Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Right of Private Defence of Body and of Property (S. 35 BNS)
The Right of Private Defence is a fundamental principle of criminal law that allows individuals to protect themselves, their property, and others from unlawful harm. It recognizes that when a person faces an immediate threat and state protection is unavailable, the law permits reasonable force to prevent injury or damage. This right reflects the natural instinct of self-preservation and aims to balance individual safety with the need to prevent misuse of force.
Chapter III, Sections 34 through 44 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines the characteristics and scope of private defence in various situations. The provisions contained in these sections give authority to a person to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property when immediate aid from the state machinery is not readily available, and in so doing he is not answerable in law for his deeds. Such a right is not only restraining influence on corrupt characters but also encourages manly spirit in a law-abiding citizen. In this article discuss provisions under Section 35 of the Bharatiya Nyaya Sanhita, 2023 (BNS) related to right of private defence of body and of property.
Right of Private Defence of Body and of Property
Section 35 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines the scope of the right of private defence and specifies what a person is legally entitled to protect. While the preceding provision of Section 34 BNS establishes that acts done in private defence are not offences, Section 35 BNS explains the extent of this right by identifying the subjects that can be defended under the law. According to Section 35 BNS, every person has the right to defend their own body and the body of any other person against offences affecting the human body. In addition, the law also grants the right to defend their own property or the property of another person, whether movable or immovable, against offences such as theft, robbery, mischief, or criminal trespass.
The provision highlights an important principle of criminal law: the right of private defence is not limited to self-protection alone. It also extends to the protection of others and their property when unlawful aggression occurs. This reflects the legal recognition that individuals may need to act quickly to prevent harm when immediate assistance from authorities is unavailable.
Section 35 BNS:
Right of Private Defence of Body and of Property:
Every person has a right, subject to the restrictions contained in section 37, to defend—
(a) his own body, and the body of any other person, against any offence affecting the human body;
(b) the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Section 35(a) BNS provides for the defence of the body against any offence affecting the human body. Section 35(b) BNS provides a defence of property against an act which amounts to commission of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Under S. 35 BNS gives the right to protect his body or anybody else’s body and his property or anybody else’s property. The English law gives the right to protect his body or anybody else’s body and body or property of a person having kindred or community interest like parent-child, husband-wife, landlord-tenant, etc.
Thus under the provision, a father, in order to protect the life of daughter from the attack of a thief, shoots him in his leg. In this case, the father will not be liable as he was protecting the life of his daughter.
Who is the Agressor?
The number of injuries is used to decide the aggressor but it is not the criteria. The rationale on which this principle is founded that a party which goes to launch the assault would go well prepared and well-armed in defence and would cause more injuries than it receives from the other side.
Judicial Analysis:
In Gopal v. The Crown, AIR 1950 HP 18 case at paragraph 57 the Himachal High Court give reference of R. v. Rose (1884-15 Cox, C. C. 540) case, in which the Court held as follows: “Homicide is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away the life, is necessary for his preservation, The law says that not only in self-defence, may homicide be excusable but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life.”
In Beckford v Crown [1988] AC 130 case, where, the accused, Dennis Beckford, was a police officer in Jamaica. While searching for a suspect, Beckford encountered a man whom he believed to be armed and dangerous. Beckford shot and killed the man, claiming that he believed the suspect was about to shoot him. However, it was later discovered that the victim was unarmed. Beckford was charged with murder, and the key question before the court was whether his belief that he was in danger could justify the use of lethal force in self-defence. The Court held that a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike and a person is entitled to use force in self-defence if they honestly believe that it is necessary to defend themselves, even if that belief is mistaken.
In Crown v Hussey (1924) 18 Cr App R 160, case the defendant was barricaded in his room while his landlady and some accomplices were trying to break down his door to evict him unlawfully. The defendant fired a gun through the door and wounded one of them. He was acquitted of the wounding charge on the grounds of self-defence.
In Amzad Khan v. Hazi Mohammad Khan, AIR 1952 SC 165, case, where during a 1950 communal riot in Katni, a mob looted the appellant’s brother’s shop and began attacking the appellant’s shop. The mob was striking the door to break it open. To save the lives of inmates, the owner fired two shots for straying away the frenzied mob resulting in death and injuries. The Supreme Court held that the threat was imminent, and the appellant had a right to protect his life and property. The Court noted that in such high-stakes situations, one cannot be expected to weigh the necessity of the force used in “golden scales”. The court held that it was not use of excessive force.
In Biren Singh v. State of Bihar AIR 1975 SC 87 case the two accused had simple injuries ran to their house and brought swords. During the fight with swords, one of the accused died of severe injuries to vital parts of the body. The court held that in such case the benefit of the right of private defence cannot be considered. Court said that in order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstance whether the accused had time to have recourse to public authorities are all relevant factors to be considered on a plea of private defence.
In Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660 case, the workers called for a strike. They were demanding enhancement of wages. They entered the office of the owner of the factory and were shouting slogans. They destroyed goods and furniture of the office. The accused (Appellant) came out of his room and fired a shot from his revolver, resulting in the death of one worker. The Supreme Court held that the accused caused more harm than was necessary, and thus he has not entitled the defence of the right of private defence. At the same time, there was sufficient time to call public authorities for defence.
In Krishna v. State of Madras, 1968 (2) STC 253 case, the accused had attacked the Sales Tax Officer who came to his shop for an inspection. The officer attempted to seize the account books of the accused u/sec. 41 (3) of the Madras Sales Tax Act, 1951. He was abducted and assaulted by the accused. The accused was held to be guilty and was not entitled the protection of private defence.
In Dwarka Prasad v. State of U. P., 1993 SCC (Cri) 882 case, where Court defined free fight is that when both sides mean to right a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party. In such cases of mutual rights, both sides can be convicted for their individual acts. The Court held that in case of a free fight there is no right of private defence to either party.
In Deo Narain v. State of U.P. (AIR 1973 SC 473) case, the Court observed that a person could only claim the right to use force after he has sustained a serious injury by an aggressive wrongful assault, is a complete misunderstanding. In this case, the accused used spear though other party had aimed lathi blow on his head. The Court held that the use of a weapon with him is justifiable as the blow of lathi on the head could prove dangerous. It is not excess of force.
Conclusion:
In conclusion, Section 35 Bharatiya Nyaya Sanhita, 2023 (BNS) dealing with right of private defence of body and of property.plays a crucial role in defining the extent of the right of private defence. It clearly recognizes that every individual has the legal authority to defend not only their own body and property but also the body and property of others against unlawful acts. By doing so, the law acknowledges the natural instinct of self-preservation and the need to protect society from immediate harm when state assistance is not readily available.
However, this right is not unlimited. The exercise of private defence must always remain reasonable, necessary, and proportionate to the threat faced. It cannot be used as a tool for revenge, aggression, or unlawful retaliation. The provisions of the IPC, along with judicial interpretations, ensure that the right is used strictly for protection and not as a justification for excessive force.
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