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Section 42 BNS: When Private Defence of Property Extends to Harm Other Than Death

Section 42 of the Bharatiya Nyaya Sanhita, 2023 governs private defence of property where the offence is theft, mischief, or criminal trespass but does not fall within the more serious situations specified in Section 41. In such cases, the right does not extend to voluntarily causing death, although it may extend to causing other harm, subject to Section 37.

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 42 of the Bharatiya Nyaya Sanhita, 2023

42. When such right extends to causing any harm other than death.

If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions specified in section 41, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions specified in section 37, to the voluntary causing to the wrong-doer of any harm other than death.

Meaning and Scope of Section 42 BNS

Section 42 applies when property is threatened by theft, mischief, or criminal trespass, but the facts do not satisfy any of the categories in Section 41 BNS. The law then permits private defence to extend only to harm other than death.

The section therefore limits the degree of defensive force that may be used in ordinary property offences. The right remains available, but voluntarily causing death is outside its scope unless the case falls within Section 41.

Difference Between Sections 41 and 42 BNS

Section 41 - Death may be caused Section 41 covers specified serious property offences, including robbery, house-breaking after sunset and before sunrise, certain mischief by fire or explosive substance, and specified cases of theft, mischief, or house-trespass involving reasonable apprehension of death or grievous hurt.
Section 42 - Death may not be caused Where theft, mischief, or criminal trespass does not fall within Section 41, Section 42 limits the right to causing harm other than death.
Key distinction: Section 41 deals with exceptional property offences in which the right may extend to causing death. Section 42 applies to the remaining cases of theft, mischief, or criminal trespass and excludes voluntary causing of death.

Section 42 Is Subject to the Restrictions in Section 37

Section 42 expressly makes the right subject to the restrictions in Section 37 BNS. Section 37 restricts private defence in certain cases involving public servants and where there is time to seek protection from public authorities.

Section 37 also provides that the right of private defence never extends to inflicting more harm than is necessary for the purpose of defence. This proportionality requirement therefore applies fully to Section 42.

Relevant Offences Referred to in Section 42

Theft Theft concerns dishonest taking of movable property out of another person's possession without that person's consent.
Mischief Mischief concerns intentional or knowing destruction of property, or a change in property or its situation, causing or likely to cause wrongful loss or damage.
Criminal trespass Criminal trespass involves entering into or remaining on property in the possession of another with the requisite unlawful intent recognised by the BNS.
Harm other than death Section 42 authorises only such non-fatal defensive harm as may be justified by the circumstances and remains subject to Section 37.
Legal information: This page reproduces and explains Section 42 for general legal information. Whether defensive force is protected in a particular case depends on the facts, the nature and immediacy of the property offence, and the restrictions imposed by Sections 37, 41, 42, and other applicable provisions of the Bharatiya Nyaya Sanhita, 2023.