Introduction of BNS 42
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replaced the old Code of Criminal Procedure (CrPC) as part of India’s new set of criminal laws. It lays down rules not only for criminal trials and procedures but also for the rights of citizens to protect themselves and their property. One of the important provisions in this regard is BNSS Section 42, which deals with the right of private defense of property in cases of minor crimes.
The Bharatiya Nyaya Sanhita (BNS) Section 42 replaces the old Indian Penal Code (IPC) Section 104.
What is section 42 of BNS ?
BNSS Section 42 states that if someone tries to steal, damage, or unlawfully enter your property, you are legally allowed to use force to protect it. However, the force used must be reasonable and non-deadly. This means you cannot kill or cause extreme injury to the offender in such cases—you can only use enough force to stop the crime.
BNS Section 42 in Simple Points
When a person defends their property against offences such as theft, mischief, or criminal trespass, they are legally permitted to cause harm other than death to the wrongdoer. The harm caused must be reasonable, proportionate, and necessary to stop or prevent the offence, but under no circumstance does this right extend to causing death.
(This provision corresponds to IPC Section 104, updated under the Bharatiya Nyaya Sanhita (BNS), 2023.)
1. Meaning of Section 42
BNS Section 42 defines the scope of private defence of property in cases of lesser gravity. It recognises that a person has the right to protect their belongings immediately when theft, mischief, or trespass is attempted, but this protection is limited. Unlike Section 41, where causing death may be justified in extreme cases, Section 42 strictly restricts defensive actions to non-deadly harm only.
2. Purpose of Section 42
The aim of this section is to strike a balance between self-defence and social responsibility. While the law empowers citizens to safeguard their property, it does not allow violent or extreme actions for minor wrongs. The purpose is to ensure that defensive force does not escalate into unnecessary killings or grievous harm in situations where the offence itself is not life-threatening.
3. Essential Ingredients of Section 42
For protection under this section, certain conditions must be satisfied:
- Nature of Offence: The act must be theft, mischief, or criminal trespass (not the more serious property crimes covered under Section 41).
- Non-Deadly Force: The defensive act must not extend to causing death of the offender.
- Proportionality: The harm caused must be proportionate to the wrong being prevented.
- Necessity: The harm must be necessary at the moment to stop or prevent the offence.
- Good Faith: The defender’s action must be based on an honest and reasonable belief that protection was required.
4. Punishment under BNS Section 42
There is no punishment under Section 42 when actions fall within its scope, because such actions are not considered an offence at all. However, if a person exceeds the lawful limits — for example, by inflicting grievous injury or death for a minor theft — then the protection of this section is lost, and the defender may face charges under general criminal law (like assault, grievous hurt, or homicide).
5. Examples of Section 42 in Action
- Example 1: A shopkeeper catches a pickpocket stealing goods. He pushes the thief away, causing minor injuries. This is protected under Section 42.
- Example 2: A house owner restrains a trespasser damaging his garden fence by tying him until police arrive. This is lawful since no deadly force was used.
- Counter-Example: A boy tries to steal mangoes from a tree. If the property owner strikes him fatally with a stick, Section 42 will not apply because death cannot be caused in such cases.
- Counter-Example: A person sets minor fire to a fence without danger to life. Killing the offender would not be justified under this section.
6. Importance of Section 42
BNS Section 42 is significant because it empowers individuals to protect their property immediately without waiting for authorities, while also ensuring restraint. It upholds the principle that the law must not condone excessive violence for minor offences. By laying down clear boundaries — permitting harm but forbidding death — this section promotes both justice and accountability, preventing misuse of the right of private defence.
Bharatiya Nyaya Sanhita Section 42
BNSS Section 42 deals with the right to defend your property from theft, damage, or unlawful entry. It makes it clear that while you can use force to stop such crimes, you cannot use deadly force. The section applies mainly to minor property crimes such as theft, mischief, or trespassing.
BNS Section 42 : Detailed Explanation
1. Reasonable Response:
Your response to a property-related crime must be reasonable and proportionate to the situation. The law does not allow extreme reactions for small wrongs. For example, you cannot severely injure someone just because they broke your fence—you may only use enough force to stop them.
2. Right to Protect Property:
The law recognizes your right to protect your property against theft, unlawful damage, or trespassing. This gives property owners the confidence that they can act immediately to prevent harm to what belongs to them.
3. Use of Non-Deadly Force:
While defending property, you are permitted to use physical force, but not deadly force. This ensures that minor property crimes do not escalate into unnecessary loss of life. For example, you may restrain or push away a thief but cannot kill them.
4. Force Must Fit the Crime:
The force you use should match the seriousness of the offense. If the crime is minor, the defensive action should also be limited. For instance, if a child trespasses into your garden, pushing them away gently is justified, but causing serious injury is not.
5. Applies to Minor Crimes:
This section specifically covers less serious crimes like petty theft, trespassing, or damage to property. For grave crimes like armed robbery, dacoity, or violent trespass, other sections (like BNSS 38) allow stronger defensive action.
6. No Killing Allowed:
You cannot use deadly force to protect property under Section 42. Killing is allowed only in extreme cases under other provisions when life is also in danger. For minor property-related threats, only non-deadly measures are lawful.
7. Immediate Danger Required:
The right of defense applies only when the crime is happening in the present moment. You cannot act violently after the danger has passed or based on suspicion. For example, you can stop a thief in the act of stealing, but you cannot attack them the next day for what they did earlier.
8. Examples of When Force is Allowed:
If someone is attempting to steal your bag, break your shop window, or damage your vehicle, you can use force to prevent it. However, the force must stop once the threat ends, and it should never exceed what is necessary to protect your property.
9. Law Protects Your Defense Rights:
The law provides protection to those who act within the limits of Section 42. If you used reasonable and non-deadly force to stop a thief or trespasser, you cannot be punished for it. The law recognizes your right to act as long as you stayed within the boundaries of necessity.
10. Limits on Force:
The overall principle is that the force used must not be more than required. Any action that goes beyond what is necessary to protect property may turn into an offense. For example, tying up a trespasser until police arrive is reasonable, but severely injuring them would not be protected by this law.
Bharatiya Nyaya Sanhita Section 42
| Section | Offence | Punishment | Bailable / Non-Bailable | Cognizable / Non-Cognizable | Trial By |
|---|---|---|---|---|---|
| BNS Section 42 | Right of private defence of property in cases of theft, mischief, or criminal trespass—extends only to using reasonable force, but not to causing death. | No specific punishment if force used is lawful. Excessive or disproportionate force may attract criminal liability. | Not Applicable (depends on whether the defensive act remains within legal limits). | Not Applicable (lawful defence is not treated as an offence). | Courts examine proportionality and necessity on a case-to-case basis. |
| IPC Section 104 (Old) | Right of private defence of property against theft, mischief, or criminal trespass—limited to non-lethal force. Deadly force not allowed unless covered under Section 103. | No punishment when within lawful defence. Liability arises if force used is excessive or goes beyond necessity. | Not Applicable (depends on circumstances and whether defence exceeded limits). | Not Applicable (self-defence not an offence if justified). | Courts under IPC assessed whether reasonable force was used in preventing the property offence. |
BNS Section 42 FAQs
Can I hurt someone who is stealing from me?
Yes, you can use force to stop the theft, but you cannot kill the person.
What if someone is just trespassing?
You can use force to make them leave, but only as much as needed to remove them.
Can I use deadly force for theft?
No, you are not allowed to use deadly force for theft. Deadly force is only permitted for more serious crimes under different rules.
What if I cause too much harm?
The harm you cause must be appropriate for the crime. Causing more harm than necessary can be against the law.
Conclusion
BNS 42 ensures that citizens have the right to protect their property against theft, mischief, or trespassing, but only through reasonable and non-deadly force. It strikes a balance between empowering individuals to act in defense of their belongings and preventing unnecessary violence over minor offences. By clearly stating that deadly force cannot be used in such cases, the law upholds the principle of proportionality—where the defensive action must match the seriousness of the crime. In simple terms, Section 42 protects your right to act in the moment to safeguard your property, while also ensuring that such actions remain fair, just, and within legal boundaries.
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Finished with BNS Section 42 ? Continue exploring the next provisions of the Bharatiya Nyaya Sanhita (BNS), 2023. Each section includes explanations, examples, and plain-language breakdowns for easy understanding..
BNS 43 : Commencement and continuance of the right of private defence of property
https://marriagesolution.in/bns_section/bns-43/
BNS 44 : Right of private defence against deadly assault when there is risk of harm to innocent person
https://marriagesolution.in/bns_section/bns-44/
Chapter IV – Of Abetment, Criminal Conspiracy And Attempt
BNS 45 : Abetment of a thing
https://marriagesolution.in/bns_section/bns-45/
BNS 46 : Abettor
https://marriagesolution.in/bns_section/bns-46/
BNS 47 : Abetment in India of offences outside India
https://marriagesolution.in/bns_section/bns-47/
Full IPC Section List: https://marriagesolution.in/ipc-section-list
All Indian Law & Blogs: https://marriagesolution.in/indian-law/
Full BNSS Section List: https://marriagesolution.in/bnss_section-list