BNS Section 40: Commencement and Continuance of Right of Private Defence of Body
Section 40 BNS is part of CHAPTER 3 GENERAL EXEMPTIONS in Bharatiya Nyaya Sanhita 2023 Act. It clarifies that this right arises when an individual is under immediate threat of harm and persists until such a threat ceases to exist. The provision ensures that self-defence is exercised only during the period of actual danger, maintaining a balance between lawful protection and the prevention of excessive or unnecessary force.
Definition of Section 40 of BNS
Section 40 of BNS 2023 States: The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
Explanation and Illustration of Section 40 (Bharatiya Nyaya Sanhita, 2023)
Section 40 defines the right of private defence as beginning the moment a person reasonably apprehends danger to their body, even if the offence has not yet been committed. This right persists as long as the threat or apprehension of harm continues.
Scenario:
A person is walking home at night when an individual brandishes a knife and threatens to attack. Although no physical assault has occurred yet, the person has a reasonable fear of imminent harm. To protect themselves, they use pepper spray to incapacitate the attacker and escape.
In this situation:
- The right of private defence began as soon as the threat (knife brandishing) created an apprehension of danger.
- The defensive act (pepper spray) is justified as long as the danger persists.
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-40
BNS-40 outlines an individual’s right to protect themselves when their body is under threat, emphasising the importance of self-defence in situations of imminent danger.
Key Provisions
Differences Between Section 40 of BNS 2023 and its Equivalent IPC Section
This section outlines the key differences between Section 40 of the Bharatiya Nyaya Sanhita (BNS) 2023 and its equivalent Indian Penal Code (IPC Section 102), 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 |
|---|---|---|---|
| 40 | Commencement and continuance of the right of private defence of the body. | 102 | No change. |
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FAQs about Section 40 of the Bharatiya Nyaya Sanhita (BNS)
When does the right to private defense of the body begin according to BNS Section 40?
The right to private defence of the body begins as soon as there is a reasonable apprehension of danger from a threat or attempt to commit an offence.
How long does the right to private defence of the body last under BNS Section 40?
The right lasts as long as the apprehension of danger to the body continues.
Is it necessary for an offence to be committed for the right to private defence of the body to arise?
No, the right arises as soon as there is a reasonable fear of danger, even if the offence has not yet occurred.
Examples:
Example 1: If a person reasonably fears an impending assault, the right to private defence of the body begins immediately, even if the assault has not yet taken place. This right continues as long as the fear of the assault persists
Example 2: If someone perceives a threat of violence, but the act of violence has not yet occurred, they are still entitled to exercise the right of private defence of the body. This right continues as long as they have a reasonable fear that the threat may be carried out.
When does my right to self-defense begin?
Your right to self-defense starts as soon as you perceive a real threat to your safety, even if the attack hasn’t yet occurred.
How long can I defend myself?
You are entitled to defend yourself for as long as the threat persists.
What if the danger isn’t immediate?
If you have a reasonable fear of harm, you are justified in taking action to protect yourself.
Can I use excessive force while defending myself under BNS Section 40?
No, the force used in self-defense must be proportionate to the threat faced. Excessive force can lead to legal consequences.
