Bharatiya Nyaya Sanhita, 2023 — Section 40

Commencement and Continuance of Right of Private Defence of Body

Section 40 fixes the timing of the right of private defence of the body: it begins the moment a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence — even before the offence is actually committed — and it continues for as long as that apprehension of danger continues.

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 40 is marked Exact correspondence:

BNS 40	Covers	IPC, 1860 equivalent	Category
40	Commencement and continuance of right of private defence of body	S.102 (identical, word-for-word)	Exact

Comparing the bare text directly, BNS Section 40 reproduces old IPC Section 102 word-for-word, with no change whatsoever.

Quick Reference

Section 40 is a General Exception — it fixes the timing window during which the right of private defence of the body operates. It carries no BNSS First Schedule entry and no cognizable/bailable/compoundable/triable-court classification of its own.

When the right begins: as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence — the actual offence need not yet have been committed.
When the right ends: it continues for as long as that apprehension of danger to the body continues, and no longer.
Why this matters: it fixes both ends of the window during which force used in self-defence remains protected — too early (before any reasonable apprehension arises) or too late (after the danger has clearly passed) falls outside the right, however justified the original threat may have been.

Statutory Text (Verbatim)

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

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)

A right anchored to real-time danger, not to the moment of harm

Explanation (Lexovia's Commentary)

This section makes clear that the right of private defence is not tied to the moment an offence is actually completed — waiting until an attacker's blow actually lands would often make defence impossible or too late to matter. Instead, the right springs into existence the moment a reasonable apprehension of danger arises, which may be well before any harm is actually inflicted, so long as an attempt or threat has been made. Just as importantly, the right does not persist indefinitely once the danger has passed: it lasts only as long as the apprehension of danger itself continues. Once the threat has genuinely ended — the attacker has fled, been subdued, or otherwise no longer poses a reasonable threat — any further force falls outside the right, and is instead governed by Section 37's necessity cap on excess harm.

Illustration (Lexovia's Own Example)

A person raises a knife and clearly threatens to stab another, closing the distance between them, though the knife has not yet struck. The threatened person, reasonably apprehending imminent danger to their body from this attempt, immediately acts to defend themselves, even though no blow has yet landed. Because the reasonable apprehension of danger had already arisen from the attacker's threat and advance, Section 40 confirms the right of private defence of the body had already commenced at that point, and would continue only for as long as that apprehension of danger persisted.

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

These judgment(s) relate to Section 40 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. 18(iv)

“The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.” (para 18(iv))

What This Judgment Means (Lexovia's Commentary)

Para 18(iv), quoting Darshan Singh, states when the right commences and how long it continues (IPC s.102 / BNS 40 also quoted in para 16).

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

Related / Cross-Referenced Sections

FAQs

Must the offence actually be committed before the right of private defence begins?

No. The right begins as soon as a reasonable apprehension of danger arises from an attempt or threat, even if the offence itself has not yet been committed.

Does the right of private defence continue after the danger has clearly passed?

No. It continues only as long as the apprehension of danger to the body itself continues; once that apprehension genuinely ends, so does the right under this section.

Does this section itself define how much force may be used?

No. This section fixes only the timing window; the permitted extent of force is governed by Sections 37, 38, and 39.