RIGHT OF PRIVATE DEFENCE

Everyone has a right of private defence. Right of self-defence is based upon the general maxim that necessity knows no law” and “it is the primary duty of man to first help himself” 

If a person does an act while exercising his right of private defence, his act would be no offence (Section 96). Right of private defence is based upon the instinct of self-preservation. This instinct is vested in every human being and has been recognised by the law in all the civilized countries. The need for self-preservation is rooted in the doctrine of necessity.

The right of private defence of people is recognised in all free, civilised and democratic societies within certain reasonable limits. Those limits are dictated in two considerations:

  • Every member of the society can claim this right
  • That the state takes responsibility for the maintenance of law and order

This right of private defence is preventive and not punitive.

Supreme Court said that the right of private defence is a defensive right surrounded by the law and is available only when the person is able to justify his circumstances. This right is available against an offence and therefore, where an act is done in exercise of the right of private defence, such an act cannot go in favour of the aggressor.

  • The right of private defence is a defensive right covered under the statute available only when the circumstances can justify it. It should not be allowed to be used under the pretext of a vindictive, retributive or aggressive purpose.
  • The right of private defence cannot be used as a shield to justify an act of aggression . No one is allowed to provoke an act under the pretext of killing . No aggressor can claim a right of private defence .
  • The necessity must be real and apparent .
  • The exercise of the right of private defence is not an offence in return .
  • In considering the plea of private defence, time is also important. If an attack is made before any fear of injury to body or property has arisen, it will not be considered as a step taken for private defence. Also, if after the fear is over, no attack can be considered as an act of private defence. Additionally, if someone attacks for an injury incurred in past, it will be considered as revenge and not a private defence.
  • The right of private defence ends with the necessity for it or at the moment the aggressor becomes disabled or helpless.
  • In exercise of the right, the person must use force which is necessary for the purpose and must stop using such force when the threat stops existing.
  • When both the sides entered into the free fight, no right of private defence is usually available to either party and they will be guilty for their respective acts .
  • The burden of proof is on the accused to prove that his act lies under the exception of private defence.
  • No right of private defence can arise in case a person joins an unlawful assembly.
  • If a person acted to resist an illegal act, he can be excused under the private defence.
  • It is the right of the accused to plea for private defence.
  • The circumstances need to clearly justify the act of private defence.
  • The right of private defence is a defensive right covered under the statute available only when the circumstances can justify it. It should not be allowed to be used under the pretext of a vindictive, retributive or aggressive purpose.
  • The right of private defence cannot be used as a shield to justify an act of aggression . No one is allowed to provoke an act under the pretext of killing . No aggressor can claim a right of private defence .
  • The necessity must be real and apparent .
  • The exercise of the right of private defence is not an offence in return .
  • In considering the plea of private defence, time is also important. If an attack is made before any fear of injury to body or property has arisen, it will not be considered as a step taken for private defence. Also, if after the fear is over, no attack can be considered as an act of private defence. Additionally, if someone attacks for an injury incurred in past, it will be considered as revenge and not a private defence.
  • The right of private defence ends with the necessity for it or at the moment the aggressor becomes disabled or helpless.
  • In exercise of the right, the person must use force which is necessary for the purpose and must stop using such force when the threat stops existing.
  • When both the sides entered into the free fight, no right of private defence is usually available to either party and they will be guilty for their respective acts .
  • The burden of proof is on the accused to prove that his act lies under the exception of private defence.
  • No right of private defence can arise in case a person joins an unlawful assembly.
  • If a person acted to resist an illegal act, he can be excused under the private defence.

In general, private defence is an excuse for any crime against the person or property. It also applies to the defence of a stranger, and may be used not only against culpable but against innocent aggressors. The defence is allowed only when it is immediately necessary-against threatened violence. A person who acts under a mistaken belief in the need for defence is protected, except that the mistake must be reasonable. In principle, it should be enough that the force used was in fact necessary for defence, even though the actor did not know this; but the law is not clear. There is no duty to retreat, as such, but even a defender must wherever possible make plain his desire to withdraw from the combat.

The right of private defence is not lost by reason of the defender’s having refused to comply with unlawful commands. The force used in defence must be not only necessary for the purpose of avoiding the attack but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the negative form that the force must not be such that a reasonable man would have regarded it as being out of all proportion to the danger.

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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