Section 36 BNS: Private Defence Against Acts of Persons of Unsound Mind, etc.
Section 36 of the Bharatiya Nyaya Sanhita, 2023 protects the right of private defence even where the person creating the danger may not be criminally liable because of youth, lack of maturity, unsoundness of mind, intoxication or misconception.
Text of Section 36 - Bharatiya Nyaya Sanhita, 2023
36. 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.
Meaning of Section 36 BNS
The central rule is that the defender's right depends on the nature of the threatening act, not merely on whether the person causing the threat can ultimately be convicted of an offence. If an act would ordinarily amount to an offence but the actor is exempt from criminal liability because of one of the conditions listed in Section 36, the person facing that act does not lose the corresponding right of private defence.
In practical terms, the provision separates two legal questions: whether the person doing the act is criminally responsible, and whether another person is entitled to defend against the danger created by that act. Section 36 ensures that the absence of criminal responsibility on the first question does not automatically destroy the right of defence on the second.
Conditions specifically mentioned in Section 36
- Youth of the person doing the act.
- Want of maturity of understanding.
- Unsoundness of mind.
- Intoxication.
- Misconception on the part of the person doing the act.
How Section 36 works with Sections 34, 35 and 37
Section 34 BNS lays down the general rule that an act done in exercise of the right of private defence is not an offence. Section 35 BNS identifies the right to defend one's own body, another person's body, and specified interests in movable or immovable property.
Section 36 then preserves that right where the threatening act is committed by a person whose youth, immaturity, unsoundness of mind, intoxication or misconception affects criminal liability. The right is nevertheless subject to the restrictions in Section 37 BNS and to the other provisions governing the extent and duration of private defence.
Explanation of Illustration (a)
The first illustration concerns an attempted killing by a person of unsound mind. Even though that person's mental condition may prevent criminal liability, the person facing the attack may exercise the same right of private defence that would exist if the attacker were legally responsible for the attempted offence. The illustration shows that immediate protection from danger is distinct from the attacker's criminal culpability.
Explanation of Illustration (b)
The second illustration deals with a good-faith mistake. A person lawfully enters a house at night, but another person mistakenly believes that the entrant is a house-breaker and attacks. Although the mistaken attacker may not commit an offence because of the misconception described in the illustration, the lawful entrant still has the same right of private defence as if the attacker were not acting under that misconception.
Limits on the right of private defence
Section 36 does not create an unlimited right to cause harm. The exercise of private defence remains controlled by the rest of the statutory scheme. In particular, Section 37 sets restrictions, while Sections 38 to 44 deal with matters such as when the right may extend to causing death or other harm and when the right begins and continues.
Accordingly, the existence and extent of the right in a particular case depend on the nature of the threat, the circumstances in which the defensive act occurred and the limits imposed by the connected BNS provisions.
Current legal status of the BNS
The Bharatiya Nyaya Sanhita, 2023 is Act No. 45 of 2023. The Central Government appointed July 1, 2024 as the date on which the provisions of the BNS came into force, except Section 106(2).
For authoritative materials, see the Ministry of Home Affairs - New Criminal Laws page and the official commencement notification for the Bharatiya Nyaya Sanhita, 2023.
Frequently asked questions
Can private defence be exercised against a person of unsound mind?
Yes. Section 36 expressly provides that the defender has the same right of private defence against the act as would exist if the act were the offence, even where the actor's unsoundness of mind prevents criminal liability.
Does Section 36 cover intoxication?
Yes. Intoxication of the person doing the act is one of the circumstances expressly mentioned in the section.
Does a mistaken attacker eliminate the victim's right of defence?
No. The section and its second illustration show that a misconception affecting the attacker's liability does not, by itself, take away the other person's right of private defence.