Section 36 confirms that the right of private defence survives even when the attacker themselves commits no offence — because of their youth, immaturity of understanding, unsoundness of mind, intoxication, or an innocent misconception. The person facing the act still has exactly the same right of private defence they would have had if the act had, in fact, been the offence it resembles.
Verified against the National Crime Records Bureau's official BNS–IPC concordance (Sankalan Portal) and cross-checked directly against the bare text of both Acts. Section 36 is marked Exact correspondence:
| BNS 36 | Covers | IPC, 1860 equivalent | Category |
|---|---|---|---|
| 36 | Right of private defence against act of a person of unsound mind, etc. | S.98 (identical substance) | Exact |
Comparing the bare text directly, BNS Section 36's operative rule reproduces old IPC Section 98 word-for-word. Its Illustration (a) modernizes terminology only: IPC 98's illustration described the attacker as acting "under the influence of madness," while BNS 36 describes the same attacker as "a person of unsound mind" — a terminology modernization of the kind also seen in the marginal title of Section 27. Illustration (b) is reproduced without any change.
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.
Source: Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023), as published in the Gazette of India Extraordinary.
This section addresses a subtle but important gap that would otherwise exist. Sections 14 and 20 through 23 excuse certain people — young children, those of unsound mind, the intoxicated, or those acting under an innocent misconception — from criminal liability for what they do. Read alone, this could suggest that a person facing an attack from someone falling into one of these categories has no right of private defence, since the attacker's conduct is not, technically, "an offence." Section 36 closes that gap: it makes clear that the defender's right of private defence is measured against what the act would have been, not against whether the attacker personally happens to be liable for it. The excused status of the attacker protects only the attacker; it does not disarm the person facing the attack.
Yes. Section 36 makes clear the right of private defence is unaffected by the attacker's personal excuse — it is measured as though the act were the offence it resembles.
No. The attacker's excuse comes from other sections (such as Sections 14 and 20 through 23); this section only preserves the defender's right of private defence in that situation.
Yes, per the statute's own wording — the illustration describes the attacker acting "in good faith" under a genuine misconception, which is why the attacker commits no offence.