Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Right of Private Defence and its Scope (Ss. 34 and 37 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

However, the right is not absolute. The force used in defence must be necessary, proportionate, and exercised only in situations of immediate danger. The law therefore attempts to strike a balance—empowering individuals to protect themselves while ensuring that this right is not used as a justification for excessive or retaliatory violence.

In this article we shall discuss the scope of the right of private defence. Section 34 BNS recognizes the natural and inherent right of every person to protect their life, body, and property from unlawful harm when immediate assistance from public authorities is not available. The objective of Section 34 BNS is to ensure that a person who acts in good faith to defend themselves or others from danger is not treated as a criminal. The law acknowledges that in situations of sudden threat, individuals may need to use reasonable force to prevent injury, loss, or danger. Therefore, actions taken within the lawful limits of private defence are considered justified and legally protected.

Need of Right of Private Defence:

Actually, the state has the duty to protect its citizens and their property from harm. However, in some cases, circumstances may arise when the aid of state machinery is not available and there is imminent danger or apprehension to a person or his property. In such situations, a person is allowed to use force to ward off the immediate danger to his or someone else’s person or property. This right of the person is called the right of private defence. The people are endowed with this right so that they can defend themselves and their property and not hesitate due to fear of prosecution.

The whole concept of the right of private defence or self-defence rests on the following propositions:

• Every person is entitled to protect himself and others against unlawful attacks upon their person and property.
• Where its aid can be obtained, it must be resorted to.
• Where its aid cannot be obtained, the individual may do everything that is necessary to protect himself.
• But the violence used must be in proposition to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feelings.

The right of private defence is not available against public servants acting in the exercise of their lawful powers. A person is allowed to use only reasonable force; a force that is proportionate to the impending danger.

If we make a comparative analysis, apparently we can say Indian law on the subject of private defence is much wider in scope than the Anglo-American legal system. In India, the right of private defence is available not only for the protection of the life and property of a person himself but also of the person and property of others. But in English Law, one can exercise this right only in defence of himself and his immediate kindred.

Scope of Right of Private Defence:

Section 34 BNS: 

Things Done in Private Defence:

Nothing is an offence which is done in the exercise of the right of private defence.

Section 34 BNS gives statutory recognition to the right of private defence, stating that nothing is an offence which is done in exercise of the right of private defence. But this right is not absolute. It is subject to the limitations contained in Sections 37 to 43 BNS. The right under section 34 BNS is basically preventive in nature and not punitive. It is exercised only to repel unlawful aggression and not to punish the aggressor for the offence committed by him. The question whether the exercise of the right of private defence is preventive or not is always a question of fact.

For example, if A is attacked by a mob who attempts to murder him. He can only exercise his right of private defence by firing on the mob. He cannot fire without risk of harming young children who are mingled with the mob. Under S. 34 BNS A has not committed any offence by firing, even if he harms the children.

Characteristics of Right of Private Defence:

Right is protective or preventive and not punitive

In Deo Narain v State of UP, AIR 1973 SC 473 case, the Supreme Court held that the right of private defence is exercised only to repel unlawful aggression and not to punish the aggressor for the offence committed by him. It is basically preventive in nature and not punitive.

In Munney Khan v. the State of M.P., AIR 1971 SC 1491 case, the deceased picked up a  quarrel with the appellant’s brother,  that the deceased overpowered the appellant’s brother, threw him on the ground and sat on his chest giving him fist blows, and that since the appellant could not, prevent the deceased hitting his brother by the use of his fist, he stabbed the deceased in the back with a knife. The trial court found the appellant guilty of murder, and the High Court dismissed his appeal summarily, agreeing generally with the conclusions of the trial court. The Court held that the appellant had exceeded his right of private defence and his guilty of culpable homicide not amounting to murder punishable under the first part of s.304, IPC. The court observed that the right of private defence is defensive and neither vindictive nor retributive.

It is available against the aggressor only and against the offence described under the BNS. The aggressor cannot claim the right to self-defence.

In State of UP v Ram Swarup, AIR 1974 SC 1570 case, the Supreme Court held that: “The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression.”

The right is available only when the defender entertains reasonable apprehension i.e. when there is a real and immediate threat. The right commences as soon as a reasonable apprehension of danger arises and continues till the apprehension continues. Thus the right ends with the necessity for it.

In Jai Dev v State of PunjabAIR 1963 SC 612 case, where a piece of land was bought by the accused party in a neighbouring village of Ahrod. Since they were outsiders to the village, the Ahrod villagers treated them as strangers. When the accused, who were armed, were ploughing the field in the disputed land, the villagers of Ahrod, who could not tolerate that strangers should take possession of the land, came armed in large numbers to take possession of the field. The accused party in self-defence of their property caused harm and shot dead one Amin Lal. Immediately thereafter, the villagers of Ahrod who had come to the field ran away and there was no longer any justification for using any force against the fleeing villagers. The moment the property had been cleared of trespassers, the right of private defence ceased to exist. However, the accused shot dead two of the fleeing villagers. While the right of private defence was available in the killing of Amin Lal, the Supreme Court held that it was not available to kill the fleeing villagers who were already some distance away from the field.

In Nityanand Pasayat v. the State of Orissa, 1989 CrLJ 1547 case, where there was a fight between two neighbours. The Session Court convicted the appellant under Section 302, IPC, and has been sentenced to undergo rigorous imprisonment for life for having intentionally caused the death of deceased Banabasa Bank. The Appellant appealed in the Orissa High Court. The High Court observed: “a right of self-defence has been granted to a citizen to protect himself by effective self-resistance against the unlawful aggressors and no man is expected to fly away when he is being attacked. He can fight back and when he apprehends that death or grievous hurt would be caused by his adversary, he can retaliate till the adversary is vanquished. But he can exercise such right only if he comes to the conclusion that the danger to his person is real and imminent. If he reaches the conclusion reasonably, then he is entitled to exercise the right so long as the reasonable apprehension has not disappeared. …. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. “. The Court acquitted the appellant.

The right of private defence is not available against public servants acting in exercising of their lawful powers.

In Kanwar Singh v Delhi Administration AIR 1965 SC 871 case, where a raiding party possessing authority under a section of the Delhi Municipal Corporation Act, seized the stray cattle belonging to the accused. The accused resisted the seizure of the cattle and inflicted injuries on the raiding party. Since, the raiding party was carrying out a lawful act, it was justified in law to seize the cattle, no right of private defence was available to the accused. Accordingly, he was convicted.

If life is threatened by grave danger, then the person in danger need not wait for State aid, unless aid is available

In Sukumaran v. State Rep. by the Inspector of Police AIRONLINE 2019 SC 137 case, where the Tamil Nadu forest ranger was accused of killing a sandalwood smuggler in a certain forest area by shooting him. The trial court had sentenced him to life imprisonment for murder. However, the Madras High Court reduced the term to five years. In appeal to the Apex Court acquitted him and held that “The right embraces the protection of property , whether one’s own or another person’s, against offences like theft, robbery, mischief and criminal trespass…mere a reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be actual commission of the offence in order to give rise to the right of private defence.” The appellant having seen the suspicious movements of the deceased party in the forest area rightly formed an opinion that the deceased party was moving around in the forest to smuggle the sandalwoods. Therefore, he was entitled to chase the deceased party and apprehend them for being prosecuted for commission of offence punishable under the forest laws. Indeed, that was his duty; also there was no motive attributed to the appellant towards any member of the deceased party.”

In Darshan Singh v. State of Punjab (2010) 2 SCC 333 case, the Supreme Court observed that a person cannot be expected to act in a cowardly manner when confronted with an imminent threat to life and has got every right to kill the aggressor in self-defence. While acquitting a person of murder, the court said that by enacting Section 96 to 106 of the IPC (s. 34 to 44 BNS), the Legislature clearly intended to arouse and encourage the spirit of self-defence amongst the citizens, when faced with grave danger.

The other important characteristics of the right of private defence are:

• The right of private defence cannot be claimed for a perceived future attack.
• The right is not for self-gratification
• Use of right should not be deliberate or for retaliation of past injury.
• The protective measures must be proportionate to injury or threat.
• Even if a private defence is not claimed, the Court may consider the plea based on material on record.

Tests to Check Legitimacy of Right of Private Defence:

• The legitimacy of the claim of the private defence depends on the facts and circumstances of the case. There are three tests for ascertaining reasonable apprehension; they are the objective, subjective and expanded objective tests.
• The objective test emphasizes as to how in a similar circumstance an ordinary, reasonable, standard and average person will respond,
• The subjective test examines the mental state based on individual attitude.
• The Expanded test is a combination of the above two tests, bases its inquiry to determine whether or not the individual acted as a reasonable person.

Judicial Analysis:

In Darshan Singh v. State of Punjab, AIR 2010 SC 1212 case, the Supreme Court has given following principles governing the right of self-defence.

• Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
• The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
• A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
• The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
• It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
• In private defence, the force used by the accused ought not to be wholly disproportionate or much greater than necessary for the protection of the person or property.
• It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
• The accused need not prove the existence of the right of private defence beyond a reasonable doubt.
• The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
• A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of the self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

In Munshi Ram v. Delhi Administration, AIR 1968 SC 702 case, the property acquired by the Central Government was auctioned and sold to Ashwani Kumar Dutt. When buyer’s men went to the land to level it with tractors, they were attacked by the appellant and others armed with spears and lathis and caused injuries to them. In Supreme Court, the appellant took the plea of right of private defence. The Supreme Court observed that it is well-settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record. Court also brought to notice that at the time of delivery, the land was in possession of Jamuna and crops are grown by Jamuna, were there in a portion of the land. The Court further said that the right of private defence serves a social purpose and the court also commented that there is nothing more degrading to the human spirit than to run away in face of peril. On this basis, the Court held that on the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence. The conviction of the appellants is set aside and they are acquitted.

Limitationd of the Right of Private Defence:

Section 37 BNS:

Acts against which there is No Right of Private Defence:

(1) There is no right of private defence, —

(a) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law;

(b) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law;

(c) in cases in which there is time to have recourse to the protection of the public authorities.

(2) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1:

A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2:

A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

According to Section 37(1)(a) BNS there is no right of private defence against an act done or attempted to be done by a public servant or an act done or attempted to be done by direction of a public servant, unless it causes reasonable apprehension of death or of grievous hurt, so long as the public servant acts in good faith and in discharge of his official duties. However, explanation 1 and 2 provides that a person is not deprived of the right of private defence in such circumstances unless he has reason to believe that the person doing the act is such a public servant or the person is doing the act on direction of the public servant, as the case may be.

In Dhara Singh v Crown, AIR 1947 Lah 249  case, where a search party of policemen went to search the house of an individual with an information that he possess an unlicensed gun, the search party on arriving the place of the accused, the accused heard some noises outside the house, taking out the gun and started firing shots in a belief of private defence against the intruders to the property who are policemen in reality, killed one of them by reason of mistake of fact and belief. The person under this belief where the policemen has not disclosed their identity the right to private defence is provide to the person so fired the shot at the public servant, not amounting to offence.

In Queen-Empress v. Pukot Kotu (1896) ILR 19 Mad 349 case, the Madras High court held that even if a search is conducted without a warrant or is otherwise irregular, it does not necessarily invalidate the recovery of incriminating items. If a court finds that an “excisable article” (such as contraband or illegal goods) was indeed recovered from the accused’s possession, the conviction can remain sound despite the procedural irregularity. Court also clarified that under Section 99 IPC (S. 37 BNS), there is no right of private defence against an act done, or attempted to be done, by a public servant acting in good faith under the colour of their office, even if that act is not strictly justifiable by law. The protection applies as long as the officer is acting with “due care and attention” (good faith).

According to Section 37(1)(c) BNS there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities. The restriction is based on the fact that the right of private defence is given to a person to repel an imminent danger to his body and property when the state help is not available to him. Obviously, the necessity of self-help disappears when he has ample opportunity to have recourse to state authorities. In such a situation, a person has to approach public authorities rather than taking law into his own hands.

According to Section 37(2) BNS the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

In Onkarnath Singh v State of UP, AIR 1974 SC 1550 case, the Supreme Court laid that a person is not entitled to use the violence that is disproportionate to the injury which is to be averted or which is reasonably apprehended. The moment a defender exceeds it, he commits an offence and is thereby disentitled for the right of private defence.

In Mohinder Pal Jolly v State of Punjab AIR 1979 SC 577 case, where there was a dispute between the workers and the management over demand for wages. The workers threw brickbats at the factory. The owner of the factory came out and fired a gunshot, killing one worker. The Supreme Court held that the owner exceeded his right of self-defence in killing the worker.

Conclusion:

Section 34 of the Bharatiya Nyaya Sanhita, 2023 (BNS) clearly states that “nothing is an offence which is done in the exercise of the right of private defence.” This principle recognizes that every individual has a natural and inherent right to protect their life, body, and property against unlawful aggression. The law acknowledges that situations may arise where a person faces immediate danger and cannot rely on the timely protection of public authorities. In such circumstances, the legal system allows a person to use reasonable force to defend themselves, another person, or their property. Section 34 BNS therefore acts as a protective shield, ensuring that individuals who act in genuine self-defence are not held criminally liable for their actions.

However, the right granted under Section 34 BNS is not absolute. It must be exercised within certain limits and only in response to an imminent threat. The detailed scope, conditions, and limitations of this right are further explained in Sections 35 to 44 of the BNS.

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