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Section 40 BNS: Commencement and Continuance of Right of Private Defence of Body

Section 40 of the Bharatiya Nyaya Sanhita, 2023 explains when the right of private defence of the body begins and how long it continues. The right can arise before an offence is actually committed if an attempt or threat creates a reasonable apprehension of danger to the body, and it lasts only while that apprehension continues.

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.
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Text of Section 40 of the Bharatiya Nyaya Sanhita, 2023

40. Commencement and continuance of right of private defence of body.

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

Meaning and Scope of Section 40 BNS

Section 40 deals with the timing of the right of private defence of the body. It does not require a person to wait until bodily injury has actually been inflicted. The right may arise when an attempt or threat to commit an offence creates a reasonable apprehension of danger to the body.

At the same time, the right is not unlimited in duration. It continues only for so long as the reasonable apprehension of bodily danger continues. Once that apprehension ends, the protective basis for exercising private defence under Section 40 also ends.

When Does the Right of Private Defence of the Body Begin?

The statutory trigger is a reasonable apprehension of danger arising from an attempt or threat to commit an offence. The actual offence need not already have been completed. This means the law recognises that defensive action may sometimes be necessary before an assailant succeeds in carrying out the threatened offence.

Attempt may be enough The right may commence when an attempt to commit the offence creates a reasonable apprehension of danger to the body.
A threat may also be enough A threat can trigger the right where it produces a reasonable apprehension of bodily danger in the circumstances.
Actual injury is not essential Section 40 expressly recognises that the offence itself need not already have been committed before the right begins.
The apprehension must be reasonable A mere remote, speculative, or unsupported fear does not satisfy the statutory wording; the relevant question is whether there is a reasonable apprehension of danger to the body.

How Long Does the Right Continue?

Section 40 states that the right continues as long as the apprehension of danger to the body continues. The provision therefore links the duration of the right directly to the continuation of the danger reasonably apprehended.

Key rule: The right begins with the reasonable apprehension of bodily danger and ends when that apprehension of danger ends. Section 40 is protective in character and does not authorise force after the danger has ceased.

What Does "Reasonable Apprehension" Mean in Section 40?

Section 40 uses the expression "reasonable apprehension of danger to the body" but does not provide a separate definition of that phrase in the section itself. The statutory focus is therefore on whether the attempt or threat, viewed in its circumstances, gives rise to a reasonable apprehension of bodily danger.

The timing rule in Section 40 must also be read with the general scope and limitations of private defence. Section 35 BNS recognises the right of private defence of body and property, while Section 37 BNS sets out important restrictions on its exercise.

Legal information: This page reproduces and explains Section 40 for general legal information. Whether a right of private defence has commenced or continues in a particular case depends on the facts, the nature and immediacy of the attempt or threat, and the other applicable provisions of the Bharatiya Nyaya Sanhita, 2023.