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Notes on right of private defence under BNS (Bharatiya Nyaya Sanhita)

Introduction


The right of private defence gives authority to individuals to protect themselves and their property from harm. Sections 34 to 44 in the Bharatiya Nyaya Sanhita, 2023 (BNS) provide a comprehensive framework to understand when and how individuals can invoke the right of private defence.


Section 34 BNS: Things done in private defence


Section 34 establishes a fundamental principle - nothing is an offence when done in the exercise of the right of private defence. This means that individuals have the legal sanction to protect themselves, others, and their property from harm.


Section 35 BNS: Right of private defence of body and property


Section 35 of BNS grants every person the right to defend their body and property. For instance, if someone attempts to physically harm you or commit theft, robbery, mischief, or criminal trespass on your property, you are legally entitled to use reasonable force to counteract such actions.


Another example can be that if someone tries to snatch your purse on the street, Section 35 allows you to use force to prevent the offence of snatching, which is laid down under Section 304 of BNS.


Section 36 BNS: Right of private defence against acts of a person of unsound mind, etc.


Section 36 recognizes that the right of private defence extends even when the potential offender, due to factors like unsound mind or intoxication, may not be guilty of a specific offence.


Example: If an intoxicated person or mentally unsound person unexpectedly becomes aggressive, the victim retains the right of private defence against the perceived threat.


Section 37 BNS: Acts against which there is no right of private defence


Section 37 introduces limitations, stating that there is no right of private defence against acts that do not reasonably cause the apprehension of death or grievous hurt. Additionally, if a public servant acts in good faith under the color of their office, private defence is not applicable.


Example: If a police officer, acting in good faith, tries to control a crowd during a protest, individuals cannot claim the right of private defence against the officer's actions.


Section 38 BNS: When the right of private defence of body extends to causing death


Section 38 outlines circumstances where causing death is permissible, such as in cases of assault likely to cause death, grievous hurt, or offences like rape or administering acid.


Example: If someone attempts to commit a heinous crime like rape, the victim has the right of private defence, including the use of force that might result in the assailant's death.



Section 39 BNS: When such right extends to causing any harm other than death


Section 39 comes into play when the offence doesn't fall under the descriptions specified in Section 38. It allows for the right of private defence to extend to causing harm other than death.


Example: If someone attempts to steal a valuable possession, the potential victim can use force to prevent the theft, even if it causes harm to the thief, as long as the harm doesn't lead to death.


Section 40 BNS: Commencement and continuance of the right of private defence of the body


Section 40 sets the timeline for the right of private defence, stating that it commences when there's a reasonable apprehension of danger, even if the offence hasn't been committed, and continues as long as the danger persists.


Example: If someone shows you a weapon with the intent to harm, the right of private defence begins at that moment and lasts until the threat diminishes.


Section 41 BNS: When the right of private defence of property extends to causing death


Section 41 extends the right of private defence of property, including causing death, under specified circumstances like robbery, house-breaking after sunset and before sunrise, and other enumerated offences under Section 41 of BNS.


Example: If robbers break into a residence during the night, the property owner has the right of private defence, which can extend to causing death if necessary to protect against the threat.


Section 42 BNS: When such right extends to causing any harm other than death


If the offence doesn't fall under the descriptions in Section 41, Section 42 allows for the right of private defence of property to extend to causing harm other than death.


Example: If someone attempts to vandalize a property, the owner can use force to prevent the damage, even if it causes harm to the perpetrator, as long as it doesn't lead to death.


Section 43 BNS: Commencement and continuance of the right of private defence of property


Section 43 details the commencement and continuation of the right of private defence of property based on the nature of the offence.


Example: If someone attempts to steal a vehicle, the right of private defence of property begins when the apprehension of danger to the property commences and continues until the threat is neutralized or public authorities intervene.


Section 44 BNS: Right of private defence against deadly assault when there is a risk of harm to innocent persons


Section 44 addresses a scenario where the defender, while exercising the right of private defence against an assault that reasonably causes apprehension of death, finds themselves in a situation where effectively exercising that right could pose a risk to innocent persons.


For example, A is attacked by a violent mob attempting to cause murder of A. A possesses a firearm and could effectively deter the mob by firing. However, within the crowd, there are young children who are innocent bystanders.


According to Section 44, A's right of private defence extends to the running of the risk. In this case, if A, in the exercise of self-defence, fires on the mob and inadvertently harms one of the children, A commits no offence. The law recognizes the necessity for A to take action against a life-threatening assault, even if it entails some level of risk to innocent persons.


Frequently Asked Questions (FAQs) on Right of Private Defence under Bharatiya Nyaya Sanhita (BNS)


Q1: What is the fundamental principle established by Section 34 of BNS?


A1: Section 34 asserts that nothing is an offence when done in the exercise of the right of private defence. This means individuals have legal sanction to protect themselves, others, and their property from harm.


Q2: When does the right of private defence under Section 40 of BNS commence?


A2: The right of private defence commences when there's a reasonable apprehension of danger to the body from an attempt or threat to commit an offence, even if the offence hasn't been committed. It continues as long as such apprehension persists.


Q3: Can I claim the right of private defence against a public servant acting in good faith under Section 37 of BNS?


A3: No, Section 37 states that there is no right of private defence against an act done in good faith by a public servant acting under the color of their office, even if the act may not be strictly justifiable by law.


Q4: In what situations can the right of private defence of property extend to causing death under Section 41 of BNS?


A4: Section 41 specifies circumstances like robbery, house-breaking after sunset and before sunrise, mischief by fire or explosive substance on a dwelling, and certain other enumerated offences where the right of private defence of property can extend to causing death.


Q5: How does Section 44 of BNS address risks to innocent persons during the exercise of the right of private defence?


A5: Section 44 recognizes that in situations where the defender reasonably causes apprehension of death but risks harming innocent persons while exercising the right, the defender's right of private defence extends to running that risk.


Q6: Can I use force against someone of unsound mind or intoxicated under Section 36 of BNS?


A6: Yes, Section 36 acknowledges that the right of private defence extends even when the potential offender, due to factors like unsound mind or intoxication, may not be guilty of a specific offence.


Q7: Does the right of private defence under BNS apply to prevent theft of movable property?


A7: Yes, Section 35 grants every person the right to defend their property, whether movable or immovable, against offences like theft, robbery, mischief, or criminal trespass.


Q8: Are there any limitations to the right of private defence mentioned in BNS?


A8: Yes, Section 37 outlines limitations, stating there is no right of private defence against acts that do not reasonably cause the apprehension of death or grievous hurt. Additionally, it restricts the right in certain situations involving public servants.


Notes on right of private defence under BNS (Bharatiya Nyaya Sanhita)



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