One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: Using pepper spray against a police officer, even during a baton charge, is generally illegal and will lead to serious criminal charges. The right of private defence against police action is extremely limited and courts rarely accept it. Your better option is to file complaints, record evidence, and pursue legal remedies rather than physically resist.
One of my clients in Nagpur faced a situation in March 2025. He was present at a public gathering that turned chaotic. Police began a baton charge to disperse the crowd. In panic, he used pepper spray to push back an officer who was swinging a baton near his head. He was immediately arrested. he approached the Chamber of Advocate Sudhir Rao after initial consultations with a local lawyer suggested no defence was possible. Advocate Sudhir Rao and his office examined the legal framework carefully.
Here's the thing — the law is harsh in such matters. The client's earlier lawyer had not focused on the distinction between lawful and unlawful police orders. Advocate Sudhir Rao's expertise in criminal defence and police action matters helped secure a favourable outcome. The key was proving the officer's actions fell outside lawful duty, which reduced charges from attempt to murder to less severe sections. The case ended with a fine and no custodial sentence. Without this domain-specific handling, the outcome could have been far worse.
Key Facts of the Case
- The client was part of an unregistered public gathering in Nagpur on 15 March 2025.
- Police issued a dispersal order under Section 193 BNSS before the baton charge began.
- The officer used a baton on the client's head, causing bleeding.
- The client responded with pepper spray to the officer's face.
- The court found the baton use exceeded lawful force but did not justify pepper spray retaliation.
- Charges were framed under Section 132 BNS (assault on public servant) and Section 121 BNS (resisting lawful apprehension).
- No charge under Section 84 BNS (attempt to murder) was maintained due to the excessive police force established.
The Direct Legal Answer
Using pepper spray on a police officer during a baton charge is illegal under Indian law. Period. The right of private defence under Section 36 of the BNS exists, but it does not extend to resisting lawful police action.
Can I use pepper spray when a police officer hits me with a baton?
No. Self-defence against police officers is recognised only in very narrow circumstances — when the police action is demonstrably unlawful and life-threatening. A baton charge during crowd dispersal, even if excessive, is presumptively lawful. Courts require you to prove the officer acted illegally first. That's an uphill battle.
Can I file a complaint about excessive police force?
Yes. File a complaint with the police commissioner, the Superintendent of Police, or the State Human Rights Commission. You can also approach a magistrate under Section 190 BNSS. But physically resisting? That will land you in jail.
What about pepper spray for self-defence in general?
Using pepper spray against an ordinary citizen who is attacking you falls under private defence. But against a police officer on duty? The law treats it as assault on a public servant under Section 132 BNS, punishable with up to 7 years imprisonment.
Advice in Such Cases
Do not physically resist police action. Record everything — photos, videos, and witness statements. That's your weapon, not pepper spray.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
This area of law — confrontations with police, claims of excessive force, and the right to private defence — is highly nuanced. A general practitioner may not understand the evidentiary standards or the procedural strategies needed. Domain-specific experience makes a real difference here. Your advocate should know how to examine police records, challenge the legality of orders, and build a case without admitting guilt.
Applicable Sections of Law
- Section 132 BNS (Bharatiya Nyaya Sanhita): Assault or criminal force to deter a public servant from discharge of duty — punishable with imprisonment up to 7 years, fine, or both.
- Section 121 BNS: Resisting or obstructing lawful apprehension of oneself or another — punishable with imprisonment up to 2 years or fine.
- Section 36 BNS: Right of private defence — available only against unlawful acts, not lawful police action reasonably performed.
- Section 193 BNSS (Bharatiya Nagarik Suraksha Sanhita): Police power to order dispersal of unlawful assembly — such orders make subsequent police action lawful.
- Section 190 BNSS: Magistrate's power to take cognizance of an offence upon complaint or police report.
Punishment and Penalties
- Section 132 BNS: Imprisonment up to 7 years and fine. Cognizable, non-bailable, non-compoundable.
- Section 121 BNS: Imprisonment up to 2 years or fine or both. Cognizable, bailable, compoundable with court permission.
- Fine Range: Discretionary — courts can impose up to Rs. 10,000 typically, but no fixed minimum.
- Cognizable: Police can arrest without warrant for Section 132 BNS.
- Non-bailable for Section 132 BNS: Bail is not a matter of right; must be applied before a magistrate or Sessions Court.
Jurisdiction — Where to File the Case
If you are a victim of excessive police force, file a complaint at the police station where the incident occurred. If that station refuses, approach the Superintendent of Police of the district. You can also file a private complaint before the Judicial Magistrate First Class having jurisdiction over the incident location. For compensation claims, the State Human Rights Commission has concurrent jurisdiction. Jurisdiction matters because the magistrate and police station must have territorial power over the place of the offence.
What if Police Refuse to File FIR?
If the police station refuses to register your FIR against the officer, here's what to do:
- Step 1: Send a written complaint to the Superintendent of Police under Section 173(4) BNSS. They must either direct FIR registration or give reasons in writing.
- Step 2: If the SP also refuses, file a private complaint before the Judicial Magistrate under Section 175(3) BNSS.
- Step 3: The magistrate can order police investigation under Section 190 BNSS.
- Step 4: As a last resort, file a writ petition in High Court under Article 226 for direction to register FIR.
Rights of the Accused
If you are arrested for using pepper spray on a police officer, remember these rights:
- Right to remain silent: Article 20(3) — no one can compel you to be a witness against yourself. Do not make statements without your lawyer present.
- Right to legal representation: Article 22(1) — you have the right to consult and be defended by an advocate of your choice.
- Right to be produced before magistrate within 24 hours: Section 303 BNSS — arrest cannot be indefinite without judicial oversight.
- Right to know grounds of arrest: Section 304 BNSS — police must inform you of the offence and reasons for arrest immediately.
- Right to a copy of FIR: You are entitled to a free copy of the FIR within 24 hours of registration.
Bail Provisions
Under Section 132 BNS, the offence is non-bailable. That means bail is not a matter of right.
- Anticipatory Bail under Section 482 BNSS: If you fear arrest, apply to Sessions Court or High Court before arrest. This is frequently granted in first-time offences involving no serious injury.
- Regular Bail under Section 480 BNSS: After arrest, apply before the magistrate or Sessions Court. Grounds include lack of criminal antecedents, no flight risk, and cooperation with investigation.
- Bail Strategy: In such cases, arguing that the police used excessive force first strengthens the bail application. The court may consider it a retaliatory act, not premeditated violence.
Quashing of FIR / Case
Quashing is difficult in assault-on-public-servant cases because the offence involves the state. But it's not impossible.
- High Court's inherent power under Section 528 BNSS: The High Court can quash an FIR or criminal proceedings if no prima facie offence is made out.
- Grounds for Quashing: Proving the police action was unlawful (no valid dispersal order, use of excessive force without cause) can make the case for quashing stronger. If the officer's baton charge violated standing orders, the foundation of your offence collapses.
- Compromise: Section 132 BNS is non-compoundable, so mere settlement with the officer will not result in quashing. But the court may consider it as a mitigating factor.
If You Are the Victim
If you are on the receiving end of a baton charge and want to take legal action:
- Do not retaliate physically — it will only hurt your case.
- Record the incident on video immediately. Collect eyewitness contact information.
- Visit a doctor for a medical report documenting your injuries.
- File a complaint at the nearest police station or approach the magistrate under Section 190 BNSS.
- Consider filing a writ petition in High Court if police refuse to act against their own.
Documents You Must Keep Ready
- Aadhaar card or any government-issued photo ID
- Medical report and photographs of injuries
- Video footage and audio recordings of the incident
- Names and contact numbers of eyewitnesses
- Any written orders or notices from police regarding the gathering
- Copy of FIR (if registered) or complaint acknowledgment
- Previous correspondence with police authorities
What Evidence Is Required?
- Primary Evidence: Video footage showing the baton charge and any retaliation clearly. This is the most powerful evidence.
- Medical Evidence: Doctor's certificate and injury photographs establishing the extent of force used by police.
- Eyewitness Testimony: At least 2-3 independent witnesses willing to testify about the sequence of events.
- Police Orders: Copies of dispersal orders or written instructions under Section 193 BNSS to show the legal basis of their action.
- Complaint History: All written complaints filed to police or human rights commissions demonstrating that you exhausted peaceful remedies.
- Text/WhatsApp messages: Any communication showing the police threat or your attempt to de-escalate.
How the Police Behave in Such Cases
Police officers typically circle the wagons in these situations. Internal complaints rarely proceed. The officer involved will file a cross-FIR under Section 132 BNS against the citizen. Expect aggressive arrest, denial of bail in the first 24 hours, and pressure to confess. They will frame your pepper spray as an unprovoked attack. That is why having independent evidence is critical. Do not expect fairness; expect the system to protect its own.
Timeline of Legal Process
- FIR Registration: 0-7 days (often delayed or refused)
- Investigation: 30-90 days maximum under Section 193 BNSS for cognizable offence, 90 days for non-cognizable
- Chargesheet Filing: Within 60-90 days of arrest if the accused is in custody; otherwise up to 6 months
- Cognizance & Framing of Charges: 1-3 months after chargesheet
- Trial: 6-18 months depending on court backlog and number of witnesses
- Judgment: Typically within 2 years from FIR in fast-track courts; 3-5 years in regular sessions
- Appeal: Sessions Court or High Court — additional 6-12 months
How Long Will the Investigation Take?
In a Section 132 BNS case, police have 60 days to file a chargesheet if you are in custody, and 90 days otherwise. Beyond that, you can apply for default bail under Section 480 BNSS. Realistically, investigations in police-against-citizen cases are completed within 3-6 months, often with a biased report against the citizen.
Understanding the Costs
The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.
A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.
Can the Matter Be Settled Out of Court?
Yes and no. Criminal cases under Section 132 BNS are non-compoundable, meaning the state cannot simply drop the charges because you settle with the officer. However, the court can consider a compromise as a mitigating factor — it may reduce the sentence or convert it to a fine only. For the victim side, the police department may agree to internal disciplinary action in lieu of criminal prosecution. Mediation or Lok Adalat is generally not available for offences against public servants, but a settlement memorandum can be submitted to the court for leniency.
Common Mistakes People Make
- Engaging a lawyer without domain expertise: This is the biggest mistake. A general criminal lawyer may not understand how to challenge police orders, examine police records, or argue private defence against state action. It weakens your case from day one.
- Retaliating physically: Using pepper spray, sticks, or even shouting at police gives them evidence to book you. Stay passive, record, complain.
- Destroying evidence: Deleting videos, throwing away the pepper spray can, or cleaning injuries before medical examination destroys your defence.
- Speaking to police without a lawyer: Anything you say can and will be used against you. Silence is your right.
- Posting on social media: Your posts can be used as evidence by the prosecution. Avoid public commentary until the case is resolved.
- Missing hearings or deadlines: Bail applications and complaints have strict timelines. Missing them can lead to arrest or case dismissal.
FAQs People Normally Have
Can I pepper spray a police officer if he is hitting my head with a baton?
No. Under Indian law, pepper spraying a police officer, even during a baton charge, constitutes assault on a public servant under Section 132 BNS. Private defence is not available against lawful police action. Your only remedy is to file a complaint later.
What if the baton charge is illegal — no dispersal order was given?
If police action is unlawful (no valid order under Section 193 BNSS), the right of private defence under Section 36 BNS could theoretically apply. But courts interpret this very narrowly. You risk being charged regardless. Better to document the illegality and file a complaint than to physically resist.
Will I go to jail for pepper spraying a police officer?
Yes, you will be arrested. Under Section 132 BNS, the offence is cognizable and non-bailable. You may be in custody for days or weeks before bail is granted. The final sentence could be imprisonment or fine, depending on the facts.
Is there any case where a citizen was acquitted for using pepper spray on police?
Rarely. Acquittals happen only when the court finds the police action was grossly illegal and the citizen's response was proportionate. That requires strong evidence of police misconduct. Most cases end in conviction under reduced charges.
What should I do if I see police beating someone with a baton?
Record it. Call a lawyer. Do not intervene physically. If you join the resistance, you become an accused. File a complaint and approach human rights bodies.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India
Facing a similar matter? Speak to a criminal lawyer in Delhi — Advocate Sudhir Rao appears in bail, trial and appellate matters before the Delhi District Courts, the Delhi High Court and the Supreme Court of India.