BNS Section 42: When Such Right Extends to Causing Any Harm Other Than Death
Section 42 BNS is part of CHAPTER 3 GENERAL EXEMPTIONS in Bharatiya Nyaya Sanhita 2023 Act. This section specifies the conditions under which the right of private defence of property allows causing harm other than death. It recognises that while causing death may not always be justified, individuals are still entitled to protect their property by using necessary force. The provision permits the infliction of harm short of death, as long as the response is proportionate to the threat, ensuring the use of force is reasonable under the circumstances and within the limits set by law.
Definition of Section 42 of BNS
Section 42 of BNS 2023 States:
If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions specified in section 41, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions specified in section 37, to the voluntary causing to the wrong-doer of any harm other than death.
Explanation and Illustration of Section 42 (Bharatiya Nyaya Sanhita, 2023)
Section 42 limits the right of private defence of property when the offence is related to theft, mischief, or criminal trespass that does not fall under the serious categories specified in Section 41. In such cases, the right does not extend to causing death, but it does allow for causing harm, excluding death, to protect one's property. This right is subject to the restrictions under Section 37.
Example:
Scenario 1: Theft
A person notices someone attempting to steal their bicycle from their porch. In response, the homeowner tries to stop the thief by pushing them away, causing the thief to fall and sustain a minor injury.
Here, the homeowner is justified in using force to protect their property (the bicycle) under Section 42, but the force cannot extend to causing the thief’s death. The right is limited to causing harm that is not fatal.
Scenario 2: Criminal Trespass
A person notices someone trespassing on their land late at night. Fearing the trespasser might damage their crops, the landowner physically intervenes, causing the trespasser to trip and sprain their ankle.
In this case, the landowner is justified in using non-lethal force to defend their property, as the offence (criminal trespass) does not meet the criteria outlined in Section 41 for allowing death to be caused in defence.
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-42
BNS-42 outlines the extent to which a person can exercise their right of private defence when facing offences such as theft, mischief, or criminal trespass, with clear limitations.
Limited to Non-Lethal Harm
Offences Not Covered by Section 41
Other Forms of Harm
Restrictions Under Section 37
Justifiable Actions
Differences Between Section 42 of BNS 2023 and its Equivalent IPC Section
This section outlines the key differences between Section 42 of the Bharatiya Nyaya Sanhita (BNS) 2023 and its equivalent Indian Penal Code (IPC Section 104), 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 |
|---|---|---|---|
| 42 | When such right extends to causing any harm other than death. | 104 | No change. |
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FAQs about Section 42 of the Bharatiya Nyaya Sanhita (BNS)
What is the purpose of Section 42?
Section 42 defines the scope of the right of private defence when it does not extend to causing death. It applies to situations involving theft, mischief, or criminal trespass (not covered under Section 41).
What actions are permissible under Section 42?
The right of private defence under this section allows causing harm to a wrongdoer, excluding death, in response to certain offences like theft, mischief, or criminal trespass.
How is Section 42 different from Section 41?
While Section 41 permits the right to cause death in defence against grievous offences (like murder or kidnapping), Section 42 restricts this right to causing harm other than death for lesser offences such as theft.
What are the limitations of this right?
The right must adhere to the restrictions specified in Section 37, ensuring proportionality and necessity in the use of force.
Can you provide an example?
Yes, if someone attempts to steal property, the property owner can harm the thief (e.g., restrain or injure them) to prevent the theft, but cannot intentionally kill them.
