ANALYSIS OF RIGHT TO PRIVATE DEFENCE IN IPC

INTRODUCTION:

Generally speaking, defences allow the accused to avoid criminal responsibility. Defences arise in different ways. In one way, the defendant may defend himself by proving that he did not commit the crime. For example, take the case of an offender who takes the plea of

alibi.

By raising this what he says is that he has not committed the crime. In yet another instance, a material element or circumstance may not be available. In such a case failure to establish the circumstance provides the defence. There are two types of defences: justificatory, and excusatory. In the former the accused admits responsibility for crimes but argues that, under the circumstances, what he did was right. In excusatory defences, the accused admits that what he did was wrong but pleads, that, under the circumstances, he was not responsible for what he did. Ordinarily, the burden of proof is on the prosecution. However, in the case of affirmative defences where the accused asks for concessional consideration including self-defence, necessity, insanity, alcoholic insanity or drunkenness, duress etc. the burden falls on the accused. It has to be noted that if the prosecution comes across evidence capable of proving any of these defences, fairness demands that the prosecution makes it available to court for giving the benefit to the accused. Evidence that does not lead to a perfect defence may result in conviction for a lesser offence as in the case of the defence of sudden and grave provocation; the murder charge is reduced to culpable homicide not amounting to murder.

It is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. In layman’s language it is basically a right of self-defence. It is mentioned in the sections 96 to 106 of Indian Penal Code 1860.’Nothing is an offence which is done in exercise of the right of private defence’- It implies any harm done or injury caused to any person in the course of protecting himself from the external force or harm is not an offence as per Indian Penal Code 1860.

The right of Private defence has evolved in modern India but initially it was proposed by an ebullient Macaulay 150 years ago in his draft code with the aspiring task of empowering a “manly spirit among the natives or locals. An ideal Indian in case of any risk or danger would persevere and not be reluctant to protect his own body or property, or that of another. He would react with cautious power to avoid certain harms and injuries even to the degree of causing death of someone.

NATURE:

Self-help is the first principle i.e. it is the first duty of a person to help himself. Citizens of every free country should be provided with the right of private defence in order to protect themselves from any imminent danger at the time when the state aid is not available or possible. This right should be read with the duty of the state to protect its citizens as well as their property. But no state, no matter how much rich it is or how large are its resources can afford to deploy a policeman for each and every citizen to protect themselves from any external harm or injury. So in order to fulfil its fundamental duty it has given this power to the citizens itself, that they are authorized by the state to take the law in their own hands if it’s the matter of their self-defence. While exercising this right one thing should be taken into consideration that the right of private defence can only be exercised if there is no time to call the police or no help can be provided by the state authorities in the given time i.e., aid from the state is not available. Any unlawful act committed by any person in course of self-defence is not considered as an offence and does not, therefore, give rise to any right of private defence in return. The right is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted, if the apprehension is real and reasonable, it makes no difference that it is mistaken.

SCOPE:

Sec 97 of IPC states that every citizen is having this right subject to certain restrictions (mentioned in sec 99) to defend his own body or body of any other person, against; any offence affecting to the human body; the property whether immovable or movable, of himself or of any other person, against any act, which is an offence falling under the definition of robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.

This implies that Self help is the first principle i.e. it is the duty of a person to help himself and then arises a social duty to help other members of the society. The social duty arises out of the Human sympathy to protect others and their property.

As per sec 98 of IPC 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 was that offence

And according to sec 106 of penal code 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 or harm to an innocent person, his right of private defence extends to the running of that risk.

The extent of the right of private defence and the limitations in the exercise of this right may be summarized as below: —

(1) There is no right of private defence against an act which is not in itself an offence under this Code. This does not cover the case of exceptions.

(2) The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.

(3) It is defensive and not a punitive or retributive right. In no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, though reasonable allowance should be made for bona fide defender.

(4) The right extends to the killing of actual assailant when there is a reasonable and imminent danger of the atrocious crimes enumerated in the six clause  of Section 100.

(5) There must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.

(6) The right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to the protection of public authorities.

CONCLUSION:

Though the right of private defence was granted to citizens of India as a weapon for their self-defence this is often used by many people for evil purposes or unlawful purposes. Now it is the duty and responsibility of the court to examine whether the right was exercised in a good faith or not. There are several important points that the court will take into consideration while making its decision:

  • Injuries caused by the accused
  • Injuries caused to the accused
  • Whether the state aid was available (whether the accused had time to contact the public authorities)
  • Accession of threat to his safety

Also, the Indian Penal Code doesn’t properly define this right and it has evolved over the years with judgments and decisions of the Courts in various landmark cases as stated above for example Munshi ram and others vs. Delhi Administration, State of U.P vs. Ram Swarup and several other cases. But it is also argued that the wordings of the sections need no further clarification than has already been done by the courts as it was the foresight of the legislature to grant such wide discretion to the courts that they may cover within their ambit, the entire gamut of situations which might arise and meet the ends of justice.

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. The right can be extended by an accused in some circumstances but only to a certain degree, that would not invalidate the right of private defence i.e., only such amount of force should be used that is required to dispel the threat or counter the attack

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