Right of private defence against act of a person of unsound mind, etc
Section 36 of the Bharatiya Nyaya Sanhita, 2023 deals with right of private defence against act of a person of 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 unsoundness of mind 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 sa The Act came into force on 01 Jul 2024.
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 unsoundness of mind 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.
(a) Z, a person of unsound mind, 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.
(b) 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.
Section 36, The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023).
Replaces a provision of the Indian Penal Code
IPC 98 Right of private defence against the act of a person of unsound mind, etc Text carried over almost unchanged 97%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Raghbir Singh vs State of Haryana
Decided under Indian Penal Code 98, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The right of private defence is a defensive right available only when circumstances clearly justify it and cannot be used as pretext for vindictive or aggressive purposes. While a person facing reasonable apprehension of threat cannot be expected to modulate defence step-by-step with arithmetical exactitude in the heat of moment, and situations must be pragmatically viewed without hyper-technical scrutiny, an accused must establish on preponderance of probabilities that the assault was necessity for warding off attack or forestalling reasonable apprehension. When an accused fails to fully establish self-defence plea but the facts show assault occurred in course of sudden quarrel without premeditation using non-lethal weapons, Exception 4 to Section 300 IPC applies, reducing offense from murder to culpable homicide not amounting to murder (Section 304 IPC), with custodial sentence appropriately reflecting the seriousness of causing death by dangerous act.
On this section: Provides right of private defence against certain offences and acts; right is controlled by Section 99.
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Dinesh Singh vs State of U. P
Decided under Indian Penal Code 98, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Where an accused claims the right of private defence, he must establish on the basis of preponderance of probabilities that there existed reasonable apprehension of death or grievous hurt at the time of the alleged defensive action. The right of private defence is a legitimate right available only when circumstances clearly justify it, requiring careful examination of the entire incident in its proper setting. Where no person on the prosecution side is shown to be armed with any weapon, there cannot be any reasonable apprehension of death or grievous hurt, and therefore the right cannot extend to causing death. The burden rests on the accused to establish this right, and absent such establishment, an act causing death constitutes culpable homicide.
On this section: Provides right of private defence against certain offences and acts
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Arjun vs State of Maharashtra
Decided under Indian Penal Code 98, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When an act of violence resulting in death is committed in heat of passion upon a sudden quarrel, without premeditation, without any undue advantage taken, and in the course of a mutual fight where both parties sustained injuries, the conviction under Section 302 IPC (murder) should be altered to Section 304 Part 1 IPC (culpable homicide not amounting to murder), even though the accused was armed with a lethal weapon and the victim was unarmed, provided the overall circumstances do not show deliberate calculation or predetermined violence.
On this section: Right of private defense against certain offenses and acts
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Sadhu Singh vs State of Punjab
Decided under Indian Penal Code 98, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When an accused claims the right of private defence in a criminal matter, the burden is on the accused to establish, through careful examination of the entire incident in its proper setting, that circumstances gave rise to reasonable grounds for apprehending that death or grievous hurt would be caused to him. The right of private defence commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence and continues so long as the reasonable apprehension of danger persists. Once the cause for reasonable apprehension disappears and the threat has been destroyed or put to rout, there is no further occasion to exercise the right of private defence. If the evidence shows that an accused exceeded the right of private defence, the appropriate conviction would be under Section 304 Part II IPC (culpable homicide not amounting to murder) rather than Section 302 IPC (murder), with the sentence determined to meet the ends of justice.
On this section: Right of private defence against acts of person of unsound mind - supplementary right of private defence
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Santokh Singh vs State of Punjab
Decided under Indian Penal Code 98, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A right of private defence extending to causing death cannot be claimed merely because a quarrel occurred and some injuries were sustained by the accused. To establish such a right, it must be shown that the accused was under grave apprehension about the safety of their life and property, and that retaliation to the extent undertaken was absolutely necessary. However, when a homicide occurs in the course of a sudden fight with mutual provocation and without premeditation or undue advantage, it falls under Exception 4 of Section 300 IPC and constitutes culpable homicide, not murder. The number of injuries sustained by the accused is not a safe or determinative criterion for establishing private defence.
On this section: Right of private defence against certain acts
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Shriram vs State of M. P
Decided under Indian Penal Code 98, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The non-explanation of injuries sustained by accused persons does not automatically warrant rejection of the prosecution case. Such non-explanation assumes significance only when the defence version competes in probability with the prosecution version or when the evidence consists of interested witnesses. However, where the prosecution evidence is clear, cogent, credible, independent, disinterested, probable and consistent, and where the injuries on the accused are minor and superficial, the mere failure of the prosecution to explain such injuries cannot be the sole basis for rejection of the case. The test of credibility of eyewitnesses who are related to the deceased is not whether they are interested, but whether upon careful and deeper scrutiny of their evidence, it is found to be acceptable and trustworthy.
On this section: Provides right of private defence against certain offences and acts
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 36
What have the courts held on Section 36 of the Bharatiya Nyaya Sanhita?
Raghbir Singh vs State of Haryana (12 Nov 2008) is the leading judgment on this section among those set out below, though it was decided under IPC 98, which this section replaced -- the court never mentioned this Act: Provides right of private defence against certain offences and acts; right is controlled by Section 99. Another 5 judgments on this section are set out below, all of them from the Supreme Court. They run from 2003 to 2012.
How do I find court cases under Section 36 of the Bharatiya Nyaya Sanhita?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BNS 36, section 36 BNS, section 36 of the Bharatiya Nyaya Sanhita. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 6 reported judgments on this section are set out on this page, beginning with Raghbir Singh vs State of Haryana (12 Nov 2008).
What should I read with Section 36 of the Bharatiya Nyaya Sanhita, and has it changed?
It carries forward IPC 98 (Right of private defence against the act of a person of unsound mind, etc), so the judgments decided under that provision are the case law on this one.
When did Section 36 of the Bharatiya Nyaya Sanhita come into force?
Section 36 of the Bharatiya Nyaya Sanhita, cited as BNS 36, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 2. Definitions2199 words
- 356. Defamation1543 words
- 335. Making a false document1318 words
- 101. Murder1177 words
- 303. Theft1104 words
- 3. General explanations858 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.