Bharatiya Nyaya Sanhita, 2023 — Section 44

Right of Private Defence Against Deadly Assault When There Is Risk of Harm to Innocent Person

Section 44 closes Chapter III's private-defence sub-group with a collateral-risk rule: if, in exercising the right of private defence against an assault reasonably threatening death, the defender is positioned such that they cannot effectually exercise that right without risking harm to an innocent bystander, the right of private defence extends to running that risk.

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 44 is marked Exact correspondence:

BNS 44	Covers	IPC, 1860 equivalent	Category
44	Right of private defence against deadly assault when there is risk of harm to innocent person	S.106 (identical, word-for-word, including the illustration)	Exact

Comparing the bare text directly, BNS Section 44 reproduces old IPC Section 106 word-for-word, with no change whatsoever, including its illustration.

This is the final section of Chapter III (General Exceptions); Chapter IV (Of Abetment, Criminal Conspiracy and Attempt) begins with Section 45.

Quick Reference

Section 44 is a General Exception — the final refinement of the right of private defence, addressing the specific dilemma of unavoidable risk to bystanders. It carries no BNSS First Schedule entry and no cognizable/bailable/compoundable/triable-court classification of its own.

What it requires: the defender is exercising the right of private defence against an assault that reasonably causes the apprehension of death, and is so situated that they cannot effectually exercise that right without risking harm to an innocent person.
Effect where it applies: the right of private defence extends to running that risk — the defender commits no offence even if the defensive act happens to harm the innocent bystander, provided the conditions above are genuinely met.
Why this matters: without this rule, a defender facing a deadly assault in a crowded or chaotic situation might be forced to choose between abandoning a lawful defence entirely or risking liability for any incidental harm to a bystander; this section resolves that dilemma in favour of allowing the defence to proceed.

Statutory Text (Verbatim)

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Illustration.
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

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)

Permitting unavoidable collateral risk in a genuine life-threatening dilemma

Explanation (Lexovia's Commentary)

This section addresses a narrow but genuinely difficult situation: a person facing a deadly assault has a right to defend themselves, but circumstances may make it physically impossible to exercise that right without also risking harm to someone innocent who happens to be caught in the situation, through no fault of their own. Rather than leaving the defender with an impossible choice — abandon a lawful defence against a deadly threat, or risk criminal liability for any incidental harm to the bystander — the law resolves the dilemma by extending the right of private defence to cover that unavoidable risk. This is a narrow rule: it applies only where the underlying assault reasonably threatens death, and only where the defender genuinely cannot effectually exercise the right without running the risk to the innocent person — it is not a general licence to endanger bystanders whenever convenient.

Illustration (Lexovia's Own Example)

A person is attacked by an armed mob attempting to kill them, and the only effective way to repel the attack is to fire into the crowd, which is mixed with bystanders who happen to be caught among the attackers, making it impossible to fire without some risk of hitting one of them. Because the assault reasonably caused apprehension of death, and the defender could not effectually exercise the right of private defence without risking harm to those bystanders, Section 44 extends the right of private defence to cover that risk, even if a bystander is harmed as a result.

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Related / Cross-Referenced Sections

FAQs

Does this section apply to any assault, or only the gravest kind?

Only to an assault that reasonably causes the apprehension of death; it does not extend to lesser assaults.

Can a defender rely on this section if there was another safe way to defend themselves?

No, per the statute's own wording — it applies only where the defender "cannot effectually exercise" the right of private defence without risking harm to the innocent person.

Does harming the innocent bystander itself become an offence under this section?

No, where the section's conditions are genuinely met — the statute's own illustration confirms that the defender "commits no offence" even if a bystander is harmed as a result.