BNS Section 38: When Right of Private Defence of Body Extends to Causing Death
Section 38 BNS is part of CHAPTER 3 GENERAL EXEMPTIONS in Bharatiya Nyaya Sanhita 2023 Act. It specifies the conditions under which the right of private defence of the body may extend to causing death. This section outlines the scenarios where using lethal force is justified, such as when an individual faces a severe and immediate threat like an assault likely to result in death, grievous harm, or serious crimes like kidnapping or rape. It aims to protect individuals acting in genuine self-defence while ensuring that the response is proportionate to the imminent danger faced.
Definition of Section 38 of BNS
Section 38 of BNS 2023 States: The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
(a) such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;
(f) an assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
(g) an act of throwing or administering acid or an attempt to throw or administer
acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
Explanation and Illustration of Section 38 (Bharatiya Nyaya Sanhita, 2023)
Section 38 elaborates on the right of private defence of the body, allowing voluntary harm or even causing death of an assailant, subject to restrictions under Section 37.
Scenario 1: Apprehension of Death
A person is attacked by an assailant wielding a knife, threatening to kill them. The victim reasonably believes their life is in imminent danger. To protect themselves, the victim uses a sharp object to injure the attacker fatally.
In this case, the victim’s act is protected under Section 38, as the harm caused was in self-defence against an assault that posed a threat of death.
Scenario 2: Intent to Commit Rape
A woman is attacked in an isolated area by an assailant attempting to rape her. In defence, she uses a heavy object to strike the attacker, leading to his death.
Here, the woman’s action is justified under Section 38, as the assault was intended to commit rape, and her response was necessary for her protection.
The provision ensures individuals can act decisively in grave situations to protect themselves or others, provided the response is proportional to the threat and falls within the specified circumstances.
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-38
BNS-38 outlines specific scenarios where a person may lawfully cause death or harm to an assailant while exercising their right of private defence, subject to the limitations in BNS-37. This section provides legal justification for using lethal or harmful force under extreme circumstances.
Situations Allowing the Use of Lethal or Harmful Force
Differences Between Section 38 of BNS 2023 and its Equivalent IPC Section
This section outlines the key differences between Section 38 of the Bharatiya Nyaya Sanhita (BNS) 2023 and its equivalent Indian Penal Code (IPC section 100), 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 |
|---|---|---|---|
| 38 | When the right of private defence of property extends to causing death. | 100 | First, secondly, thirdly, fourthly, fifthly, sixthly, seventhly are replaced with (a),(b),(c),(d),(e),(f),(g).. |
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FAQs About Section 38 of the Bharatiya Nyaya Sanhita
What does Section 38 of the BNS Cover?
It outlines situations where the right of private defence of the body justifies causing death to an assailant, provided the circumstances involve severe threats such as assault likely to cause death or grievous hurt.
What offences justify causing death under private defence?
These include assaults that cause apprehension of death, grievous hurt, rape, unnatural lust, kidnapping, wrongful confinement, or acid attacks.
Is prior authorisation required to act in private defence?
No, the right to private defence is spontaneous and does not require prior approval but must align with the prescribed restrictions.
Are there limitations to this right?
Yes, Section 37 imposes restrictions such as not exceeding the necessity of defence and acting only when immediate public authority intervention is unavailable.
Can private defence be used against public servants?
No, unless the individual is unaware that the act is being carried out by a public servant acting in good faith.
What are some examples of criminal actions?
Some examples of criminal actions that justify the use of deadly force include:
