BNS Section 36: Right of Private Defence Against Act of a Person of Unsound Mind, etc

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 BNS Section 36

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.

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