Right of Private Defence to Cause Death: Section 38 BNS 2023 (Old Section 100 IPC) Explained
Date Published
A stranger grabs a young woman on a lonely road and tries to drag her into a vehicle. She has no time to call the police. She picks up a heavy stone and strikes him, and he dies. Has she committed murder?
The answer is no, if the law of private defence applies. In the Bharatiya Nyaya Sanhita, 2023 (BNS), the section that says when this right reaches the point of causing death is Section 38. It replaces Section 100 of the Indian Penal Code. Many students still write "Section 100 BNS" by habit, so start by fixing the number in your mind.
A right that prevents, not punishes
The Drishti Judiciary note describes private defence as essentially a preventive right and not a punitive one. It exists to protect a person against unlawful hostility when the State cannot reach them in time.
The rules of private defence in the BNS run through several sections. These are the ones the source lists.
Section | What it covers |
34 | Nothing is an offence which is done in the exercise of the right of private defence. |
35 | The right to defend one's own body or another person's body against offences affecting the human body, and property against theft, robbery, mischief or criminal trespass. |
36 | The right can be used even against acts of persons of unsound mind, persons without maturity of understanding, or persons acting under intoxication or misconception. |
37 | The restrictions on the right. |
38 | When the right of private defence of the body extends to causing death. |
39 | Where the offence does not fall within Section 38, the right extends only to causing harm short of death. |
40 | When the right begins and how long it continues. |
44 | The right can extend to running the risk of harm to an innocent person when this is necessary to counter a deadly assault. |
The limits in Section 37
Section 38 is always read together with Section 37. Two limits are worth learning.
• There is no right of private defence against an act of a public servant acting in good faith, if the act does not cause a reasonable fear of death or grievous hurt.
• There is no right of private defence when there is time to seek the protection of public authorities.
The most important limit is this: the right never extends to inflicting more harm than is necessary. Section 38 opens up the possibility of causing death, but it does so "under the restrictions" in Section 37.
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The seven situations in Section 38
Section 38 says that the right of private defence of the body extends, under the restrictions in Section 37, to the voluntary causing of death or any other harm to the assailant, if the offence which causes the exercise of the right is of one of the following kinds.
• (a) An assault which reasonably causes the fear that death will otherwise be the result.
• (b) An assault which reasonably causes the fear that grievous hurt will otherwise be the 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 under circumstances which reasonably cause the person to fear that they will not be able to have recourse to public authorities for their release.
• (g) An act of throwing or administering acid, or an attempt to do so, which reasonably causes the fear that grievous hurt will otherwise be the result.
The word "reasonably" appears again and again. The fear must be a reasonable one. A vague or imagined fear does not qualify.
The woman on the road: applying the section
Go back to the opening example. The stranger was trying to drag her into a vehicle. This fits situation (e), an assault with the intent to kidnap or abduct. The place was lonely and the time was short, so Section 37's condition about time to seek public help is also met.
Her act of striking him is within the right, as long as she did not use more force than was needed. If she continued to strike after he had stopped and fallen, the excess force could take her beyond the protection.
What happens when Section 38 does not fit
If the offence is not one of the seven listed, the right is smaller. Section 39 says it does not extend to causing death. It extends only to causing harm short of death. So if someone tries to commit simple hurt, the defender cannot kill in response.
When the right starts and ends
Section 40 says that the right begins as soon as there is a reasonable apprehension of danger to the body. It continues as long as that apprehension continues.
This is the part that students often forget. The right is not just for the moment of the blow. It exists as long as the reasonable fear continues.
Cases from the source
The Drishti Judiciary note lists three cases.
Case | Point |
James Martin v State of Kerala (2003) | Courts consider the injuries, the threat to security and the circumstances when judging proportionality, using the standard of an ordinary human response. |
Yeshwant Rao v State of Madhya Pradesh (1992) | Defending another person's body is justified when there is a reasonable apprehension. |
Onkarnath Singh v State of Uttar Pradesh (1974) | Force beyond what is proportionate to the threat takes away the protection of private defence. |
The years are as listed in the source. Check them against a law report if you use them in an answer.
Common exam traps
• Wrong section number. Section 100 belongs to the IPC. The BNS section is 38.
• Confusing 38 and 39. Section 38 allows death in the listed cases. Section 39 allows harm short of death in the others.
• Ignoring Section 37. Even in a Section 38 situation, the force must be no more than necessary.
• Forgetting the time factor. If the defender had time to seek help from public authorities, the right is restricted.
How to answer a problem question
When you get a fact pattern, follow this order. First, identify the offence being threatened. Second, check if it is one of the seven in Section 38. Third, look at Section 37 for the limits, especially time to seek help and the need not to use more force than necessary. Fourth, check the timing under Section 40. Then give your conclusion.
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Frequently Asked Questions
Q1. Which BNS section deals with private defence extending to causing death?
Section 38. It replaces Section 100 of the Indian Penal Code.
Q2. How many situations are listed in Section 38?
Seven, marked (a) to (g).
Q3. Is rape one of the situations?
Yes. An assault with the intention of committing rape is listed in clause (c).
Q4. Is an acid attack covered?
Yes. Clause (g) covers throwing or administering acid, or attempting to do so, which reasonably causes the fear of grievous hurt.
Q5. What does Section 39 say?
If the offence is not one of those in Section 38, the right of private defence does not extend to causing death but only to causing harm short of death.
Q6. Is private defence available against a public servant?
Not against a public servant acting in good faith, if the act does not cause a reasonable fear of death or grievous hurt. This limit is in Section 37.
Q7. Can I use as much force as I want?
No. The right never extends to more harm than is necessary.
Q8. When does the right begin?
Under Section 40, when a reasonable apprehension of danger to the body arises. It continues as long as that apprehension continues.
Q9. What if I have time to call the police?
Then the right is restricted under Section 37, since there is time to seek the protection of public authorities.
Q10. Which case deals with excessive force?
Onkarnath Singh v State of Uttar Pradesh (1974), as listed in the source.
Conclusion
Section 38 of the BNS gives the strongest form of private defence, but it is bounded by reasonable fear, necessary force and the time to seek help. When you remember the seven situations together with the limits, problem questions become easy.
At Aashayein Judiciary, Nitesh Sir teaches the new criminal codes with a simple rule: learn the new section, remember the old one and practise with problems. Combine his classes with Judiciary Notes, PYQ practice and Mock Test series in our Online Judiciary Coaching, and prepare for the Civil Judge Exam and APO Exam.