Section 42 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 42 of the Bharatiya Nyaya Sanhita (BNS), 2023, delineates the scope of the right to private defence concerning property. It specifies the circumstances under which an individual may defend their property by causing harm to an aggressor, provided such harm does not result in death.
📜 Section 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.
🔍 Key Points
Scope of Application: This section applies when an individual is exercising the right of private defence against offences such as theft, mischief, or criminal trespass, provided these offences do not fall under the more severe categories specified in Section 41.
Limitations on Harm: While defending against these offences, the right does not extend to causing death. The individual may cause harm to the aggressor, but it must be non-lethal.
Proportionality: The harm inflicted must be proportional to the threat posed by the aggressor. The use of force should be reasonable and necessary to prevent the offence.
Reference to Section 37: The exercise of this right is subject to the restrictions specified in Section 37, which likely outlines the conditions under which the right of private defence may be exercised and the extent of permissible harm.(
⚖️ Comparison with Indian Penal Code (IPC)
Section 42 of the BNS, 2023, aligns with the principles laid out in Section 104 of the Indian Penal Code (IPC), 1860, which also addresses the right of private defence concerning property. Both provisions emphasize the protection of property through reasonable force, excluding the use of deadly force in cases of theft, mischief, or criminal trespass unless specified otherwise
🧭 Illustrative Example
Scenario: An individual notices someone attempting to steal their bicycle from their porch. In response, the homeowner tries to stop the thief by pushing them away, causing the thief to fall and sustain a minor injury.
Application of Section 42: Here, the homeowner is justified in using force to protect their property (the bicycle) under Section 42. However, the force used cannot extend to causing the thief’s death. The right is limited to causing harm that is not fatal, ensuring the response is proportionate to the threat posed.(
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