Indian criminal law | General exceptions | Updated 28 October 2026

IPC Section 98 and BNS Section 36: Private Defence Against Acts of Persons of Unsound Mind and Others

The right of private defence depends on the nature of the threatening act, not necessarily on whether the person carrying it out can be convicted. Section 98 of the Indian Penal Code, 1860 (IPC), and its corresponding provision, Section 36 of the Bharatiya Nyaya Sanhita, 2023 (BNS), preserve the right to defend against certain harmful acts even when the actor lacks criminal responsibility.

Section 98 IPC: Right of private defence against acts by persons lacking criminal responsibility

Statutory provision:

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Section 36 BNS carries forward the same principle: a person facing such an act retains the right of private defence even if the actor is not criminally responsible because of age, immaturity, unsoundness of mind, intoxication or misconception.

Illustrations retained from Section 98 IPC

Illustration (a): Attack by a person of unsound mind

Z, under the influence of madness, attempts to kill A. Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

Illustration (b): Attack caused by a mistaken belief

A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z which he would have if Z were not acting under that misconception.

These illustrations show that the person being threatened need not submit to an unlawful-looking attack merely because the attacker may have a defence to criminal liability.

Meaning and essential conditions

1. The act must be of a kind that would otherwise constitute an offence

The provision addresses acts which would amount to an offence but for a circumstance affecting the actor's criminal responsibility. It does not confer a general licence to use force against vulnerable persons.

2. The actor's exemption does not remove the threatened person's protection

Young age, lack of mature understanding, unsoundness of mind, intoxication and misconception may affect the actor's liability. The threatened person may nevertheless exercise private defence within the limits imposed by law.

3. The response must remain defensive

The purpose must be to avert a threat, not to punish the actor. The nature and extent of permissible defensive force depend on the threat, the circumstances and the restrictions governing private defence.

Limits on the right of private defence

Section 98 IPC must be read with the other private-defence provisions, particularly Section 99 IPC. Under the BNS, the corresponding restrictions are in Section 37. Among other limits, private defence does not justify inflicting more harm than is necessary for defence; the availability of public-authority protection and other statutory conditions also matter.

The broader framework includes Section 96 IPC (acts in private defence), Section 97 IPC (defence of body and property), and Section 100 IPC (specified circumstances in which defence of the body may extend to causing death). Under the BNS, the corresponding provisions include Sections 34, 35 and 38.

Important distinction: The fact that an attacker is a child or a person with a mental illness does not, by itself, authorize serious or lethal force. Whether a particular response is lawful depends on the actual threat and the statutory limits.

IPC Section 98 and BNS Section 36: Comparison

Practical examples

Example 1: A young child swings a sharp object at someone. The person threatened may take reasonable protective steps to prevent injury. The child's possible lack of criminal liability does not eliminate the right to defend.

Example 2: A person acting under a genuine mistake attacks someone whom they wrongly believe to be an intruder. The person attacked may defend against the immediate threat, but cannot continue using force after the threat has ended.

Example 3: An intoxicated person attempts to strike a bystander. The bystander may use defensive measures justified by the threat; intoxication does not automatically enlarge the permissible level of force.

Frequently asked questions

Does Section 98 IPC allow defence against a person of unsound mind?

Yes. It preserves the right of private defence against an otherwise criminal act even where the actor is not guilty because of unsoundness of mind. The response must still comply with the applicable restrictions.

What is the corresponding provision under the BNS?

Section 36 of the Bharatiya Nyaya Sanhita, 2023.

Can private defence be exercised against a child?

Yes, where the child's act creates a threat of the kind contemplated by the provision. The force used must be confined to what the law permits in the circumstances.

Does a mistaken attacker remove the victim's right of defence?

No. The provision expressly covers acts committed under a misconception, while preserving the statutory limits on defensive force.

Official legal references

• India Code: Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023) - consult Section 36 and related Sections 34 to 44.
• India Code: Indian Penal Code, 1860 - consult Section 98 and Sections 96 to 106.
• Ministry of Home Affairs - criminal law implementation notifications and official updates.

This article explains general statutory principles and is not a substitute for advice on the facts of an individual case. For incidents occurring before 1 July 2024, consider the applicable transitional provisions.