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.
Simplified Explanation
Section 40 of the Bharatiya Nyaya Sanhita (BNS), titled “Commencement and Continuance of Right of Private Defence of Body,” defines when the right to private defense of the body begins and when it ends. This section clarifies that individuals have the right to defend themselves or others from unlawful attacks, but only within a specific timeframe that starts when the threat becomes imminent and ends when the threat is no longer present.
Key Points of Section 40
- Commencement of the Right to Private Defense:
- The right to private defense of the body begins the moment there is an immediate threat to life, bodily harm, or safety. It applies as soon as an individual perceives a clear and imminent danger that requires immediate action to prevent harm. This means that private defense can only be invoked once the threat is real and unavoidable.
- Imminence of Threat:
- For the right to private defense to commence, the threat must be immediate and serious, leaving no time to seek help from authorities or use non-violent measures. The law allows people to act in defense only when it is clear that waiting for assistance would increase the risk of harm.
- Continuance of the Right to Private Defense:
- The right to private defense continues as long as the threat persists. This means that the individual can defend themselves or others until the danger is completely averted. However, once the threat has passed or the attacker has been subdued or retreated, the right to private defense ceases.
- Cessation of the Right When Threat Ends:
- The right to private defense ends the moment the threat no longer exists. If the attacker retreats or is no longer capable of causing harm, the defensive actions must stop. Any further action taken after the danger has passed is not considered private defense and may be subject to legal consequences.
- Proportionality During Continuance:
- Even while the threat is ongoing, the force used in private defense must be proportionate to the level of danger. Individuals are permitted to use only as much force as is necessary to protect themselves or others during the duration of the threat. Excessive force, even during an active threat, may not be justified under the law.
- Examples of Commencement and Continuance:
- If a person is attacked, they may start defending themselves as soon as the attack begins. They are allowed to continue defending themselves until the attacker is subdued or retreats. However, if the attacker runs away, the individual cannot pursue and harm them, as the right to private defense ceases once the threat has ended.
- Judicial Evaluation of Timing and Necessity:
- Courts assess whether the individual acted within the appropriate timeframe, considering factors such as the immediacy of the threat, the response to it, and whether the defensive action stopped once the threat ended. This evaluation ensures that private defense is exercised only when necessary and within lawful limits.
Purpose of Section 40
The purpose of Section 40 is to establish a clear framework for when the right to private defense of the body can be exercised and for how long. By defining the start and end points of this right, the section ensures that individuals are protected when facing immediate threats but are also held accountable if they act beyond the necessary scope. Section 40 reinforces the balance between self-defense and restraint, ensuring that defensive actions are confined to genuine and immediate threats, while preventing misuse of the right to private defense once the threat has been neutralized.
