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Section 39 BNS: When Private Defence Extends to Harm Other Than Death

Section 39 of the Bharatiya Nyaya Sanhita, 2023 explains the extent of the right of private defence of the body when the offence is not one of the serious categories listed in Section 38. In such cases, the right does not extend to voluntarily causing death, but it may extend to causing other harm, subject to the restrictions in Section 37.

Current legal position: The Bharatiya Nyaya Sanhita, 2023 is Act No. 45 of 2023. Its provisions, except Section 106(2), came into force on 1 July 2024.
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Text of Section 39 of the Bharatiya Nyaya Sanhita, 2023

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

If the offence be not of any of the descriptions specified 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.

Meaning and Scope of Section 39 BNS

Section 39 deals with situations where a person has a lawful right of private defence of the body, but the threat does not fall within any of the serious categories specified in Section 38 BNS. In such a case, the law permits defensive harm short of voluntarily causing death.

The provision therefore marks the boundary between defensive force that may extend to causing death under Section 38 and defensive force that may extend only to harm other than death under Section 39.

Relationship Between Sections 38 and 39 BNS

Section 38 BNS identifies specified situations in which private defence of the body may extend to voluntarily causing death or other harm to the assailant. These include assaults creating a reasonable apprehension of death or grievous hurt, certain assaults connected with rape, kidnapping or abduction, wrongful confinement, and acid attacks or attempts.

If the offence does not fall within those descriptions, Section 39 applies. It allows only such harm other than death as may lawfully be justified in private defence, subject to Section 37.

Key distinction: Section 38 deals with the exceptional situations in which death may be caused in private defence of the body. Section 39 applies where those conditions are absent and therefore limits the right to harm other than death.

Section 39 Is Subject to the Restrictions in Section 37

Section 39 expressly incorporates the restrictions in Section 37 BNS. Among other things, Section 37 states that there is no right of private defence in certain circumstances involving acts of public servants and where there is time to seek protection from public authorities.

Section 37(2) also provides that the right of private defence never extends to inflicting more harm than is necessary for the purpose of defence. This proportionality restriction continues to apply when Section 39 is invoked.

Practical Effect of Section 39

No right to voluntarily cause death If the offence is outside the categories listed in Section 38, Section 39 does not permit voluntary causing of death to the assailant.
Other defensive harm may be permitted The right may extend to causing harm other than death when that harm is genuinely for the purpose of defence.
Necessity remains essential Defensive force must be connected to the need to protect the body from the threatened or attempted offence.
Proportionality still controls Section 37 prevents the infliction of more harm than is necessary for defence.
Legal information: This page reproduces and explains Section 39 for general legal information. Whether particular defensive force is protected depends on the facts, the nature and immediacy of the danger, and the restrictions imposed by Sections 37 to 40 and other applicable provisions of the Bharatiya Nyaya Sanhita, 2023.