Bharatiya Nyaya Sanhita: Section 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.

Simplified Explanation

Section 42 of the Bharatiya Nyaya Sanhita (BNS), titled “When Such Right Extends to Causing Any Harm Other Than Death,” defines the scope of the right to private defense of property, allowing individuals to cause harm short of death to protect their property. This section clarifies that individuals may use reasonable force to prevent unlawful acts against their property, provided the force used is necessary and proportionate to the threat faced.

Key Points of Section 42

1. Use of Non-Lethal Force in Defense of Property:
   • Section 42 allows individuals to cause harm (other than death) in the defense of their property. This includes actions that may injure, subdue, or restrain a person who poses a threat to property, as long as the harm does not exceed what is necessary to prevent the unlawful act.
2. Applicable Situations for Non-Lethal Defense:
   • The right to cause harm in property defense applies in cases where the threat does not justify lethal force but still requires intervention. Situations include:
     • Theft: Attempted or actual unlawful taking of property.
     • Trespass: Unlawful entry or occupation of property without permission.
     • Mischief: Acts that involve damaging, tampering with, or interfering with property.
   • In such cases, the property owner may take reasonable actions to stop or prevent the offense.
3. Proportionality of Force Used:
   • The force used must be proportional to the level of threat or offense. While individuals are permitted to take defensive actions, they must not use excessive or unnecessary force that exceeds what is needed to address the immediate threat. The harm caused should be the minimum required to prevent or stop the unlawful act.
4. Immediacy of Threat:
   • Section 42 applies when the threat to property is immediate and leaves no time for other measures, such as calling authorities. The right to defend property is intended for situations where swift action is necessary to prevent the offense from being carried out.
5. Focus on Prevention, Not Retaliation:
   • The right to private defense under Section 42 is solely for the purpose of preventing harm to property. Once the threat has been averted, any further action taken against the offender is not considered private defense. Defensive actions must end once the immediate risk is no longer present.
6. Examples of Non-Lethal Defensive Actions:
   • If a person attempts to steal or damage property, the owner may physically restrain the individual or use reasonable force, such as pushing them away, to stop the act. If someone is trespassing, the property owner may use necessary force to remove them from the premises without causing serious injury.
7. Judicial Evaluation of Reasonableness and Necessity:
   • Courts assess the nature of the threat, the level of force used, and whether the response was reasonable. Judges consider whether the harm inflicted was proportionate to the threat and if it was genuinely necessary to prevent damage or loss of property.

Purpose of Section 42

The purpose of Section 42 is to empower individuals to protect their property by allowing non-lethal defensive actions against unlawful acts. This section balances the right to property defense with the principle of proportionality, ensuring that individuals use only necessary and appropriate force to address immediate threats to property. Section 42 provides a fair and reasonable legal framework, allowing people to defend their property rights while avoiding unnecessary harm to others. This provision encourages a measured approach to property defense, upholding personal security and property rights in a responsible manner.