BNS Section 42 - When Such Right Extends To Causing Any Harm Other Than Death

The right to private defence is a lawful entitlement under Indian criminal law and is a normal part of self-peservation. Regarding BNS Section 41, it is typical of extraordinary cases where the cause of death, in a defence of property context, is allowable. BNS Section 42, on the other hand, considers more commonplace situations. It outlines situations where a degree of force, that does not cause death, may be employed in defence of property. Understanding this distinction will assist in examining the application of the right of private defence and the right to self-preservation in a finer context. Also, it will assist in ensuring the justification of the force is proportionate against the threat. Our law places the value of human life first and foremost. Therefore, while it grants individuals the right to defend their property, it also places strong limitations on the degree of force that they can use. The need for provision BNS Section 42 serves a necessary protection in assuring that defence of property from less severe harm does not lead to an unnecessary loss of life. It establishes the guideline of proportionality, stating that you may do any harm other than death to prevent crimes of simple theft, mischief or criminal trespass. This provision is directly analogous to what is section 104 of IPC in the old IPC, and the provisions in this one remain much the same, suggesting a consistency of principles in the law.

In this article, you would get to read about:

• Simplified Explanation Of BNS Section 42.
• Key Details.
• Practical Examples Illustrating BNS Section 42.

Legal Provision

BNS Section 42, 'When such right extends to causing any harm other than death' states:

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.

Simplified Explanation Of BNS Section 42

BNS Section 42 basically says: If someone is trying to commit theft, mischief (damaging property), or criminal trespass on your property, and these acts do NOT pose a threat of death or grievous hurt (meaning they are not the extreme kinds of offences listed in BNS Section 41), then you cannot kill the person.

However, you are allowed to use any other kind of harm to stop them. This means you can use force that causes injury, pain, or discomfort, but not death.

For example:

• If someone is just trying to pick your pocket (theft, but no apparent threat to your life), you can push them away, tackle them, or restrain them, even if it causes them minor injuries. You cannot shoot them.
• If someone is spray-painting your wall (mischief, but no threat of death), you can physically stop them, even if it means injuring them to do so. You cannot kill them.
• If someone has just walked into your garden without permission (criminal trespass, no threat to life), you can physically remove them, using reasonable force. You cannot use lethal force.

Crucially, this right is always subject to the general restrictions mentioned in BNS Section 37 (which is the equivalent of IPC Section 99). This means:

• You cannot inflict more harm than is necessary to stop the wrong-doer.
• You cannot use this right if there was time to get help from public authorities (like the police).
• You cannot use this right against acts of public servants (like a police officer doing their duty).

Key Details

Practical Examples Illustrating BNS Section 42

A few examples are:

Simple Theft

While walking down the street, someone attempts to snatch your wallet from your back pocket without using a weapon or threatening physical harm. Under BNS Section 42, this act qualifies as theft but does not create a reasonable apprehension of death or grievous hurt as required under Section 41 for using deadly force. Therefore, you are justified in using minimal and proportionate force—such as pushing the thief away, restraining them, or tackling them to retrieve your wallet—even if it causes minor injuries, but not in using a weapon or causing serious harm.

Mischief (Property Damage)

Imagine witnessing a group of vandals defacing your house wall with graffiti. Since this act qualifies as mischief under the law, you are legally allowed to intervene by stopping them, taking away their spray cans, or even restraining them to prevent further damage. If one of them sustains a minor injury like a sprain during this intervention, your actions would generally be protected under BNS Section 42—but using excessive or deadly force would not be legally justified.

Key Improvements and Changes: IPC Section 104 to BNS Section 42

The new law has largely retained the substance and wording of the previous section, with updates to cross-references.

The changes are:

1. Re-numbering: The most obvious change is the re-designation of the section from IPC Section 104 to BNS Section 42. This aligns with the overall restructuring and re-numbering scheme of the Bharatiya Nyaya Sanhita.
2. Updated Cross-references:
3. • The reference to the more severe property offences (where death can be caused) has been updated from "last preceding section" (referring to IPC Section 103) to "section 41" (referring to BNS Section 41).
   • The reference to the general restrictions on private defence has been updated from "section 99" (of IPC) to "section 37" (of BNS).

There are no substantive changes to the conditions under which the right can be exercised, nor to the extent of harm that can be voluntarily caused. The core legal principle remains identical: for theft, mischief, or criminal trespass that does not pose a threat of death or grievous hurt, the right of private defence of property extends to causing any harm other than death.

Conclusion

BNS Section 42 is a critical component of the right to private defence of property, specifically addressing situations where the threat to property is significant but does not warrant the use of lethal force. It embodies the fundamental legal principle of proportionality, dictating that the defence must match the nature of the aggression.

By allowing individuals to cause "any harm other than death" in response to theft, mischief, or criminal trespass (when these do not create an apprehension of death or grievous hurt), the section empowers property owners to protect their assets without crossing the line into excessive violence. The continuity of this provision from IPC Section 104 into the BNS, with only necessary cross-reference updates, underscores its enduring relevance and soundness in balancing individual rights with the sanctity of life. Understanding these precise boundaries is essential for any citizen exercising their right to self-defence.

FAQs

A few FAQs are:

Q1. Why was IPC Section 104 revised and replaced with BNS Section 42?

IPC Section 104 was revised and replaced with BNS Section 42 primarily as part of the broader legislative overhaul to introduce the Bharatiya Nyaya Sanhita (BNS). This involved re-numbering sections and updating internal cross-references to align with the new structure of the code, rather than introducing significant substantive changes to the principle itself.

Q2. What are the main differences between IPC Section 104 and BNS Section 42?

The main differences are:

1. Re-numbering: IPC Section 104 is now BNS Section 42.
2. Updated Cross-references: The internal references to the section dealing with causing death (from "last preceding section" to "section 41") and general restrictions (from "section 99" to "section 37") have been updated to reflect the BNS numbering. There are no substantive changes to the actual scope or application of the right.

Q3. Is BNS Section 42 a bailable or non-bailable offense?

BNS Section 42 is not an offense; it defines a justifiable defence against criminal liability. Therefore, it is not classified as a bailable or non-bailable offense. These classifications apply to specific crimes defined elsewhere in the BNS.

Q4. What is the punishment for offense under BNS Section 42?

There is no punishment under BNS Section 42 itself, as it grants a legal right of private defence. If a person exercises their right of private defence within the limits prescribed by this section (causing any harm other than death for the specified offences), they are not committing an offense and thus face no punishment. If the limits are exceeded, the person would be liable for the harm caused under relevant BNS provisions (e.g., grievous hurt, voluntarily causing hurt).

Q5. What is the fine imposed under BNS Section 42?

As BNS Section 42 is a provision defining a right and not an offense, no fine is imposed under this section. Fines are associated with specific offenses defined in other parts of the BNS.

Q6. Is the offense under BNS Section 42 cognizable or non-cognizable?

BNS Section 42 does not define an offense, so the terms cognizable or non-cognizable do not apply to it. These classifications determine the police's power to arrest and investigate and are found in the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Q7. What is the BNS Section 42 equivalent of IPC Section 104?

BNS Section 42 is the direct equivalent of IPC Section 104. It carries forward the same legal principle regarding the right of private defence of property extending to causing any harm other than death for offences like theft, mischief, or criminal trespass that do not involve apprehension of death or grievous hurt.