THE RELATIONSHIP BETWEEN THE PROSECUTION AND THE ACCUSED HOLDING PRIVATE DEFENCE IN INDIAN LAW

Abstract

The Indian criminal justice system is fundamentally adversarial. The Prosecution represents the State and seeks to prove guilt, while the Accused seeks to establish innocence. The plea of Private Defence under Sections 37 to 44 of the Bharatiya Nyaya Sanhita, 2023 [BNS] introduces a doctrinal shift in this relationship. The accused admits the commission of the act but pleads justification. This paper examines how this plea reconfigures the evidentiary burden, prosecutorial strategy, and judicial scrutiny. Through statutory interpretation, case law analysis, and comparative study, it argues that private defence creates a “qualified adversarial” relationship. The Prosecution must not only prove the act but also disprove justification beyond reasonable doubt, while the accused bears only an evidential burden. This balance reflects the law’s commitment to both societal protection and individual liberty.