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Section 40: Commencement and Continuance of Right of Private Defence of Body

Bharatiya Nyaya Sanhita • Chapter III: General Exceptions • Official Statutory Text & Legal Guide

Chapter III: General Exceptions
Trial Court
Complete Defence
Non-Applicable
Formerly Sec 102 IPC
Section 39 All 358 Sections of Bharatiya Nyaya Sanhita Section 41

Legal Commentary & Landmark Judgments: Section 40

Section 40 governs the commencement and continuance of the right of private defence of the body, establishing that the right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, and continues as long as such apprehension of danger continues.

  • Commencement on Apprehension: The defender is NOT required to wait until the first blow is struck; the right begins the moment a reasonable apprehension of danger arises.
  • Duration of Defensive Right: Endures only as long as the threat or physical danger continues.
  • Cessation Rule: The moment the aggressor turns and flees, or is disarmed and subdued, the right of private defence instantly ceases; pursuing and striking a fleeing assailant constitutes criminal assault.
Key Landmark Precedents:
  • State of U.P. v. Ram Swarup (1974) 4 SCC 764: The Supreme Court held that under Section 102 IPC (Section 40 BNS), the right of private defence commences the moment apprehension of danger arises; the defender is not required to wait for a physical blow before taking defensive action.
  • Puran Singh v. State of Punjab (1975) 4 SCC 518: Affirmed that the right of private defence of body and property continues until the aggressor has retreated or the threat has completely subsided.
Courtroom Practice & Strategic Litigation Guidance:

In cross-examining the Investigating Officer, establish the timeline: show that the assailant reached for a country-made pistol or pulled out a knife, creating instantaneous apprehension of death under Section 40 BNS that justified immediate defensive strikes.

Section 39 All 358 Sections of Bharatiya Nyaya Sanhita Section 41