Private Defence under BNS

Introduction

The Bhartiya Nyaya Sanhita provides the right of private defence under sections 34 to 44, which allows individuals to protect themselves, their properties, other person and other person's property from immediate unlawful harm.

The concept is also known as self-defence in which a person causes some harm to the accused for his own safety.

The scope of Private defence does not limit defence of his own body and property but it also extends to others body and property.

Meaning of Private Defence

The Private Defence has not been anywhere defined under Bhartiya Nyaya Sanhita, but According to Bhartiya Nyaya Sanhita “Nothing is an offence which is done in the exercise of the right of private defence.”

It means that whenever an offence has been committed in private defence then it is not punishable by law because it comes under general exception (Chapter III).

The right can be used only when there is a reasonable apprehension of harm to a person or property.

Essentials of private defence

1. Reasonable apprehension of harm: - There must be reasonable apprehension of harm to the person or property only then this right can be exercisable. Imminent danger should be present at that time.
2. Unlawful act: - This right can be exercise only when an unlawful act has been committed such as robbery, theft, murder, or rape etc.
3. No time to have recourse to protection of public authorities: - If it is sufficient to assume that the person can get help from police officer or any other public authority then this right cannot be exercised.
4. No excessive harm more than it is needed: - Only needed harm should be inflicted on that person to stop him from committing that unlawful act but not more than that.

Types of Private Defence:

1. Right of Private Defence to Body (Sec 35)

• According to section 35 of Bhartiya Nyaya Sanhita, every person has a right to defend
• his own body
• body of any other person

against any offence affecting the human body

2. Right of Private Defence to Property (Sec 35)

• According to section 35 of Bhartiya Nyaya Sanhita, every person has a right to defend property whether movable or immovable
• of himself
• of any other person

against any offence of theft robbery mischief or criminal trespass or also its attempt.

Can private defence exercise against the act of a person of unsound mind, minor, intoxicated person or reason of misconception of fact?

yes, according to section 36 every person has the same right of private defence against these above-mentioned persons as they are normal persons.

When the Right of Private Defence of Body can Extend to Causing Death:

According to Sec 38, Right of private defence of body extend to causing death in these cases: -

1. Death
2. Grievous hurt
3. Rape
4. Gratifying unnatural lust
5. kidnapping or abducting
6. Wrongful confinement
7. throwing or administering acid or its attempt

Except the above-mentioned offences, the right of private defence of the body does not extend to the voluntary causing of death.

When the Right of Private Defence of Property can Extend to Causing Death:

According to Sec 41, Right of private defence of Property extend to causing death in these cases: -

1. Robbery
2. House breaking by night
3. Mischief by fire on any building, tent, or vessel used for the purpose of human dwelling
4. Theft, mischief or house trespass if death or grievous hurt will be the consequence

Except the above-mentioned offences, the right of private defence of the Property does not extend to the voluntary causing of death.

When there is no right of private defence (Sec 37):

• when the act is done by a public servant or under his direction in good faith under colour of his office.

Except: -   

1. when there is apprehension of death or grievous hurt
2. when person does not know that he is a public servant
3. when person does not know that he is acting under the direction of public servant

• when there is time to have recourse to protection of public authorities.

Right of Private Defence Begins and Ends:

• Right of Private Defence of body starts when reasonable apprehension of danger to the body arises and continues as long as apprehension continues. (Sec 40)
• Right of Private Defence of Property starts when there is a reasonable fear or crime (like robbery, theft) and continues until the fear of crime continues or public authorities takes charge. (Sec 43)

Right of Private Defence against Deadly Assault (Section 44):

Whenever there is an apprehension of death and the defender cannot exercise his right without risk of harm to an innocent person then his right extends to the running of that risk.

Example: - A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commit no offence if by so firing he harms any of the children.

Burden of Proof

The burden of proof is on the accused to show reasonable apprehension of danger. However, they need to prove it only by preponderance of probability, not beyond reasonable doubt.

Case Laws on Private Defence:

1. Munney khan Vs State (1971)

Held: - The Supreme court observed, "the right of private defence is codified in section 96 to 106 IPC (now 34 to 44 BNS), which all have to be read together in order to give a proper grasp of the scope and limitations of the right."

2. Ranbir Singh Vs State of Uttarakhand (2023)

Held: - The Supreme Court held that the right of private defence does not require actual injury, but only reasonable apprehension of death.

Conclusion

The right of private defence under Sections 34 to 44 of the Bhartiya Nyaya Sanhita is a crucial legal safeguard that empowers individuals to protect themselves, others, and their property against unlawful act and immediate danger. It is strictly limited to situations involving real and reasonable apprehension of danger. The law ensures a balance between personal liberty and public order by clearly defining when and how this right can be exercised. However, it must be remembered that this right is defensive, not offensive, and cannot be used as a tool for revenge. Courts have consistently emphasized that the right must be exercised in good faith, with proportional force, and only when no safer alternative is available.