BNS Section 44 - Right Of Private Defence Against Deadly Assault When There Is Risk Of Harm To Innocent Person

The right of private defence is a cornerstone of criminal jurisprudence, allowing individuals to protect themselves and others from imminent harm. However, what happens when exercising this right to save one's life inadvertently puts an innocent person at risk? This complex ethical and legal dilemma is addressed by BNS Section 44, a crucial provision within the newly enacted Bharatiya Nyaya Sanhita (BNS). This section, which is the direct equivalent of the erstwhile IPC Section 106, deals with situations where a person facing a deadly assault has no alternative but to risk harming an innocent bystander to save their own life. It acknowledges the extreme pressure and limited choices available in such dire circumstances, providing a legal shield for actions taken in self-preservation, even if they result in unforeseen collateral damage to an innocent party.

In this article, you will get to read about:

• Simplified Explanation of BNS Section 44.
• Key Details.
• Practical Examples Illustrating BNS Section 44.

Legal Provision

Section 44 of the BNS ‘Right of private defence against deadly assault when there is risk of harm to innocent person’ states:

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Illustration: A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

Simplified Explanation Of BNS Section 44

BNS Section 44 tackles a very specific and intense scenario in private defence. Imagine you are facing an attack that genuinely makes you fear for your life – an "apprehension of death." In such a moment, your primary goal is to save yourself. However, what if the only way to effectively defend yourself against this deadly assault involves a risk, even a small one, of harming someone who is completely innocent and not involved in the attack?

This section essentially says that in such an extreme situation, your right of private defence is broad enough to allow you to take that unavoidable risk. It understands that when your life is on the line, you might not have the luxury of choosing a perfectly safe defensive action that guarantees no harm to anyone. The "critical component" here is that the apprehension of death must be "reasonable," meaning any sensible person in that situation would genuinely fear for their life. Furthermore, the risk to the innocent person must be unavoidable for the defence to be "effectual."

The illustration provided clearly explains this: If a person ‘A' is about to be murdered by a mob, and the only way ‘A’ can save themselves is by firing into the mob, knowing that there are innocent children mixed within it, ‘A’ is still protected by this section. If 'A’ harms any of those children while defending themselves in such an unavoidable situation, they are not committing an offence. The law recognizes that in such a desperate fight for survival, some risks are inherently unavoidable.

Key Details

Practical Examples Illustrating BNS Section 44

A few such examples are:

Hostage Situation Gone Wrong

In a situation where person 'B' is held hostage by a terrorist threatening immediate death, a police sniper may have to act swiftly to save B's life. If taking the shot involves a slight, unavoidable risk of injuring B while aiming to stop the terrorist, the sniper’s action would be justified. According to BNS Section 44, such an act is protected when done in good faith to prevent greater harm. The threat to B’s life was immediate and real, and the sniper’s intent was to neutralize the danger, not to harm B. Therefore, any unintended injury to B would not be considered an offence under the law.

Car Chase and Collateral Damage

In a situation where a criminal attempts to run over 'C' with a car, intending to kill, C swerves their own vehicle to escape the deadly attack. In doing so, C accidentally hits a parked car with a child inside, causing minor injuries. Despite the harm caused, C’s action was a necessary response to a real and immediate threat to their life. Under BNS Section 44, this would be considered a lawful act of private defence, as the harm to the child was unintended and unavoidable in the circumstances. The right to protect one’s life justifies C’s decision, even though it resulted in collateral injury.

Key Improvements And Changes: IPC Section 106 To BNS Section 44

When comparing IPC Section 106 and BNS Section 44, it's evident that the BNS aims for continuity rather than radical change in this specific provision. The text of both sections is identical, and even the illustrative example provided remains verbatim.

Therefore, rather than highlighting "improvements" or "changes" in the substance of the law, the key takeaway is the reaffirmation and re-codification of an established legal principle.

• Codification in Modernized Language: The BNS is part of a broader effort to modernize India's criminal laws. While the specific wording of this section hasn't changed, its inclusion in the BNS signifies that the legislature has reviewed and endorsed this specific legal principle within the context of a contemporary legal framework.
• Continuity of Interpretation: The verbatim retention means that the judicial interpretations and precedents established for IPC Section 106 will continue to be relevant and applicable to BNS Section 44. This ensures consistency and predictability in the application of the law.
• Emphasis on Extreme Circumstances: The identical wording underscores the extreme and specific nature of the situation this section addresses. It's not a general license to cause harm to innocents but a narrowly defined exception for life-threatening scenarios where no other effective defence is possible.

In essence, BNS Section 44 is not about introducing new legal concepts but about embedding a critical, albeit rare, aspect of private defence into the new penal code with the same clarity and force as its predecessor.

Conclusion

BNS Section 44 stands as a testament to the pragmatism embedded within India's criminal law, acknowledging the dire realities of life-threatening situations. It codifies a crucial aspect of the right of private defence, recognizing that in moments of extreme peril, where there is a reasonable apprehension of death, an individual's right to self-preservation may, out of unavoidable necessity, extend to the running of a risk to an innocent third party. This section is not a blanket authorization for negligence or recklessness, but rather a carefully carved exception for situations where an effective defence against a deadly assault simply cannot be achieved without incidental and unavoidable harm to an innocent person. The identical text with IPC Section 106 underscores the legislative intent to maintain continuity and rely on established judicial interpretations for this vital legal principle. It reinforces the idea that while the protection of innocent life is paramount, the law also understands the instinct for survival when one's own life is under direct and mortal threat.

FAQs

A few FAQs are:

Q1. Why was IPC Section 106 revised and replaced with BNS Section 44?

IPC Section 106 was revised and replaced with BNS Section 44 as part of the broader legislative reform aimed at modernizing, simplifying, and consolidating India's criminal laws. The Bharatiya Nyaya Sanhita (BNS) is intended to replace the Indian Penal Code (IPC). The re-codification means the principle remains, but it's now under the new legislative framework.

Q2. What are the main differences between IPC Section 106 and BNS Section 44?

There are no substantive differences between IPC Section 106 and BNS Section 44. The text of both sections is identical, including the illustration. The change is primarily in the statutory numbering and the code within which it is placed (from IPC to BNS), reflecting the overall restructuring of criminal law in India.

Q3. Is BNS Section 44 a bailable or non-bailable offense?

BNS Section 44 is not an offense; it is a legal provision that defines and extends the "right of private defence." Therefore, it is neither bailable nor non-bailable. It provides a legal justification for actions taken under specific, extreme circumstances.

Q4. What is the punishment for offense under BNS Section 44?

BNS Section 44 does not prescribe any punishment because it defines a right, not an offense. If an individual acts strictly within the confines of this section, they "commit no offence" and thus face no punishment. Punishment would only arise if the actions taken exceed the scope of the right of private defence as defined.

Q5. What is the fine imposed under BNS Section 44?

No fine is imposed under BNS Section 44 as it is not a penal provision defining an offense. Fines are associated with specific offenses defined elsewhere in the BNS.

Q6. Is the offense under BNS Section 44 cognizable or non-cognizable?

As BNS Section 44 defines a right of private defence and not an offense, the question of it being cognizable or non-cognizable does not apply to the section itself. The cognizable or non-cognizable nature would pertain to the underlying act committed by the aggressor against the defender, or any unlawful act if the limits of private defence are exceeded.

Q7. What is the BNS Section 44 equivalent of IPC Section 106?

BNS Section 44 is the direct and verbatim equivalent of IPC Section 106. Both sections deal with the right of private defence against deadly assault when there is a risk of harm to an innocent person.