It is the duty of the state to protects its citizens from any harm incurred. But sometimes circumstances may arise where the state aid is not available for the protection of an individual against imminent danger or harm. In such situations, an individual is vested with rights by the state to use force to fend off the immediate threat to his or someone else’s property or person. This right is called the private defence.
In India Section 96-106 of the Indian Penal Code, 1860 provides for provisions relating to the right of private defence of any person and property. The provisions contained in this section give authority to a man to use necessary force against an assailant or a wrongdoer to protect one own body and property as also another’s body and property when immediate aid from the state machinery is not readily available, and in doing so he is not answerable to law for his deeds. One thing should be very clear that there is no right to private defence when there is time to have recourse to the protection of police authorities.
Section 96 talks about Things done in Private Defence– Nothing is an offence, which is done in the exercise of the right of private defence. Right of private defence is not an offence but, it is an act done in defence. The right of self-defence under section 96 is not absolute but it is qualified by section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for defence. It is well settled that the right of private defence is available to either party and each individual is responsible for his acts.
Section 97 talks about the Right of Private Defence of the body and property-Every person has a right, subject to the restriction contained in Section 99, to defend-
First- His own body, and the body of any other person, against any offence affecting the human body.
Secondly– The property, whether movable or immovable, of himself or any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
This section limits exercises of the right of private defence to the extent of absolute necessity. It must be not more than what is necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor.
Section 98 talks about the Right of Private Defence against the act of a person of unsound mind etc.- When an act which would otherwise be a certain offence, is not that offence, because of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or because of any misconception on the part of that person, every person has the same right of private defence against that act which would have if the act were that offence.
Section 99 lays down the Acts against which there is no right of private defence– There is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
Section 99 limits the exercise of the right of private defence. It lays down the various conditions under which the right of private defence has to be exercised or invoked.
The first three clauses of section 99 provide that this right cannot be invoked when:
- A public servant acting in good faith exercises his legal duty not giving rise to a reasonable apprehension of death or grievous hurt,
- Any person acting the direction of a public servant in good faith exercises his legal duty not giving rise to a reasonable apprehension of death or grievous hurt,
- Reasonable time exists to resort help of public authorities.
- There must be reasonable grounds to b believe that the act done was done by a person under public authority.
Section100 specifies When the right of private defence of the body extends to causing death– The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: —
First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly- An assault with the intention of committing rape
Fourthly- An assault with the intention of gratifying unnatural lust;
Fifthly- An assault with the intention of kidnapping or abducting;
Sixthly- An assault with the intention of wrongfully confining a person, under circumstances that may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Seventhly – An act of throwing acid or attempting to throw acid.
Section101 prescribes When such right extends to causing any harm other than death– If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death
Section102 is very important as it deals with the Commencement and continuance of the right of private defence of the body– The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as such apprehension of danger to the body continues.
Section 103 provides for When the right of private defence of property extends to causing death- The right of private defence of property extends, under the restriction mentioned in section 99, to the voluntary causing of death or any other harm to the wrongdoer, 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-
- House-breaking by night
- 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
- Theft, mischief, or house-trespass
Section104 tells us When such right extends to causing any harm other than death– If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death.
Section105 prescribes the Commencement and continuance of the right of private defence of property –
The Right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or instant hurt or instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Section106 talks about the Right of private defence against deadly assault when there is the risk of harm to an innocent person– If in the exercise of the right of private defence against an assault, which reasonably causes the apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person his right or private defence extends to the running of that risk.
The right of private defence is a weapon to the citizens of India for their self-defence but is often used by many people for evil purposes or unlawful purposes. The court must make sure if the right was exercised in good faith or not. The extent to avail the right of private defence depends on the real apprehension of danger and not on actual danger. This right can be extended only in some situations to a certain degree. The amount of force to be used should only be the amount necessary to counter the attack.
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