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Bharatiya Nyaya Sanhita, 2023 Chapter III · General Exceptions
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Bharatiya Nyaya Sanhita, 2023 — Section 36

Right of Private Defence Against Act of a Person of Unsound Mind, Etc.

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.

Please note: This page reflects our understanding of the law as of the date it was last reviewed. Parliament, the State Legislatures, and the courts continue to amend and interpret this law, and this page may not yet reflect the most recent change. Please verify the current text of the law independently, and consult a licensed advocate for advice on your own matter, before relying on this page.

Corresponding Provision Under Prior Law

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 36CoversIPC, 1860 equivalentCategory
36Right 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.

Quick Reference

Section 36 is a General Exception — it confirms the right of private defence continues to exist against certain acts even though the person committing those acts is themselves excused. It carries no BNSS First Schedule entry and no cognizable/bailable/compoundable/triable-court classification of its own; it operates as a complete defence to whatever charge the defensive act might otherwise attract.

What it requires: the act facing the defender would otherwise be an offence, but is not one because the person doing it is excused by reason of youth, want of maturity of understanding, unsoundness of mind, intoxication, or an innocent misconception on their part.
Effect where it applies: the defender still has exactly the same right of private defence they would have had if the act had genuinely been that offence — the attacker's own personal excuse does not strip the defender of the right to respond.
Illustrated by the statute's own two examples: a person of unsound mind attacking another (Illustration (a)), and a person attacking someone under an innocent misconception of fact (Illustration (b)) — in both, the attacker commits no offence, yet the person attacked retains the full right of private defence.

Statutory Text (Verbatim)

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.

Explanation & Illustration (Lexovia's Commentary — Not Statutory Text)

The right of private defence does not depend on the attacker's own culpability

Explanation (Lexovia's Commentary)

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.

Illustration (Lexovia's Own Example)
A person whose drink was secretly spiked, and who is as a result unable to appreciate the nature of their actions, suddenly swings a heavy object at a bystander, threatening serious injury. The bystander blocks the blow and restrains that person to stop the attack. Even though the attacker's involuntary intoxication might excuse them personally under Section 23, the act they did would otherwise have been a criminal assault. Section 36 confirms the bystander has exactly the same right of private defence against that act as they would have had if the attacker were fully sober and criminally liable.
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Related / Cross-Referenced Sections

FAQs

If the attacker commits no offence, does the person attacked still have a right to defend themselves?

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.

Does this section itself excuse the attacker?

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.

Does the statute's Illustration (b) require the attacker to have acted in good faith?

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.

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