Section 36 BNS (Bharatiya Nyaya Sanhita) 2023, upholds the right of private defence even when a wrongful act is committed by a person who cannot understand the nature of their action, such as an individual of unsound mind, a minor, or someone acting under intoxication or a mistaken belief. Although such individuals may not be held criminally liable due to the absence of mens rea (guilty mind), this section affirms that others are still legally permitted to protect themselves or their property from the harm these individuals may cause. Section 36 of BNS states that the right to private defence is not exempted simply because the accused is of unsound mind. Explore other important Judiciary Notes.

Section 36 BNS: Right of private defence against the act of a person with unsound mind etc

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the mental illness or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Illustrations:

1. Z, under the influence of mental illness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
2. A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

Note: “The information provided under Section 36 BNS has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders.”

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Section 36 BNS Simplified Interpretation

Section 36 of Bharatiya Nyaya Sanhita 2023 ensures that a person does not lose their right to private defence just because the attacker cannot be punished under criminal law due to reasons like age, immaturity, unsoundness of mind, intoxication, or misconception. If someone commits an act that would normally be considered a criminal offence, but it is not legally treated as an offence because of certain reasons such as the minority of the person, their want of maturity of understanding, mental illness, intoxication, or a misconception they are acting under, Section 36 BNS, allows others to exercise the same right of private defence against that act as they would if the act were actually a punishable offence. In other words, even though the person committing the act may not be held liable due to their mental or physical condition or misunderstanding, the right of the victim to protect themselves or their property is not taken away and it is protected under Section 36 of BNS. 

Section 36 BNS Essential Elements

For an offence to be punishable under Section 36 BNS 2023 certain important elements must be present. Mentioned hereinafter are some of the important elements:

1. Commission of an act that would otherwise be an Offence:

The first element under Section 36 of BNS is that the person must commit an act that, under normal circumstances, would be considered a criminal offence. This means the act, by its nature, is wrongful and would attract punishment if done by someone other than those mentioned in this section.

2. Conditions covered under Section 36 of BNS:

The act is not considered an offence because the person who committed it falls into one of the following exceptional categories as mentioned under Section 36 BNS:

• Youth: This typically refers to minors
• Want of maturity of understanding: This refers to those who lack mental development to understand the nature and consequences of the act.
• Mental illness: This deals with those who have unsound minds or those who deal with insanity
• Intoxication: Intoxication is a state in which a person cannot be in control of actions due to the influence of alcohol or drugs
• Misconception: A state in which a person acts under a misunderstanding of fact, not law.

3. Right of Private Defence:

Section 36 of BNS guarantees that the right of private defence exists. A person has the same right to defend themselves or their property against such acts as they would have if the act had been committed by a person who could be held liable otherwise.

4. Proportional and Reasonable Force Required:

Section 36 BNS does not permit the use of force that is in excess of what is necessary; it only allows force sufficient to prevent or stop the harm, just as in regular cases of private defence.

Section 36 BNS essentially retains the core of Section 98 of the Indian Penal Code, with minor changes being done in the illustration of the section:

Section 36 BNS Judicial Interpretation

Judicial interpretation of Section 36 BNS by Indian courts have been an outlining factor in determining the ambit of section 36 of BNS; mentioned hereinafter are some of the landmark judgments :

Ram Prasad Ahir And Ors. vs State 1958

In this case, the Allahabad High Court addressed the applicability of Section 98 IPC, now Section 36 BNS, in the context of the right of private defence of property. The court found that the accused were entitled to exercise this right even if Sheo Muni's party was under a mistaken belief that the cows they were taking to the pound had grazed their field. 

Citing Illustration (b) to Section 98 IPC, now Section 36 of the BNS, the court emphasized that a person does not lose the right to defend their property merely because the opposing party is acting under a misapprehension. Since Sheo Muni's party persisted in taking the accused's cows despite their objections, the accused were justified in using reasonable force to recover their cattle. However, the court ultimately acquitted the accused as it was unable to determine which individual had exceeded the right of private defence by causing the death of Musafir.

Conclusion

Section 36 of the Bharatiya Nyaya Sanhita affirms that the right of private defence against an act committed by a person of unsound mind or by a child is available to the same extent as it would be against an act committed by a person of sound mind. Section 36 BNS emphasises on the act that causes the apprehension of harm, rather than the mental capacity of the individual committing the act. It ensures that innocent individuals are not left without defence merely because the aggressor lacks culpability due to their mental condition or age.