BNS Section 42: When Private Defense of Property Allows Inflicting Harm
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.
Key Points of BNS-42:
- Right of Private Defence: BNS-42 allows individuals to exercise the right of private defence when they are confronted with offenses like theft, mischief, or criminal trespass. However, this right has clear boundaries.
- Limited to Harm Other Than Death: In cases of theft, mischief, or criminal trespass, the right to private defence is specifically restricted. The individual is not permitted to cause the death of the wrong-doer. The defence is limited to causing harm that does not result in death—such as injury, restraint, or the use of force to stop the offence.
- Offences Not Specified in Section 41: If the offence does not fall under the serious crimes described in Section 41 (which includes acts like grievous harm or rape), the right of private defence is constrained. Section 41 deals with more severe situations where death may be justified in self-defence.
- Other Forms of Harm: While causing death is prohibited, the right allows for harm that is necessary to stop the offense, which can include physical injury or other actions to prevent the wrong-doer from continuing their unlawful conduct.
- Restrictions Under Section 37: The exercise of the right of private defence under BNS-42 is governed by the restrictions in Section 37. This means that the use of force must be proportional to the threat and reasonable in the circumstances. Excessive or disproportionate force is not allowed.
- Justifiable Actions: When defending property or preventing trespass, the individual may act to protect their interests, but the use of force must not lead to death. The harm caused should be the minimum necessary to stop the offence, in accordance with the proportionality requirements.
Conclusion:
BNS-42 allows a person to defend themselves by causing harm (excluding death) in response to offenses like theft, mischief, or criminal trespass. The right to use force is limited and must be proportionate to the threat. For serious offences as outlined in Section 41, such as grievous harm or rape, the right of private defence may extend to causing death, but BNS-42 ensures that such force is only used when necessary and within the bounds of reasonableness and proportionality.
