The right of private defence
Bharatiya Nyaya Sanhita · Unit I · Topic 6 of 29 · 7 min read
On this page
- 1. The basis of the right
- 2. Against whom: section 36
- 3. Limits: section 37
- 4. When private defence of the body extends to causing death: section 38
- 5. When private defence of property extends to causing death: section 41
- 6. Commencement and continuance: sections 40 and 43
- 7. Risk of harm to an innocent person: section 44
- 8. Darshan Singh v. State of Punjab
- How this is examined
Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. The basis of the right
The State cannot protect every person at every moment. The law therefore allows a person to protect himself and others when State help is not available. Section 34 BNS (old s.96 IPC): nothing is an offence which is done in the exercise of the right of private defence. Section 35 (old s.97) sets the scope: every person may defend
- (a) his own body and the body of any other person against any offence affecting the human body; and
- (b) the property, movable or immovable, of himself or of any other person, against theft, robbery, mischief or criminal trespass, or an attempt at any of them.
The right extends to strangers. A passer-by may defend a woman being assaulted, or a neighbour's house from arson.
2. Against whom: section 36
The right exists even against an act that is not an offence because of the youth, immaturity, unsoundness of mind or intoxication of the doer, or because he acts under a misconception (old s.98). A may defend himself against a person of unsound mind who tries to kill him, and against a householder who attacks him in good faith believing him to be a burglar.
3. Limits: section 37
Section 37 (old s.99) sets three restrictions and one overall limit.
- Public servants. There is no right of private defence against an act of a public servant acting in good faith under colour of his office, or of a person acting under his direction, even if not strictly justified by law, unless the act reasonably causes apprehension of death or grievous hurt (s.37(1)(a), (b)). The defender must know or have reason to believe the person is a public servant or acting under one's direction (Explanations 1 and 2).
- Recourse to public authorities. No right arises where there is time to have recourse to the protection of the public authorities (s.37(1)(c)). The test is practical: a person is not required to run away when attacked, and the time must be enough for effective help.
- Proportion. The right in no case extends to inflicting more harm than it is necessary to inflict for defence (s.37(2)).
4. When private defence of the body extends to causing death: section 38
Subject to s.37, the right extends to voluntarily causing death or any other harm to the assailant if the offence is (old s.100):
- (a) an assault reasonably causing apprehension of death;
- (b) an assault reasonably causing apprehension of grievous hurt;
- (c) an assault with intention of committing rape;
- (d) an assault with intention of gratifying unnatural lust;
- (e) an assault with intention of kidnapping or abducting;
- (f) an assault with intention of wrongfully confining a person, in circumstances causing apprehension that he cannot have recourse to the authorities for release;
- (g) throwing or administering acid, or an attempt to do so, reasonably causing apprehension of grievous hurt.
In any other case the right extends to causing any harm other than death (s.39, old s.101).
5. When private defence of property extends to causing death: section 41
Subject to s.37, the right extends to causing death or other harm to the wrongdoer if the offence is (old s.103):
- (a) robbery;
- (b) house-breaking after sunset and before sunrise;
- (c) mischief by fire or explosive on a building, tent or vessel used as a human dwelling or for custody of property;
- (d) theft, mischief or house-trespass in circumstances causing reasonable apprehension of death or grievous hurt if the right is not exercised.
For other theft, mischief or criminal trespass, the right extends to any harm other than death (s.42, old s.104).
6. Commencement and continuance: sections 40 and 43
Body, s.40 (old s.102): the right commences 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 has not been committed, and continues as long as that apprehension continues.
Property, s.43 (old s.105): it commences when a reasonable apprehension of danger to property commences, and continues:
- against theft, until the offender has effected his retreat with the property, or the help of public authorities is obtained, or the property is recovered;
- against robbery, as long as the offender causes or attempts to cause death, hurt or wrongful restraint, or the fear of instant death, hurt or restraint continues;
- against criminal trespass or mischief, as long as the offender continues the trespass or mischief;
- against house-breaking by night, as long as the house-trespass begun by it continues.
The right ends when the danger ends. Harm caused after the assailant has been disarmed or has fled is retaliation, not defence.
7. Risk of harm to an innocent person: section 44
If, in defending himself against an assault reasonably causing apprehension of death, the defender cannot effectively exercise the right without risk of harm to an innocent person, the right extends to running that risk (old s.106). Illustration: A, attacked by a mob trying to murder him, fires and harms children mingled in the mob; no offence.
8. Darshan Singh v. State of Punjab
In Darshan Singh v. State of Punjab, 2010 INSC 45, (2010) 2 SCC 333, the parties were in a land dispute and the appellant fired a shot that killed one of the aggressors. The trial court acquitted him on the plea of private defence; the High Court convicted; the Supreme Court restored the acquittal. It said that the law does not require a law-abiding citizen to behave like a coward when confronted with imminent unlawful aggression, and gathered the law into a set of principles, of which the main ones are:
- self-preservation is a basic human instinct, recognised by every civilised system of law;
- the right is available only to one who is suddenly confronted with immediate danger not of his own creation;
- a reasonable apprehension is enough; the defender need not wait for actual injury;
- the right begins with a reasonable apprehension and lasts while it lasts;
- a person in fear of his life cannot be expected to weigh the force he uses “in golden scales” or with arithmetical precision;
- the force used must not be wholly disproportionate or much more than necessary;
- the accused need not prove the right beyond reasonable doubt; it is enough to show a preponderance of probabilities, and the plea may be accepted even if not raised, if it emerges from the evidence;
- the right is a defensive one, not a right to punish or to retaliate.
How this is examined
As an essay: “Discuss the right of private defence of body and property. When does it extend to causing death?” Set out ss.34–37, the two death lists in ss.38 and 41, commencement and continuance, and close with Darshan Singh. Problems are standard: a burglar shot at night while fleeing; a man who kills an unarmed assailant after disarming him; a policeman acting in good faith on a defective warrant. Ask the four questions in the opening box and answer them in order.
Now try the real questions: Bharatiya Nyaya Sanhita past question papers.