Article 38 to 44 | The Bharatiya Nyaya Sahinta 2023 | CHAPTER III GENERAL EXCEPTIONS

The Bharatiya Nyaya Sahinta 2023 

CHAPTER III GENERAL EXCEPTIONS 

The Bharatiya Nyaya Sahinta 2023 

Article 38 
When the right of private defence of body extends to causing death.

The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:— 

(a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; 

(b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; 

(c) an assault with the intention of committing rape;

(d) an assault with the intention of gratifying unnatural lust; 

(e) an assault with the intention of kidnapping or abducting;

(f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release; 

(g) an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act. 

Article 39 

When such right extends to causing any harm other than death.

If the offence be not of any of the descriptions specfied in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death. 

Article 40
Commencement and continuance of right of private defence of the body

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. 

Article 41

When right of private defence of property extends to causing death

The right of private defence of property extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:— 

(a) robbery; 

(b) house-breaking after sun set and before sun rise;

(c) mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; 

(d) theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Article 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. 

Article 43
Commencement and continuance of right of private defence of property.

The right of private defence of property,–– 

(a) commences when a reasonable apprehension of danger to the property commences; 

(b) against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered; 

(c) against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues; 

(d) against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief; 

(e) against house-breaking after sunset and before sun rise continues as long as the house-trespass which has been begun by such house-breaking continues. 

Article 44
Right of private defence against deadly assault when there is risk of harm to innocent person.

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.