Right of Private Defence is available only against an offence

Introduction

Section 96 to 106 of the Indian Penal Code states the law relating to the right of private defence of person and property. Section 97, 98 and 99 are of general nature while sections 100, 101, 102 and 106 are concerned with defence of body, Sections 103, 104 and 105 with defence of property.  These provisions give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property and also another’s body and property when immediate aid from the state machinery is not available and in doing so he is not answerable in law for his deeds.

The law of private defence is based on two cardinal principles

(i) Everyone has the right to defend his own body and property, as also another’s body and property.

(ii) The right cannot be applied as pretence for justifying aggression for causing harm to another person not for causing more harm than is necessary to inflict for the purpose of defence.

Self help is the first rule of criminal law. There may be situations wherein help from the state authorities cannot be obtained in order to repel an unlawful aggression either because there is no time to ask for such help or for any other reason. To meet such exigencies the law has given right of private defence of body and property to every individual. 

Section 96 ( Things done in Private Defence )

Section 96 states the general rule that “nothing is an offence which is done in the exercise of right of private defence”. However this right is not absolute and subject to restrictions.

The right of private defence will completely absolve a person from all guilt even when he causes the death of another person in the following circumstances –

– If the deceased was actual assailant

– If the offence was committed by the deceased which occasioned the cause of the exercise of right of private defence of body and property falls within anyone six or four categories enumerated in Sections 100 and 103 of the Penal Code respectively, or was an assault causing the apprehension of his death as explained in Section 106 of the Code.

In Jagdish v. State of Rajasthan[1], the Supreme Court has evolved the following principles when right of private defence is raised-

– The right of private defence is essentially a defensive right circumscribed by the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for vindictive, aggressive and retributive purpose of the offence.

– Under Section 105 in the Evidence Act the burden of proof is on the accused who sets the plea for private defence. It is for the accused to prove to place necessary material either by him adducing positive evidence or by eliciting necessary facts from the witness examined for the prosecution. The burden stands discharged by showing pre ponderance of probabilities in the favour of that plea o the basis of material on record.

–  A plea of private defence cannot be based on surmises and speculations.

While considering whether the right of private defence is available to an accused is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor.

– To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving reasonable grounds for apprehending that either death or grievous hurt would be caused to him.

– The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that accused persons has caused injuries in exercise of the right of private defence.

Section 97 – Right of private defence of body and Property

Section 97 provides that subject to restrictions contained in Section 99, every man has a right to defend his own body and the body of any other person, against any offence affecting the human body and to defend his property and the property of any other person whether movable or immovable against theft, robbery, mischief, or criminal trespass or an attempt to commit any of these offences.  If the threat to a person or property of the person is real and immediate he is not required to weigh in a golden scale the kind of instrument and the force which he exerts at the spur of the moment. (Parichhat v. State of Madhya Pradesh[2]).

Distinction between Indian and English Law

The right of private defence extends not only to defence of one’s own body and property as under the English law, but also extends to defending the body and property of any other person. 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, guardian and ward, master and servant, before this right may be successfully exercised.

Section 98 – Right of Private defence against the act of person of unsound mind etc.

This section provides that right of private defence exceeds even against an offence committed by a person who might not be responsible in law for his deeds by reason of doer being a man of unsound mind (Section 84), or because want of maturity of understanding (Sections 82, 83) or by reason of any misconception on the part of that person (Sections 76, 79).

Illustration-  If A an insane person attempts to kill B. A is not guilty of any offence (Section 84). But B will have the same right of private defence against A which he should have if A were sane. 

If a tree after its severance from ground becomes the property of the landlord, giving him right of ingress on the tenant’s land to remove it, and if the tenant resists such removal, the landlord becomes entitled to right of private defence of property under Section 98 of Indian Penal Code.

Section 99 – Acts against which there is no right of private defence

Section 99 lays down the conditions and limits within which the right of private defence can be exercised. There is no right of private defence –

  • Against the act of a public servant acting in good faith (Clause I and Explanation I and II)

– So long as public servant acts legally in exercise of his official powers there is no right of private defence for the simple reason that his act is not an offence.

– if his acts are wholly illegal, he is in the same position as any private individual and is not entitled to any special protection.

– But protection is extended even to those acts of public servant or of persons acting under their authority for direction which are not strictly justifiable and yet not wholly authorised provided the following conditions are satisfied –

(i) That the act does not cause reasonable apprehension of death or of grievous hurt.

(ii) That the act is done in good faith

(iii) That the act is done in the colour of his office

(iv) That it is known at the time that the act is being done by a public servant as such or under his authority;

(v) That the irregularity does not transgress the limits of being strictly justifiable by law.

  • Against the act of those acting under their authority or direction; (Clause 2 to Section 99)
  • Where there is sufficient time for recourse to public authorities; (Clause 3 to Section 99)
  • The quantum of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of the defence. ( Clause 4 to Section 99)

Section 100 – Right of private defence of body to cause death

Section 100 justifies the killing or of causing any other harm to the assailant under the restrictions mentioned in Sections enumerated in Section 99, if the offence which occasions the exercise of the right be mentioned in Clauses 1 to 7 of section 100 namely

– Causing the apprehension of death;

– Causing the apprehension of grievous hurt;

– With the intention of causing rape;

– With the intention of gratifying unnatural lust;

– With the intention of kidnapping or abducting;

– With the intention of wrongfully confining a person under circumstances which may give apprehension that he will be unable to have recourse to public authorities for his redress;

– Throwing or administering acid causing reasonable apprehension that it will result in grievous hurt.  

To invoke Section 100 four conditions must exist-

  • That the person exercising the right of private defence must be free from fault in bringing about the encounter;
  • There must be present an impending peril to life or of great bodily harm, either real or apparent  to create an honest belief of exceeding necessity;
  • There must be no safe or reasonable mode of escape by retreat;
  • There must have been a necessity for taking life;  

Section 101- When such right extends to causing any harm other than death

Under this section any harm short of death can be successfully inflicted in exercising the right of private defence, subject to the restrictions mentioned in Section 99 of Indian Penal Code. (Razu v. Emperor[3]).

Section 102- Commencement and Continuance of right of private defence

According to Section 102, the right of private defence of the body commences as soon as a reasonable apprehension of danger to body arises from an attempt or threat to commit an offence, albeit the offence might not have committed and such right continues so long as apprehension of danger to body and property continues. The threat must be reasonably give rise to a present and imminent and not remote or distant danger.

Section 103- When the right of private defence of property extends to causing death.

Under Section 103 the right of private defence of property subject to restrictions mentioned in Section 99, to voluntary causing of death in case of robbery, house- breaking by night, theft or mischief when such theft or mischief is committed in such circumstances as may reasonable cause apprehension that death or grievous hurt will result, if such right of private defence is not exercised. (Ramanand Singh v. State of Bihar[4]).

Section 104 – When such right extends to causing any other harm than death

Section 104 provides that if offence which occasions the right of private defence be theft, mischief or criminal trespass, and not of the description enumerated in Section 103, the right of defence extends only to the voluntary causing of harm other than death.  

Section 105 – Commencement and continuance of right of private defence of property.

Section 105, like Section 102 fixes the time when the right of private defence of property commences and when it comes to an end.

  • In case of theft it continues until the offender has affected his retreat with the property, or assistance of public authorities is obtained; or the property is recovered.
  • In case of robbery it continues as long as the offender causes or attempts to cause any person death or hurt or as long as instant personal restraint continues.
  • In case of criminal trespass or mischief the right continues so long as the offender continues in the commission of criminal trespass or mischief.

In Ajamad Khan v. State[5], the Supreme Court held that under Sections 102 and 105 the right of private defence commences as soon as the reasonable apprehension of danger to human body or property of oneself or another person commences to arise from an attempt or threat to commit an offence even though the offence may not be committed. While exercising the right of private defence of property, it is not at all necessary that the person exercising the right should wait until his property or another’s is actually looted or house trespass actually occurs.

Section 106 – Right of Private defence against deadly assault when there is risk of harm to innocent persons.

Section 106 deals with case of extreme necessity in which a person is authorised by law to run the risk of harming even innocent persons in order to protect himself from mortal injury.

Illustration –  If A is attacked by a mob intending to murder him and he cannot effectively exercise his right of private defence without firing on the mob, and he cannot fire without the risk of harming young children who have mingled with the mob, he commits no offence if by so firing, he injures any of the children. A had no option under the circumstances of the case for protecting himself except to fire at the mob and the action is justified.

Conclusion

From the foregoing sections, it is very much clear that right of private defence is available only against offences. This right is clearly a preventive right and not offensive, vindictive or retributive right. And hence no one is expected to take the law in his own hands and punish the aggressor. The right of private defence has been recognised in law in almost all the countries today. It is a right of a person to defend body and property of himself and others. If someone commits an act in this process, it is no offence. Subject to limitations and conditions, it a right of every individual. The law has given liberty to a person in lieu of private defence to even cause death in certain cases. This is because the law has itself has accepted that self protection is the primary duty of every individual. Law will not be able to help someone who is not capable of helping himself when something wrong happens to that person.

References

K D Gaur, “Textbook on Indian Penal Code” (Lexis Nexis 7th edn) 291


[1] AIR 1979 SC 1010

[2] (1972) 4 SCC 694.

[3] AIR 1946 Sindh 17

[4] AIR 1968 Pat 258

[5] AIR 1952 SC 165

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