“RIGHT TO PRIVATE DEFENCE”

“Your physical safety is up to you, as it really always has been.”
“You’re a hero when you defend others.”
“You’re duty bound to defend yourself and others.” We here this everywhere from almost everyone who are aware about the Right to Private Defence given to us from the supreme law of our country.
It is the first duty of man to help himself. The right is recognized in every system of law.

The right of private defence is a valuable right and it is basically preventive in nature and not punitive. It is available in the face of aggression when the state help is not available. Section 96 of IPC does not define the expression ‘right of private defence’. It merely indicates that nothing is an offence, which was done in the exercise of ‘right of private defence’. Section 97 deals with the subject matter of private defence, which comprises of right to protect the body or property of (i) the persons exercising the right; or (ii) of any other person. The right may be exercised against all offences affecting human body or attempt or reasonable threat of commission of any such offence or offence of theft, robbery, mischief or criminal trespass and attempts to commit any of such offences in relation to property. This right is available for the protection of one’s own body or body of any other person or one’s property or the property of any other person in the face of an aggression with respect to body or property against enumerated offences. Indian law on right of private defence does not require that the defender must be related to the person whose body or property is subject matter of aggression.

SECTION 96: 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 cannot be said to be an offence in return. The right of self-defence under Section 96 is not absolute but is clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. It is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts. While it is true that law does not expect from the person, whose life is placed in danger, to weigh, with nice precision, the extent and the degrees of the force which he employs in his defence, it also does not countenance that the person claiming such a right should resort to force which is out of all proportion to the injuries received or threatened and far in excess of the requirement of the case. The onus of proving the right of private defence is upon the person who wants to plead it. But an accused may be acquitted on the plea of the right of private defence even though he has not specifically pleaded it.

SECTION 97: Right of private defence of the body and of the property:-
Every person has a right, subject to the restrictions contained in section 99, to defend:
His own body, and the body of any other person, against any offence affecting the human body,
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.
Thus under section 97 even a stranger can defend the person or property of another person and vice versa, whereas under the English law there must be some kind of relationship existing such as father and son, husband and wife, etc., before this right may be successfully exercised. A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing but has not accomplished his mission; but this right is not available to the true owner if the trespasser has been successful in accomplishing possession and his success is known by the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.

SECTION 98: Right of private defence against the act of a person of unsound mind:-
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 99: Act against which there is no right of private defence:-
There is no right of private defence against an act which does not reasonable 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 color 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 reasonable 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 color 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 the protection of the public authorities.

SECTION 100: 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 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;
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.

SECTION 101: 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.

SECTION 102: 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: When the right of private defence of property extends to causing death:-
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 of 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.

SECTION 104: When such right extends to causing any harm other than death.
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.

SECTION 105: 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 affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

SECTION 106 Right of private defence against deadly assault when there is risk of harm to innocent person:-
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 or private defence extends to the running of that risk.

The extent of exercise of this right doesn’t depend on actual danger but instead on the reasonable apprehension of the danger (whether there was any reasonable apprehension of the danger) . The right of private defence is available when one is suddenly confronted with the immediate necessity of averting and impending danger, it commences as soon as reasonable apprehension arises and continues with apprehension.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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