IPC 96-106 vs BNS 34-44: Private Defence Changes Explained (2026)

In India, Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the right of private defence in Sections 96 to 106 of the Indian Penal Code, 1860 (IPC) from 1 July 2024. The rules are re-enacted one for one; the only change of substance lets property be defended to the point of death against mischief by explosive substance.

At a glance

IPC	BNS	Rule	Key words (BNS text)	Change
96	34	Things done in private defence	"Nothing is an offence which is done in the exercise of the right of private defence"	Identical
97	35	Right to defend body and property	Own or another's body against any offence affecting the human body; property against theft, robbery, mischief, criminal trespass or attempts	Minor edit
98	36	Defence against act of person of unsound mind, etc.	Same right where youth, unsound mind, intoxication or misconception prevents the act being an offence	Minor edit
99	37	Limits of the right	No right against good-faith acts of public servants not causing apprehension of death or grievous hurt; none where there is time to seek public protection; no more harm than necessary	Minor edit
100	38	Body: when the right extends to causing death	Seven kinds of assault, (a) to (g)	Minor edit
101	39	Body: harm other than death	Any harm other than death, for other offences	Minor edit
102	40	Body: commencement and continuance	Begins with reasonable apprehension of danger from an attempt or threat; lasts while it lasts	Identical
103	41	Property: when the right extends to causing death	Robbery; house-breaking after sunset and before sunrise; mischief by fire or any explosive substance on a dwelling or storehouse; theft, mischief or house-trespass causing apprehension of death or grievous hurt	Expanded
104	42	Property: harm other than death	Theft, mischief or criminal trespass not within Section 41	Minor edit
105	43	Property: commencement and continuance	Clauses (a) to (e) for danger generally, theft, robbery, criminal trespass or mischief, and house-breaking	Minor edit
106	44	Deadly assault: risk of harm to an innocent person	Right extends to running that risk	Identical

These are General Exceptions, not offences, so the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 does not classify them.

What changed

The substantive change — Section 41 (IPC 103)

Expanded — clause (c): "Mischief by fire committed on any building, tent or vessel" becomes "mischief by fire or any explosive substance committed on any building, tent or vessel", where the building, tent or vessel "is used as a human dwelling, or as a place for the custody of property" (a comma is added after "dwelling"). The right of private defence of property therefore extends to causing death against explosive mischief on such premises, which Section 103 IPC did not list. The India Code IPC text prints a Karnataka State amendment (Karnataka Act 8 of 1972) that had inserted the same words "or any explosive substance" in that State, together with "a place of worship" and a clause Fifthly covering property of the Government, local authorities, statutory bodies and Government-controlled companies, railways and passenger vehicles. The BNS adopts only the explosive-substance words, and for the whole of India.
Minor edit — clause (b): "House-breaking by night" becomes "house-breaking after sunset and before sunrise". Section 446 IPC defined "house-breaking by night" as house-breaking "after sunset and before sunrise", so the BNS writes out the definition in place of the defined term; on a reading of the text, the scope is unchanged. The same words replace "house-breaking by night" in Section 331 BNS.
Minor edit — clause (d): "Theft, mischief or house-trespass" becomes "theft, mischief, or house-trespass"; clauses are lettered (a) to (d) instead of "First" to "Fourthly"; "restrictions mentioned in section 99" becomes "restrictions specified in section 37".

Section 43 (IPC 105)

Minor edit: the five unnumbered paragraphs of Section 105 IPC become clauses (a) to (e) under the opening words "The right of private defence of property,––". Each clause keeps the IPC words, except that clause (e) reads "house-breaking after sunset and before sunrise" for "house-breaking by night" (the same drafting change as Section 41(b)).

The other sections

Identical — Sections 34, 40 and 44 (IPC 96, 102 and 106), including the mob-and-children Illustration to Section 44.
Minor edit — Section 35 (IPC 97): "section 99" becomes "section 37"; "First.—His own body" and "Secondly.—The property" become clauses (a) and (b).
Minor edit — Section 36 (IPC 98): Illustration (a) reads "Z, a person of unsound mind, attempts to kill A" for "Z, under the influence of madness, attempts to kill A".
Minor edit — Section 37 (IPC 99): the three restrictions become Section 37(1)(a) to (c), and the "Extent to which the right may be exercised" paragraph becomes Section 37(2). Clause (c) reads "recourse to the protection of the public authorities". Clause (a) prints a comma the IPC did not have ("though that act, may not be strictly justifiable by law"). Explanations 1 and 2 are unchanged.
Minor edit — Sections 38, 39 and 42 (IPC 100, 101 and 104): "the last preceding section" and "section 99" become "section 37"; "the descriptions enumerated in the last preceding section" becomes "the descriptions specified in section 38" (or "section 41"). The seven clauses of Section 100 IPC — including "Seventhly", on acid, inserted in 2013 — become clauses (a) to (g) with the same words.

Statutory text (relevant extract)

Extract, Section 103 IPC (repealed from 1 July 2024), clauses Secondly and Thirdly:

Secondly.—House-breaking by night; Thirdly.—Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property;

Extract, Section 41 BNS, opening words and clauses (b) and (c):

The right of private defence of property extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:— ... (b) house-breaking after sunset and before sunrise; (c) mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

How it works — the questions a court asks

Was there an offence to defend against? Section 35 gives the right to defend the body (one's own or another's) against "any offence affecting the human body", and property (one's own or another's, movable or immovable) against theft, robbery, mischief or criminal trespass or attempts at them. Section 36 extends it to acts that are not offences only because of the actor's youth, unsound mind, intoxication or misconception — Illustration (b): a householder attacked in good faith by someone who mistakes him for a house-breaker may defend himself.
Is the right excluded? Section 37(1): not against a public servant, or a person acting on a public servant's direction, acting in good faith under colour of office, unless the act reasonably causes apprehension of death or grievous hurt (under Explanations 1 and 2, the defender loses the right on this ground only if he knew or had reason to believe that the person was a public servant or was acting by such direction, or, for a direction, if the person states his authority or produces written authority on demand); and not where there is time to have recourse to the protection of the public authorities.
When did it start and end? For the body, Section 40: from a reasonable apprehension of danger arising from an attempt or threat, for as long as the apprehension continues. For property, Section 43: from a reasonable apprehension of danger to the property; against theft, until the offender has retreated with the property, public assistance is obtained or the property is recovered; against robbery, while the offender causes or attempts death, hurt or wrongful restraint, or the fear of instant death, hurt or restraint continues; against criminal trespass or mischief, while the offender continues in it; against house-breaking after sunset and before sunrise, while the house-trespass begun by it continues.
How much harm was permitted? Never more than necessary (Section 37(2)). Death may be caused only in the cases in Section 38 (body) or Section 41 (property); otherwise the right extends to harm other than death (Sections 39 and 42).
Innocent bystanders. Against an assault reasonably causing apprehension of death, Section 44 lets the defender run the risk of harming an innocent person if the right cannot otherwise be effectively exercised.

What this means in practice

For the accused and defence advocate

The burden is on the accused: Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), like Section 105 of the Indian Evidence Act, makes the accused prove circumstances bringing the case within the General Exceptions, and the Court presumes their absence. The Supreme Court has said this burden is not proof beyond reasonable doubt (Darshan Singh, below).
Map the facts to a specific clause. For a death caused defending property, the case must fall in Section 41(a) to (d). Explosive mischief on a dwelling or storehouse now falls in Section 41(c); on a reading of Section 358(2) BNS, conduct before 1 July 2024 is judged under Section 103 IPC, which does not contain those words.
If the right is established but the harm exceeded it, Exception 2 to Section 101 BNS (Exception 2 to Section 300 IPC) makes a killing in good faith, without premeditation and without intention to do more harm than necessary, culpable homicide not amounting to murder. See the culpable homicide and murder page.

For the investigating officer

Record injuries on both sides, the place and time of the incident (Section 41(b) and 43(e) turn on sunset and sunrise), who was in possession of disputed land and for how long (Puran Singh, below), and whether police help was available (Section 37(1)(c)).

For property owners

Private defence of property is not a licence to evict. A trespasser in settled possession may defend that possession even against the true owner, whose remedy is the law (Puran Singh). See the property dispute scenario.

Judgments that still matter

Amjad Khan v. The State, [1952] S.C.R. 567 — 20 March 1952. Saiyid Fazl Ali and Vivian Bose JJ. (judgment by Bose J.) allowed the appeal of a shopkeeper who fired two shots during a communal riot after a mob had broken into another part of his building, looted it and was beating on his doors while his family sheltered with him. The Court held that both courts below were wrong to think actual looting of his shop was necessary before the right arose: under Section 102 IPC the right of private defence of the body commences with a reasonable apprehension from an attempt or threat, and the appellant had no time to have recourse to the authorities. On excess, it said "we cannot use golden scales", noted that he fired only two shots and aimed low, and held that he "did not use more force than was necessary". The convictions and sentences were set aside. The report shows no paragraph numbers. The Court stated that for property the danger "must be of the kinds specified in section 103", with the scope further explained in Sections 102 and 105 (now Sections 41, 40 and 43 BNS), but it expressly confined its decision to private defence of the person, although the defence of property was bound up with it.

Puran Singh & Ors. v. State of Punjab, [1975] Supp. S.C.R. 299 — 25 April 1975. N.L. Untwalia and S. Murtaza Fazal Ali JJ. (judgment by Fazal Ali J.) allowed the appeals of persons convicted under Sections 302 and 326 read with Section 149 IPC after a clash over land on which they had grown a wheat crop. The Court held that a trespasser in "settled possession" may defend that possession even against the true owner, and set out the attributes of settled possession: actual physical possession over a sufficiently long period; possession to the owner's knowledge or without concealment; dispossession that is complete and acquiesced in; and, for cultivable land, whether the trespasser has grown a crop, in which case the true owner has no right to destroy it and take forcible possession. On the facts, the accused were protected by the right of private defence of property and person; the convictions and sentences were set aside. The report shows no paragraph numbers.

Darshan Singh v. State of Punjab & Anr., [2010] 1 S.C.R. 642 (2010 INSC 45) — 15 January 2010. Dalveer Bhandari and Asok Kumar Ganguly JJ. (judgment by Bhandari J.) set out ten principles in para 58, including that "A mere reasonable apprehension is enough to put the right of self defence into operation", that the right is co-terminus with the apprehension, that it is "unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude", that the accused need not prove the right beyond reasonable doubt, and that the plea may be considered even if not taken, if it arises from the record. Holding that the trial court's view was a possible and plausible one (paras 62-64), the Court set aside the High Court's judgment reversing the acquittal, restored the acquittal, and held that the appellant's role was "fully covered by his right of private defence" (para 65). The principles are drawn from Sections 96 to 106 IPC, whose operative words Sections 34 to 44 BNS repeat, so they remain relevant on a reading of the text.

Which law applies to your case

Section 358(2) BNS keeps alive any penalty or punishment incurred under the IPC and allows proceedings to be instituted, continued or enforced "as if that Code had not been repealed". On a reading of that provision, an act done before 1 July 2024 is judged under Sections 96 to 106 IPC — including Section 103 without the explosive-substance words. Article 20(1) of the Constitution bars conviction except for violation of a law in force when the act was done. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Sections 96 to 106 IPC? Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 replace Sections 96 to 106 IPC, one for one: Section 96 IPC is Section 34 BNS, Section 100 is Section 38, Section 103 is Section 41 and Section 106 is Section 44. They sit in Chapter III, General Exceptions, under the heading 'Of right of private defence'.

What changed in the right of private defence under the BNS? The one change of substance is in Section 41(c) BNS: the right of private defence of property extends to causing death against 'mischief by fire or any explosive substance' committed on a building, tent or vessel used as a human dwelling or for the custody of property. Section 103 IPC covered only 'mischief by fire'. The other changes are drafting changes.

Does 'house-breaking after sunset and before sunrise' change the law on night-time house-breaking? On a reading of the text, no. Sections 41(b) and 43(e) BNS use 'house-breaking after sunset and before sunrise' where Sections 103 and 105 IPC said 'house-breaking by night'. Section 446 IPC defined 'house-breaking by night' as house-breaking committed after sunset and before sunrise, so the BNS writes out the definition instead of using the defined term.

When can a person cause death in private defence of the body? Under Section 38 BNS, subject to the restrictions in Section 37, the right extends to causing death if the assault reasonably causes apprehension of death or grievous hurt, or is an assault with intent to commit rape, gratify unnatural lust, kidnap or abduct, or wrongfully confine in circumstances where the person cannot seek help from the public authorities, or is an act or attempt of throwing or administering acid. These are clauses (a) to (g), repeating Section 100 IPC.

When is there no right of private defence? Section 37(1) BNS denies the right against an act of a public servant, or done by a public servant's direction, acting in good faith under colour of office, unless the act reasonably causes apprehension of death or grievous hurt, and where there is time to have recourse to the protection of the public authorities. Section 37(2) says the right never extends to inflicting more harm than is necessary for defence.

Does a person have to wait to be attacked before defending himself? No. Section 40 BNS says the right of private defence of the body commences as soon as a reasonable apprehension of danger arises from an attempt or threat to commit the offence, though the offence may not have been committed. In Amjad Khan v. The State (1952), the Supreme Court held, under the identical Section 102 IPC, that the accused did not have to wait until a rioting mob actually broke into his shop.

Who must prove private defence at trial? Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, like Section 105 of the Indian Evidence Act, places on the accused the burden of proving circumstances bringing the case within the General Exceptions, and the Court presumes their absence. In Darshan Singh v. State of Punjab (2010), the Supreme Court said the accused need not prove the right beyond reasonable doubt, and that the plea may be considered even if not raised, if it arises from the record.

What if the defender uses more force than the law allows? Section 37(2) BNS limits the right to the harm necessary for defence. Where death is caused by exceeding the right in good faith, without premeditation and without intending more harm than necessary, Exception 2 to Section 101 BNS, which repeats Exception 2 to Section 300 IPC, reduces murder to culpable homicide not amounting to murder.

Sources

Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 34 to 44, 101 (Exception 2), 331 and 358.
Indian Penal Code, 1860 (India Code text): Sections 96 to 106 with the 2013 amendment footnote and the Karnataka State amendment to Section 103; Section 446.
Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Section 108. Indian Evidence Act, 1872: Section 105.
Constitution of India: Article 20(1).
Judgments read in full text: Amjad Khan v. The State (1952_1_567_572_EN.md); Puran Singh v. State of Punjab (S_1975_1_299_314_EN.md); Darshan Singh v. State of Punjab (2010_1_642_677_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Sections 96–106 IPC vs Sections 34–44 BNS — Right of Private Defence