Section 35 of BNS: Right of Private Defence of Body and Property — Complete Explanation
Understand the meaning, bare Act, legal principles, practical illustrations, landmark Supreme Court judgments, limitations, and examination-important points relating to Section 35 of the Bharatiya Nyaya Sanhita, 2023.
Section 35 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the right of private defence of the body and property. It recognizes that a person may legally defend themselves, another person, or property against certain unlawful acts. The provision is important because the law does not expect people to remain helpless when they face an unlawful attack or when their property is threatened by criminal conduct.
However, the right of private defence is not an unrestricted licence to use violence. Its exercise is subject to statutory restrictions, particularly those contained in Section 37 of the BNS. The circumstances of the incident, the nature of the threat, the immediacy of the danger, and the force used for protection can all become relevant when a court examines a claim of private defence.
Section 35 must also be understood alongside Sections 34 and 36 to 44 of the BNS, which collectively explain the general principle of private defence, the situations in which the right exists, its restrictions, and the circumstances in which it may extend to causing death.
A person has the right to defend their own body, another person's body, and their own or another person's movable or immovable property against the categories of unlawful acts specified in the section. This right is subject to the restrictions prescribed by Section 37 and the other applicable provisions governing private defence.
Table of Contents
- Introduction to Section 35 BNS
- Bare Act of Section 35 BNS
- Meaning and explanation of the provision
- Right of private defence of the body
- Right of private defence of property
- Movable and immovable property
- Practical illustrations and examples
- Restrictions under Section 37 BNS
- Relationship with Sections 34–44 BNS
- Section 35 BNS versus Section 97 IPC
- Important Supreme Court judgments
- Evidence and burden of proof
- Important examination questions
- Frequently asked questions
- Conclusion
1. Introduction to Section 35 of the Bharatiya Nyaya Sanhita, 2023
The criminal law of India recognizes that individuals have a legitimate interest in protecting their physical safety and property. In an emergency, a person may have to respond to an unlawful attack before police assistance can arrive. The law therefore recognizes a right of private defence, subject to legal conditions and restrictions.
Section 35 of the BNS identifies two broad categories of protection.
First, it permits a person to defend their own body and the body of another person against an offence affecting the human body. Second, it permits the defence of movable or immovable property belonging either to the person exercising the right or to another person, against the specified offences involving theft, robbery, mischief, or criminal trespass, including attempts to commit those offences.
The provision is significant because it does not confine the right to a person protecting themselves. A person may also defend someone else who is being attacked. Similarly, the protection of property is not restricted to the owner alone.
For example, if a person witnesses an unlawful physical attack on a stranger, the law may permit intervention to protect the victim. Likewise, if someone attempts to steal another person's belongings, the person who witnesses the incident may, depending on the circumstances, exercise the legally recognized right of private defence of property.
Nevertheless, the existence of a legal right does not mean that every act committed in the name of self-defence will be lawful. The nature of the danger, the purpose of the response, and the restrictions imposed by the BNS remain essential.
Why is Section 35 important?
Section 35 is important for several reasons:
- It recognizes the right to protect one's own physical safety.
- It permits the defence of another person's body against offences affecting the human body.
- It extends protection to movable and immovable property.
- It recognizes that the property being protected may belong to another person.
- It includes attempts to commit the specified property offences.
- It operates subject to the restrictions contained in Section 37 BNS.
- It provides an important defence in criminal cases where the accused claims to have acted to prevent an unlawful attack.
2. Bare Act of Section 35 BNS
For legal interpretation and examination purposes, the statutory wording should be read carefully before considering examples or judicial decisions.
Every person has a right, subject to the restrictions contained in section 37, to defend—
(a) his own body, and the body of any other person, against any offence affecting the human body;
(b) 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.
Official statutory reference: The Bharatiya Nyaya Sanhita, 2023 is available through the Government of India's India Code portal.
Read the official Bharatiya Nyaya Sanhita, 2023 PDF.
Breaking down the bare Act
| Part of Section 35 | Legal meaning | Illustration |
|---|---|---|
| Every person | The right is not confined to property owners or specially authorized individuals. | A person may potentially defend a stranger who is being unlawfully attacked. |
| Subject to Section 37 | The right must be exercised within statutory restrictions. | A person cannot automatically justify every use of force merely by claiming self-defence. |
| His own body | A person may defend their own physical safety against an offence affecting the human body. | A person responds to an unlawful physical assault. |
| Body of any other person | Protection may extend to another person facing an unlawful bodily attack. | A bystander intervenes to protect a person being assaulted. |
| Movable property | Protection extends to qualifying movable property. | A person attempts to prevent the theft of a bag. |
| Immovable property | Protection extends to qualifying interests in land and buildings. | A person attempts to prevent unlawful criminal trespass. |
| Theft, robbery, mischief and criminal trespass | The property-related right covers the offences expressly identified in the section. | A person responds to an attempted theft or deliberate criminal damage. |
| Attempt to commit specified offences | The right is not necessarily postponed until the property offence is completed. | A person intervenes when an attempt to steal property is underway. |
3. Meaning and Explanation of Section 35 BNS
Section 35 should be understood by separating its two main components: defence of the body and defence of property.
3.1 Meaning of private defence
Private defence refers to the legally recognized right to protect oneself, another person, or qualifying property against unlawful conduct. It is a protective right, not a general power to punish another person.
Suppose A attempts to strike B with a stick. B may respond with necessary defensive action to prevent the attack, depending on the facts. If B instead continues to attack A after the danger has ended, the later conduct cannot automatically be justified as private defence.
The purpose of the right is to prevent or repel the unlawful threat. It is not to settle old disputes, impose punishment, or obtain revenge.
3.2 Why does the law recognize private defence?
The right recognizes the practical reality that public authorities cannot be physically present at every location at every moment. An unlawful attack may occur in a house, on a road, in a workplace, or in a remote location where immediate assistance is unavailable.
The law therefore recognizes a limited right of protective action. However, this right exists within the framework of criminal law and must be assessed in light of the circumstances of each incident.
3.3 Does a person have to wait until an injury occurs?
No general rule requires a person to wait until they have actually suffered an injury before taking defensive action. An attempt to commit a qualifying offence or an imminent unlawful attack may justify intervention, depending on the nature of the threat and the applicable legal provisions.
However, a mere suspicion, an old disagreement, or a speculative fear does not automatically establish a valid claim of private defence. The facts must support the claimed threat.
3.4 Is private defence available only to the owner?
No. Section 35 expressly refers to the property of the person exercising the right as well as the property of any other person.
For example, a shopkeeper who witnesses an attempt to steal a customer's bag may potentially intervene to protect the customer's property. Whether the particular response is lawful will depend on the circumstances and the statutory restrictions.
3.5 Is Section 35 a punishment provision?
No. Section 35 is not a section prescribing a punishment for a particular offence. It defines a right of private defence.
Where an accused person claims to have acted in private defence, the court must examine the relevant facts, the applicable legal provisions, and whether the act remained within the scope of the right.
4. Right of Private Defence of the Body Under Section 35(a)
Clause (a) of Section 35 permits a person to defend their own body and the body of any other person against any offence affecting the human body.
This clause is broader than a right restricted to self-protection. It recognizes that a person may also intervene to protect another individual who is facing an unlawful bodily attack.
4.1 Defence of one's own body
A person may have to protect themselves against conduct such as an unlawful physical assault or another offence affecting the human body.
For instance, A attempts to punch B. B pushes A away to prevent the blow. Depending on the circumstances, B's response may fall within the right of private defence.
The court would consider factors such as the immediacy of the threat, the conduct of the parties, and whether B's actions were genuinely defensive.
4.2 Defence of another person's body
Section 35 does not require the person exercising the right to be the intended victim of the attack.
Consider a situation in which A sees B physically attacking C. A may intervene to protect C. The legal question is whether A's intervention was justified by the circumstances and remained within the applicable limits.
This aspect of the provision is particularly relevant to bystanders, family members, security personnel, and other individuals who witness unlawful physical attacks.
4.3 Must the attacker actually cause an injury?
Not necessarily. A completed injury is not the only circumstance that may justify defensive action. The nature of the threatened offence and whether the facts establish a qualifying danger are important.
Nevertheless, the law does not permit violence merely because a person dislikes another individual or believes that a confrontation might occur at some unspecified time.
4.4 Can verbal abuse justify physical violence?
Verbal abuse alone does not automatically create a right to use physical force. The legal assessment depends on whether the conduct, viewed in its actual circumstances, amounts to an offence affecting the human body or otherwise creates a qualifying threat under the applicable law.
A person should not assume that an insult, argument, or rude remark gives them a legal right to assault the speaker.
4.5 Can a person defend a stranger?
Yes. The words "the body of any other person" are not restricted to relatives, friends, or people known to the defender.
For example, a passer-by who witnesses a person being unlawfully assaulted may be entitled to intervene. The exact legality of the intervention depends on the nature of the threat and the conduct used to repel it.
A attempts to hit B with a heavy object. B uses a reasonable defensive action to stop the immediate attack. If the facts establish a lawful exercise of private defence, B may rely on the applicable provisions of the BNS.
A sees B repeatedly striking C. A intervenes to stop the attack. Section 35(a) recognizes the possibility of defending another person's body, subject to the statutory restrictions.
A and B argue in the afternoon. Several hours later, A finds B sitting peacefully and attacks B to settle the dispute. A cannot automatically claim private defence merely because an earlier argument occurred.
5. Right of Private Defence of Property Under Section 35(b)
Clause (b) recognizes a right to defend movable or immovable property belonging to the person exercising the right or to another person.
However, unlike the bodily-defence clause, the property-defence clause specifically identifies the relevant categories of offences: theft, robbery, mischief, and criminal trespass, including attempts to commit these offences.
Consequently, the mere existence of a property disagreement does not automatically justify the use of force under Section 35(b).
5.1 Defence against theft
Theft generally involves the dishonest movement of movable property out of another person's possession without that person's consent, as defined by the applicable statutory provisions.
For example, if A attempts to take B's mobile phone dishonestly without consent, B may seek to prevent the theft through lawful defensive action.
The precise legal position depends on the facts, including whether the conduct amounts to theft or an attempt to commit theft.
5.2 Defence against robbery
Robbery is a more serious form of property-related offending involving circumstances specified by criminal law, including certain forms of violence or the threat of violence associated with theft or extortion.
For example, an individual who attempts to take another person's wallet by threatening immediate physical harm may be committing robbery if the statutory ingredients are satisfied.
Section 35 recognizes the right to defend property against robbery. However, whether the defence may extend to causing death or another form of serious harm is a separate question governed by the relevant provisions, including Sections 37, 38, 39, and other applicable sections of the BNS.
5.3 Defence against mischief
Mischief generally concerns conduct involving the destruction of property or a wrongful change in property or its situation that causes or is intended to cause the relevant loss or damage, subject to the statutory definition.
For example, a person deliberately attempts to damage another person's vehicle. The vehicle owner may seek to prevent the criminal damage.
However, the legal right to protect property must not be confused with an unlimited right to inflict injury on the person causing damage.
5.4 Defence against criminal trespass
Criminal trespass involves entry upon or remaining on property in circumstances meeting the statutory requirements, including the relevant intention specified by law.
Not every unauthorized entry automatically amounts to criminal trespass. The necessary legal ingredients must be established.
For example, if a person unlawfully enters another person's premises with the intention of committing an offence or of intimidating, insulting, or annoying the person in possession, the facts may satisfy the definition of criminal trespass.
Section 35(b) recognizes the right to defend property against criminal trespass, subject to the applicable restrictions.
5.5 Defence against an attempt
Section 35(b) expressly includes attempts to commit theft, robbery, mischief, and criminal trespass.
This is important because the law does not necessarily require the owner or another person to wait until the offence is completed before taking lawful defensive action.
For instance, if a person is attempting to break into a vehicle to steal its contents, intervention may be justified under the applicable law even if the theft has not been completed.
| Property offence | General meaning | Example |
|---|---|---|
| Theft | Dishonest taking of movable property in circumstances satisfying the statutory definition. | Attempting to steal another person's mobile phone. |
| Robbery | Specified property-related offending involving the elements laid down by criminal law. | Taking a wallet by threatening immediate violence, where the legal ingredients are met. |
| Mischief | Wrongful destruction or change involving property that satisfies the statutory requirements. | Deliberately damaging another person's vehicle. |
| Criminal trespass | Entry or remaining on property with the legally required circumstances and intention. | Entering premises with the intention of committing an offence, where the definition is satisfied. |
| Attempt | Conduct amounting to an attempt to commit one of the specified property offences. | Attempting to break into a vehicle to steal property. |
6. Movable and Immovable Property Under Section 35
Section 35(b) expressly covers both movable and immovable property. Understanding the distinction is important because the nature of the property and the alleged offence can influence the legal analysis.
6.1 What is movable property?
Movable property generally includes property capable of being moved, subject to the applicable statutory definitions and legal context.
Examples may include:
- Mobile phones.
- Cash and wallets.
- Motorcycles and cars.
- Jewellery and watches.
- Computers and electronic equipment.
- Furniture and other movable goods.
If someone attempts to steal a person's laptop, the person may be entitled to take lawful steps to prevent the theft. The response must still comply with the applicable restrictions.
6.2 What is immovable property?
Immovable property commonly includes land and buildings, subject to the relevant legal definitions.
Examples include:
- Residential houses.
- Commercial buildings.
- Plots of land.
- Shops and warehouses.
- Other legally recognized interests in immovable property.
For example, a person in possession of a building may take lawful steps to prevent criminal trespass. Whether a particular confrontation justifies physical force depends on the facts and the applicable provisions.
6.3 Does Section 35 permit violent enforcement of ownership rights?
No. Section 35 should not be interpreted as a general authorization to use violence whenever ownership or possession is disputed.
Property disputes can involve complicated questions of title, possession, tenancy, easements, contractual rights, or inheritance. A disagreement over these matters does not automatically establish theft, robbery, mischief, or criminal trespass.
Where the dispute concerns civil rights rather than an immediate qualifying offence, the appropriate remedy may involve civil proceedings, a police complaint where a criminal offence is disclosed, or another lawful process.
7. Practical Illustrations of Section 35 BNS
Examples help clarify how the provision may operate. These illustrations are hypothetical and are intended to explain legal principles, not to determine the outcome of any particular real-life dispute.
Example 1: A person is attacked on a public road
A is walking on a public road when B suddenly attempts to strike A with a stick. A pushes B away to prevent the attack.
Legal analysis: Section 35(a) recognizes the right to defend one's own body. Whether A's particular response is lawful depends on the threat, the circumstances, and the applicable restrictions.
Example 2: Protecting a friend from an attack
A sees B attacking C. A intervenes to stop B from continuing the unlawful physical assault.
Legal analysis: Section 35(a) extends to the body of another person. A need not necessarily be the intended victim to exercise the right of private defence.
Example 3: Attempted theft of a mobile phone
A notices B attempting to take A's mobile phone dishonestly. A intervenes to prevent the phone from being taken.
Legal analysis: Section 35(b) recognizes the right to defend property against theft and an attempt to commit theft. The response remains subject to the applicable restrictions.
Example 4: Attempted theft of another person's bag
A witnesses B attempting to steal C's bag. A intervenes to protect C's property.
Legal analysis: The property need not belong to A. Section 35(b) expressly includes property belonging to another person.
Example 5: Deliberate damage to a car
A sees B deliberately attempting to damage C's parked car. A intervenes to prevent further damage.
Legal analysis: The right of private defence of property may apply where the conduct amounts to mischief or an attempt to commit mischief. Whether the actual response is lawful depends on the circumstances.
Example 6: Unlawful entry into a building
A person enters a building in circumstances that satisfy the statutory definition of criminal trespass. The person in lawful possession intervenes to stop the conduct.
Legal analysis: Section 35(b) recognizes a right of private defence against criminal trespass. However, not every unauthorized entry is necessarily criminal trespass, and the statutory restrictions must be considered.
Example 7: An old property dispute
A and B disagree over the ownership of a plot of land. Several days after an argument, A attacks B to force B to abandon the claim.
Legal analysis: An ownership dispute does not automatically justify violence. A cannot simply rely on Section 35 without establishing the legally relevant circumstances.
Example 8: The danger has ended
A attempts to assault B. B successfully escapes the attack. Once the immediate confrontation has ended, B returns and seriously injures A out of anger.
Legal analysis: The later attack may amount to retaliation rather than defence. The right of private defence cannot automatically justify force used to punish an attacker after the relevant danger has ended.
Example 9: Protecting a shop from theft
A shopkeeper sees a person attempting to steal merchandise. The shopkeeper intervenes to prevent the property from being taken.
Legal analysis: Section 35(b) may support the protection of the shop's movable property against theft or attempted theft. The lawfulness of the response must be evaluated separately.
Example 10: An argument involving verbal abuse
A insults B during a heated argument. B immediately punches A.
Legal analysis: Verbal abuse by itself does not automatically justify physical violence. Unless the facts establish a legally relevant basis for private defence, B cannot assume that Section 35 protects the punch.
Example 11: A person protects a child
A sees an adult unlawfully attacking a child and intervenes to stop the attack.
Legal analysis: Section 35(a) extends to the body of any other person. The relationship between the defender and the person being protected is not, by itself, the deciding factor.
Example 12: An attempt to break into a vehicle
A sees B attempting to break into C's vehicle to steal property. A intervenes to prevent the attempted theft.
Legal analysis: The express reference to attempts in Section 35(b) is relevant. The legality of the particular intervention depends on the nature of the offence and the response used.
Section 35 is concerned with legally justified protection, not punishment. The existence of an unlawful threat, the type of interest being defended, the applicable restrictions, and the nature of the response are all important considerations.
8. Restrictions on Private Defence Under Section 37 BNS
Section 35 expressly makes the right of private defence subject to the restrictions contained in Section 37. Therefore, Section 35 cannot be interpreted in isolation.
Section 37 identifies circumstances in which the right of private defence is unavailable or restricted. It also addresses the principle that private defence cannot extend to inflicting more harm than is necessary for the purpose of defence.
8.1 Acts of public servants acting in good faith
Section 37 restricts the right of private defence against certain acts of public servants acting in good faith under colour of their office, provided the act does not reasonably cause an apprehension of death or grievous hurt in the circumstances described by the provision.
This restriction does not mean that a public servant has unlimited authority. The statutory conditions must be satisfied, and the legal position may differ where the relevant circumstances create a reasonable apprehension of death or grievous hurt.
8.2 Acts done under the direction of public servants
Section 37 also deals with certain acts performed under the direction of public servants. The scope of the restriction depends on the statutory conditions, including the relevant knowledge or reason to believe concerning the authority under which the act is performed.
The provision must be read in its entirety before drawing conclusions about a particular encounter with a public authority.
8.3 Opportunity to seek protection from public authorities
Section 37 addresses circumstances in which there is time to have recourse to the protection of public authorities. The availability of such protection is relevant to the legal limits of private defence.
This does not mean that a person facing an immediate unlawful attack must always wait for police assistance. Rather, the statutory rule must be applied to the actual circumstances and the kind of danger involved.
8.4 No excessive harm
One of the most important limitations is that the right of private defence does not extend to inflicting more harm than is necessary for the purpose of defence.
For example, if a person uses force to stop a minor property offence, the fact that the person was protecting property does not automatically justify inflicting severe injury.
The assessment is contextual. Courts examine the circumstances in which the person acted, the nature of the threat, and the available facts. The law does not require a person facing a sudden attack to calculate every response with mathematical precision, but the right remains limited by the applicable legal principles.
| Restriction | General principle | Practical significance |
|---|---|---|
| Acts of public servants | Section 37 restricts private defence in specified circumstances involving public servants acting in good faith. | The legal authority and the nature of the threat must be examined. |
| Acts under official direction | The provision addresses certain acts done under the direction of public servants. | The statutory conditions concerning knowledge and authority matter. |
| Opportunity for public protection | The availability of public authority protection is relevant in the circumstances described by Section 37. | Private defence is not intended to replace ordinary law enforcement whenever official assistance is reasonably available. |
| Excessive harm | The right does not extend to inflicting more harm than is necessary for the purpose of defence. | The nature and extent of the response require careful legal examination. |
8.5 Can private defence justify causing death?
The answer cannot be determined from Section 35 alone.
Section 35 recognizes the right to defend the body and property. Sections 38 and 41 identify specified circumstances in which the right may extend to causing death, subject to the restrictions prescribed by law. Sections 39 and 42 deal with circumstances in which the right does not extend to causing death.
For bodily defence, the relevant statutory circumstances include certain assaults creating a reasonable apprehension of death or grievous hurt and specified grave offences. For property defence, Section 41 identifies particular circumstances in which the right may extend to causing death.
It is therefore legally incorrect to conclude that a person can cause death merely because someone attempts to steal property or enter a building. The relevant statutory conditions must be established.
9. Relationship Between Sections 34 to 44 of BNS
Sections 34 to 44 of the BNS collectively govern the right of private defence. Section 35 is one part of this broader statutory framework.
| BNS section | Subject | Importance for understanding Section 35 |
|---|---|---|
| Section 34 | Things done in private defence | Establishes the general principle that conduct falling within the right of private defence is not an offence. |
| Section 35 | Right of private defence of body and property | Identifies the bodily interests and categories of property offences against which defence is recognized. |
| Section 36 | Private defence against acts of persons of unsound mind and certain other persons | Explains that private defence may be available even where the actor's conduct is not an offence for a specified reason. |
| Section 37 | Acts against which there is no right of private defence | Sets out important restrictions and the rule concerning excessive harm. |
| Section 38 | When defence of the body extends to causing death | Identifies specified circumstances involving bodily defence in which the right may extend to causing death. |
| Section 39 | When defence of the body does not extend to causing death | Helps distinguish permissible bodily defence from circumstances in which the right does not extend to causing death. |
| Section 40 | Commencement and continuance of the right of private defence of the body | Addresses when bodily defence begins and how long it continues. |
| Section 41 | When defence of property extends to causing death | Identifies specified property-related circumstances in which the right may extend to causing death. |
| Section 42 | When defence of property does not extend to causing death | Explains limits on the use of lethal force in property defence. |
| Section 43 | Commencement and continuance of the right of private defence of property | Addresses the beginning and duration of the right in property-related situations. |
| Section 44 | Private defence against a deadly assault where there is risk of harm to an innocent person | Addresses a special situation in which defensive action against a deadly assault may involve such a risk. |
Why must these sections be read together?
Suppose a person argues that they injured an attacker while protecting themselves. Section 35 may establish that the body can be defended, but Section 37 determines important restrictions. Sections 38 and 39 may become relevant if the issue concerns whether the right extended to causing death. Section 40 may help determine whether the right had begun or continued at the relevant time.
Similarly, where a person causes injury while attempting to prevent theft, Section 35(b) identifies the relevant property-defence principle. Sections 37, 41, 42, and 43 may become important when examining the limits, severity, commencement, and continuation of the response.
The correct legal analysis therefore requires the applicable provisions to be read together rather than treating Section 35 as a complete statement of every rule governing private defence.
10. Difference Between Section 35 BNS and Section 97 IPC
Before the BNS came into force, Section 97 of the Indian Penal Code, 1860 dealt with the right of private defence of the body and property.
Section 35 of the BNS substantially carries forward the subject matter of former Section 97 IPC. The corresponding provisions should nevertheless be read in their proper statutory context.
| Basis of comparison | Section 97 IPC | Section 35 BNS |
|---|---|---|
| Legislation | Indian Penal Code, 1860 | Bharatiya Nyaya Sanhita, 2023 |
| Subject matter | Right of private defence of body and property | Right of private defence of body and property |
| Defence of own body | Recognized | Recognized |
| Defence of another person's body | Recognized | Recognized |
| Defence of movable property | Recognized in the specified circumstances | Recognized in the specified circumstances |
| Defence of immovable property | Recognized in the specified circumstances | Recognized in the specified circumstances |
| Specified property offences | Theft, robbery, mischief, and criminal trespass, including the relevant attempts | Theft, robbery, mischief, and criminal trespass, including the relevant attempts |
| Related statutory framework | Sections 96–106 IPC | Sections 34–44 BNS |
Why is the IPC comparison still important?
Many leading judicial decisions on private defence were delivered under Sections 96 to 106 of the IPC. Those decisions remain important for understanding the underlying legal principles where the corresponding BNS provisions retain materially similar language.
However, a lawyer or student should not assume that every earlier decision automatically resolves every question arising under the BNS. The statutory wording, relevant facts, subsequent legal developments, and the precise issue decided by the court must be considered.
For older criminal proceedings, the applicable transitional and savings provisions must also be examined. The date of the alleged offence and the legal framework applicable to the proceeding may be relevant.
For additional background, readers may consult the following resources on Law Zone:
11. Important Supreme Court Judgments on the Right of Private Defence
Judicial decisions are particularly important when studying private defence because statutory language must be applied to real situations involving conflicting accounts, sudden attacks, injuries, and questions about the necessity of defensive action.
The following Supreme Court judgments discuss principles associated with private defence under the former IPC framework. They are relevant to understanding the corresponding principles under the BNS, subject to the statutory context and the precise issue decided in each case.
11.1 Darshan Singh v. State of Punjab
Legal subject: General principles governing the right of private defence.
This is an important Supreme Court judgment concerning the scope and nature of private defence. The Court discussed the protective purpose of the right and the circumstances in which a person may be entitled to defend themselves against an unlawful attack.
The judgment recognizes that the law does not expect a person facing a sudden and dangerous attack to assess every movement with perfect precision. The circumstances must be considered realistically, rather than by applying an artificial standard of conduct to a person facing immediate danger.
At the same time, private defence remains a protective right and must not be converted into a means of retaliation.
Relevance to Section 35 BNS: The decision helps explain why courts assess the actual circumstances of an alleged attack when determining whether defensive conduct was justified.
11.2 Munshi Ram v. Delhi Administration
Legal subject: Private defence and the circumstances in which a person may protect themselves or property.
This decision is frequently discussed in connection with the right of private defence and the distinction between lawful defensive conduct and unlawful aggression.
The case is useful for understanding that a claim of private defence must be examined in the context of the incident as a whole. The court must assess the evidence, the nature of the confrontation, and the applicable legal principles rather than deciding the issue solely from the fact that injuries occurred.
Relevance to Section 35 BNS: It provides historical judicial context for the right of private defence recognized under the earlier IPC framework.
11.3 James Martin v. State of Kerala
Legal subject: Scope and limitations of the right of private defence.
This decision discusses the principles that govern a claim of private defence and the importance of examining the factual circumstances of the incident.
The existence of injuries or a violent confrontation does not, by itself, settle the legal issue. A court must examine whether the relevant circumstances support the claimed right and whether the conduct remained within the legally permitted limits.
Relevance to Section 35 BNS: The judgment is useful for studying how courts distinguish legitimate defence from conduct that falls outside the protection of private defence.
11.4 Bhanwar Singh v. State of Madhya Pradesh
Legal subject: Principles governing private defence in a criminal prosecution.
This judgment is relevant to the examination of private defence in the context of the facts and evidence of a criminal case.
The legal assessment requires consideration of the circumstances surrounding the occurrence, the nature of the confrontation, and the applicable requirements of the right of private defence.
Relevance to Section 35 BNS: It provides additional judicial context for understanding that private defence must be assessed through the evidence and applicable legal principles.
11.5 How should these judgments be used in examinations?
For an LL.B. examination or a judicial services answer, a student should not merely list case names. A better answer identifies the legal issue, explains the relevant principle, and connects the principle to the statutory provision.
For example, when discussing whether the accused acted in private defence, the answer should address the nature of the alleged attack, the circumstances in which the right arose, whether the right continued, and whether the force used fell within the permissible limits.
Students should consult the full judgments before quoting specific judicial observations or attributing a detailed proposition to a particular case. A case may discuss several issues, and the precise holding must be distinguished from general observations.
12. Evidence and Burden of Proof in a Private Defence Case
One of the most important practical questions is how an accused person can establish a claim of private defence in criminal proceedings.
The answer depends on the facts, the applicable evidentiary provisions, and the nature of the defence raised. Section 35 establishes the substantive right, but the evidence in the particular case determines whether the legal requirements are satisfied.
12.1 Who must establish the prosecution case?
As a general principle of criminal law, the prosecution must establish the accused's guilt in accordance with the applicable standard of proof, subject to the relevant statutory rules.
Where the accused relies on a general exception, the evidentiary framework governing that exception must also be considered. The accused's position should not be analysed by assuming that the prosecution's burden disappears merely because private defence is alleged.
12.2 What is the role of the accused?
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the burden of proving that a case falls within general exceptions and certain other special circumstances. It corresponds broadly to Section 105 of the former Indian Evidence Act, 1872.
In the context of a general exception, the accused may rely on the evidence on record to establish the relevant circumstances. The precise evidentiary burden and the standard applicable to the defence must be understood in accordance with the statutory provisions and judicial interpretation.
The accused is not necessarily required to prove the defence in the same manner as the prosecution proves guilt. The precise legal analysis depends on the relevant provision and the evidence available.
12.3 What evidence may be relevant?
Depending on the facts, relevant material may include:
- Statements of eyewitnesses.
- Medical records and injury reports.
- Photographs or videos of the incident.
- Physical evidence from the scene.
- Evidence concerning the alleged weapon or object involved.
- Messages or other records that help explain the surrounding circumstances.
- The conduct of the parties before, during, and after the incident.
No single category of evidence is automatically decisive in every case. Its importance depends on relevance, admissibility, reliability, and the facts in dispute.
12.4 Can the accused rely on prosecution evidence?
Evidence presented by the prosecution may also support a defence of private defence. The court must evaluate the evidence as a whole rather than treating the source of the evidence as the only consideration.
For example, prosecution witnesses might describe an initial attack by the complainant. Depending on the full circumstances, their testimony may become relevant to the accused's claim that the subsequent conduct was defensive.
12.5 Does the existence of injuries prove private defence?
No. Injuries may be relevant, but they do not automatically establish a valid claim of private defence.
The court must examine the circumstances of the incident, the nature and timing of the injuries, the evidence of the witnesses, and the relevant legal requirements. The existence of injuries on the accused or the other party must be assessed in context.
13. Common Mistakes Students Make About Section 35 BNS
Section 35 is relatively short, but students often misunderstand its scope by treating it as an unrestricted authorization to use force.
Mistake 1: Assuming private defence means revenge
Private defence is intended to protect against unlawful conduct. Retaliation after the relevant danger has ended is a different matter and may attract criminal liability.
Mistake 2: Ignoring Section 37
Section 35 expressly makes the right subject to Section 37. An answer that discusses Section 35 without explaining the relevant restrictions is incomplete.
Mistake 3: Assuming property ownership gives unlimited power
Ownership does not automatically justify physical violence against every person who enters or claims an interest in the property. The nature of the alleged offence and the applicable restrictions must be considered.
Mistake 4: Confusing the right to defend property with the right to cause death
Section 35 recognizes a right to defend property against specified offences. The circumstances in which the right may extend to causing death are addressed separately, particularly in Section 41 and the related provisions.
Mistake 5: Assuming the right applies only to the person attacked
Section 35(a) expressly extends to the body of another person. Section 35(b) also covers the property of another person.
Mistake 6: Treating every unauthorized entry as criminal trespass
Criminal trespass has specific statutory ingredients. A mere disagreement over possession or a disputed entry does not automatically satisfy those requirements.
Mistake 7: Memorizing the section without understanding the framework
Section 35 is best understood together with Sections 34 to 44 BNS. This approach makes it easier to answer problem-based questions involving bodily defence, property defence, excessive harm, and the duration of the right.
| Incorrect assumption | Correct legal approach |
|---|---|
| Anyone can be attacked in retaliation. | Private defence is protective, not punitive. |
| Section 35 permits unlimited force. | The right is subject to statutory restrictions. |
| Property owners can always use violence. | The relevant offence and legal circumstances must be established. |
| Every theft permits causing death. | Lethal force is governed by separate statutory conditions. |
| Only one's own body can be defended. | Section 35(a) includes another person's body. |
| Every entry without permission is criminal trespass. | The statutory ingredients of criminal trespass must be satisfied. |
14. Important Examination Questions on Section 35 BNS
Section 35 may be relevant to LL.B. examinations, criminal law papers, judicial services examinations, and other legal competitive examinations. The following questions can be used for revision.
14.1 Short-answer questions
- What is the subject matter of Section 35 of the BNS?
- Which provision of the IPC corresponds to Section 35 BNS?
- Can a person defend another person's body under Section 35?
- What categories of property offences are specified in Section 35(b)?
- Does Section 35 cover both movable and immovable property?
- Why must Section 35 be read with Section 37 BNS?
- Does Section 35 independently authorize causing death in every property offence?
- Which BNS provisions govern the commencement and continuation of private defence?
14.2 Long-answer questions
- Explain the provisions of Section 35 of the Bharatiya Nyaya Sanhita, 2023, relating to the right of private defence of the body and property.
- Discuss the scope of the right of private defence under the BNS, with particular reference to Sections 35 and 37.
- Explain the distinction between the right of private defence of the body and the right of private defence of property.
- Discuss the legal principles governing private defence with reference to relevant Supreme Court judgments.
- Explain the distinction between private defence and retaliation under criminal law.
- Compare Section 35 BNS with Section 97 IPC.
14.3 Problem-based question
A sees B attempting to steal C's motorcycle. A intervenes and, after the immediate threat has ended, continues to beat B, causing serious injuries. Discuss the legal issues arising under Section 35 BNS.
Suggested approach:
- Identify the relevant provision: Section 35(b), which recognizes the right to defend another person's property against theft and attempted theft.
- Consider whether the facts establish theft or an attempt to commit theft.
- Examine the restrictions contained in Section 37 BNS.
- Distinguish force used to prevent the theft from force used after the immediate danger has ended.
- Assess whether the later conduct remained within the scope of private defence or amounted to retaliation.
- Consider any additional offences and the applicable statutory provisions based on the complete facts.
14.4 Model answer for a short examination question
Question: Explain Section 35 of the BNS.
Section 35 of the Bharatiya Nyaya Sanhita, 2023 recognizes the right of private defence of the body and property. Under clause (a), every person may defend their own body and the body of another person against an offence affecting the human body. Under clause (b), a person may defend movable or immovable property belonging to themselves or another person against theft, robbery, mischief, criminal trespass, or an attempt to commit these offences.
The right is subject to the restrictions contained in Section 37 BNS. It is a protective right and must not be confused with retaliation or punishment. The provisions governing when the right begins and ends, the extent of permissible force, and the circumstances in which it may extend to causing death must also be considered where relevant.
Section 35 corresponds to Section 97 of the former Indian Penal Code, 1860. Important judicial decisions on private defence include Darshan Singh v. State of Punjab, (2010) 2 SCC 333. Thus, Section 35 protects legitimate defensive conduct while maintaining statutory limits on the use of force.
15. Quick Revision Table: Section 35 BNS
| Revision point | Answer |
|---|---|
| Full subject | Right of private defence of body and property |
| Legislation | Bharatiya Nyaya Sanhita, 2023 |
| Chapter | Chapter III — General Exceptions |
| Relevant clause (a) | Defence of one's own body and the body of another person |
| Relevant clause (b) | Defence of one's own or another person's movable or immovable property |
| Property offences | Theft, robbery, mischief, and criminal trespass |
| Attempts | Attempts to commit the specified property offences are included |
| Important restriction | Section 37 BNS |
| Corresponding IPC provision | Section 97 IPC |
| General principle | Protection against unlawful conduct, not revenge |
| Related provisions | Sections 34–44 BNS |
| Important case | Darshan Singh v. State of Punjab, (2010) 2 SCC 333 |
16. Frequently Asked Questions About Section 35 BNS
Q1. What is Section 35 of the BNS?
Section 35 of the Bharatiya Nyaya Sanhita, 2023 deals with the right of private defence of the body and property. It recognizes the right to defend one's own body, another person's body, and qualifying property against the specified offences, subject to statutory restrictions.
Q2. What was Section 35 BNS under the old IPC?
The corresponding provision is Section 97 of the Indian Penal Code, 1860, which dealt with the right of private defence of the body and property.
Q3. Can I defend another person under Section 35?
Yes. Section 35(a) expressly recognizes the right to defend the body of another person against an offence affecting the human body. The exercise of that right remains subject to the applicable legal restrictions.
Q4. Can I defend someone else's property?
Yes. Section 35(b) covers property belonging to the person exercising the right as well as property belonging to another person. The property offence and the circumstances must satisfy the applicable legal requirements.
Q5. Which property offences are covered by Section 35(b)?
The section specifies theft, robbery, mischief, and criminal trespass. It also expressly covers attempts to commit these offences.
Q6. Does Section 35 apply to both movable and immovable property?
Yes. The provision expressly refers to movable as well as immovable property.
Q7. Can I kill someone to protect my property?
Section 35 does not independently authorize causing death in every property-related incident. Section 41 BNS identifies specified circumstances in which the right of private defence of property may extend to causing death. Sections 37 and 42 and the other relevant provisions must also be considered.
Q8. Is private defence available when the attacker runs away?
The answer depends on the facts and whether the right of private defence continues under the applicable law. A person cannot automatically justify a later attack simply because the other person had previously committed an unlawful act.
Q9. Can I use force to recover property in a civil dispute?
Section 35 is not a general licence to use violence in civil disputes. The nature of the alleged offence, the circumstances, and the statutory restrictions must be examined. Civil remedies or other lawful procedures may be appropriate where ownership or possession is disputed.
Q10. What is the difference between Section 35 and Section 37 BNS?
Section 35 identifies the right to defend the body and property against specified conduct. Section 37 lays down restrictions on the exercise of private defence, including the rule that the right does not extend to inflicting more harm than is necessary for the purpose of defence.
Q11. Which Supreme Court case is important for private defence?
Darshan Singh v. State of Punjab, (2010) 2 SCC 333, is an important Supreme Court judgment discussing the principles governing private defence. Other relevant decisions include Munshi Ram v. Delhi Administration, AIR 1968 SC 702, and James Martin v. State of Kerala, (2004) 2 SCC 203.
Q12. Is Section 35 important for judiciary examinations?
Yes. It is useful for questions on general exceptions, private defence, criminal liability, the relationship between bodily and property defence, and the restrictions imposed by the BNS. Students should study Sections 34–44 together.
Q13. Is Section 35 itself a general exception?
Section 35 is part of the private-defence provisions within Chapter III of the BNS, which deals with general exceptions. Section 34 states the general principle concerning acts done in private defence, while Section 35 identifies the interests that may be defended and the specified property offences covered by the provision.
Q14. Does a person have to suffer an injury before exercising private defence?
Not necessarily. Depending on the facts and applicable legal provisions, an imminent unlawful attack or an attempt to commit a qualifying offence may justify defensive action. A mere suspicion or an old disagreement, however, does not automatically establish the right.
Q15. Where can I read the complete BNS Bare Act?
You can access the official statutory text through the Government of India's India Code BNS 2023 PDF. You can also read the BNS Bare Act guide on Law Zone.
17. Conclusion
Section 35 of the Bharatiya Nyaya Sanhita, 2023 recognizes the right of private defence of the body and property. It allows a person to defend their own body and the body of another person against offences affecting the human body. It also recognizes the right to defend movable and immovable property belonging to oneself or another person against theft, robbery, mischief, criminal trespass, and attempts to commit those offences.
The most important point is that the right is subject to the restrictions contained in Section 37 BNS. It cannot be treated as a general authority to use violence, settle personal disputes, or punish an attacker after the relevant danger has ended.
For a complete understanding, students should read Section 35 with Sections 34 and 36–44 BNS, paying particular attention to the restrictions on private defence, the circumstances in which the right may extend to causing death, and the commencement and continuation of the right.
Judicial decisions such as Darshan Singh v. State of Punjab provide useful guidance on the principles of private defence. Ultimately, whether a particular act is legally protected depends on the complete facts, the evidence, the statutory requirements, and the applicable judicial interpretation.
COMMENTS