Nishanth
Introduction:
The use of force to protect one’s property and person is called the right of private defence. Generally, Private defence is an excuse for a crime against the person or the property. It mainly applies to the defence of the stranger, and may not only be used against a person deserving blame but also against an innocent person who attacks first. This defence is allowed only at the time it is immediately necessary-against the threatened violence.
Right of the Law:
According to Bentham, “The Right of Private Defence is absolutely necessary for the protection of one’s life, liberty and property.” Section 96 to 106 of Indian Penal Code, 1860 states the law relating to the right of Private Defence of a person and property.
The law of Private Defence is based on two main principles:
Everyone has right to defend his own body and property,
The Right of Private Defence is not applicable in the cases in which the aggressive party himself is accused.
Section 96 of IPC (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. This right of Private defence is not absolute, and it is clearly explained under section 99 of IPC.
Restrictions:
Private defence should not be used unnecessarily. For example:If a person attacks you and if you fight back instantly it is a defence. But, if you react after the attacker has stopped it will not be regarded as private defence.
A problem creator cannot make self-defence. For example: If a thief went for looting the house, and if he is caught up by the owner of the house, he can’t attack the owner of the house, this does not come under self-defence as the thief is the wrongdoer.
Ram Kishan And Ors. v. The State Of Rajasthan: The Rajasthan High court pointed out that, if there is time to have recourse from the public authorities then in such case there is no right of private defence.
Section 97 of IPC (Right of private defence of the body and the property)
Every person has a right, subject to the restrictions contained in section 99, to defend;
Firstly – His own body, and the body of any other person, against any offence affecting the human body;
Secondly – 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.
In Section 97 of IPC the right of private defence is divided into two parts;
First part – Right of private defence of a person.
Second part – Right of private defence of a property.
Even a stranger can defend the person or property of another person and in vice versa.
Under Section 97, even a stranger can also defend the person or property of another person vice versa. For example, An owner has every right to throw out the trespasser from his land and this right is available to him till the trespasser is on his property.. But this right is not applicable, if the trespasser has successfully accomplished his mission and his success is known to the owner. In such circumstances, the law requires the true owner to dispossess the trespasser by taking recourse to the remedies available in law. It is important to note that this right of private defence is applicable only against an act which is an offence. There is no right to defend against something that is not an offence.
State of Orissa v. Chakradhar Behera: The court held that the right of private defence of property commences when a reasonable apprehension of danger to the property commences
.
Section 98 of IPC (Right of private defence against the act of a person of unsound mind, etc…):
This provision states that when an act or offence, which is not been that offence, by reason of youth, people who needs maturity of understanding, people of unsound mind, or the drug addicted people’s act, it can be consider as offence, as every person has the same right of private defence against that act which he would have if that act were that offence.
Illustrations:
[1] Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. If Z were the same, then A too has the same right of private defence.
Right of private defence is available against:
Minor, (who is below the age of 18);
Unsound Minded person,
Drug addicted person,
A Person who has no maturity of understanding.
Illustration: ‘A’ had shot a person on his back for attacking him. It is said by the court that the person ran away from the defendant as he had a gun. Though the person ran away, the defendant shot on his back, so this act doesn’t come under private defence.
Section 99 of IPC (Acts against which there is no right of private defence):
There is no right of private defence applicable against an act, that does not cause any apprehension of death of a person or of grievous hurt, that has been done, or attempted to be done, by the direction of a public servant acting in good faith in his office, though that act may not be justified by law. There is no right of private defence applicable in cases like where there is time to have recourse by the protection of the public authority.
The Extent to which the right may be exercised:
The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1: A person is not deprived of the right of private defence against an act done by the public servant, as such, unless he knows to believe that the person doing or committing this act is a public servant.
Explanation 2: A person is not deprived of the right of the private defence against an act done, by the public servant, as such, unless he knows to believe, that the person is doing or committing this acting with the direction of the state’s authority under which he acts unless he produces such authority if needed.
Restriction of the right of private defence
According to Section 99 of the Indian Penal Code, there is no right of Private defence against;
the acts of a public servant acting with a good faith and;
the acts of those acting under the direction of a public servant.
when there is sufficient time for recourse to public authorities.
In Kurrim Bux's case, the accused pinned down the head of a thief who was trying to enter the house through a hole in the wall. While being pinned down, half of the thief’s body was still outside the house and he died due to suffocation..It was held that the use of force by the accused was justifiable .
Section 100 of IPC (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 99, under this section if the defence of a person leads to the death of the accused person, it won’t be considered an offence. There are mainly six circumstances, namely;
First – Such an assault as may reasonably cause the apprehension that death will otherwise be the consequences 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 to commit 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.
State of Orissa v. Nirupama Panda: The victim stabbed the accused who tried to rape her. she was not held liable because she was using her right of private defence.
Four cardinal conditions:
The accused must be free from fault in bringing the encounters;
Presence of impending peril to life or of great bodily harm, either an honest belief of existing necessity;
No safe or reasonable mode of escape by retreat;
A necessity for taking an assailant’s life.
Sheo Persan Singh v. State of UP
In this case, the driver of a truck drove over and killed two persons sleeping on the road in the night. People ahead of the truck stood in the middle of the road to stop the truck, however, he overran them thereby killing some of them. He pleaded right to private defence as he was apprehensive of the grievous hurt being caused by the people trying to stop him. The High court held that although in many cases people have dealt with the errant drivers very seriously, that does not give him the right of private defence to kill multiple people. The people on the road had a right to arrest the driver and the driver had no right of private defence in running away from the scene of the accident killing several people.
Section 101 of IPC (When such right extends to causing any harm other than death):
The offences be not of any of the descriptions stated in the last preceding section, the right of private defence of the body does not extend to the voluntarily causing of death to the raider, but it does extends, under the restriction mentioned under section 99, to voluntary causing to the raider of any harm other than death.
Mohinder Pal Jolly v. State of Punjab
While the workers were agitating outside for wages, the owner of the factory shot from his revolver and caused the death of a worker. It was held that this section did not protect him as there was no apprehensiveness of death or grievous hurt.
Section 102 of IPC (Commencement and continuance of the right of private defence of the body)
The right of private defence of the body commences as soon as the reasonable cause of danger to the body arises from an attempt or by a threat to commit such offences though, that may not have been committed, and it continues as long as such danger to the body
.
Kala Singh case: The deceased who was a strong man of dangerous character and who had killed one person previously picked up a quarrel with the accused, a weakling. He threw the accused on the ground, pressed his neck and bit him. The accused when he was free from the clutches of this brute took up a light hatchet and grave three blows of the same on the brute’s head. The deceased died three days later. It was held that the conduct of the deceased was aggressive and the circumstances raised a strong apprehension in the mind of the accused that he would be killed otherwise. The apprehension, however, must be reasonable and the violence inflicted must be proportionate and commensurate with the quality and character of the act done. Idle threat and every apprehension of a rash and timid mind will not justify the exercise of the right of private defence.
Conclusion:
Thus, the right of private defence helps oneself to protect his body and property of himself or any other individual from imminent danger. It is an inherent right of a man which is necessary to protect his life and liberty.
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