BNS Section 36: Right of Private Defence Against Act of a Person of Unsound Mind, etc
Section 36 BNS is part of CHAPTER 3 GENERAL EXEMPTIONS in Bharatiya Nyaya Sanhita 2023 Act. It addresses the right of private defence in situations where the threat arises from individuals who are of unsound mind or otherwise incapable of understanding the consequences of their actions.
This provision ensures that a person can lawfully defend themselves or their property against acts committed by those who, due to mental incapacity or similar conditions, may pose a danger, even if the aggressor lacks criminal intent. It highlights the balance between protecting oneself and recognising the unique nature of threats from vulnerable individuals.
Definition of Section 36 of BNS
Section 36 of BNS 2023 States: 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.
Explanation and Illustration of Section 36 (Bharatiya Nyaya Sanhita, 2023)
Under Section 36 of Bharatiya Nyaya Sanhita, 2023, which provides scenarios where an act otherwise considered an offence is not considered an offence due to an abnormal mental condition or a misapprehension of the mind at the time of commission by a person. It covers youth, immatureness, unsoundness of mind, intoxication, and misconception. Despite this, the section maintains that the person threatened by such an act retains the right of private defence as if the act were committed by someone fully aware of its nature.
Key Points:
- The right of private defence is not lost even if the offender's mental state or understanding is different in any respect
- The legal exception does not limit the rights of a defender; it ensures that self-defence can be exercised without any hesitation even if the aggressor is not criminally liable.
Illustration (a):
If Z, being a person of unsound mind, attempts to kill A, then Z cannot be held criminally liable due to his mental state. However, A has a right to protect himself as if Z were of sound mind. The law recognises the threat by protecting A's right to use necessary force to prevent harm to A, irrespective of Z's mental condition.
Illustration (b):
Suppose A lawfully enters a house at night. Z, the occupant of that house, mistakenly thinks A is a burglar and attacks him in self-defence. The above action of Z is not an offence because of his mistaken belief. But A still retains the right of private defence against Z as if Z himself were attacking without any such mistake. A can defend himself so as not to suffer harm though Z has no criminal intent.
Section 36 therefore respects the right of private defence, for it recognises that a threat is imminent to a person, even if the assailant is not of unsound mind or has a genuine mistake.
The examples provided are for educational purposes only and do not constitute legal advice. They should not be used for legal proceedings or decision-making. For specific legal matters, please consult a qualified legal professional.
Key Points Of BNS - 36
BNS-36 opines that the right of private defence applies even if the act is not a legally recognised offence. This is based on specific factors such as age, mental disorder, intoxication or mistake. These disabilities notwithstanding, the defender can treat the threat as if it were a criminal offence.
Youth or Immaturity:
The above thus dictates that if committed by a person that is too young or immature to understand the implications, people around him still retain the right of self-defence as if it were an offence.
Mental Illness or Intoxication:
Acts committed by a mentally ill person or intoxicated person are likewise treated alike. Thus, they are not covered with criminal liability but the defender can protect himself as if it were an intentional act.
Misconception:
If a person acts on a mistaken belief (for example, mistaking a person for an intruder), the victim can still respond to the mistaken act.
Important Terms:
Differences Between Section 36 of BNS 2023 and its Equivalent IPC Section
This section outlines the key differences between Section 36 of the Bharatiya Nyaya Sanhita (BNS) 2023 and its equivalent Indian Penal Code (IPC section 98), focusing on their distinct approaches to definitions, interpretations, and legal principles within the framework of criminal law.
| BNS Sections/ Subsections | Subject | IPC Sections | Summary of comparison |
|---|---|---|---|
| 36 | Right of private defence against the act of a person of unsound mind, etc. | 98 | In Illustrations, words under the influence of madness’ are replaced by 'a person of unsound mind’. |
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FAQs about Section 36 of the Bharatiya Nyaya Sanhita (BNS)
What is Section 36 of the Bharatiya Nyaya Sanhita (BNS)?
Section 36 of the BNS deals with the right of private defence and outlines the conditions under which a person can defend themselves or others from harm.
What does the term 'private defence' mean under Section 36 of the BNS?
Private defence refers to the legal right of an individual to protect themselves or others from imminent harm or injury, using reasonable force.
When does the right to private defence arise under Section 36?
The right arises when a person faces an immediate threat of harm and has no other means to avoid that harm.
Is there any restriction on the extent of force used in private defence under Section 36?
Yes, the force used in private defence must be proportionate to the threat. Excessive force may lead to liability.
Can a person use deadly force in private defence under Section 36?
Yes, deadly force can only be used if the threat is of death or grievous bodily harm. The response must be proportionate to the threat faced
