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Section 38 BNS: When Private Defence of the Body Extends to Causing Death

Section 38 of the Bharatiya Nyaya Sanhita, 2023 specifies the limited situations in which the right of private defence of the body may extend to voluntarily causing death, or any other harm, to an assailant. The provision operates subject to the restrictions contained in Section 37 BNS.

Current legal position: The Bharatiya Nyaya Sanhita, 2023 is Act No. 45 of 2023. Its provisions, except Section 106(2), came into force on 1 July 2024 under the Central Government notification dated 23 February 2024.
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Text of Section 38 of the Bharatiya Nyaya Sanhita, 2023

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.

Meaning and Scope of Section 38 BNS

Section 38 is an exception to the general limitation that private defence of the body does not ordinarily extend to voluntarily causing death. It identifies serious categories of danger in which the law permits the right, subject to Section 37, to extend to causing death or any other harm to the assailant.

The provision does not create an unrestricted right to kill. The person claiming private defence must still satisfy the restrictions in Section 37 BNS, including the rule that no more harm may be inflicted than is necessary for the purpose of defence.

Seven Situations in Which Private Defence May Extend to Causing Death

1. Reasonable apprehension of death The right may extend to causing death where the assault reasonably creates an apprehension that death will otherwise result.
2. Reasonable apprehension of grievous hurt The right may similarly extend where the assault reasonably creates an apprehension that grievous hurt will otherwise result.
3. Assault with intention of committing rape An assault committed with the intention of committing rape falls expressly within Section 38.
4. Assault with intention of gratifying unnatural lust Section 38 separately includes an assault committed with this intention.
5. Assault with intention of kidnapping or abducting An assault intended to facilitate kidnapping or abduction is one of the expressly listed situations.
6. Assault with intention of wrongful confinement The provision applies where the circumstances reasonably cause a person to apprehend that, if wrongfully confined, he will be unable to obtain the protection of public authorities for release.
7. Acid attack or attempted acid attack Throwing or administering acid, or attempting to do so, is covered where it reasonably causes an apprehension that grievous hurt will otherwise result.

Section 38 Must Be Read with Section 37 BNS

Section 38 expressly states that the extension of private defence to causing death is subject to the restrictions specified in Section 37 BNS. Those restrictions include cases involving certain acts of public servants, situations in which there is time to seek the protection of public authorities, and the requirement that the harm inflicted must not exceed what is necessary for defence.

Key rule: Section 38 identifies when the right may extend to causing death; Section 37 continues to control the manner and extent in which that right may lawfully be exercised.

Relevant Legal Provisions and Expressions

Rape - Section 63 BNS Section 63 defines the offence of rape and the circumstances in which the statutory definition applies.
Grievous hurt - Section 116 BNS Section 116 specifies the kinds of hurt designated as grievous. The expression is directly relevant to clauses (b) and (g) of Section 38.
Acid offences - Section 124 BNS Section 124 deals with voluntarily causing grievous hurt by use of acid and with throwing or attempting to throw acid.
Wrongful confinement - Section 127 BNS Section 127 deals with wrongful confinement and related forms of confinement.
Assault - Section 130 BNS Section 130 deals with assault, an expression used repeatedly in Section 38.
Kidnapping - Section 137 BNS Section 137 defines kidnapping from India and kidnapping from lawful guardianship.
Legal information: This page reproduces and explains Section 38 for general legal information. Whether the right of private defence extends to causing death depends on the facts, the existence and immediacy of the apprehended danger, and the restrictions imposed by the Bharatiya Nyaya Sanhita, 2023.