BNS Section 35 - Right Of Private Defence Of Body And Of Property

The right of private defence is a foundational concept in criminal law, recognizing a person's natural right to take steps to defend themselves and their property from unlawful aggression. The BNS Section 35 of the Bharatiya Nyaya Sanhita, 2023 (BNS) sets out the protections provided for private defence in detail. Following the general rule established in BNS section 34 (which states that nothing done in private defence is an offence), BNS section 35 limits what can be defended: the person’s own body, the body of another, and movable or immovable property. This is the direct equivalent, a re-statement in the BNS, of the former Indian Penal Code (IPC) section 97, which respects continuity in this important area of law. It is important for every citizen to understand the boundaries of the right of private defence. This is key to empowering citizens to undertake self-preservation in an acceptable manner.

In this article, you will get to know about:

• Simplified Explanation of BNS Section 35.
• Key Details.
• Practical Examples Illustrating BNS Section 35.

Legal Provision

Section 35 of the BNS ‘Right of private defence of the body and of property’ states:

Every person has a right, subject to the restrictions contained in Section 37, to defend:

1. his own body, and the body of any other person, against any offence affecting the human body;
2. the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Simplified Explanation

In essence, BNS Section 35 tells us what you are legally allowed to defend when exercising your right of private defence. It breaks down to two main categories:

Your Body and Others' Bodies

You have the right to defend yourself and anyone else from any crime that directly affects a person's body. This means if someone is assaulting you, threatening to hurt you, or committing any other offense that puts a human body in danger, you can use necessary force to defend against it. This isn't just about your own skin; it extends to protecting family members, friends, or even strangers from bodily harm.

Your Property and Others' Property

You also have the right to protect any property, whether it's something you can move (like a car, phone, or money) or something fixed (like a house, land, or building). This right applies when someone is committing, or attempting to commit, specific property-related offenses:

• Theft: Unlawfully taking movable property.
• Robbery: Theft or extortion with the use of force or threat.
• Mischief: Causing damage to property.
• Criminal Trespass: Unlawfully entering or remaining on someone's property.

It's crucial to remember that this right is not unlimited. BNS Section 35 explicitly states it is "subject to the restrictions contained in section 37." Section 37 (equivalent to old IPC Section 99) outlines important limitations, such as not inflicting more harm than necessary, not exercising the right against acts of public servants acting in good faith, and not extending the right to cause death in every scenario.

Key Details

Practical Examples Illustrating BNS Section 35

A few examples are as follows:

Defence of Body

1. Self-Defence Against Assault: If 'A' attacks 'B' with fists, 'B' has the right to use necessary force to ward off the attack, such as pushing 'A' away or blocking punches, to prevent injury to themselves.
2. Defence of a Third Person: If 'X' sees 'Y' being brutally assaulted by 'Z', 'X' has the right to intervene and use reasonable force against 'Z' to prevent further harm to 'Y'.
3. Preventing Kidnapping: If someone attempts to kidnap a child, a passerby can use necessary force to prevent the abduction, even if it means causing injury to the kidnapper.

Defence of Property

1. Preventing Theft: If 'P' sees 'Q' trying to break into their car to steal it, 'P' can use reasonable force to stop 'Q', for example, by grappling with 'Q' to prevent them from entering the car.
2. Repelling a Robber: If a robber enters a house and threatens the occupants, the homeowner can use force to repel the robber and protect their property and family, subject to the proportionality of force.
3. Stopping Mischief/Vandalism: If 'R' sees 'S' intentionally smashing the windows of their shop, 'R' can physically restrain 'S' to prevent further damage to their property.

Key Improvements And Changes: IPC Section 97 To BNS Section 35

BNS Section 35 is a verbatim reproduction of IPC Section 97. There are no substantive changes or improvements in the wording or the underlying legal principle. The BNS has simply renumbered the section and updated the cross-reference from "section 99" to "section 37" (as BNS Section 37 is the new equivalent of IPC Section 99).

The significance of this lies in the continued adherence to the long-established legal understanding of the specific scope of the right to private defence within the Indian criminal justice system. The legislature, in enacting the BNS, has chosen to retain this precise definition without alteration, indicating its enduring relevance in safeguarding individuals and their property against unlawful aggression.

Therefore, the key "change" is merely the section number (from 97 to 35) and the cross-reference to the limitations section (from 99 to 37). The core legal principle, the types of property and body that can be defended, and the specific offenses against which defence is allowed, remain consistent.

Conclusion

Section 35 of the BNS, which is a direct successor of Section 97 of the IPC, sets forth an initial provision that defines the extent of the right of private defence in India. Every person is bestowed with the ability to defend himself or herself, the person of another, and their movable and immovable property from certain unlawful acts (such as offences affecting the human body, theft, robbery, mischief, and criminal trespass). This right is not absolute and is always subject to the key provisions set forth in BNS Section 37 regarding the proportionality of the action taken, and whether there is public authority to assist.

The fact that this provision has been maintained without change in the Bharatiya Nyaya Sanhita highlights its relevance in striking a fundamental balance between the right of individuals to defend themselves and their property, and the right to a lawful society. While there exists a right for citizens to defend themselves and their property, they must do so within the specified four corners of the law.

FAQs

A few FAQs are:

Q1 - Why was IPC Section 97 revised and replaced with BNS Section 35?

IPC Section 97 was not specifically revised. The entire Indian Penal Code was replaced by the Bharatiya Nyaya Sanhita, 2023, as part of a comprehensive reform of India's criminal laws. BNS Section 35 is the corresponding provision that re-enacts the principle defining the scope of the right of private defence of body and property. The wording remains identical to IPC Section 97, with only the section number and the cross-reference to the limitations section (from 99 to 37) being updated.

Q2 - What are the main differences between IPC Section 97 and BNS Section 35?

There are no substantive differences between IPC Section 97 and BNS Section 35 in terms of their content or legal principle. The text describing the right of private defence for body and property, and the specific offenses against which it can be exercised, is exactly the same. The only changes are the section number (from 97 to 35) and the updated cross-reference to the section containing restrictions (from Section 99 IPC to Section 37 BNS).

Q3 - Is BNS Section 35 a bailable or non-bailable offense?

BNS Section 35 does not define an offense. Instead, it defines the scope of the right of private defence, which is a general exception under criminal law. Therefore, the concepts of bailable or non-bailable do not apply directly to BNS Section 35. If an act exceeds the legitimate exercise of private defence and constitutes an offense, the bailability of that underlying offense would be determined by the relevant section of the BNS.

Q4 - What is the punishment for offense under BNS Section 35?

BNS Section 35 does not prescribe a punishment because it clarifies situations where an act is not an offense due to being done in private defence. If an act is found to be outside the scope of BNS Section 35 and constitutes an offense under other sections of the BNS, the punishment would be as prescribed for that specific offense.

Q5 - What is the fine imposed under BNS Section 35?

Similar to punishment, BNS Section 35 itself does not impose a fine. Any fine would be associated with the specific offense committed by the act if it is found to be outside the legitimate exercise of private defence and falls under other punishable sections of the BNS.

Q6 - Is the offense under BNS Section 35 cognizable or non-cognizable?

Again, BNS Section 35 does not define an offense. The cognizable or non-cognizable nature of an act would depend on whether that act, when not considered to be in private defence, constitutes a cognizable or non-cognizable offense under other sections of the BNS.

Q7 - What is the BNS Section 35 equivalent of IPC Section 97?

The BNS Section 35 equivalent of IPC Section 97 is BNS Section 35 itself. It directly replaces and re-enacts the same legal principle concerning the scope of the right of private defence of the body and of property.