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Home › BNS Sections › Section 38
Bharatiya Nyaya Sanhita, 2023 In force since 1 July 2024

Section 38 BNS - When the right of private defence of Property extends to causing death

धारा 38 BNS बताती है कि शरीर की निजी प्रतिरक्षा (प्राइवेट डिफेंस) का अधिकार कब हमलावर की मृत्यु कारित करने तक विस्तारित होता है - जैसे मृत्यु, घोर चोट या बलात्संग की युक्तियुक्त आशंका। पुरानी IPC की धारा 100 अब यही धारा 38 BNS है।

Act
Bharatiya Nyaya Sanhita, 2023
Section
38 - When the right of private defence of Property extends to causing death
Old provision
Section 100 IPC

Old law → Section 38 BNS

Corresponds toChangeRemarks
Section 100 IPC Modified First, secondly, thirdly, fourthly, fifthly, sixthly, seventhly are replaced with (a),(b),(c),(d),(e),(f),(g).

Section 38 of the Bharatiya Nyaya Sanhita, 2023 (BNS) states when the right of private defence of the body extends to voluntarily causing death - the provision an accused invokes when a fatal act is claimed to have been done in self-defence. It carries forward Section 100 of the Indian Penal Code, with only a drafting change: the old-fashioned "First, Secondly ... Seventhly" list becomes clauses (a) to (g).

What Section 38 BNS provides

The right of private defence of the body extends to voluntarily causing death, or any other harm, to the assailant - but only if the offence which occasions the exercise of the right is of one of these descriptions:

  • (a) an assault that reasonably causes the apprehension that death will otherwise result;
  • (b) an assault that reasonably causes the apprehension that grievous hurt will otherwise result;
  • (c) an assault with the intention of committing rape;
  • (d) an assault with the intention of gratifying unnatural lust;
  • (e) an assault with the intention of kidnapping or abducting;
  • (f) an assault with the intention of wrongfully confining a person, in circumstances which reasonably cause the apprehension that the person will be unable to have recourse to the public authorities for release;
  • (g) an act of throwing or administering acid, or an attempt to do so, reasonably causing the apprehension that grievous hurt will otherwise result.

The essentials in plain language

Private defence is a shield, not a sword. Killing the assailant is justified only when the attack itself is of the gravest kind - one that reasonably makes the defender fear death, grievous hurt, rape, acid attack or the other listed offences. The apprehension must be reasonable, judged from the position of the person attacked in the heat of the moment, not with the hindsight of a courtroom. The right is also subject to the general restrictions on private defence - the defender must not inflict more harm than necessary, and the right does not arise where there is time to have recourse to the protection of the public authorities (see Section 37 BNS).

In Darshan Singh v. State of Punjab (2010), the Supreme Court gathered the governing principles: the right of private defence is a valuable, inherently defensive right, available against a reasonable apprehension of the listed harms, and the person facing imminent peril is not expected to weigh the force of the response in golden scales.

What changed from Section 100 IPC

Nothing of substance. The official comparison table records only a drafting modernisation: the enumeration "First, Secondly, Thirdly, Fourthly, Fifthly, Sixthly, Seventhly" is replaced with clauses (a), (b), (c), (d), (e), (f) and (g). The grounds themselves, and the case law built on Section 100 IPC over more than a century, continue to apply to Section 38 BNS.

Was a death caused in claimed self-defence? Whether a killing is protected by this section is an intensely fact-specific question that must be built into the defence from the first statement onwards. Talk to a criminal lawyer in your city or browse advocates in the Free Law directory.

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Frequently Asked Questions

What is Section 38 BNS?

Section 38 of the Bharatiya Nyaya Sanhita, 2023 states when the right of private defence of the body extends to voluntarily causing the assailant's death. It carries forward Section 100 IPC, with the old First-to-Seventhly list redrafted as clauses (a) to (g).

When can killing in self-defence be legal in India?

Only when the attack reasonably causes apprehension of death or grievous hurt, or is an assault intending rape, unnatural lust, kidnapping or abduction, wrongful confinement without recourse to authorities, or an acid attack - the grounds listed in Section 38 BNS.

What replaced Section 100 IPC?

Section 38 BNS, with no change in substance. The only modification is drafting: the enumerated grounds are now clauses (a) to (g) instead of First to Seventhly.

Is the right of private defence unlimited under Section 38 BNS?

No. It is subject to the general restrictions on private defence: the defender must not cause more harm than necessary, and the right does not arise where there is time to seek the protection of the public authorities.

Does old case law on Section 100 IPC still apply?

Yes. Because the provision was carried forward without substantive change, Supreme Court decisions on Section 100 IPC, such as Darshan Singh v. State of Punjab (2010), continue to guide cases under Section 38 BNS.

When does private defence extend to causing death under Section 38 BNS?

The right extends to causing death if the attack creates a reasonable apprehension of death, grievous hurt, rape, unnatural lust, kidnapping, wrongful confinement, or an acid attack.