Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Right of Private Defence against Act of a Person of Unsound Mind, etc. (S. 36 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 36 of the Bharatiya Nyaya Sanhita, 2023 (BNS) dealing with the right of private defence against act of a person of unsound mind, etc..
Section 36 BNS addresses situations where an act that would ordinarily be considered an offence is carried out by a person who, because of factors such as unsoundness of mind, intoxication, infancy, or mistake of fact, is exempt from criminal liability. In such circumstances, although the actor may not be punishable under law, the danger faced by the victim remains real. To ensure that individuals are not left defenceless in these situations, the law allows them to exercise the same right of private defence as they would if the act had been committed by a person fully responsible for their actions.
Right of Private Defence against Act of a Person of Unsound Mind, etc.:
Section 36 BNS:
Right of Private Defence against Act of a Person of Unsound Mind, etc.:
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.
Illustrations:
(a) Z, a person of unsound mind, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
Section 36 BNS provides the right of private defence against acts of persons of unsound mind, minors, intoxicated persons, or those acting under a misconception. It ensures that even if the attacker is legally exempt from punishment (due to lack of maturity, insanity, or intoxication), the victim retains the same right to self-defence as if the attacker were sane and sober.
The application of this section extends to the acts of persons who are, of unsound- mind, in a state of intoxication, and lacks the maturity of understanding the outcome of one’s act. It says that one person who is in imminent threat to danger or harm to life, limb and property of one’ own or of others, from a person of unsound mind suffering from lunacy, intoxicated state, will be able to exercise his rights against them as well, regard less of their such conditions.
According to the second illustration attached to Section 36 BNS, a person has a right of private defence even if the attacker acts under a misconception.
In Manikirki v. Emperor, 28 CrLj 445 case, the Court observed that the right under this section if not provided by the makers, then the purpose of this section would have failed miserably, if exceptions to the unsound, lunatic and intoxicated is not provided. Since the opposite party can very well inflict harm to the person and property and if no private defence is provided to him/her than it will lead to the downfall of the entire existence of this section.
Conclusion:
Section 36 of the Bharatiya Nyaya Sanhita, 2023 (BNS) reinforces the fundamental principle that the right of private defence is based on the necessity of protection rather than the criminal liability of the aggressor. Even when an act is committed by a person who is exempt from punishment due to unsoundness of mind, intoxication, infancy, or mistake of fact, the threat or danger faced by the victim remains real. The law therefore ensures that individuals are not deprived of their right to defend themselves or their property merely because the person causing harm cannot be held legally responsible.
By recognizing this principle, the Indian Penal Code maintains a balanced approach between protecting vulnerable individuals and safeguarding the rights and safety of others. Section 36 BNS thus plays an essential role in strengthening the doctrine of private defence by emphasizing the immediacy of danger and the necessity of response.
Ultimately, the provision highlights that the law prioritizes the preservation of life and personal security. While it protects certain individuals from criminal liability, it equally acknowledges that no person should be compelled to endure harm without the right to protect themselves.
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