What Is BNS Section 38?

Bharatiya Nyaya Sanhita, 2023 -Section 38: When right of private defence of body extends to causing death.

The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:

• (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
• (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
• (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 may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
• (g) an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

Brief Detail

BNS Section 38 outlines when the right of private defense of the body extends to causing death or harm. This right is applicable under certain conditions described in Section 37 and includes scenarios where:

• The assault leads to a reasonable apprehension of death.
• The assault leads to a reasonable apprehension of grievous hurt.
• The assault is intended to commit rape.
• The assault is intended to gratify unnatural lust.
• The assault is intended for kidnapping or abduction.
• The assault is intended to wrongfully confine a person under circumstances where the person cannot seek public authority intervention.
• The act involves throwing or administering acid that may cause grievous harm.

Question & Answers

Q1: When does the right of private defense extend to causing death or harm according to BNS Section 38?

A1: The right of private defense extends to causing death or harm under the conditions specified in Section 37 if the offense involves:

• An assault causing reasonable apprehension of death.
• An assault causing reasonable apprehension of grievous hurt.
• An assault intended to commit rape.
• An assault intended to gratify unnatural lust.
• An assault intended for kidnapping or abduction.
• An assault intended for wrongful confinement where the victim cannot seek public authority help.
• An act of throwing or administering acid that may cause grievous harm.

Q2: What are the specific offenses listed in BNS Section 38 that justify the use of private defense?

A2: The specific offenses are:

• Assault causing reasonable fear of death.
• Assault causing reasonable fear of grievous hurt.
• Assault intended to commit rape.
• Assault intended to gratify unnatural lust.
• Assault intended for kidnapping or abduction.
• Assault intended for wrongful confinement under circumstances limiting the victim's access to public authorities.
• Throwing or administering acid with the potential to cause grievous harm.

Example

Example 1: If a person is attacked in a manner that reasonably leads them to fear death, they are justified in using force, even lethal, in self-defense according to BNS Section 38.

Example 2: If someone is assaulted with the intent to kidnap or abduct, the victim may use force to defend themselves, which could extend to causing death or serious harm if necessary.

Example 3: A person facing an assault with the intent of throwing acid, which may cause serious harm, has the right to use force in defense, including potentially lethal force.

Summary

BNS Section 38 grants the right to cause death or harm in self-defense under specific conditions, including when facing assaults that induce fear of death or grievous hurt, or when the assault has malicious intent such as rape, unnatural lust, kidnapping, or acid attacks.