The right of private defence is the right to protect one’s person and property against the lawful aggression of others. It is the right inherent in man and is bases on the cardinal principle that it is the first duty of man to help him even by taking the law into his hand.
S.96[1] has many points –
- The right of defence is protective and not punitive (not meant for punishing the aggressor)
- A private citizen whose life is threatened by a grave danger need not wait for the state aid; however, where aid is available, it must be obtained.
- The right of private defence 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 such right continues so long as such apprehension of danger to the body continues.
- The law does not require that a person placed in such circumstances should weigh the arguments for and against an attack ‘in golden scales’.
- The right can not be availed for the sake of self-gratification or to satisfy one’s ego. The act of private defence should not be intentional.
- The right of private defence is related to time and space. Thus, only ‘when’ and ‘where’ the threat to life and property of persons become imminent he can exercise the said right and not otherwise.
- The right must be exercised when there is real and imminent danger and reasonable apprehension of such threat.
In a case law [2] the Supreme Court held that in determining the question of the fact under this section, the court must consider all the surrounding circumstances. It is not necessary for the accused to plea in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea.
S.97[3] says – The clause ‘Secondly’ in its definition has a wider meaning. It applies to all the offences related to the ‘body’ and ‘property’. Only theft, robbery, mischief or criminal trespass is considered in Section 97 because of Section 99 and it states that there is time to have recourse to the protection of public authorities. Whoever is proving that a right to private defence exists has to just raise suspicion and based on that he has to show the ‘preponderance of probabilities’ and is not required to show or prove.
A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here Z, by attacking under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under this misconception.[4]
S.98[5] says that the right of private defence is available against any such persons who are exonerated by law if they commit any offence. This section lays down that to exercise the right of private defence, the physical or mental capacity of the person against whom the right is exercised is no bar.
Thus, if B, under the influence of madness, attempts to kill A, B is guilty of no offence. But A has the same right of private defence which he would have if B were sane.
S. 99[6] has again many crucial points, namely –
The right of private defence of body/property can be exercised against a public servant only in the following cases:
(a) When the act of the public servant reasonable cause apprehension of death/grievous hurt.
(b) When the public servant does not act in good faith under colour of his office.
(c) When the person exercising the right does not know or have any reason to believe that the attacker is a public servant or is acting under the direction of a public servant.
There is no such right when there is time to have recourse to the protection of public authorities.
However, this doesn’t mean that a person must run away to have recourse to the protection of public authorities when he is attacked, instead of protecting himself.
In one case[7], the accused received information one evening that the complainants were to trespass on his field the following day. In the early morning, he was informed that the complainants were already on the field. Thereupon, he proceeded to the field with his friends and in the fight, which ensued, the leader of the complainants’ party was killed. Held that the complainants were the aggressors, the accused and his friends had the right to self- defence. The court observed that the accused were not bound to act on the information received on the previous evening and seek the protection of public authorities, as they had no reason to expect an attack on the field at night.
Section 100, 101 and 102 talks about such right with respect to the ‘Body’.
S.100[8] – This section sets out the various cases in which the right of private defence of the body extends to the voluntarily causing of death or any other harm to the assailant like in cases of an assault as may reasonably cause the apprehension that death will otherwise be its consequence and grievous hurt, assault with the intention of (a) rape,(b) unnatural lust,(c) kidnapping or abduction, (d) wrongfully confining a person and an act of throwing or of administering of acid.
Thus, if A is attacked by a mob which attempts to murder him and he cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without the risk of harming young children who are mingled with the mob, A commits no offence if by so firing he harms the children.[9]
S.101[10] – According to S.101, in other cases than those mentioned in S.100, the person exercising the right may cause any other harm ‘except’ death.
S.102[11] – Exercised only when apprehension of any danger to the body continues.
Thus, if the assailants run away or when they are disarmed by force, there can be no apprehension of danger of one’s body or any threat of such offence against one’s body. Past relation between the parties can also be looked upon.
The court held in a case[12]that – In such moments of excitement or disturbed mental equilibrium, it is somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind of severity of blow would be legally sufficient for effectively meeting the unlawful aggression.
Section 103, 104, 105 talks about such right with respect to ‘Property’.
S.103[13] – In cases where there is (a) Robbery, (b) Housebreaking by night, (c) Mischief by fire, (d) Theft, mischief or house-trespass in which grievous hurt will be the consequence.
This section is subject to restrictions contained in S.99.
If a person does not have possession over the property, he cannot claim any right of private defence regarding such property
S.104[14] – According to S.104, in other cases than those mentioned in S.103, the person exercising the right may cause any other harm ‘except’ death.
This section will apply if the wrongdoers commit or attempt to commit any of the following offences: (1) theft, (2) mischief or trespass not of the description which is covered under section 103, subject of course to restrictions mentioned in Section 99: and in such a case the right of private defence of property would extend only to causing harm other than death to him.[15]
S.105[16] – The right commences when a reasonable apprehension of danger to the property commences. It continues until the offender has effected his retreat with the property. It includes theft, robbery, criminal trespass or mischief, housebreaking by night.
Two points[17] –
- 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.
S.106[18] – If in the exercise of this right, the defender is so situated that he can not effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commit no offence if by so firing he harms any of the children.
Judicial Position
The insurance of life and property is aphoristic in each enlightened society and because it is unthinkable for the State to do as such on each event – as law requirement officials can’t be omnipresent, the individual is given the privilege of private defence. The privilege of private defence lawfully accords to the people the option to take sensibly important measures to secure themselves under unique conditions.
Conclusion
In general, private defence is a reason for any wrongdoing against the individual or property. It additionally applies to the protection of an outsider and might be utilized against at fault as well as against honest aggressors.
The safeguard is permitted just when it is quickly essential against undermined brutality. An individual who acts under a confused faith in the need with safeguard is ensured, then again, the mistake must be sensible. On a fundamental level, it ought to be sufficient that the power utilized was in certainty essential for protection, even though the actor didn’t have a clue about this; however, the law isn’t clear. There is no obligation to withdraw, in that capacity, yet even a protector should at any time and place must try to withdraw from the combat. The force used in the safeguard must be not only necessary for avoiding the attack but also reasonable, i.e. proportionate to the harm inflicted.
“The views of the authors are personal“
Reference
[1] See Section 96 of Indian Penal Code,1860.
[2] James Martin v State of Kerala (2004 2 SCC 203).
[3] See Section 97 of Indian Penal Code,1860.
[4] Illustration from Universal’s Bare Act of Indian Penal Code, 1860
[5] See Section 98 of Indian Penal Code,1860.
[6] See Section 99 of Indian Penal Code,1860.
[7] Narsang Pathabhai (1890) 14 Bom 441.
[8] See Section 100 of Indian Penal Code,1860.
[9] Illustration to Sec.106, Universal’s Bare Act of Indian Penal Code, 1860.
[10] See Section 101 of Indian Penal Code,1860.
[11] See Section 102 of Indian Penal Code,1860.
[12] Deo Narain v State of U.P. (AIR 1973 SC 473).
[13] See Section 103 of Indian Penal Code,1860.
[14] See Section 104 of Indian Penal Code,1860.
[15] Jai Bhagwan v State of Haryana (AIR 1999 SC 1083).
[16] See Section 105 of Indian Penal Code,1860.
[17] https://www.lawctopus.com/academike/right-private-defence/#_edn12
[18] See Section 106 of Indian Penal Code,1860.
