within the restrictions of Section 37.
In simple words:
Section 38 → In specified serious situations → private defence may extend to causing death.
Section 39 → In other situations → private defence may extend to causing harm, but not death.
Example
Suppose A pushes and punches B during a quarrel. The attack is unlawful, so B can defend himself.
However, if the circumstances do not create a reasonable apprehension of death or grievous hurt and the case does not fall under any of the situations mentioned in Section 38, B cannot intentionally kill A in the name of private defence.
B may, however, use reasonable force to stop the attack and may cause injury or other harm to A, as long as the force is necessary and does not exceed the limits prescribed by Section 37.
Connection Between Sections 37, 38 and 39
These three sections should be understood together. Section 37 lays down the general restrictions, while Sections 38 and 39 explain how far the right of private defence of the body can extend depending upon the seriousness of the attack.
| Section | What does it deal with? | Simple Explanation | Extent of Private Defence |
|---|---|---|---|
| Section 37 | Restrictions on private defence | This section tells us that the right of private defence is not unlimited. A person cannot cause more harm than is necessary for defence. It also specifies situations where there is no right of private defence, such as certain acts of public servants or where there is sufficient time to seek help from public authorities. | Necessary harm only; no excessive force |
| Section 38 | When private defence can extend to causing death | If the attack falls within any of the serious situations specifically mentioned in Section 38, such as an attack creating a reasonable apprehension of death or grievous hurt, an assault with intent to commit rape, kidnapping/abduction, certain wrongful confinement, or acid attack, the right of private defence may extend to voluntarily causing the death of the attacker. | May extend to causing death |
| Section 39 | When private defence cannot extend to causing death | If the attack does not fall within any of the situations mentioned in Section 38, the person still has a right to defend himself, but that right does not extend to voluntarily causing the death of the attacker. He may, subject to Section 37, cause harm other than death. | Harm other than death |
How to understand them together
Think of the three sections as a three-step rule:
Step 1 — Section 37:
First, ask whether the right of private defence is available and remember its restrictions. The person cannot cause more harm than necessary.
Step 2 — Section 38:
If private defence is available, ask whether the attack is one of the serious situations listed in Section 38.
- Yes → the right may extend to causing death of the assailant.
Step 3 — Section 39:
If the attack does not fall under Section 38:
- Private defence is still available;
- but it cannot extend to voluntarily causing death;
- it can extend to causing harm other than death, subject to Section 37.
Very Simple Formula
Section 37 = Limits
Section 38 = Death may be caused in specified serious cases
Section 39 = In other cases, harm may be caused but not death
Example:
If A merely gives B a slap, B cannot kill A claiming private defence. Under Section 39, B may use necessary force to defend himself, but cannot voluntarily cause A’s death.
Section 40 — Commencement and Continuance of Right of Private Defence of Body
Simple meaning:
Section 40 tells us when the right of private defence starts and when it ends.
1. When does the right start?
The right of private defence commences as soon as a reasonable apprehension of danger to the body arises.
In simple words, actual attack hona zaroori nahi hai. If a person’s attempt or threat to commit an offence creates a reasonable fear of danger to your body, the right of private defence can start.
Example: A raises a knife and moves towards B with the apparent intention to stab him. A has not yet stabbed B, but B can reasonably apprehend danger to his body. Therefore, B’s right of private defence has already commenced.
2. Does the offence have to be committed?
No. The bare Act specifically says:
“though the offence may not have been committed”
This means the person does not have to wait until the offence is actually committed. A reasonable apprehension of danger arising from an attempt or threat is sufficient.
3. When does the right continue?
The right continues as long as such apprehension of danger to the body continues.
In simple words, jab tak danger ka reasonable fear bana hua hai, tab tak private defence ka right continue karta hai.
Once the danger or apprehension ends, the right of private defence also ends.
Easy example
A attacks B with a knife. B reasonably apprehends that A may stab him.
- A only threatens/attempts → Right of private defence starts
- A continues attacking → Right continues
- A drops the knife and runs away, and there is no longer a reasonable apprehension of danger → Right ends
One-line exam revision
Section 40 = Right of private defence of the body starts with a reasonable apprehension of danger and continues as long as that apprehension continues; actual commission of the offence is not necessary.
Section 41 — When right of private defence of property extends to causing death
Simple meaning:
Normally, the right of private defence of property allows you to cause necessary harm to the wrong-doer, but not necessarily death. However, in certain serious offences against property, the law allows the right of private defence to extend even to voluntarily causing death of the wrong-doer.
This right is still subject to the restrictions under Section 37.
Clause-wise explanation
| Clause | Bare Act language | Simple explanation |
|---|---|---|
| Main provision | Right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong-doer | In the situations mentioned below, you can defend your property even by causing death or other harm to the offender, if necessary within the limits of Section 37. |
| (a) Robbery | Robbery | If someone commits or attempts to commit robbery, the right of private defence of property can extend to causing death of the wrong-doer. |
| (b) House-breaking | House-breaking after sunset and before sunrise | If someone commits or attempts house-breaking between sunset and sunrise, the right of private defence can extend to causing death. |
| (c) Mischief by fire/explosive | Mischief by fire or any explosive substance on any building, tent or vessel used as a human dwelling or place for custody of property | If someone uses fire or an explosive substance to damage a building, tent or vessel that is used as a home or for keeping property, private defence can extend to causing death. |
| (d) Theft, mischief or house-trespass creating danger | Theft, mischief, or house-trespass, under circumstances that may reasonably cause apprehension that death or grievous hurt will be the consequence | If theft, mischief or house-trespass happens in circumstances where a person can reasonably apprehend that failure to exercise private defence will result in death or grievous hurt, the defender may cause death of the wrong-doer. |
The four situations to remember
Section 41 = Property + Serious situation → Death can be caused
- Robbery
- House-breaking after sunset and before sunrise
- Mischief by fire/explosive on a dwelling or place where property is kept
- Theft, mischief or house-trespass where there is a reasonable apprehension of death or grievous hurt
Important point about Section 37
The phrase “under the restrictions specified in section 37” is very important.
It means Section 41 does not give an unlimited licence to kill. The act of private defence must still remain within the restrictions prescribed by Section 37.
Easy examples
Example 1 — Robbery:
A attacks B and attempts to rob him. B uses necessary force in private defence and causes A’s death. Since robbery is covered by Section 41(a), the right of private defence of property may extend to causing death.
Example 2 — Night house-breaking:
A breaks into B’s house at 2 AM. B reasonably apprehends serious danger and exercises private defence, causing A’s death. Section 41(b) covers house-breaking after sunset and before sunrise.
Example 3 — Fire:
A sets fire to B’s house to destroy property. B exercises private defence and causes A’s death. Section 41(c) applies because the mischief is committed by fire against a building used as a human dwelling.
Example 4 — Dangerous house-trespass:
A forcibly enters B’s house carrying a weapon in circumstances that reasonably create an apprehension of death or grievous hurt. B may exercise private defence to the extent permitted by Section 41(d).
One-line exam revision
Section 41: The right of private defence of property extends to causing death or any other harm, subject to Section 37, in cases of robbery, night house-breaking, fire/explosive mischief against a dwelling/property place, and theft/mischief/house-trespass creating reasonable apprehension of death or grievous hurt.
Section 42 — When the Right of Private Defence Extends to Causing Any Harm Other Than Death
Simple meaning:
Section 42 deals with theft, mischief and criminal trespass. In these cases, the right of private defence does not extend to causing death, but it can extend to causing any harm other than death, subject to the restrictions in Section 37.
Bare Act in Simple Language
| Bare Act phrase | Simple meaning |
|---|---|
| “If the offence… be theft, mischief, or criminal trespass” | If someone is committing or attempting theft, mischief or criminal trespass |
| “not of any of the descriptions specified in section 41” | And the offence is not one of the serious offences mentioned in Section 41 |
| “that right does not extend to the voluntary causing of death” | You cannot intentionally cause the death of the wrong-doer in exercise of private defence |
| “but does extend… to the voluntary causing… of any harm other than death” | However, you may voluntarily cause some harm other than death to the wrong-doer |
| “subject to the restrictions specified in section 37” | But you must follow the restrictions and limitations of Section 37 |
Easy Rule
Theft + Mischief + Criminal Trespass → No death, but other harm is allowed.
For example:
A enters B’s house without permission and commits criminal trespass. B can exercise the right of private defence and may cause injury/harm to A to stop the trespass, but cannot intentionally kill A under Section 42 merely because of that trespass.
Yes. The key is to understand what offence against property is being committed and how far the right of private defence extends.
Section 41 vs Section 42 — Detailed Difference
| Point | Section 41 | Section 42 |
|---|---|---|
| Offences covered | Certain serious offences against property, specifically the offences listed in Section 41 | Theft, mischief or criminal trespass which are not of the descriptions specified in Section 41 |
| Nature of offence | More serious because the law considers the circumstances sufficiently grave | Comparatively less serious |
| Can death be caused? | ✅ Yes | ❌ No |
| Can other harm be caused? | ✅ Yes | ✅ Yes |
| Restriction | Subject to the restrictions in Section 37 | Subject to the restrictions in Section 37 |
| Purpose | Protect property where the offence creates a sufficiently serious threat | Protect property from less serious forms of theft, mischief or trespass |
| Example | A person commits robbery. The right of private defence of property may extend to causing death, subject to Section 37. | A person commits ordinary theft. The defender may cause necessary harm to stop the theft, but the right does not extend to voluntarily causing death. |
Section 41 = Serious property offences → Death may be caused
Section 42 = Ordinary theft/mischief/criminal trespass → Death cannot be caused, but other harm may be caused
One-line exam distinction
Section 41 permits the right of private defence of property to extend to causing death in specified serious cases, whereas Section 42 restricts the right to causing harm other than death in cases of theft, mischief or criminal trespass not covered by Section 41.
Important connection with Section 37
Do not read Sections 41 and 42 independently.
Both expressly operate subject to the restrictions contained in Section 37.
So the sequence is:
Section 37 → General restrictions on private defence
Section 41 → Serious property offences → death may be caused
Section 42 → Other theft/mischief/criminal trespass → death cannot be caused, but other harm may be caused
One-line exam rule:
Section 42 permits voluntary causing of harm other than death in cases of theft, mischief or criminal trespass, but does not permit voluntary causing of death, and the right remains subject to Section 37.
Absolutely. Section 43 is about two things: when the right of private defence of property starts and how long it continues. The exact duration depends upon the offence.
Section 43 — Commencement and Continuance of Right of Private Defence of Property
Main rule
The Bare Act language says:
“The right of private defence of property—
(a) commences when a reasonable apprehension of danger to the property commences…”
In simple words:
The right starts as soon as there is a reasonable apprehension (reasonable fear) that the property is in danger.
You do not have to wait until the property is actually damaged or stolen.
Clause (a) — When does the right begin?
Bare Act language:
“commences when a reasonable apprehension of danger to the property commences”
Simple meaning:
The right of private defence of property starts when a reasonable fear of danger to the property arises.
Actual theft, damage or trespass does not necessarily have to be completed.
Example:
A sees a person breaking the lock of his shop at night.
A can reasonably apprehend that his property is in danger.
Therefore, the right of private defence begins at that point.
Remember:
Reasonable apprehension → Right begins
Clause (b) — Against Theft
Bare Act language:
“against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered”
Simple meaning:
When the offence is theft, the right of private defence continues until any one of these situations occurs:
- The thief has effected his retreat with the property; OR
- Assistance of the public authorities is obtained; OR
- The property has been recovered.
What does “effected his retreat” mean?
It means the thief has successfully escaped/withdrawn with the stolen property.
Example:
A steals B’s mobile phone and starts running.
B’s right of private defence against the theft continues while the theft is continuing and the thief is making his retreat with the property.
But once the relevant condition mentioned in Section 43(b) occurs, the right comes to an end.
Easy formula:
Theft → Retreat / Public authorities / Property recovered → Right ends
Clause (c) — Against Robbery
Bare Act language:
“against robbery continues 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 or of instant hurt or of instant personal restraint continues”
This is an important clause.
Simple meaning:
In case of robbery, the right of private defence continues as long as the robber creates an immediate danger to a person.
It continues when the offender:
- causes death, or
- attempts to cause death, or
- causes hurt, or
- attempts to cause hurt, or
- causes wrongful restraint, or
- creates a fear of instant death, or
- creates a fear of instant hurt, or
- creates a fear of instant personal restraint.
Example:
A robber points a weapon at B and threatens to kill him unless B gives him his money.
There is a fear of instant death.
Therefore, the right of private defence against robbery continues as long as that immediate danger continues.
Important point:
The emphasis is on “instant” danger.
Robbery + immediate danger → Right continues
Clause (d) — Against Criminal Trespass or Mischief
Bare Act language:
“against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief”
Simple meaning:
If the offence is criminal trespass or mischief, the right of private defence continues only while the offender is continuing to commit that offence.
Example — Criminal trespass:
A unlawfully enters B’s property with the required criminal intent.
As long as A continues in the commission of criminal trespass, B’s right of private defence continues.
Once the criminal trespass has ended, the right under this clause also ends.
Example — Mischief:
A is deliberately damaging B’s property.
As long as A continues damaging the property, B can exercise the right of private defence, subject to Section 37.
Once A stops committing the mischief, the right under this clause does not continue indefinitely.
Easy formula:
Criminal trespass/mischief → As long as the offence continues
Clause (e) — House-breaking after Sunset and Before Sunrise
Bare Act language:
“against house-breaking after sunset and before sunrise continues as long as the house-trespass which has been begun by such house-breaking continues.”
Simple meaning:
Where house-breaking takes place after sunset and before sunrise, the right of private defence continues as long as the house-trespass resulting from that house-breaking continues.
Example:
At 11 PM, A breaks into B’s house by using a method that amounts to house-breaking.
A enters the house and continues the house-trespass.
B’s right of private defence continues as long as that house-trespass continues.
Easy formula:
Night-time house-breaking → As long as house-trespass continues
Section 43 — Clause-wise Quick Revision
| Clause | Offence/Situation | How long does the right continue? |
|---|---|---|
| 43(a) | General commencement | When reasonable apprehension of danger to property commences |
| 43(b) | Theft | Till offender effects retreat with property, or public authorities’ assistance is obtained, or property is recovered |
| 43(c) | Robbery | As long as offender causes/attempts death, hurt or wrongful restraint, or fear of instant death/hurt/personal restraint continues |
| 43(d) | Criminal trespass or mischief | As long as offender continues in the commission |
| 43(e) | House-breaking after sunset and before sunrise | As long as the house-trespass begun by such house-breaking continues |
Very Easy Memory Trick
Remember the 5 clauses as:
And the duration:
43(a): Reasonable apprehension starts → Right starts
43(b): Theft → Retreat / Authority / Recovery
43(c): Robbery → Instant danger continues
43(d): Trespass/Mischief → Offence continues
43(e): Night house-breaking → House-trespass continues
Connection with Sections 41 & 42
This is especially important for exams:
- Section 41 tells us when private defence of property may extend to causing death.
- Section 42 tells us when it cannot extend to causing death but may extend to causing other harm.
- Section 43 tells us when that right starts and how long it continues.
So, in short:
Section 41 = Extent of right in serious cases
Section 42 = Extent of right in other cases
Section 43 = Commencement and continuance of the right
Section 44 — Right of Private Defence Against Deadly Assault When There Is Risk of Harm to an Innocent Person
Section 44 deals with a very special situation: while defending yourself against an assault that creates a reasonable apprehension of death, there is a risk that an innocent person may also be harmed.
Bare Act in simple words
The section says that if:
- a person is facing an assault which reasonably causes apprehension of death, and
- the defender is in such a situation that he cannot effectively exercise the right of private defence without creating a risk of harm to an innocent person,
then the defender’s right of private defence extends to running that risk.
What does this actually mean?
Normally, while exercising private defence, you should not harm an innocent person.
But Section 44 recognizes an exceptional situation.
If an attacker is creating a reasonable apprehension of death, and because of the circumstances the defender cannot effectively defend himself without some risk to an innocent person, the defender does not lose his right of private defence merely because such risk exists.
Example
Suppose A attacks B with a deadly weapon and B reasonably apprehends that A is going to kill him.
C, an innocent person, happens to be standing in such a position that B cannot effectively defend himself against A without there being a risk that C may also be harmed.
In this situation, B’s right of private defence extends to running that risk.
The important point is that B must be genuinely facing an assault that reasonably causes apprehension of death.
Important words of Section 44
1. “Assault which reasonably causes the apprehension of death”
It is not enough that the defender merely thinks he may die.
There must be a reasonable apprehension of death arising from the assault.
2. “Cannot effectually exercise that right”
This means the defender cannot effectively protect himself from the deadly assault without creating some risk to the innocent person.
3. “Without risk of harm to an innocent person”
The innocent person is not the attacker and has not participated in the assault.
There is nevertheless a possibility that the innocent person may be harmed because of the circumstances.
4. “His right of private defence extends to the running of that risk”
This is the most important part.
It means the defender is allowed to take that risk while exercising his right of private defence.
It does NOT mean that the defender gets a right to intentionally attack or harm the innocent person.
The protection is for running the risk, not for deliberately targeting an innocent person.
Simple Example to Remember
Imagine:
A → deadly attack → B
But C (an innocent person) is standing in a position where B cannot defend himself without some risk to C.
If A’s attack reasonably creates an apprehension of death, B’s right of private defence extends to running that risk to C.
In one line:
Deadly assault + reasonable apprehension of death + cannot effectively defend without risk to innocent person = right of private defence extends to running that risk.
Exam Shortcut
Section 44 = Deadly assault + Innocent person at risk
And remember:
Section 44 does not authorize intentional harm to an innocent person; it permits the defender to run the unavoidable risk of harm to that innocent person while effectively exercising private defence against the deadly assault.
Illustration
Suppose A is attacked by a mob that is trying to kill him. A has a genuine and reasonable apprehension of death.
The only effective way A can defend himself is by firing at the mob. However, some young children are mixed in with the mob, so firing at the attackers also creates a risk that the children may be injured.
Under Section 44, A does not commit an offence merely because some of the children are harmed by the firing, provided that:
- the mob is actually creating a reasonable apprehension of death;
- firing is necessary for A to effectively exercise his right of private defence; and
- the harm to the children is a risk arising from the act of defence, rather than A intentionally targeting the innocent children.
In one sentence:
When a person is facing a deadly attack and cannot defend himself effectively without risking harm to an innocent person, Section 44 allows him to run that risk while exercising private defence.
| Section | Topic | Quick Revision / Key Point |
|---|---|---|
| Sec. 34 | Things done in private defence | Nothing is an offence if it is done in the exercise of the right of private defence. |
| Sec. 35 | Right of private defence of body and property | Every person has the right to defend his own body or another person’s body, and his own property or another person’s property against specified offences. |
| Sec. 36 | Right against acts of persons of unsound mind, etc. | Private defence is available even when the act creating the apprehension is not itself an offence because of unsoundness of mind, intoxication, infancy, or mistake. |
| Sec. 37 | Acts against which there is no right of private defence | The right is subject to restrictions. No private defence where there is time to seek protection of public authorities, and no more harm than necessary may be caused. |
| Sec. 38 | When right of private defence of body extends to causing death | In certain serious assaults, private defence of the body can extend to causing death, e.g. apprehension of death, grievous hurt, rape, kidnapping/abduction, wrongful confinement, etc. |
| Sec. 39 | When right extends to causing harm other than death | Where the situation does not fall under Sec. 38, private defence of the body extends to causing any harm other than death, subject to Sec. 37. |
| Sec. 40 | Commencement and continuance of private defence of body | Begins when reasonable apprehension of danger arises from an attempt or threat and continues as long as the apprehension continues. |
| Sec. 41 | Private defence of property extending to causing death | Death or other harm may be caused in defence of property against serious offences such as robbery, house-breaking after sunset and before sunrise, mischief by fire/explosive to specified property, and certain situations involving theft, mischief or criminal trespass creating apprehension of death/grievous hurt. |
| Sec. 42 | Private defence of property: harm other than death | For theft, mischief or criminal trespass not covered by Sec. 41, private defence does not extend to causing death, but may extend to causing other harm, subject to Sec. 37. |
| Sec. 43 | Commencement and continuance of private defence of property | The right begins when reasonable apprehension of danger to property arises and continues according to the circumstances specified for theft, robbery, mischief and criminal trespass. |
| Sec. 44 | Risk of harm to innocent person | If private defence against a deadly assault cannot be effectively exercised without risk of harming an innocent person, the right may extend to running that risk. |
FAQs on Right of Private Defence
1. What is the Right of Private Defence?
The Right of Private Defence is the legal right of a person to protect his own body, another person’s body, his own property, or another person’s property against certain unlawful acts.
2. Which sections of the BNS deal with the Right of Private Defence?
The Right of Private Defence is covered under Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 (BNS).
3. What does Section 34 BNS provide?
Section 34 provides that nothing is an offence which is done in the exercise of the right of private defence.
4. What can be protected under the Right of Private Defence?
Under Section 35, a person can exercise private defence to protect:
- His own body
- The body of another person
- His own property
- The property of another person
5. Can a person defend another person under private defence?
Yes. The right is not limited to protecting oneself. A person can exercise private defence for the protection of the body of another person or property belonging to another person, subject to the statutory conditions.
6. Can private defence be claimed against a person of unsound mind?
Yes. Under Section 36, the right of private defence can arise even where the act creating the apprehension is not an offence because of factors such as unsoundness of mind, intoxication, infancy or mistake.
7. Is there any restriction on the Right of Private Defence?
Yes. Section 37 imposes important restrictions. A person cannot cause more harm than is necessary for the purpose of private defence, and the right is subject to the circumstances specified in the section.
8. When can private defence of the body extend to causing death?
Under Section 38, the right may extend to voluntarily causing death when the assault creates specified serious apprehensions, such as apprehension of death or grievous hurt, or certain serious offences including rape, kidnapping or abduction and wrongful confinement.
9. When does private defence of the body not extend to causing death?
Under Section 39, where the circumstances do not fall within Section 38, the right of private defence of the body may extend to causing any harm other than death, subject to Section 37.
10. When does the Right of Private Defence of the body begin?
Under Section 40, it begins as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence, even though the offence may not yet have been committed.
11. When does the Right of Private Defence of the body end?
It continues as long as the reasonable apprehension of danger to the body continues.
12. When can private defence of property extend to causing death?
Under Section 41, private defence of property may extend to causing death or other harm in specified serious situations, including robbery, house-breaking after sunset and before sunrise, and certain serious cases of mischief, theft or criminal trespass.
13. Can death be caused while defending property against every theft or trespass?
No. Under Section 42, where the offence is theft, mischief or criminal trespass and it does not fall within the situations specified in Section 41, the right does not extend to voluntarily causing death.
14. When does the Right of Private Defence of property begin and continue?
Under Section 43, the right begins when a reasonable apprehension of danger to the property arises and continues according to the circumstances and duration specified in the section for offences such as theft, robbery, mischief and criminal trespass.
15. Can private defence be exercised if there is a risk of harming an innocent person?
Yes, in a limited situation. Under Section 44, where a person is facing a deadly assault and cannot effectively exercise private defence without risking harm to an innocent person, the right of private defence may extend to running that risk.
