Bharatiya Nyaya Sanhita, 2023 — Section 39

When Such Right Extends to Causing Any Harm Other Than Death

Section 39 is the fallback rule that follows directly from Section 38: where the assault does not fall within any of Section 38's seven listed descriptions, the right of private defence of the body does not extend to voluntarily causing death — but, subject to Section 37's restrictions, it still extends to causing the assailant any lesser harm.

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 39 is marked Exact correspondence:

BNS 39	Covers	IPC, 1860 equivalent	Category
39	When such right extends to causing any harm other than death	S.101 (identical substance)	Exact

Comparing the bare text directly, BNS Section 39 reproduces old IPC Section 101 without substantive change. The only differences are internal cross-reference renumbering: "the last preceding section" becomes "section 38," and "section 99" becomes "section 37," reflecting the Sanhita's own numbering.

Quick Reference

Section 39 is a General Exception — it caps the right of private defence of the body at non-lethal harm whenever Section 38's graver categories are not present. It carries no BNSS First Schedule entry and no cognizable/bailable/compoundable/triable-court classification of its own.

What it requires: the assault does not fall within any of the seven descriptions listed in Section 38.
Effect where it applies: the right of private defence of the body does not extend to voluntarily causing the assailant's death, but, subject to Section 37's restrictions, it still extends to causing the assailant any lesser harm.
How this fits with Section 38: Sections 38 and 39 work together as a single, complete scale — Section 38 marks out the gravest threats, where lethal force is permitted; Section 39 covers everything else that still justifies some defensive force, capped short of death.

Statutory Text (Verbatim)

If the offence be not of any of the descriptions specified in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death.

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 proportionate fallback: defensive force capped short of death

Explanation (Lexovia's Commentary)

Section 39 exists to make explicit what would otherwise be left ambiguous: the right of private defence of the body does not simply vanish when the threat falls short of Section 38's gravest categories. Instead, it continues to operate, just at a lower ceiling — the defender may still cause the assailant harm, but not death. Read together with Section 37's necessity cap, this means the defensive response must be proportionate to the actual threat: an assault that does not reasonably threaten death, grievous hurt, or the other grave harms listed in Section 38 justifies defensive force, but not lethal force, and even that lesser force must not exceed what is necessary to repel the assault.

Illustration (Lexovia's Own Example)

During a heated argument, a person shoves another forcefully, an assault that does not reasonably threaten death, grievous hurt, or any of the other grave harms listed in Section 38. The person being shoved pushes back and restrains the aggressor to stop further shoving, causing the aggressor a minor bruise but nothing more severe. Because the assault did not fall within any of Section 38's descriptions, Section 39 confirms the right of private defence here does not extend to causing death, but does extend, within Section 37's necessity limits, to causing this lesser harm.

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Judgment(s) Applicable to This Section (Lexovia's Commentary — Quoted Paragraphs Verbatim)

These judgment(s) relate to Section 39 as a whole rather than to one specific sub-section, and so are presented together here rather than alongside a particular clause above.

Ratheeshkumar @ Babu v. State of Kerala & Anr., Criminal Appeal No. 1049 of 2018 (reportable order) (Supreme Court of India, decided 09 January 2025)

Quoted Paragraph (Verbatim)

Para No. 16

“the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.” (para 16)

What This Judgment Means (Lexovia's Commentary)

Para 16 reproduces IPC s.101 (BNS 39); para 18 (Darshan Singh principles) adds proportionality of force.

Source: copy of the judgment obtained from the Supreme Court of India's official website.

Related / Cross-Referenced Sections

FAQs

Does the right of private defence disappear entirely when Section 38's categories are not met?

No. Section 39 confirms the right still exists in that situation, just capped short of voluntarily causing death.

Is any lesser harm automatically justified under this section?

No. The harm caused must still stay within Section 37's restrictions, including the rule that the right never extends to inflicting more harm than necessary for the purpose of defence.

How does a person know whether Section 38 or Section 39 applies to their situation?

By checking whether the assault they faced falls within one of Section 38's seven listed descriptions; if it does not, Section 39's lower ceiling applies instead.