Analysis on right of private defence

Introduction

Section 96 to 106 of the Indian Penal Code, 1860 deals with the right of private defence of person and property. The provisions of these sections give authority to the person to use necessary force against wrong-doers in order to protect one’s own body and property as well as another’s body and property. One thing which is to be kept in mind while exercising the right of private defence is that the actions taken by the plaintiff in order to save his/her life from the defendant should be reasonable.

The Right of Private Defence is divided into 2 parts:

  1. Right of Private Defence of Body
  2. Right of Private Defence of Property

Body can be one’s own body or the body of another person and similarly property may be movable or immovable and maybe of one’s own or of any other person

Self-help is one of the first rules of criminal law. According to Article 51(a)(i) of the Indian Constitution it is the duty of the State to protect the life and property of its citizens. But it is not possible for the state to keep a watch on each and every activity of the citizens. Some situations may arise where the State cannot provide immediate help to the citizens when their life or property is in danger. So, in order to fulfill this fundamental duty, the State has given the power to the citizens to take the law into their own hands in order to protect themselves in imminent dangerous situations.

Section 96 of the Indian Penal Code, 1860

“Nothing is an offence which is done in the exercise of the right of private defence.”

According to this section, the right of private defence is not absolute but it is clearly qualified by Section 99 of the act. Section 99 states that this right does not extend to inflicting more harm than it is necessary for the purpose of defence.

Case: Kamparsare vs Putappa[1]

In this case, there was a boy in a street who was raising a cloud of dust. A passerby chased the boy and beat him. The Court held that the passerby committed no offence as he has exercised his right of private defence.

Section 97 of the Indian Penal Code, 1860

“Every person has a right, subject to the restrictions 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 of 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 the right of private defence. This section divides the right of private defence into 2 parts:

  1. Right of Private Defence of Person
  2. Right of Private Defence of Property

To invoke the plea of right of private defence a certain offence must be committed or an attempt to commit offence must be made against the person who is exercising the right of private defence, or any other person. This right can be exercised if the person feels there is a reasonable apprehension of causing grievous injury. The right of private defence is not only limited to defending one’s own body or property but it also extends to defending the body and property of any other person. Therefore, under Section 97 even a stranger can protect a person or property belonging to any other person and vice versa. Under English law there must be some kind of relation like husband and wife, father and daughter etc. before this right is successfully exercised. The owner of the property has the right to throw out a trespasser, while the trespasser is in the act or the process of trespassing has not been accomplished. Once the trespasser is successful in completing his mission then the owner cannot exercise the right of private defence then he should claim the remedies available under the law.

Case: Parichhat vs State of Madhya Pradesh [2]

The Son (accused) first struck a lathi blow on her father’s head and then struck the chest of the deceased with a ballam. The Court held that the right of private defence was exceeded by the accused.

Section 98 of the Indian Penal Code, 1860

“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.”

This section allows individuals to use the right of private defence against intoxicated or unsound mind people. For eg. If ‘R’ is insane and tries to kill ‘S’, ‘R’ will not be held guilty for any crime. ‘S’ would also have the same right of private defence if ‘R’ was insane. This section gives the people the right of private defence against the acts which are committed by people who are either mentally ill or intoxicated or otherwise impaired.

Section 99 of the Indian Penal Code, 1860

“There is no right of private defence against an act which does not reasonably cause the apprehension of death or of 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.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities. 

Extent to which the right may be exercised – The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1 – A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2 – A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.”

According to this section the right of private defence can be exercised within certain limits. According to the first 2 clauses of this section, the right of private defence is not available against a public servant or a person who is acting in good faith in exercise of the legal duty provided that the act is not illegal in nature.

According to clause three of the section the right of private defence cannot be exercised, if there is a time to get help from public authorities.

In other words, right of private defence is not available under the following circumstances:

  1. Against the acts of public servant
  2. Against the acts of those who are acting under their authority or direction
  3. Where there is sufficient time to get help from public authorities

The protection given to the public servants is not absolute, it is subject to certain restrictions. The acts done in either of these clauses should not be of serious consequences which results in apprehension of causing death or of grievous hurt which would deprive the person of his right of private defence.

Case: Emperor vs Mammun

There were five people, armed with clubs, who went out in the moonlight and assaulted a man who was cutting rice in his own field. The man received six fractures of the skull-bones along with other wounds and died on the spot. The five people were arrested and were charged with murder. They pleaded for the right of private defence. The Court held the accused to be liable for murder and refused their request of private defence.

Section 100 of the Indian Penal Code, 1860

“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 of 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; 29

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 which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

1[Seventhly – An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]”

Section 100 deals with those cases in which while exercising the right of private defence, results in death of the other person. Section 99 of IPC, 1860 also applies to this section. According to this section, the death of the attacker can be caused by exercising the right of private defence if the attacker commits one of the following crimes:

  1. An assault causing apprehension of death
  2. An assault causing apprehension of grievous hurt
  3. Assault with the intention to commit rape of the victim
  4. An assault carried out with the intent of fulfilling unnatural lust
  5. An attack which is carried out with the intention to kidnap or abduct someone
  6. An assault with the intention to wrongfully confine a person

Case: Nand Kishore Lal vs Emperor[3]

The accused in this case were Sikhs and they abducted a Muslim married woman and converted her to Sikhism. After a year of abduction, the relatives of the woman’s husband came and demanded that she should return. The accused refused to accept their demand and the woman herself expressly stated that she doesn’t want to re-join with her Muslim husband. The husband’s relatives made use of the force to take her away. The accused, while protecting the woman, struck a blow on the head of the woman’s assailant, which resulted in the latter’s death. The Court held that the accused have committed no offence as they have exercised the right of private defence to defend the woman against her assailants.

Section 101 of the Indian Penal Code, 1860

“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.”

If the offence is not of any description which are listed in Section 100 of IPC, 1860, then the person while exercising the right of private defence should not cause the assailant’s death, but should cause any harm other than death. This section is restricted by the provisions of Section 99 of the IPC, 1860.

Case: Mohinder Pal Jolly vs State of Punjab[4]

The worker of the factory threw brickbats. As a result, the factory owner by his revolver caused the death of one of the workers. The Court held that this section did not protect the factory owner as there was no apprehension of death or grievous hurt.

Section 102 of the Indian Penal Code

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.”

According to this section, the right of private defence of the body begins as soon as a person believes that there is a risk of bodily harm which may arise from an attempt or threat to commit an offence, even if the offence has not yet been committed. Such a right continues as long as there is a reasonable fear of bodily harm.

Kala Singh Case

In this case, the deceased was a very strong man with a very dangerous character. He had a fight with the accused, who was a very weak man. He threw the accused to the ground and choked his neck and bit him. After some time, the accused got free from the clutches of the brute man. The accused then took up a light hatchet and with this hatchet he gave three blows on the brute head. After three days, the brute man died. The court held that the conduct of the brute man (deceased) was very aggressive and it raised an apprehension in the mind of the accused that he might be killed by the deceased. The court also held that the apprehension should be reasonable and the violence inflicted must be proportionate to it.

Section 103 of the Indian Penal Code, 1860

“The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, 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 –

First – Robbery;

Secondly – House-breaking by night;

Thirdly – 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;

Fourthly – Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.”

According to Section 103, a person can cause death of the assailant, while exercising the right of private defence, if the assailant commits any of the following acts:

  1. Robbery
  2. House Breaking by night
  3. If any mischief is caused by putting any building, tent or vessel to fire which is used as a human dwelling
  4. Theft, mischief or house trespass which causes apprehension that death or grievous injury will be the result if the right of private defence is not exercised.

However, this Section is restricted by the provisions of Section 99 of the act.

Case: Mithu Pandey and Ors. Vs State of Bihar[5]

In this case, two people were armed with weapons. They were supervising collection of fruits by labourers from the trees which were in the possession of the accused people who were protesting against the act. There was an argument between the accused and armed people. As a result, the accused used force which resulted in the death of the armed people. The Patna High Court held that the accused were not liable for any offence as they were entitled to the right of private defence.

Section 104 of the Indian Penal Code, 1860

“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 wrong-doer of any harm other than death.”

According to Section 104, if the assailant is doing any crime such as theft, mischief or criminal trespass and not any of the crimes listed in Section 103, then the person exercising the right of private defence can cause any harm other than death to the assailant. This section is subject to restrictions defined under Section 99 of the Code.

Section 105 of the Indian Penal Code, 1860

“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 affected 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 of instant hurt or of 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.”

According to Section 105, the right of private defence starts as soon as a person feels there is a danger to the property.

The right of private defence against Theft lasts as long as the wrongdoer takes away the property or until the property is either recovered or if the assistance from public authorities is obtained.

The right of private defence against Robbery lasts as long as the wrongdoer causes or attempts to cause death or hurt or wrongful restraint or as long as there is fear of instant death or instant hurt or instant wrongful restraint.

The right of private defence against Criminal Trespass or Mischief lasts as long as the offender is committing the offence of criminal trespass or mischief.

The right of private defence against House-Breaking by night lasts as long as the house-trespass which was started by housebreaking lasts.

Section 106 of the Indian Penal Code, 1860

“If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”

According to Section 106, if there is any reasonable apprehension of death and if the defender is not able to exercise the right of private defence without any risk or harm to innocent persons, then in that situation he may even run that risk.

Conclusion

Under criminal law, the right of private defence plays a very important role. It is a good weapon in the hands of the citizens of the country to defend themselves. This right is not given to take revenge but to protect one’s own body or property against any imminent danger or threat.


[1] (1943) 2 MLJ 644

[2] AIR 1972 SC 535

[3] AIR 1924 Pat 789

[4] 1979 AIR 577

[5] AIR 1966 Pat 464

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