Section 38 BNS: When right of private defence of body extends to causing death
Bharatiya Nyaya Sanhita, 2023
Section 38 BNS at a Glance
Section 38 BNS deals with when right of private defence of body extends to causing death. It replaced Section 100 IPC on 1 July 2024.
None. Section 38 BNS creates no offence.
Section 38 BNS Bare Act Text
38. When the right of private defence of the body extends to causing death
The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
(a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;
(f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
(g) an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
Source: Section 38, Bharatiya Nyaya Sanhita, 2023
Section 38 BNS in Simple Words
Section 38 of the Bharatiya Nyaya Sanhita (BNS) sets out the seven situations in which the right of private defence of the body extends, under the restrictions specified in Section 37 BNS, to voluntarily causing death or any other harm to the assailant.
These cover assaults causing a reasonable apprehension of death or grievous hurt, assaults with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting, or wrongfully confining a person who cannot reach public authorities for release, and throwing or administering acid or attempting to do so where grievous hurt is reasonably apprehended.
Ingredients of Section 38 BNS
- The right of private defence of the body is being exercised, within the restrictions in Section 37 BNS
- The offence is one of seven descriptions: an assault that reasonably causes the apprehension of death, or of grievous hurt, an assault with intent to commit rape, to gratify unnatural lust, to kidnap or abduct, or to wrongfully confine a person with no recourse to the public authorities, or an act of throwing or administering acid, or an attempt to do so, that reasonably causes the apprehension of grievous hurt
- The harm caused is no more than necessary for the purpose of defence
Punishment Under Section 38 BNS
None. Section 38 BNS creates no offence.
None.
Section 38 BNS is a General Exception. It has no entry in the First Schedule to the BNSS.
Example of Section 38 BNS
When Section 38 BNS Does Not Apply
- The assault is not one of the seven descriptions, and Section 39 BNS governs the case
- The restrictions in Section 37 BNS apply, such as time to go to the public authorities
- The harm caused is more than necessary for the purpose of defence
Section 38 BNS in the IPC (Previous Law)
Section 38 BNS replaces Section 100 IPC from the old criminal code.
Section 38 BNS keeps all seven cases. It sets them out as clauses a to g, starts each with a small letter, refers to the restrictions specified in Section 37 BNS in place of those mentioned in the last preceding section, and drops the word the from the heading in two places.
View IPC Section 100 →FAQs on Section 38 BNS
When can I legally cause death in private defence under Section 38 BNS?▼
Section 38 BNS allows causing death in private defence of the body only in limited situations. These include assaults creating a reasonable fear of death or grievous hurt, assault with intention to commit rape, gratify unnatural lust, kidnap or abduct, wrongful confinement with no practical access to public authorities, and acid attack or attempted acid attack causing reasonable fear of grievous hurt. This right is also subject to the restrictions in Section 37 BNS.
What has to be shown to claim private defence under Section 38 BNS?▼
The person claiming this protection must show that the assault fell within one of the situations listed in Section 38 BNS. In several clauses, the test is whether there was a reasonable apprehension of death or grievous hurt, not just a personal fear. The section also says the right operates under the restrictions specified in Section 37 BNS.
Does Section 38 BNS cover rape attempts, kidnapping, wrongful confinement and acid attacks?▼
Yes. Section 38 BNS specifically covers assault with intention to commit rape, assault with intention of gratifying unnatural lust, assault with intention of kidnapping or abducting, certain wrongful confinement situations, and acid attack or attempted acid attack. In these situations, the right of private defence of the body can extend to causing death, subject to Section 37 BNS.
What punishment is given under Section 38 BNS?▼
Section 38 BNS itself does not prescribe a punishment. It states when the right of private defence of the body can extend to voluntarily causing death or other harm. Whether punishment applies in a case will depend on whether the act is protected by this section and the other applicable provisions.
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Sources: Bare Act Text, Bharatiya Nyaya Sanhita, 2023 · Last updated: 16 Oct 2026 ·