Section 41 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 41 of the Bharatiya Nyaya Sanhita (BNS), 2023, delineates the circumstances under which an individual may lawfully use lethal force to defend their property. This provision is a part of the broader framework governing the right to private defense, which is subject to certain restrictions and limitations.
๐ Text of Section 41
Section 41: When right of private defence of property extends to causing death
The right of private defence of property extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:โ
(a) robbery;
(b) house-breaking after sunset and before sunrise;
(c) mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
(d) theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
โ๏ธ Correspondence with Indian Penal Code (IPC)
Section 41 of the BNS, 2023, corresponds to Section 103 of the Indian Penal Code (IPC), 1860, which outlines when the right of private defense of property extends to causing death. While both provisions enumerate similar offenses justifying the use of lethal force in property defense, the BNS introduces specific terminologies and scenarios, such as "house-breaking after sunset and before sunrise," to provide clearer guidance on the application of this right.
๐ Key Elements of Section 41
Scope of Application: The section applies to serious offenses like robbery, house-breaking during nighttime, arson, and situations where theft or mischief poses a threat of death or grievous harm.(
Conditions for Lethal Force: Lethal force may be used only when the offense is of a nature that justifies such a response, and the individual reasonably believes that exercising the right is necessary to prevent the offense.
Restrictions: The exercise of this right is subject to the restrictions specified in Section 37 of the BNS, which likely outlines limitations to ensure proportionality and necessity in the use of force.
๐งพ Illustrative Example
If an individual is confronted with a situation where their property is being unlawfully entered during nighttime (house-breaking after sunset and before sunrise), and they reasonably apprehend that the intruder intends to commit robbery or cause harm, they may be justified in using lethal force to defend their property, provided such action is necessary and proportionate under the circumstances.
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